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Michael BarretteUS EPA Office of Enforcement and Compliance Assurance
August 2, 2005
RCRA Enforcement Response Policy and SNC Reporting - Reporting Process and Identified Issues- Watch List
Tracking RCRA Enforcement Response Policy (ERP) Implementation of Significant Non-Compliance (SNC) and Timely Enforcement
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Presentation Overview
Background Regarding ERP and SNCReporting Problems found with SNCHow the Watch List Supports SNC Policy ImplementationDemonstration of how states can examine SNC identification ratesDemonstration of the Watch List Web site
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ERP Context/Background
The RCRA Enforcement Response Policy states that – “EPA will use this enforcement policy to determine whether
Regions and States are addressing SNCs with a timely and appropriate enforcement response.”
– “This policy is intended to foster and develop a more complete and accurate compliance picture and to enhance the responsibility of implementing agencies to track SNCs and address all violations.”
– “An essential part of this tracking process is assuring that allSNCs and SVs are promptly entered into RCRAInfo.”
How does OECA assess implementation of the ERP in regard to SNC facilities and timely enforcement?
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Why is implementation of the policy important?
Need to establish “even playing field” with nationally-accepted practices.
– Some states have cited concerns about “loss of business” to states that do not enforce the law.
– Recognition that hazardous waste management is not solely a local issue (cross-state movement of waste requires coordinated effort).
Need to ensure that program authorization is being carried out as agreed upon.Need to determine when enforcement cases may benefit from EPA assistance, or when the state is not routinely identifying violations and SNC.Need to produce timely actions that address problems discovered.Need to inform the public of when problems are found at facilities in their community.
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Framework for Nationally-Consistent ERP/SNC implementation.
The RCRA ERP sets out examples of what violations constitute “significant noncompliance.”The definition is not formulaic (as is the CWA). Definition (summary)
– Violators that have caused actual exposure or substantial likelihood of exposure to hazardous waste
– Chronic recalcitrant violators (includes secondary violators that do not return to compliance within 240 days)
– Facilities substantially deviating from a permitExamples
– Substantial deviations from permits, orders, etc.– Lack of financial assurance.– Operating without a permit.– Failure to manifest waste.
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SNC Milestone Dates
“Day Zero” - Inspection or other monitoring “detects” violations.Day 150 - “Date of Determination” – by Day 150, determination made as to whether SNC criteria is met.
– The SNC determination (SNY) should be entered into RCRAInfo shortly after the determination is made.
Day 240 – “Secondary Violators” should return to compliance or be escalated
to SNC.– Unilateral or initial order should be issued for SNC violations.
Day 360– Referral to DoJ or State AG, or– Final order entered.
* 20% of cases can go beyond the Day 360 due to “unique factors”
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Background on RCRA ERP
Summary of Selected RCRA ERP Milestones and Data Entry Requirements
Day 0 Day 150 Day 360
-In 2004, at least one formal action was taken in 48 states.
-Some states rarely enter SNC. In 2004, 583 SNCs were reported while 1340 formal actions were taken (43%).-Average “delay” in SNC entry is 132 days. 49% are over 60 days.-12% of SNCs studied were determined on same day as formal action.
-States appear to be entering inspections.
Findings to date
-Date should correspond with a legal document.-RCRAInfo Version 3 will require association of an action to the SNC.
-No clear documentation, although a warning letter may occur simultaneously.-RCRAInfo does not track when an SNC determination is entered into the database, but OECA does capture this monthly.-Link between Day 0 and Day 150 will be established in RCRAInfo V.3.
-Assume date is valid. Date in database should match date of inspection shown in inspection report.
Analytic/Review Capabilities
~30-45 days (Regionally-negotiated w/states)
-ERP indicates “same time” data entry.~30-45 days (Regionally-negotiated w/states)
When data is required?
-Date and type of formal action taken
-Date that SNC determination is made with lead agency indication
-Inspection date-Type of inspection
Info Required
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Processes for Evaluating/Managing ERP and SNC
There are several processes in place to review administration of the ERP Policy.
– Quarterly Regional/State dialogue regarding SNC lists Provides opportunity for Regions & states to work through issues.
– OECA’s planned “RCRA SNC Data Integrity Report” Will help identify where problems are occurring.
– The Watch ListServes as an analytic tool and management process to flag when milestones are missed for final action.
– The State Review Framework projectProvides a more rigorous audit process to ensure that states areadequately implementing compliance and enforcement programs per existing guidance.
Discussion of how these pieces fit.
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Introduction of Concerns
OECA has Identified 3 Primary Problems with SNC Reporting:
– Not Identifying SNC. Some Regions and some states rarely identify and/or report SNCs.
OECA analysis identifies states that rarely report an SNC from inspections, and identifies when states are routinely taking enforcement at facilities that were not designated as SNC.
– Delay in SNC Data Entry. Some Regions and states do not enter SNC determinations into RCRAInfo in a timely manner as specified in the ERP.
