Validation of Air Enforcement Data Reported to 

EPA by Pennsylvania

#7100115 

EXECUTIVE SUMMARY

PURPOSE

The purpose of this audit was to determine whether the Pennsylvania Department of Environmental Protection 

(PADEP): 

• Identified significant violators in accordance with EPA's Timely and Appropriate Enforcement Policy.

• Reported significant violators to EPA.

• Performed inspections that were sufficient to determine if a facility violated the Clean Air Act (CAA).

BACKGROUND

The CAA of 1990 lists 189 toxic air pollutants that must be reduced. EPA estimates that more than 2.7 billion 

pounds of toxic air pollutants are emitted annually in the United States. The list of air toxics touches every 

major industry, from the mining of base metals to the manufacture of high-tech electronics. EPA studies also 

show that exposure to these air toxics may result in up to 3,000 cancer deaths each year. Other adverse health 

effects of air toxics include: respiratory illness; lung damage; premature aging of lung tissue; as well as 

retardation and brain damage, especially in children. 

The CAA separately regulates six of the more serious air pollutants -- ground level ozone, particulate matter, 

carbon monoxide, sulfur dioxide, lead, and nitrogen dioxide. These six criteria pollutants are emitted in large 

quantities by a variety of sources. EPA sets national standards for each of these criteria pollutants and the states 

must take action to assure facilities meet EPA standards. 

PADEP conducts inspections of most major facilities each year to ensure they meet federal and state 

regulations. To assess compliance during an inspection, the inspector should refer to the facility's permit. The 

permit translates requirements of laws such as the CAA into individualized enforceable requirements. 

When an inspector identifies a violation, PADEP should issue the facility a Notice of Violation (NOV). An 

NOV specifies the type of violation and the regulations the facility violated. It may also require the facility to 

show what actions it will take to achieve compliance. If the violation meets EPA's definition of a significant 

violator, the state should report the facility to EPA for placement on the Agency's significant violator list. The 

Section 105 grant PADEP received from EPA, required the State to identify and report significant violators in 

accordance with EPA's Timely and Appropriate Enforcement Policy, issued on February 7, 1992. 

According to EPA's enforcement policy, a significant violator is any major stationary source of air pollution, 

which is violating a federally-enforceable regulation. This policy required states to report significant violators to 

EPA within one month of the violation, and to maintain the facility on EPA's list until it achieves compliance. 

After the violation is reported, the state and EPA should monitor the source until it achieves compliance. This 

includes determining an appropriate time schedule for achieving compliance and assessing a penalty, if 

necessary. 
EPA stresses to each state the importance of identifying and reporting significant violators promptly. This issue 

is of such importance that Region 3 allotted part of the Section 105 grant funds for identifying significant 

violators and reporting them timely. 

RESULTS-IN-BRIEF

EPA set priorities for its air program and awarded grants to PADEP for more than $5 million a year to carry 

them out. However, PADEP conducted its air program following an agenda different from EPA's. Specifically, 

the State did not: 

• Report all significant violators to EPA.

• Take aggressive enforcement action to bring all violating facilities into compliance.

While EPA required information about violators, the State wanted to keep Region 3 uninformed and did not 

report significant violators to EPA. From our review of NOVs or enforcement files for 270 facilities, we 

identified 64 significant violators that the State did not report to EPA. The reason EPA needed this information 

was to take action if the State did not enforce federal law. Moreover, while EPA wanted PADEP to take 

aggressive enforcement action to bring violating facilities into compliance, the State wanted to avoid what it 

perceived as federal meddling. PADEP believed that it could work with the facility to achieve compliance 

without labeling the facility as a significant violator. 

When PADEP did not notify EPA that violations occurred, Region 3 was unable to ensure the violator achieved 

compliance timely. In effect, PADEP hindered EPA's ability to oversee the State's enforcement program. These 

differences contributed to allowing facilities that were serious contributors of air pollution to continue harming 

the environment -- sometimes for many years. 

In comparison to EPA, the State placed less emphasis on reporting significant violators. Philosophical 

differences such as the identifying and reporting of significant violators show that PADEP and EPA may not be 

willing partners. The absence of this willing partnership will undermine the effectiveness of the Performance 

Partnership Grant (PPG) the Agency intends to award to PADEP. EPA and PADEP need to mutually resolve 

differences such as these before PPGs can be most effective. 

In addition, PADEP's inspection program needs improvement. Some Level 2 inspections were not thorough 

enough to determine whether a facility was complying with state and federal regulations. Moreover, when 

PADEP identified violations, it did not always ensure the facility took corrective action. 

