U.S. ENVIRONMENTAL PROTECTION AGENCY 

OFFICE OF INSPECTOR GENERAL 

Catalyst for Improving the Environment 

Hotline Report 

Region 6 Needs to Improve 

Oversight Practices 

 Report No. 10-P-0100 

 April 14, 2010 
 

Report Contributors:	 Christine El-Zoghbi 

Eric Lewis 

 Larry Dare 

 John Coll 

 Ed Baldinger 

Abbreviations 

CANM Citizen Action New Mexico 

EPA U.S. Environmental Protection Agency 

FOIA Freedom of Information Act 

MWL Mixed Waste Landfill 

NMED New Mexico Environment Department 

OIG Office of Inspector General 

RCRA Resource Conservation and Recovery Act 
 

 

 

 

 10-P-0100 U.S. Environmental Protection Agency April 14, 2010 Office of Inspector General 

At a Glance 

Catalyst for Improving the Environment 

Why We Did This Review 

The Office of Inspector 

General received a hotline 

complaint from Citizen Action 

New Mexico (CANM) 

alleging that the New Mexico 

Environment Department 

(NMED) mismanaged the 

Sandia National Laboratory’s 

Mixed Waste Landfill (MWL) 

monitoring wells. We sought 

to determine if the allegation 

had merit by reviewing U.S. 

Environmental Protection 

Agency (EPA) Region 6’s 

oversight activities. 

Background 

The Resource Conservation 

and Recovery Act requires 

EPA Region 6 to provide 

oversight to delegated sites. 

EPA’s Public Involvement 

Policy encourages EPA staff 

and managers to ensure that 

decision-making processes are 

open and accessible. 

For further information, 

contact our Office of 

Congressional, Public Affairs 

and Management at 

(202) 566-2391. 

To view the full report, 

click on the following link: 

www.epa.gov/oig/reports/2010/ 

20100414-10-P-0100.pdf 

Region 6 Needs to Improve Oversight Practices 

What We Found 

Region 6’s documentation of its oversight was not sufficient to determine whether 

CANM’s allegations had merit or whether NMED’s actions and decisions with 

regard to the MWL monitoring wells were technically sound. Specifically, 

Region 6 staff (1) took inappropriate steps to keep the details of the MWL 

monitoring wells assessment from the public, (2) decided not to provide 

documentation or sometimes not to document their concerns about the MWL 

monitoring wells, (3) provided a letter to CANM that did not note the specific 

details of the assessment, or (4) improperly placed a national security marking 

(Confidential) on the assessment. The Region’s actions are a violation of EPA’s 

Public Involvement Policy and EPA’s Records Management Policy.

 What We Recommend 

We recommend that the Regional Administrator, Region 6, comply with EPA’s 

national security, public involvement, and records management policies, including 

removing the national security marking from the December 2007 Oversight 

Review. As part of this recommendation, the Regional Administrator should 

ensure that the opinions of technical and nontechnical staff are documented to 

support EPA’s oversight decisions, and develop or update oversight standard 

operating procedures to ensure compliance with these policies. We also 

recommend that the Regional Administrator evaluate the extent to which the 

Region has not recorded oversight information, or misclassified information, to 

determine the scope of administrative action or training necessary to remedy the 

situation. 

Region 6 comments were not responsive. Region 6 disagreed with the report’s 

conclusion and recommendations, stating that information was not withheld from 

the public. However, the Region also stated that the information was exempt from 

release under the Freedom of Information Act. Region 6 also denied violating 

national security, public involvement, and records management policies. Region 6 

stated that marking documents “confidential” is a common practice “throughout 

the agency” for many (unclassified) documents. The recommendations are 

unresolved. Region 6 requested resolution be elevated in accordance with EPA’s 

Audit Management Process. 
 

 

 

 

 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

OFFICE OF 

INSPECTOR GENERAL 

April 14, 2010 

MEMORANDUM 

SUBJECT:	 Region 6 Needs to Improve Oversight Practices 

 Report No. 10-P-0100 

FROM:	 Wade T. Najjum

 Assistant Inspector General 

Office of Program Evaluation 

TO:	 Robert Perciasepe 

 Deputy Administrator 

The Office of Inspector General (OIG) of the U.S. Environmental Protection Agency (EPA) 

conducted this subject audit. This report contains findings that describe problems we identified 

and corrective actions we recommend. This report represents our opinion and does not 

necessarily represent the final EPA position. EPA managers will make final determinations on 

matters in this report in accordance with established audit resolution procedures. Region 6 did 

not agree with the conclusions and recommendations in the draft report and requested that the 

matter be elevated in accordance with EPA's Audit Management Process. 

The estimated cost of this report – calculated by multiplying the project’s staff days by the 

applicable daily full cost billing rates in effect at the time – is $272,846. 

Action Required 

As part of the audit resolution process, we are requesting you provide a written response to this 

report within 90 calendar days. You should include a corrective actions plan for agreed-upon 

actions, including milestone dates. We have no objections to the further release of this report to 

the public. This report will be available at http://www.epa.gov/oig. 

If you or your staff have any questions regarding this report, please contact me at 202-566-0827 

or najjum.wade@epa.gov, or Eric Lewis at 202-566-2664 or lewis.eric@epa.gov. 
 

Region 6 Needs to Improve Oversight Practices 10-P-0100 

Table of Contents 

Purpose........................................................................................................................ 1 

Background ................................................................................................................. 1 

Scope and Methodology............................................................................................. 2 

Results of Review: Lack of Transparency Obscures Assessing Whether 

NMED Was Effectively Managing the MWL Monitoring Wells........................... 2 

Region 6 Actions Limit Public Involvement ............................................................. 3 

Region 6 Accepted NMED’s Recommendations and Dismissed Its 

 Own Concerns without Supporting Documentation........................................ 4 

Recommendations...................................................................................................... 5 

Agency Comments and OIG Evaluation ................................................................... 6
 

Status of Recommendations and Potential Monetary Benefits.............................. 8 

Appendices 

A Agency Response to Draft Report ................................................................... 9 

B Attachments to Agency Response to Draft Report......................................... 22 

C Distribution ........................................................................................................ 23 
 

 

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Purpose 

In May 2007, the Office of Inspector General (OIG) of the U.S. Environmental Protection 

Agency (EPA) received allegations from Citizen Action New Mexico (CANM) alleging that the 

New Mexico Environment Department (NMED) mismanaged the Sandia National Laboratory’s 

Mixed Waste Landfill (MWL) monitoring wells. We sought to determine if EPA Region 6 

carried out its oversight responsibilities regarding Sandia National Laboratory’s MWL 

monitoring wells. 

Background 

The Sandia MWL is a Solid Waste Management Unit site; the monitoring wells are managed by 

NMED. EPA Region 6 provides oversight to NMED according to a memorandum of agreement 

with the State of New Mexico. The site is a fenced, 2.6-acre compound that includes several 

monitoring wells and a background well. 