49 percent of new SNCs were entered more than 60 days after the indicated date of determination.
– Incorrect Date of SNC Determination Some states are dating the SNC as the same day as the final formal action (or within a few days).
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Concern 1 – Lack of SNC ID/reporting
Many Regions/states rarely identify or report SNC.– In 18 states, inspections led to an SNC finding at a rate of 1
percent or less in 2004, and – 8 states reported no SNCs in 2004 (including state and EPA
data).Judging from enforcement actions taken, some states rarely designate the target of these cases as SNC.SNC rates also must undergo sensitivity analysis –particularly because some small states may not have any SNC.
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SNC Identification Rate Per Universe in FY04
0.0%
0.5%
1.0%
1.5%
2.0%
2.5%
3.0%
3.5%
4.0%
4.5%AR
PR
TN
R
I G
A VA
VT
N
C
SC
IA
CA
KY
NJ
FL
KS
NE
MN
AL
C
T M
O
OH
N
atl
MS UT
OK MI
ME
OR
M
A IN
NY
WA IL
PA
TX
LA
W
I M
D
NH
VI
D
E D
C
WV NM
C
O
MT
ND
SD
W
Y AZ
HI
NV
GU
AK
ID
Note: Rate = New SNCs identified by the Region and state divided by the number of active sites (TSD/LQG); from OTIS Management Reports.
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SNC Identification Rate Per Sites Inspected in FY04
0%
5%
10%
15%
20%
25%
30%VT
R
I AR
C
T TN
VA
SC
PR
N
J FL
C
A ME IA
KS
GA
MN
M
A NC
N
atl
MS
OK
OH
N
E KY
N
Y UT
AL
MO
IL
O
R
MI
WA MD
IN
LA
PA
W
I TX
N
H
VI
DE
DC
W
V NM
C
O
MT
ND
SD
W
Y AZ
HI
NV
GU
AK
ID
Note: Rate = New SNCs identified by the Region and state divided by the number of sites inspected (TSD/LQG); from OTIS Management Reports.
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SNC Identification Rate Per Inspections in FY04
0%
5%
10%
15%
20%
25%
30%
1 2 3 4 5 6 7 8 9 10 Natl
RegionEPA Rate State Rate
Note 1: Rate = New SNCs identified by the Region and by the state divided by the number inspections done (entire universe) by the Region and by the state, respectively; from OTIS Management Reports.
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Some Regions/States frequently complete formal actions with SNC
% of Facilities w/ State Formal Actions Compared to Facilities w/ New State SNCs
0%10%20%30%40%50%60%70%
1 2 3 4 5 6 7 8 9 10 Natl
Discussion Points
•One would not expect every enforcement action to be listed as an SNC.
•However, what are the reasons that some states have a small percentages of “actionable” violations tracked for timeliness (SNC)?
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Concern 2 – Delayed Entry of SNC
Some Regions/states excessively delay the entry of SNC into RCRAInfo.49 percent of SNCs were delayed more than 60 days, based on a comparison between:– Month the SNC first appears in IDEA refresh, and – SNC determination date entered into RCRAInfo.
Impossible to determine exact date of SNC entry.
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Concern 2 – Delayed Entry (Cont’d)
When SNC identification data is withheld until a formal enforcement action is taken, the following core programs are negatively impacted:
– Substantial threats could go unnoticed by Regions– OC compliance screenings for the Agency are not accurate– Prevents Regional - state case lead discussions– Watch List is inaccurate– ECHO does not provide accurate data to public. Listing of SNCs
on ECHO is sometimes a driver in getting facilities to settle cases.EPA plans to provide data where this problem is occurring, and would like states to conform with the ERP language that indicates data should be entered when the determination is made.
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How does OECA measure “delay”
Beginning in October 2004, OECA began comparing monthly extractions of RCRAInfo SNC data that came into IDEA/OTIS.Method (example)
– On March 19, 2005, RCRAInfo SNC facilities were pulled.– On April 19, 2005, the list of RCRAInfo SNC facilities were
pulled.– The difference between these lists represents “newly
reported SNCs”– For all newly reported SNC from April 19th pull, OECA
compares the length of time betweenThe SNC determined date that was entered into RCRAInfo, andThe first day that newly entered SNC could have been put into RCRAInfo (March 20th).
– The difference is calculated for all facilities, and is rolled into a Regional and state “average delay.”
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Delayed Entry Data (49% > 60 days)
153
2248
77
0
50
100
150
200
< 60 days 60 to 90 days 90 to 180 days > 180 days
Average "Delay" in RCRA SNC Data Entry
Metho do lo gy pro vides an additio na l "grace" perio d by as s uming a ll a re entered o n firs t day o f mo nth.
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Many Regions/states are well above 60 day average lag.
