oversight

Drinking Water Contamination in Flint, Michigan, Demonstrates a Need to Clarify EPA Authority to Issue Emergency Orders to Protect the Public

Published by the Environmental Protection Agency, Office of Inspector General on 2016-10-20.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

U.S. ENVIRONMENTAL PROTECTION AGENCY

OFFICE OF INSPECTOR GENERAL




 Protecting America’s Waters

Management Alert:
Drinking Water Contamination
in Flint, Michigan, Demonstrates
a Need to Clarify EPA Authority
to Issue Emergency Orders to
Protect the Public
Project No. 17-P-0004                  October 20, 2016
Report Contributors:                             Stacey Banks
                                                 Charles Brunton
                                                 Kathlene Butler
                                                 Allison Dutton
                                                 Tiffine Johnson-Davis
                                                 Fredrick Light
                                                 Jayne Lilienfeld-Jones
                                                 Luke Stolz
                                                 Danielle Tesch
                                                 Khadija Walker




Abbreviations

EPA           U.S. Environmental Protection Agency
MDEQ          Michigan Department of Environmental Quality
OECA          Office of Enforcement and Compliance Assurance
OIG           Office of Inspector General
SDWA          Safe Drinking Water Act


Cover photo: Flint Water Plant, Flint, Michigan. (EPA OIG photo)


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                          U.S. Environmental Protection Agency                                                17-P-0004
                                                                                                        October 20, 2016
                          Office of Inspector General


                          At a Glance
Why We Did This Review              Management Alert: Drinking Water Contamination in Flint,
                                    Michigan, Demonstrates a Need to Clarify EPA Authority
The U.S. Environmental
Protection Agency (EPA) Office      to Issue Emergency Orders to Protect the Public
of Inspector General (OIG) is
reviewing the circumstances of,      What We Found
and the EPA’s response to, the
                                    EPA Region 5 had the authority and sufficient              To avoid future public
contamination in the city of
                                                                                               health harm through
Flint, Michigan’s, community        information to issue a SDWA Section 1431
                                                                                               drinking water
water system, including the         emergency order to protect Flint residents from lead-
                                                                                               contamination, the EPA
EPA’s exercise of its oversight     contaminated water as early as June 2015. Region 5         needs to clarify for its
authority. We are issuing this      had information that systems designed to protect Flint     employees how its
report to alert the EPA about       drinking water from lead contamination were not in         emergency authority
factors that delayed its            place, residents had reported multiple abnormalities in    can and should be
intervention using emergency        the water, and test results from some homes showed         used to intervene in a
authority under Section 1431 of     lead levels above the federal action level.                public health threat.
the Safe Drinking Water Act
(SDWA). When our review is          EPA Region 5 did not issue an emergency order because the region concluded
completed, we plan to issue a       the state’s actions were a jurisdictional bar preventing the EPA from issuing a
subsequent report.                  SDWA Section 1431 emergency order. However, the EPA’s 1991 guidance on
                                    SDWA Section 1431 orders states that if state actions are deemed insufficient,
After Flint switched its drinking   the EPA can and should proceed with a SDWA Section 1431 order, and the EPA
water supply in April 2014,         may use its emergency authority if state action is not protecting the public in a
inadequate treatment exposed        timely manner. However, EPA Region 5 did not intervene under SDWA Section
many of the residents to lead.      1431, the conditions in Flint persisted, and the state continued to delay taking
Emergency authority was             action to require corrosion control or provide alternative drinking water supplies.
available to EPA to take actions
to protect the public from          In September 2015, EPA Region 5 first briefed the EPA headquarters’ Office of
contamination.                      Enforcement and Compliance Assurance (OECA) about Flint’s water crisis.
                                    OECA recommended the region take SDWA Section 1431 action. During the fall,
This report addresses the           the state began to take actions to correct the problems in Flint. EPA Region 5
following EPA goals or              maintained that the state was acting, but the contamination continued. The EPA
cross-agency strategies:            Administrator subsequently directed OECA to issue an emergency order on
                                    January 21, 2016. The emergency order stated the EPA had determined that
  Protecting America’s             Flint’s and Michigan’s responses to the drinking water crisis were inadequate, and
   waters.                          the EPA ordered specific actions to address a public health threat.
  Protecting human health
   and the environment by           These situations should generate a greater sense of urgency. We are issuing a
   enforcing laws and               management alert report on this matter to promote awareness and facilitate
   assuring compliance.             immediate EPA action. The OIG’s evaluation of the Flint drinking water crisis is
  Working to make a visible        ongoing, and we expect to issue an additional report when our work concludes.
   difference in communities.
                                     Recommendations
Send all inquiries to our public    We recommend that OECA update the EPA’s 1991 guidance on SDWA
affairs office at (202) 566-2391    Section 1431 emergency authority. We also recommend that OECA require all
or visit www.epa.gov/oig.
                                    relevant EPA drinking water and water enforcement program management and
                                    staff to attend training on SDWA Section 1431 authority.
Listing of OIG reports.
                        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                     WASHINGTON, D.C. 20460