In March 2007, CAMN requested that Region 6 review NMED decisions regarding the 

monitoring wells at Sandia MWL. The Project Engineer for Sandia stated that the Region 

became involved with the MWL monitoring wells only after the Region received a request from 

U.S. Senator Bingaman of New Mexico in April 2007. In response to the Senator’s request, 

Region 6 replied that it was conducting an internal review of all well monitoring information, 

and that it would provide a response to CANM as soon as possible. Region 6 responded to the 

Senator and CANM in June and December 2007, respectively. 

In December 2007, a team of three Region 6 technical staff and a project manager developed a 

detailed assessment of CANM’s concerns. The team included two hydrologists and a geologist. 

The project manager was an engineer. The Region 6 team reviewed the overall MWL 

groundwater monitoring system in order to determine its efficacy in detecting contamination. 

The team reviewed well locations, depth of wells and well screens, purging and sampling 

methods, videos, and analytical results. 

The Region 6 team’s findings were summarized in a draft document titled “Sandia Mixed Waste 

Landfill Groundwater Monitoring Well System and Program Oversight Review” (Oversight 

Review). This document included comparisons of Region 6 findings and recommendations, 

NMED recommendations, and CANM issues of concern as stated in its letter of March 2007. 

The EPA Public Involvement Policy, May 2003, supplements existing EPA regulations that 

prescribe specific public participation requirements. The policy applies to all EPA programs and 

activities. One of EPA’s goals for this policy is to ensure that the public has timely, accessible, 

and accurate information about EPA programs. According to the policy, under the overall 

direction of the Administrator, Regional Administrators are responsible for ensuring that their 

managers and staff encourage and facilitate public involvement in programs and activities. 

The EPA Records Management Policy, June 2009, established requirements for managing EPA’s 

records. The policy promotes access to information by EPA staff, EPA partners, and the public, 

as appropriate. 

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The EPA National Security Information Handbook, December 2006, sets forth the official 

policies, standards, and procedures for EPA employees and nonfederal personnel who have 

access to classified national security information. Based on Executive Order 12958, the 

authority to classify original information at the Secret or Confidential level may be exercised 

only by the Administrator, EPA, and officials to whom such authority has been directly 

delegated by the Administrator, in writing. Information may not be classified unless its 

disclosure could reasonably be expected to cause damage to national security. 

OMB Circular A-123, Management’s Responsibility for Internal Control, December 21, 2004, 

states that management is responsible for establishing and maintaining internal control to achieve 

the objectives of effective and efficient operations, reliable financial reporting, and compliance 

with applicable laws and regulations. Management shall consistently apply the internal control 

standards to meet each of the internal control objectives and to assess internal control 

effectiveness. Internal control standards include control activities. Control activities include 

policies, procedures, and mechanisms in place to help ensure that agency objectives are met. 

These procedures include appropriate documentation and access to that documentation. The 

absence of effective control activities could lead to internal control deficiencies. 

Scope and Methodology 

We conducted field work from December 2008 to September 2009 in accordance with generally 

accepted government auditing standards. Those standards require that based on our objectives, 

we plan and perform the audit to obtain sufficient and appropriate evidence to provide a 

reasonable basis for our findings and conclusions. We reviewed documents, regulations, the New 

Mexico/EPA memorandum of agreement governing NMED’s Resource Conservation and 

Recovery Act (RCRA) program, and annual and semiannual reviews. We interviewed EPA 

Region 6 RCRA program managers and technical experts who work with New Mexico. We also 

interviewed members of CANM. 

We believe that the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives. EPA has granted the State of New Mexico primary 

responsibility for enforcing the RCRA program within its boundaries. We limited our review to 

EPA’s oversight responsibilities as defined in applicable regulations and the memorandum of 

agreement with the State 

Results of Review: Lack of Transparency Obscures Assessing 

Whether NMED Was Effectively Managing the MWL Monitoring Wells 

Region 6’s lack of documentation of its oversight prevented the OIG from determining whether 

CANM’s allegations had merit. The Region’s lack of documentation also prevented the OIG 

from assessing whether NMED’s actions and decisions with regard to the MWL monitoring 

wells were technically sound. Specifically, the Region did not provide the OIG with 

documentation to support the Region 6 response to CANM that the Region found NMED’s 

overall actions and decisions to be technically sound and consistent with requirements. We 

found that some Region 6 staff members intentionally did not document their oversight of the 

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Sandia MWL monitoring wells. The Chief of the Federal Facilities Section and Project Engineer 

for Sandia also limited public involvement by withholding information regarding the MWL 

monitoring wells and dismissing the Region’s concerns about the site without documenting their 

decisions. 

Region 6 Actions Limit Public Involvement 

Region 6 withheld information from the public regarding the MWL monitoring wells through: 

• discontinuation of record keeping, 

• misleading communications, and 

• inappropriate classification. 

Discontinuation of Record Keeping. The Region 6 Project Engineer for Sandia stated that her 

section discontinued record keeping in favor of undocumented phone calls and conversations 

with NMED to prevent the production of documents. During an interview with the OIG, the 

Project Engineer for Sandia informed us that her section had discontinued record keeping of 

phone calls and discussions between the Region and NMED because of CANM’s requests for 

documentation regarding the MWL, including extensive requests for information under the 

Freedom of Information Act. According to EPA’s Records Management Policy, the Federal 

Records Act of 1950, as amended, requires all federal agencies to make and preserve records 

containing adequate and proper documentation of their organization, function, policies, 

decisions, procedures, and essential transactions. The policy requires EPA offices to create, 

receive, and maintain official records providing adequate and proper documentation and 

evidence of EPA’s activities. 

The Region 6 Chief of the Federal Facilities Section further noted that NMED “has become 

reluctant to engage in open discussions with Region 6 in order to avoid CA[NM]’s distortion of 

facts, repetitive Freedom of Information Act (FOIA) requests, and threats of lawsuits.” 

Consequently, the Region does not have documentation of its oversight of NMED’s management 

of the MWL monitoring wells. For example, EPA conveyed its Oversight Review concerns 

regarding the MWL monitoring wells to NMED orally, and NMED was not required to formally 

respond to the technical team’s concerns regarding the MWL monitoring wells. Consequently, 

any resolution of the concerns is undocumented. 

Misleading Communications. Region 6’s communications with CANM did not adequately 

convey relevant and available information regarding CANM’s stated concerns. Early drafts of a 

letter from Region 6 to CANM initially indicated that the Oversight Review would be provided 

to CANM. However, when a letter was sent from Region 6 to CANM, the document was not 

included, and the letter itself gave limited information regarding Region 6 findings and 

recommendations. The Chief of the Federal Facilities Section informed the OIG that she chose 

to simplify the Region’s response to CANM because including overly technical information 

when corresponding with the public sometimes creates confusion. In an e-mail to the OIG, the 

Region explained, “We did not include a big ‘report’ analyzing all the things [CANM 

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10-P-0100 

representative] says NMED is doing wrong, as he had requested. [CANM representative] has 

already indicated he will be FOIAing all of our drafts, notes, etc. regarding the report, so we will 

see where that all turns out.” 