RECOMMENDATIONS

We recommend that the Region 3 Administrator take action to ensure PADEP reports significant violators as 

required by their Section 105 grant and by EPA's Timely and Appropriate Enforcement Policy. We also 

recommend the EPA Region 3 Administrator require PADEP to conduct Level 2 inspections to determine a 

facility's compliance, and perform follow-up in order to resolve violations timely. 

PADEP RESPONSE

While we believe your draft to be generally misleading and inaccurate, we want to be very clear about one 

thing. It did not take an audit to determine that PADEP and EPA disagreed on the manner of identifying 

significant violators (SVs). A review of Region 3's midyear reviews would show this was an issue for the last 

decade. Although the report criticizes PADEP, it did not criticize EPA for essentially agreeing to PADEP's 

handling of significant violators for the last decade. 
We acknowledge that PADEP does not activate the "SV flag" in EPA's computer system. However, that does 

not mean the data was not entered, or that it could not be used to easily identify SVs. PADEP has not 

deliberately concealed violations from EPA, but routinely reports more information about violations in paper 

copy and electronic form than any other state in Region 3. 

We are unable to respond with specificity to your allegations regarding PADEP inspections since the 

inspections in question were not identified. If the final report identifies the deficient inspections, we will take 

steps to make corrections. On balance we do perform Level 2 inspections as contemplated by the grant. 

Additionally, not all inspections we perform are intended or required to be Level 2 inspections. 

EPA RESPONSE

We concur with the findings and recommendations expressed in this report. EPA must rely on Pennsylvania for 

most of our information concerning the compliance status of the State's regulated community. This is the reason 

for specifying in the CAA Section 105 grant agreement that the State report and identify SVs in accordance 

with the Timely and Appropriate Enforcement Policy negotiated between the states and EPA. 

Once the State began withholding this information, EPA had no reliable and easily accessible source of data to 

determine which facilities were significantly violating clean air regulations. State input to the EPA database --

the Aerometric Information Retrieval System (AIRS) -- did not distinguish between simple violations, with 

little or no impact on public health, and more egregious violations with serious impacts. CAA Section 105 grant 

funds specifically require SVs to be identified up front, not buried in a mountain of computer data that would 

have to be analyzed and verified, resulting in wasted time and taxpayer money. The State agreed to those terms 

in exchange for receipt of the clean air grant funds. 

CITIZENS ADVISORY COUNCIL COMMENTS

On November 12, 1996, Secretary of PADEP asked the Citizens Advisory Council (CAC) to the Department of 

Environmental Resources to convene a group to independently review the issues raised in this report. In their 

report, the CAC concluded that PADEP did not identify all sources for potential listing as required by its grant 

with EPA, and that the SV selection process is somewhat subjective, requiring dialogue, judgement and more 

information than is available on AIRS, in an inspection report, or in an NOV. The CAC also concluded that our 

report makes generalizations about the effectiveness of the State's air enforcement program based on a narrow 

group of cases. The Council recommended that unless the state can negotiate a change to EPA's reporting 

requirements, PADEP must identify all sources that meet the literal definition of SV. 

OIG EVALUATION

We do not agree with the comments provided by PADEP. We acknowledge PADEP's affirmation that it did not 

report SVs as required by the grant. However, as confirmed by the CAC report, we disagree that Region 3 could 

identify SVs from the paper NOVs, electronic information submitted by PADEP, and Quick Look reports. We 

especially disagree with PADEP's comments since the grant agreement between EPA and PADEP requires the 

State to report SVs via AIRS and telephone. 

The grant agreement is, in effect, a contract. Grant recipients cannot be allowed to disregard requirements in a 

negotiated and executed agreement because they believe portions of the grant to be "rigid," "unrealistic," or 

"defies any common sense understanding." Reporting SVs in accordance with EPA's Timely and Appropriate 

Enforcement Policy was a grant or "contract" requirement that the State agreed to perform when it accepted the 

grant. 

On December 24, 1996, we provided PADEP the identity of the facilities for which we questioned the State's 

inspections. We recognized that not all of PADEP's inspections were intended or required to be Level 2 
inspections. However, the inspections we found problematic were intended to be Level 2 inspections. It is 

important to note that we reviewed 81 inspections and found that 17 percent needed improvement. This 

percentage indicates that the State's procedures need revision. 

We agree with the CAC's overall conclusions concerning the need for improved reporting of significant 

violators by PADEP, and the need for better communication between EPA and Pennsylvania. However, we do 

not agree with several of their comments about selected aspects of our report. After evaluating the CAC's 

comments, our position concerning the issues identified in our report remains unchanged, except that we made 

minor editorial revisions to Chapter 3. 

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