05
101520253035404550
NM
WV
WA NV
MO TT IN MA
KY OH
CA PR IA RI
TX HI
NE
NC WI
VT AL MI
VA MS
GA NH
MN
PA NJ
LA FL ME
TN KS IL AR NY CT
SC AZ
SNC
s
-100
0
100
200
300
400
500
600
700
800
Avg
Del
ay in
Ent
ry
SNCs Entered Avg Delay in Entry
No SNC reported in DE, DC, MD, OK, CO, MT, ND, SD, UT, WY,
AK, ID, OR.
Average Data Entry Lag (Dots) and SNCs Entered (Bars) from 10/19/04-4/19/05
Points above blue line indicate avg of >60 day data lag
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Concern 3 – Inaccurate SNC Date
Some Regions/states may not accurately report the SNC determination date (date their SNC on the same day or just before action is taken).Of 497 SNCs analyzed, 61 (12 percent) were dated on the exact date as the enforcement action. Other SNCs were dated within one week of the enforcement action.RCRA Version 3 will establish a link between the SNC and the Day Zero – which may help prevent this practice.Makes timely and appropriate analysis impossible, facilities kept from Watch List, identification of a facility asSNC and the true duration of SNC remains a mystery to data users (public and internal).
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RCRAInfo Improvements Will Improve Data Entry and Analysis
RCRAInfo Version 3 is will provide better SNC analytic capabilities.All new SNC determinations will require implementers to enter the corresponding Day Zero on the SNY record.In addition, Version 3 will require all enforcement actions thatare being entered to address a SNC to contain the date of the SNC that they are addressing.
– This will provide the links between: evaluation (Day Zero), violations determined, SNC determine and for which Day Zero (evaluation date).
– Enforcement actions addressing SNCs will be contained in the field “sny_date” in the “csny_date” table.
– This will provide an enhanced ability to measure timely and appropriate milestones (Day 240 and 360).
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Development of Analytic Reports
OECA and Regional enforcement managers agreed that a first step toward more consistent SNC reporting was the development of a report showing relevant information.OECA is in the process of developing such a report that can flag each of these three issues.
– To some extent, the issues will also be picked up during State Review Framework, and Watch List projects.
Demo – How states can examine their own SNC identification rates using OTIS.
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Regions can easily produce management stats using OTIS Management Reports
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Output report shows state SNCs and Actions w/Link to facilities.
Click on a link to get facility names
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Using OTIS to review state data
SV onlyYes
*
*
*
*
SNC?
Yes
* Indicates SNC in system from prior fiscal year or from EPA designation.
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Watch List – Management Process and Automated Tool for SNC Tracking
The Watch List project was initiated by the OECA Assistant Administrator to better manage the ERP by flagging when timeliness milestones are missed.
– The project was also responsive to several Inspector General audits about ERP management.
The Watch List project can only work when states are entering accurate and timely data.OECA plans to continue discussing potential reporting issues in states were problems are evident.For states that do accurately report SNC data, the Watch List can be a very effective tool to flag when a facility has had long periods of time in SNC without final action.
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Watch List Process
EPA maintains a secure web site for Regions and states that produces a monthly listing of facilities meeting the Watch List criteria.Four quarters are considered “official.”
– During official quarters, Regions are required to submit case status and explanation information.
– The information submitted by the Regions is primarily gathered from the states during their quarterly SNC conference.
– The data are then loaded into the WL database.OECA performs a review of the Regional submission, and may discuss problems with individual Regions.OECA prepares a final report for EPA management, and is moving toward “success measures” within the project.
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How does a facility make the WL?
For RCRA, the criteria are:3a. Chronic SNC with No Action. Current SNC facilities with 4
or more of the last 8 quarters in SNC and no enforcement actions in the last 2 years (all RCRA facilities).
3b. Long-term SNC with No Final Action. Current SNC facilities that have been in SNC status for more than 630 days and have not: a) received a final administrative action, or b) had a civil action filed within the same period
In 2006, EPA plans to consider criteria changes that can more closely mirror the ERP and the new RCRAInfo database.
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Watch List Demo
States can access their own facility data.Regions can access all data, including the comments they sent to OECA.The site provides ability to download and sort information.
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State Review Framework
EPA has several data metrics that are designed to note when a reporting problem may be occurring within a state. These metrics correspond to the three “concern areas” discussed in this presentation.Additional file reviews are designed to ensure that violations and SNC are accurately reported.
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Summary
For a variety of reasons, RCRAInfo must contain an accurate and timely record of violations and SNC determinations.RCRAInfo V.3 will provide better reporting capabilities.OECA believes that business practices within some states need tobe updated so SNCs are accurately entered into RCRAInfo
– particularly important is classifying violations appropriately, and entered the data in a timely manner.
System managers/analysis should discuss possible problems with state managers.Reporting problems will be the subject of discussion under the Watch List and State Framework projects.States/Regions that are entering the information appropriately can rely on the Watch List as a management tool to assist with timely response.