EPA’s Public Involvement Policy instructs EPA managers and staff to “work to ensure that 

decision-making processes are open and accessible to all interested groups.” This policy also 

instructs EPA to approach all decision making with a bias in favor of significant and meaningful 

public involvement. The Region’s actions do not do that. 

The Region’s response was misleading as it did not inform CANM that it found some of 

CANM’s concerns valid. The Chief of the Federal Facilities Section stated her response was not 

intended to mislead CANM. 

Inappropriate Classification. The Project Engineer withheld the Oversight Review from the 

public by marking it Confidential, a security classification category. Regional counsel stated to 

the OIG that the marking was intended to show that the document was a deliberated draft. 

Classified information is not releasable to the public. On April 27, 2009, the regional counsel 

confirmed that the document contained no classified information. As such, the Regional 

Administrator should have the national security marking removed from this document. 

Region 6 Accepted NMED’s Recommendations and Dismissed Its Own Concerns 

without Supporting Documentation 

In 2007, the Region’s technical review team found several areas of disagreement with NMED 

decisions regarding the monitoring wells at the MWL. Despite disagreement between the 

Region and NMED on several recommendations, the EPA Region 6 Director of the Multimedia 

Planning and Permitting Division found that NMED’s overall action and decisions for 

administration of the authorized program were technically sound. However, the Region did not 

record evidence to support this finding. 

The Region accepted NMED’s recommendations and dismissed its own concerns regarding 

NMED’s management of the MWL monitoring wells. The Region claimed to have no 

documentation to support these actions and provided none to the OIG. The Chief of the Federal 

Facilities Section stated that her organization must use experience and judgment in making 

oversight decisions. The Chief of the Federal Facilities Section also stated the Region adopted 

NMED’s position on the MWL monitoring wells as long as NMED meets “applicable technical 

and administrative requirements.” The OIG does not take issue over the use of experience and 

judgment in oversight roles or the acceptance of NMED’s positions, assuming those issues are 

within the limits of NMED’s discretion under the delegation of authority. However, the Project 

Engineer for Sandia intentionally did not document concerns with NMED’s management of the 

MWL monitoring wells specifically to withhold the information from the public. Therefore, the 

Chief of Federal Facilities Branch has no documentation to support the Region’s acceptance of 

the NMED’s recommendations. 

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5 

The Chief of the Federal Facilities Branch’s failure to document concerns with NMED’s 

management of the MWL monitoring wells or the basis for the concerns resolution is an internal 

control deficiency that deprives management and the public of the ability to make informed 

decisions. The Project Engineer for Sandia and the Chief of the Federal Facilities Branch 

provided no documentation to support its judgment to accept NMED’s position despite its 

concerns. In five cases, EPA rescinded its recommendations with regard to the MWL 

monitoring wells in favor of NMED’s proposed plan. Although the Region told us the issues 

were resolved orally (meetings, conference calls, and individual phone calls), the Region was 

unable to provide any documentation to support or document the rationale for these 

compromises. We found that one Oversight Review team member felt the team was pushed to 

agree with NMED’s position regarding the MWL monitoring wells. 

The Chief of the Federal Facilities Section informed the OIG that most of the concerns detailed 

in the Oversight Review have been addressed by actions taken. One e-mail from the Project 

Engineer for Sandia to the OIG noted, “Yes, we have some differences of opinion, but NMED 

has delegated authority and the latitude to do what they deem is appropriate (as long as it 

protects the environment and meets our rules, of course).” 

Deferring to NMED based on its delegated authority would be acceptable if EPA had the 

documentation to support the determination that NMED had acted within the scope of its 

authority. However, as stated previously, some Region staff members did not document 

concerns with NMED’s management of the MWL monitoring wells or the basis for the 

resolution of these concerns. 

Recommendations 

We recommend that the Regional Administrator, Region 6: 

1. Comply with EPA’s national security, public involvement, and records management 

policies, including removing the national security marking from the December 2007 

Oversight Review. 

a. Ensure that the opinions of technical and nontechnical staff are documented to 

support EPA’s oversight decisions. 

b. Develop or update oversight standard operating procedures to ensure compliance 

with these policies. 

2. Evaluate the extent to which the Region has not recorded oversight information, or 

misclassified information, to determine the scope of administrative action or training 

necessary to remedy the situation. 
 

10-P-0100 

Agency Comments and OIG Evaluation 

The OIG made changes to the report based on the Agency’s comments where appropriate. 

Appendix A provides the full text of the Agency comments and the OIG response to those 

comments. 

EPA does not agree with the recommendations in this report. The Region 6 Regional 

Administrator has requested that the matter be elevated in accordance with EPA’s Audit 

Management Process. Region 6 believes it maintained information sufficient to respond to 

CANM’s inquiry about the wells. The Region believes it complied with public involvement and 

records management policies to the extent they apply. 

The report concluded that Region 6 oversight was not sufficiently documented because it did not 

show how the Agency concerns regarding the mixed waste landfill were resolved. The report 

states, “Specifically, the Region did not provide the OIG with documentation to support the 

Region 6 response to CANM that the Region found NMED’s overall actions and decisions to be 

technically sound and consistent with requirements.” EPA policy is that agency records must 

contain documentation that is “adequate and proper.” That is, the documentation must show a 

clear picture of how the Agency conducts its business and makes its decisions. 

The Region 6 response is that it prefers to initially discuss these matters informally to gather 

information without unnecessary confrontation. The Region believes that its informal approach 

provides clarification and resolves concerns. The Region says that the informality is not an 

attempt to defer to the State without documentation; rather, that is the nature of its “oversight.” 

Region 6 did not explain why it believes its actions and information collected should not be 

documented as required by EPA policy. OIG cannot assess the adequacy of oversight based on 

undocumented informal conversations and information. In our opinion, oversight and 

transparency require documentation that shows a clear picture of how the Agency conducts its 

business and makes its decisions. The existing documentation does not show how Region 6 

resolved its specific concerns to reach a conclusion that the overall actions and decisions for 

administration of the authorized program were technically sound and consistent with applicable 

RCRA requirements. 

Region 6 denied its staff took inappropriate steps to withhold information from the public. The 

report addressed the Region staff’s failure to document the discussions and resolutions with 

NMED of EPA’s concerns. Region 6 comments focused on a single document (the oversight 

review inappropriately marked “confidential”). Those comments did not address evidence 

presented in the report that Region 6 staff intentionally stopped documenting discussions to 

avoid responding to the public’s FOIA requests. It does not matter if a government agency 

collects information informally or otherwise; an agency is required to maintain documentation to 

clearly show how it does business. 

Region 6 also stated that it was puzzled about the documentation issue, because it had no final 

action or permitting decision to make with regard to the wells. The region’s role, according to 

Region 6, was to provide oversight of the State’s implementation of the program and make 

appropriate responses to inquires from the public concerning the State’s implementation. Later 

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10-P-0100 

Region 6 states that the Oversight Review was not released to the public because it was one of 

many draft versions, withheld under Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5). Apparently 

the resolution of concerns with NMED did not involve decisions requiring documentation of 

Region 6’s actions, but did involve decisions that allowed the Region to exempt some documents 

from public disclosure. 

Access to information is crucial for informed public involvement. EPA’s policies say public 

involvement begins when individuals and organizations seek information from EPA about a 

topic or issue, or when they receive information from EPA because the Agency identifies them 

as a potentially affected party. EPA’s outreach activities are supposed to serve and engage these 

individuals and organizations. As individuals and groups become more involved, they seek more 

detailed information, increased access to decision makers, and more influence on the ultimate 

decisions. The failure to maintain adequate and proper records also negatively impacts on public 

involvement. 

Lastly, with regard to compliance with other EPA policies, Region 6’s admission that it 

commonly marks non-classified information confidential puts it in violation of EPA security 

policies. The EPA National Security Handbook, February 1, 2005, sets forth the procedures for 

the proper handling of national security information. Paragraph 4-500 – 3 (Marking 

Prohibitions) specifically states, “The terms "Top Secret," "Secret," and "Confidential" should 

not be used to identify non-classified information.” Using unique markings for classified 

information allows personnel to recognize it and ensure it is properly safeguarded. 

In summary, the Region 6 Administrator’s comments substantiate the necessity for both 

Recommendations 1 and 2. The Region’s rationale for mismarking information is that other 

people do it. The Region’s rationale for the lack of documentation is that regional oversight is 

informal and not confrontational, so it does not need to be documented. As a result transparency 

and public involvement are adversely affected. 

7 
 

 

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Status of Recommendations and 

Potential Monetary Benefits 

POTENTIAL MONETARY 

RECOMMENDATIONS BENEFITS (in $000s) 

Rec. 

No. 

Page 

No. Subject Status1 Action Official 

Planned 

Completion 

Date 

Claimed 

Amount 

Agreed To 

Amount 

1 

2 

5 

5 

Comply with EPA’s national security, public 

involvement, and records management policies, 

including removing the national security marking 

from the December 2007 Oversight Review 

a. Ensure that the opinions of technical and 

nontechnical staff are documented to support 

EPA’s oversight decisions. 

b. Develop or update oversight standard 

operating procedures to ensure compliance 

with these policies. 

Evaluate the extent to which the Region has not 

recorded oversight information, or misclassified 

information, to determine the scope of 

administrative action or training necessary to 

remedy the situation. 

U 

U 

Regional Administrator, 

Region 6 

Regional Administrator, 

Region 6 

O = recommendation is open with agreed-to corrective actions pending 

C = recommendation is closed with all agreed-to actions completed 

U = recommendation is undecided with resolution efforts in progress 

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Appendix A 

Agency Response to Draft Report 

March 3, 2010 

MEMORANDUM 

SUBJECT: Draft Hotline Report Project No. FY08-00025 

 Sandia Mixed Waste Landfill 

FROM: Al Armendariz /s/ 

Regional Administrator 

 Region 6 

TO: Bill A. Roderick 

Acting Inspector General 

Office of Inspector General 

This memo is in response to the OIG’s Draft Hotline Report entitled ‘Region 6 Needs to 

Improve Management of Oversight at Sandia Landfill’ dated January 28, 2010. The draft OIG 

report charges that a Region 6 manager and project officer ‘took inappropriate steps to keep 

details’ of a draft technical evaluation from the public and violated EPA’s national security, 

public involvement, and records management policies, including inappropriate use of national 

security markings. As explained in more detail in the attached summary, these charges are 

simply not true. Documents were not misclassified and details of EPA’s evaluation were not 

withheld from the public. The draft, pre-decisional, technical review that the OIG auditors 

referenced was subject to review in the Regional Office and EPA headquarters under the 

Freedom of Information Act and was exempt from release under FOIA because it does not 

reflect the Agency’s final position. Region 6 is therefore unable to concur on the 

recommendations included in this draft report and respectfully requests that the matter be 

elevated in accordance with EPA’s Audit Management Process. 

Should you have any questions regarding the attached response please contact 

Carl Edlund, Director of the Multimedia Planning and Permitting Division, 

at 214-665-7200, or Susan Spalding, Associate Director for RCRA, at 214-665-8022. 

Attachments (see next page) 

cc: See next page 

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 Page 2

 Memo to Bill Roderick 

 Draft OIG Report Sandia 

Attachments 

1. Region 6 Comments on Draft Report 

2. EPA Region 6 RCRA State Hazardous Waste Program Oversight Process 

3. EPA Region 6 letter to CANM dated December 13, 2007 

4. EPA Region 6 letter to CANM dated February 8, 2008 

5. FOIA Appeal Determination dated August 7, 2008 

6. FOIA Appeal Determination dated November 12, 2009 

7. OIG Hotline Closeout Letter dated June 20, 2007 

cc: Wade Najjum, OIG 

 Eric Lewis, OIG 

 Pat Hirsch, OGC 

Kevin Miller, OGC 

Cynthia Anderson, OGC 

Bob Frederick, OGC 

Matt Hale, ORCR 

Jim Berlow, ORCR 

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Corrected Attachment with Comments from OGC, [name of OGC personnel redacted 

here] 

Attachment 1 – Region 6 Comments on Draft OIG Hotline Report – Sandia MWL 

General Comments 

1. A key concern in the draft Hotline Report (HR) is the national security marking on a 

document referred to as the Oversight Review. The word “confidential” was used on the 

document to indicate that the document was draft and pre-decisional. 

OIG Response. It is a fact that the document was inappropriately labeled 

“confidential.” Confidential is a national security marking. The EPA National Security 

Handbook states that, “The terms "Top Secret," "Secret," and "Confidential" should not 

be used to identify non-classified information.” It appears Region 6 leadership is 

unfamiliar with EPA’s National Security Information Handbook. 

As indicated in the HR, only the Administrator of EPA has the authority to classify information 

as “confidential” for national security purposes. There was no intention or authority on the part 

of Region 6 staff to classify the Oversight Review as confidential national security information. 

The term “confidential” is commonly used throughout the Agency for many documents, such as 

personnel-related documents and other internal correspondence. Further, markings on a 

document, such as “confidential” or “deliberative” have no impact on whether or not the 

document is released to the public. 

OIG Response. OIG cannot verify the intent of Region 6 staff in marking the 

document “confidential.” A Region 6 staff member provided OIG with an email that the 

document was marked “confidential” to remind the writer and others not to file it with 

other RCRA paperwork since “it was a draft with some unanswered questions.” There 

was nothing in the document to justify marking the document “confidential” under agency 

information security policy. Other agency personnel handling the document would have to 

assume that the document was classified. Further, no document with a classified marking 

can or should be turned over to the public until the document is declassified and the 

marking is removed. 

The Region 6 RCRA Program and Office of Regional Counsel worked closely with EPA’s 

Assistant General Counsel for Information Law to comply with EPA’s FOIA procedures and 

public involvement policies as they related to release of Sandia documents. Because of this 

coordination with EPA Headquarters, a copy of this response is provided to the OGC to ensure 

that any issues regarding the FOIA and public involvement processes are effectively 

communicated and resolved at the appropriate level within the Agency. OGC has also expressed 

an interest in your concerns related to the use of the term “confidential” on internal deliberative 

documents. 

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OIG Response. The findings in the report are based upon the actions of Region 6 

personnel. Prior FOIA releases are not addressed in this report nor has OGC contacted 

OIG on this subject or national security classification markings. 

2. The HR alleges that Region 6 oversight was not sufficient to determine whether Citizen 

Action New Mexico’s (CANM) allegations had merit or whether the New Mexico Environment 

Department’s (NMED) actions and decisions were technically sound. Region 6 oversight of the 

Sandia Mixed Waste Landfill (MWL) was extensive, particularly for an authorized program, and 

was documented in the EPA Region 6 RCRA State Hazardous Waste Program Oversight 

Process. In addition, several supporting documents including the response letters to CANM 

dated December 13, 2007, and February 8, 2008, demonstrate the degree to which Region 6 

documented its oversight and communication with CANM. It is not clear what additional 

documentation the OIG believes Region 6 should have created to document oversight of the 

Sandia MWL. Documents referenced above are provided as attachments 2, 3 and 4. 

OIG Response. Region 6 misstates the report. The issue in the report is 

documentation of the Region’s oversight. Specifically that documentation was insufficient. 

Since the agency did not document how it resolved its concerns. OIG cannot determine if 

the Region’s actions were adequate. The Region does not address the specific 

documentation issues in the report. The Region 6 Project Engineer stated that 

documentation of discussions with NMED concerning the monitoring wells at the MWL 

were no longer kept in an effort to prevent CANM from issuing FOIA requests. The Chief 

of the Federal Facilities Section added that NMED was reluctant to engage in open 

discussions with EPA because of frequent CANM FOIA requests. In contrast to the 

Region’s actions, the EPA records management policy states at a minimum the Agency 

must, “Create, receive, and maintain official records providing adequate and proper 

documentation and evidence of EPA’s activities.” 

3. As discussed on the February 17, 2010, call between Region 6 and the OIG, the Oversight 

Review document was subject to two FOIA appeals determinations made by EPA Assistant 

General Counsel for Informational Law. This appeals process and the resulting decisions are an 

important point that should be included in the draft Report. Copies of the appeal determinations 

are provided as attachments 5 and 6. 

OIG Response. The OIG did not make any recommendations regarding the release 

of the Oversight Review. 

4. The OIG Hotline closeout letter for the Sandia MWL dated June 20, 2007, (provided as 

attachment 7), refuses to examine CANM’s complaint dated June 2006 because it was 

superseded by a pending lawsuit; two other ongoing investigations; and a notice of intent to sue 

EPA, NMED, and others; all filed by CANM concerning the same allegations. Those matters 

were pending in May 2007, when CANM’s second OIG hotline complaint initiated this HR. 

However, the HR does not include any information regarding the outcomes of those matters, nor 

does it discuss their impact, if any, on OIG’s investigation for the HR. We believe that the 

hotline complaint CANM filed in June 2006 was substantively similar to CANM’s complaint 

filed in May 2007, which initiated the HR. Therefore, we believe the status and outcome of the 

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matters referenced above is relevant and should be discussed in the HR. 

OIG Response. This report addresses internal regional practices that violated EPA 

policies and guidance for marking national security information, public involvement and 

records management. The outcome or status of other allegations are not material to these 

issues. 

Sandia MWL Factual Background and Draft OIG Report Errors 

The HR is erroneous and misleading because it does not provide any context for Regional 

oversight activities. It focuses on the Sandia MWL groundwater monitoring wells and, 

specifically, Region 6’s 2007 review of the wells in response to complaints from CANM but fails 

to provide any technical details. Based on this single narrow aspect, the MWL monitoring wells, 

the report mistakenly concludes there are flaws in our overall oversight program relating to 

national security, public involvement, and record keeping. 

OIG Response. That is incorrect. OIG did not conclude there were flaws in the 

oversight program. The purpose of the review was the Region’s oversight of the MWL 

monitoring wells. OIG concluded that there was not sufficient documentation for OIG to 

make a determination regarding the Region’s oversight. However, the Regional 

Administrator comments that not documenting “informal” communications is how Region 

6 oversight is practiced and mislabeling of documents is an acceptable practice if it is 

widely done is an indication of poor oversight practices. OIG believes that if these 

practices were widespread they would constitute a serious material internal control 

weakness. Consequently, we recommended that the Regional Administrator, “Evaluate the 

extent to which the Region has kept information from the public, not recorded oversight 

information, or mislabeled information as classified, to determine the extent of 

administrative action or training necessary to remedy the situation.” The Regional 

Administrator denied there was a need to do that. 

The MWL is a 2.6 acre solid waste management unit (SWMU) located on the 8600 acre Sandia 

National Laboratories, New Mexico facility. Region 6’s oversight of the New Mexico program 

involves a great deal more that just the Sandia facility, this small closed landfill, and its 

individual monitoring wells. Extensive information regarding the details of our oversight 

activity as well as specific actions related to the 2007 monitoring well review were previously 

provided to the OIG, verbally and in writing. 

OIG Response. The specific allegations pertain to the Region’s oversight of 

NMED’s management of the MWL monitoring wells. As noted above we found insufficient 

documentation and noncompliance with EPA policies which we consider to be a material 

internal control weakness. If the weakness proves to be pervasive throughout the Region, 

then the effectiveness of all programs managed by the Region could be questioned. To that 

end, we recommended that the Regional Administrator determine whether those practices 

were widespread; however, he declined. 

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National Security Claim 

The HR alleges that Region 6 violated national security policies and intentionally withheld 

information from the public by marking one document “confidential.” Because the document 

was a draft, and still pre-decisional, that allegation is overreaching and distorts the facts. 

OIG Response. The Region avoids addressing the fact that Region 6 staff 

intentionally did not document discussions with NMED to avoid releasing them to the 

public under FOIA. Region 6 also mislabeled a document as “confidential” and, the 

national security marking should be removed. OIG does not know what the intent was, but 

Regional personnel equated the term confidential to deliberative draft and said the purpose 

of the marking was to keep the document from CANM. Regional personnel provided OIG 

with emails indicating that the document was originally prepared for release but later 

decided to withhold the document. Regional personnel stated that they did not present the 

document to CANM because they did not want to burden the public with overly technical 

information. Regional personnel added that the document was a deliberative draft. 

The December 12, 2007, document marked “confidential” and described as the “oversight 

review” in the HR was the last draft summary of Region 6’s staff review of the old groundwater 

monitoring system at the MWL. This particular document was marked “confidential” and 

“draft” because it was an internal deliberative working draft, not because the authors intended to 

make a national security classification. Several members of our staff with geology, engineering, 

and groundwater monitoring experience reviewed available information for the MWL and 

provided their opinions and perspective, which were documented in various draft summary 

documents. In fact, the draft document has never been finalized. Accordingly, as the IG 

investigators are well aware, this document went through the Regional FOIA review process and 

was withheld as deliberative under Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5) by the Deputy 

Regional Administrator, Management Division. After the Freedom of Information Act (FOIA) 

requestor filed two administrative FOIA appeals, EPA’s Office of General Counsel upheld the 

Region’s application of Exemption 5 and denied both appeals. These facts do not appear in the 

HR, thus making the report misleading by omission. Moreover, a marking on the document does 

not control whether the document will be released under the FOIA. As happened here, the 

Region (or appropriate program office) will still review the record to determine whether it is 

exempt or releasable notwithstanding a designation. 

OIG Response. We have previously addressed the markings on the document. We 

made no recommendation to release the oversight review to the public. 

Public Involvement 

Since New Mexico’s RCRA authorization, NMED has been the permitting authority for this site 

and Region 6’s role is oversight of the entire authorized RCRA program for New Mexico. The 

NMED regulatory permitting process includes appropriate public notice and comment 

opportunity. Historically, opportunities for public participation have been plentiful. The Final 

Order issued by the NMED Secretary of the Environment in 2005 for MWL remedy selection 

provides for additional, greater opportunity for public participation than required by the 

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regulations. The Department of Energy (DOE) commissioned a Citizen’s Advisory Board 

(CAB), which met at least quarterly from the late 1990s until September 2000 to discuss issues at 

the MWL. This forum allowed the public, regulators, and local experts to openly discuss and 

debate technical issues and solutions for the MWL. EPA was an ex officio member and CANM, 

as a full CAB member, was an active participant in these discussions. The DOE has continued to 

hold quarterly and semi-annual public meetings to discuss environmental issues at Sandia. At 

the MWL, Region 6 has participated in site activities far beyond that which is normally done in 

overseeing an authorized State’s implementation of the RCRA program. 

OIG Response. The above comments are not relevant to Region 6 internal 

management control weaknesses. 

Region 6 has been actively involved with the MWL site for many years; therefore, the HR 

statement that the Region only became involved with the MWL after we received a request from 

Senator Bingaman is incorrect. CANM asked Region 6 to assess the monitoring wells in March 

2007 and apparently contacted the Senator at nearly the same time, preempting our response to 

CANM. Further, Region 6 had already been in contact with CANM and provided them with 

more than 500 pages of documents under FOIA in February 2007. The extent of our prior 

involvement at the MWL is not reflected in the HR, probably because the OIG investigators only 

requested Region 6 records dating back to March 2007 (10/02/2008 email, names of OIG and 

Region personnel redacted here). 

OIG Response. The report attributes the statement to the Region’s Project 

Engineer for Sandia. The extent of her statement was that the Region became involved 

with the MWL monitoring wells after a request from Senator Bingaman. Although that 

should be discernable from the text, we will add “monitoring wells’ after the MWL 

statement. 

As stated above, the so called “oversight review” document was not provided to CANM because 

it was one of many draft versions, withheld under Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5). 

Our response regarding the well was provided to CANM in the December 13, 2007, letter, which 

informed CANM that NMED’s overall actions and decisions for administration of the authorized 

program were consistent with applicable RCRA requirements. We found no evidence to indicate 

that the MWL posed an imminent or substantial danger to citizens or the groundwater supply. 

Because NMED had already directed the DOE and Sandia to install a vegetated cover and 

replace several wells, we believed these concerns were already being properly addressed by the 

State. 

OIG Response. The conclusion provided to CANM was that overall actions and 

decisions for administration of the authorized program were consistent with applicable 

RCRA requirements. That conclusion left unanswered some specific concerns Region 6 

expressed in the Oversight Review with NMED’s management of the MWL monitoring 

wells. However, the Region has no documentation to show what steps taken, if any, to 

resolve their specific concerns or how the overall conclusion was reached in spite of their 

concerns. 

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While the Region believes it was important to respond to CANM’s letter regarding the 

monitoring wells, it must be given proper significance as a State oversight matter and reflect to 

what extent this narrow issue should receive the Region’s limited oversight resources. While the 

Public Involvement Policy encourages outreach and technical support to the public they also 

recognize that the Agency’s limited resources should be spent on the highest priority issues. 

OIG Response. Region resources had already been consumed to develop the 

Oversight Review. Despite its concerns expressed in the Oversight Review, Region 6 

provided assurances to the public. The above comment implies that the concerns were left 

unresolved due to resource issues. 

To further put this investigation and Regions 6’s oversight activities into proper prospective, the 

HR focused on a single SWMU, the 2.6 acre MWL, which operated from 1959 to 1988. The 

MWL has a total of seven monitoring wells. There was no known release of contamination to 

the groundwater, the landfill contents were well-documented, the depth to the regional aquifer 

was nearly 500 feet, the distance to the nearest drinking water well was 4.6 miles, fate and 

transport modeling showed a low risk of contaminant release, there were no surface water 

features in the area, and there was little mechanism for contaminant transport due to the desert 

climate. Elevated levels of chromium and nickel, found in some older wells in the past few 

years, were investigated with down-hole video cameras but considered anomalous because the 

videos showed substantial corrosion of the well screens and there was no other known source for 

chromium or nickel in the landfill. This conclusion was supported by documentation of this 

problem at other sites and similar experience at Sandia where chromium and nickel exceedences 

stopped when wells with stainless steel screens were replaced with PVC. Conditions found at 

the MWL would normally dictate this SWMU be a low priority for oversight review, but 

nonetheless it has received direct review due to CANM’s multiple requests. All of this 

information was available to the investigators but does not appear in the HR. 

OIG Response. The above statement is not relevant to noncompliance with EPA 

record management and public involvement policies. 

Records Management 

The HR report raises concerns about our recordkeeping practices. The Region believes it 

maintained information sufficient to respond to CANM’s inquiry about the wells. In 2007, when 

the Region was developing a reply to CANM concern regarding the monitoring wells, the project 

engineer retained all internal documents such as the staff notes and draft review summary 

documents generated throughout the time we were attempting to put together a response to 

CANM. These drafts were shared with supervisors and management, and many deliberative 

discussions occurred verbally and in writing. As the staff continued to research the issues, the 

drafts were updated and the format evolved. The decision to provide our conclusions to CANM 

in a letter was made by Region 6 management. The fact that the Region subsequently responded 

to CANM in a letter format does not alter the predecisional character of the draft documents or 

justify the HR claim that Region 6 intentionally misled or hid information from the public. 

Release of predecisional material would discourage open, frank discussions on matters of policy 

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between subordinates and superiors prematurely disclose proposed policies before they are 

finally adopted, and cause public confusion by disclosing reasons and rationales that were not in 

fact ultimately the grounds for EPA’s action. Our December 13, 2007, letter to CANM indicated 

that NMED acted reasonably within its discretion as the permitting authority for the MWL. 

Further, the issues CANM raised either were previously settled or would become moot upon the 

imminent installation of new monitoring wells and the vegetated cover. Therefore, we saw no 

public benefit to rehashing past issues when there was no apparent environmental threat or harm. 

Instead, we chose to focus on data from the new wells when it became available in order to 

resolve any ambiguities. 

OIG Response. The report criteria is the EPA records management policy. The 

Region’s assertion that it maintained sufficient records does not demonstrate compliance 

with this policy. Intentionally not recording information to avoid FOIA is not recognized as 

an agency records management tool. 

The HR claims that Region 6 intentionally discontinued recordkeeping are without merit. The 

claim that we did not document our decisions on the monitoring wells is also puzzling because 

we had no final action or permitting decision to make with regard to the wells. That decision 

was the responsibility of NMED because NMED now has the responsibility to issue RCRA 

permits within New Mexico. The Region’s role was to provide oversight of the State’s 

implementation of the program and to make appropriate responses to inquiries from the public 

concerning the State’s implementation. The need for Region 6 to conduct ongoing 

documentation of this specific MWL was negligible because the corrective action plan was 

already in place and being implemented. Our mid and end of year program oversight reviews 

have demonstrated and documented that NMED has met the Region’s oversight expectations for 

Sandia and its other RCRA facilities. All of this information, along with the technical review 

drafts, notes, and other documents, was provided to the investigators. 

OIG Response. The Region ignores that its staff told OIG that they did not 

document communications with NMED to deliberately keep CANM from information 

through the FOIA process. The Records Management Policy requires the Region to 

document its oversight activities regarding the MWL monitoring wells, which it did not do. 

The Region attempts to work with its States in a collaborative manner to address issues that 

might arise at a particular facility. We prefer to initially discuss these matters informally to 

gather information without unnecessary confrontation, as we did with the MWL wells. Often, 

that provides clarification and resolves the concerns. This is not an attempt to defer to the State 

without documentation, as the HR alleges, but rather that’s the nature of “oversight.” The 

interactions between EPA and NMED occur as a back and forth dialogue because, when doing 

environmental or groundwater monitoring, differences of opinion sometimes arise on the “best 

way” to proceed. We must use experience and judgment in our dealings with authorized States, 

and the Region believes it’s appropriate to defer to the authorized entity as long as they act 

reasonably within their discretion and follow the appropriate administrative requirements. Once 

again, this was explained to the investigators, but it does not appear in the HR. It is unclear how 

the HR can conclude that we failed to generate adequate documentation for the OIG to make a 

determination if CANM’s claims had merit but the OIG was able to determine that we deferred 

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to NMED on our disagreements. The OIG appears to misunderstand the difference between 

responding to a citizen inquiry and the oversight of a state’s entire authorized RCRA program. 

The HR factually only discussed our response to CANM’s inquiry about the wells, while its 

recommendation directs that we “develop or update our oversight,” presumably for all the 

Regional state programs. 

OIG Response. The Region ignores that its staff told OIG that they did not 

document communications with NMED to deliberately keep CANM from information 

through the FOIA process. Further, the Region did not have sufficient documentation to 

show that it determined deferring to NMED was an appropriate decision. 

The fact that the HR focuses exclusively on our response to a citizen inquiry also does not 

correspond to what it stated in the Scope section of the HR on page 2. The HR states that “We 

[OIG] limited our review to EPA’s oversight responsibilities as defined in applicable regulations 

and the memorandum of agreement (MOA) with the State;” however, there was no discussion in 

the HR concerning EPA’s oversight responsibilities as defined in those applicable regulations 

and the MOA. In fact, the Region’s mid year and end of the year oversight reviews are required 

by the MOA. This information concerning our oversight of the New Mexico program was 

shared with the investigators but was not discussed in the HR, and thus it is misleading by 

omission. We believe that this information was left out because it demonstrates that the Region 

does a very good job in overseeing the New Mexico program. Even the title of the HR 

demonstrates a lack of understanding of the nature of state oversight, i.e., “Region 6 needs to 

Improve Management of Oversight at Sandia Landfill.” The State manages oversight of the 

Sandia Facility and, even more narrowly, this one particular Landfill. The Region oversees the 

State’s program. 

OIG Response. The Region is again incorrect. The purpose of the review as stated 

in the notification letter to Region 6 and the draft report was to ...”determine if EPA 

Region 6 carried out its oversight responsibilities regarding the Sandia National 

Laboratory’s mixed waste landfill.” The sentence from the Scope and Methodology section 

of the report is taken out of context. The full context says ...”We conducted audit work 

from December 2008 to September 2009 in accordance with generally accepted government 

auditing standards. Those standards require that based on our objectives, we plan and 

perform the audit to obtain sufficient and appropriate evidence to provide a reasonable 

basis for our findings and conclusions. We reviewed documents, regulations, the New 

Mexico/EPA memorandum of agreement governing NMED’s Resource Conservation and 

Recovery Act (RCRA) program, and annual and semiannual reviews. We interviewed 

EPA Region 6 RCRA program managers and technical experts who work with New 

Mexico. We also interviewed members of CANM.” 

“We believe that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives. EPA has granted the State of New Mexico 

primary responsibility for enforcing the RCRA program within its boundaries. We limited 

our review to EPA’s oversight responsibilities as defined in applicable regulations and the 

memorandum of agreement with the State.” 

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The HR states that we mislead CANM because one of our earlier, internal “draft letters” initially 

said we would send an Oversight Review report but then we did not include the Review in our 

final letter. How a draft letter we never sent to CANM could mislead them is not clear. Instead 

of finalizing this version of the draft review document, we chose to provide a response in a letter 

to CANM on December 13, 2007. We were not attempting to mislead CAMN but rather 

circumstances were such that the State had decided to order Sandia to put in new wells, which 

we believed made the report irrelevant and finalizing it a waste of resources. 

OIG Response. The report says that we found the Region’s actions to be 

misleading, but not because the oversight review was not sent. As we state in the report, 

the Region’s actions were misleading when the EPA concerns were consistent with 

CAMN’s but that information was not disclosed nor was the basis for any resolution of 

those concerns documented. 

Current Conditions at Sandia MWL 

Four groundwater monitoring wells at the MWL have been plugged and abandoned. One new 

background well and three new downgradient monitoring wells were installed in 2008. New 

monitoring results for constituents of concern show no indication of contamination to 

groundwater from the MWL. There is also no indication of chromium or nickel beyond 

background levels, which supports the previous conclusion that elevated levels of chromium and 

nickel were due to stainless steel well screen corrosion. This information was provided to the 

investigators in June 2009 but is not discussed in the HR. Since then, the vegetated cover was 

completed in September 2009 and monitoring results continue to be below actionable levels, as 

expected. 

OIG Response. The above statement is not relevant to the report issues. 

Response to Recommendations 

1.	 Comply with EPA’s national security, public involvement and records management 

policies, including removing the national security marking from the December 2007 

Oversight Review. 

a.	 Ensure that the opinions of technical staff and nontechnical staff are documented 

to support EPA’s oversight decisions. 

b.	 Develop or update oversight standard operating procedures to ensure compliance 

with these policies. 

Region 6 Response: Region 6 feels that we did comply with public involvement and records 

management policies to the extent they apply. As stated above, the term “confidential” was used 

on the Oversight Review document to indicate that the document was draft and pre-decisional. 

OIG Response. Region 6 comments are nonresponsive to the recommendations. 

EPA policies regarding records management, public involvement, and national security 

information apply to all EPA Headquarters Programs, Regions, Laboratories and other 

Offices. Region 6 failed to document its fact gathering and resolution of the differences 

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between its technical opinions and that of NMED. Region 6 staff intentionally did not 

produce documentation of their official activities so that could not be obtained through 

FOIA. Region 6 continues to defend marking unclassified documents “confidential” 

despite EPA policy that prohibits it. 

Region 6 believes that the technical, nontechnical, and management oversight documentation for 

the Sandia MWL was sufficient to support EPA’s oversight role, and we do not concur that 

additional measures are required. The Public Involvement Policy applies to EPA decisions. In 

this instance, our role was limited to oversight of NMED’s authorized program; therefore, we did 

not have the authority to make a permitting decision. In a similar vein, the OIG’s discussions 

about Regional actions (or inaction) “not to provide documentation” appear to be based on the 

OIG’s belief that EPA – in its oversight role – had a duty to create more, unspecified original 

documents or records. The OIG does not cite any policy or guidance to support its conclusion 

that the Region did not meet the required threshold for creating documentation in the 

performance of overseeing a program authorized to the state. Given the very extensive oversight 

and resources the Region has provided related to this singular landfill, the OIG’s hurdle seems 

excessively high and not sensitive to good stewardship of limited resources. The Region 6 State 

Hazardous Waste Program Oversight Process document completed at mid and end of year grant 

reviews as well as site specific documentation related to the Sandia MWL meet the requirements 

for this documentation (see attached EPA Region 6 RCRA State Hazardous Waste Program 

Oversight Process, Attachment 2). 

OIG Response. Region 6 detailed comments stated that when issues arise the 

Region prefers to discuss them informally to gather information without unnecessary 

confrontation to provide clarification and resolve concerns. The Region states that is not 

an attempt to defer to the state without documentation, but rather that’s the nature of 

“oversight.” EPA Policy 2155.1 states that each office within EPA is required to establish 

and maintain a records management program with that will create, receive, and maintain 

official records providing adequate and proper documentation and evidence of EPA’s 

activities. Region 6’s preference to perform its official responsibilities informally does not 

relieve it of the requirement to document the activities it performs in accomplishing its 

duties. Proper documentation requires the creation and maintenance of records that 

document the persons, places, things, or matters dealt with by the agency; make possible a 

proper scrutiny by the Congress or other duly authorized agencies of the Government; and 

document the taking of necessary actions, including all substantive decisions and 

commitments reached orally (person-to-person, by telecommunications, or in conference) 

or electronically. 

Because Region 6 complied with public involvement and records management policies, we do 

not concur with recommendation 1b. If the Agency determines that the use of the term 

“confidential” should no longer be used as a common practice, Region 6 will update standard 

operating procedures to make this decision clear to staff and management. 

OIG Response. Agency policy is that “Confidential,” “Secret,” and “Top Secret” 

should only be used on classified documents. The violation of controls established to 

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safeguard classified information is not excused by past common practice and the comments 

document a Region-wide control failure. The Region’s comments also indicate a serious 

deficiency in management control environment when management ignores agency controls 

in favor of ease of past common practice with the explanation that everyone does it. 

2. Evaluate the extent to which the Region has not recorded oversight information, or 

misclassified information, to determine the extent of administrative action or training 

necessary to remedy the situation. 

Region 6 Response: The scope of this recommendation extends far beyond the Sandia MWL 

and the RCRA program. However, Region 6 did comply with public involvement and 

records management policies in the Sandia MWL case and believe our Regional public 

involvement and oversight processes are effective and in compliance with applicable laws, 

regulation, and policy. We do not believe a new evaluation is needed and do not concur. 

OIG Response. The report found that the Region had internal control deficiencies 

regarding public involvement, record keeping, and marking documents in the work 

performed. The Region’s comments, particularly those regarding the widespread 

mislabeling of information as “confidential” and undocumented “informal” oversight 

demonstrate systemic material control weaknesses in these areas. The Region’s 

comments, such as the refusal to address misuse of confidential markings with the 

explanation, in effect, that everyone does it, also indicates a deficient control 

environment. 

The control environment is the organizational structure and culture created by 

management and employees to sustain organizational support for effective internal 

control. The organizational culture is also crucial within this standard. The culture 

should be defined by management’s leadership in setting values of integrity and ethical 

behavior but is also affected by the relationship between the organization and central 

oversight agencies and Congress. Management’s philosophy and operational style will 

set the tone within the organization. Management’s commitment to establishing and 

maintaining effective internal control should cascade down and permeate the 

organization’s control environment which will aid in the successful implementation of 

internal control system. 

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Appendix B 

Attachments to Agency Response to Draft Report 

For this appendix, go to the following: 

www.epa.gov/oig/reports/2010/20100414-10-P-0100_appB.pdf 

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Appendix C 

Distribution 

Office of the Administrator 

Deputy Administrator 

Regional Administrator, Region 6 

Agency Follow-up Official (the CFO) 

Agency Follow-up Coordinator 

General Counsel 

Associate Administrator for Congressional and Intergovernmental Relations 

Associate Administrator for Public Affairs 

Audit Follow-up Coordinator, Region 6 

Acting Inspector General 

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