                                                                                       THE INSPECTOR GENERAL




                                            October 20, 2016

MEMORANDUM

SUBJECT:       Management Alert: Drinking Water Contamination in Flint, Michigan,
               Demonstrates a Need to Clarify EPA Authority to Issue Emergency Orders
               to Protect the Public
               Report No. 17-P-0004

FROM:          Arthur A. Elkins Jr.

TO:            Cynthia Giles, Assistant Administrator
               Office of Enforcement and Compliance Assurance

During our evaluation to examine the circumstances of contamination in the city of Flint, Michigan’s,
community water system, including the U.S. Environmental Protection Agency’s (EPA’s) response to
the situation, we became aware of significant factors that delayed EPA intervention in Flint using its
emergency authority granted under the Safe Drinking Water Act. We identified the need for the EPA to
update and clarify how and when it should act in response to drinking water contamination. As a result,
we are providing you with this management alert. We plan to issue a subsequent report when our
evaluation concludes.

This report represents the opinion of the Office of Inspector General (OIG) and does not necessarily
represent the final EPA position. Final determinations on matters in this report will be made by EPA
managers in accordance with established audit resolution procedures. Accordingly, the findings
described in the report are not binding upon the EPA in any enforcement proceeding brought by the
EPA or the U.S. Department of Justice.

Action Required

Prior to issuing this report, we met with agency officials to discuss our report, and the officials agreed
with our recommendations, with revisions. Please provide a formal written response to this report within
30 calendar days that includes planned corrective actions and projected completion dates for the
recommendations. Your response will be posted on the OIG’s public website, along with our
memorandum commenting on your response. Your response should be provided as an Adobe PDF file
that complies with the accessibility requirements of Section 508 of the Rehabilitation Act of 1973, as
amended. The final response should not contain data that you do not want to be released to the public;
if your response contains such data, you should identify the data for redaction or removal along with
corresponding justification.

This report will be available at www.epa.gov/oig.
Management Alert: Drinking Water Contamination                                                                            17-P-0004
in Flint, Michigan, Demonstrates a Need to Clarify
EPA Authority to Issue Emergency Orders to Protect the Public



                                      Table of Contents
   Purpose .....................................................................................................................    1

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

   Scope and Methodology ...........................................................................................                3

   Results of Review .....................................................................................................          4

           EPA Region 5 Had Sufficient Information and the Authority to
           Issue an Emergency Order in June 2015, but Did Not ........................................                              5

   Conclusion.................................................................................................................. .   8

   Recommendations ....................................................................................................             9

   Status of Recommendations and Potential Monetary Benefits .............................                                          10



 Appendix
   A       Distribution .......................................................................................................     11
Purpose

              The U.S. Environmental Protection Agency’s (EPA’s) Office of Inspector
              General (OIG) has an ongoing review to examine the circumstances of, and the
              EPA’s response to, the contamination in the city of Flint, Michigan’s, community
              water system, including the EPA’s exercise of its oversight authority. The purpose
              of our issuing this initial report is to alert the EPA of key factors that delayed its
              intervention in Flint using its emergency authority granted under the Safe
              Drinking Water Act (SDWA), and to recommend that the EPA update and clarify
              how and when it should intervene. When our review is complete, we plan to issue
              a subsequent report.

Background

              Inadequate drinking water treatment
              exposed many of the nearly 100,000
              residents who were customers of the city
              of Flint community water system to lead.
              Flint switched from purchasing treated
              water from Detroit Water and Sewerage
              to sourcing and treating its water supply
              from the Flint River in April 2014.
              Treated water from Detroit Water and
              Sewerage included a corrosion-inhibiting
              additive, which lined pipes and                Flint River in Flint, Michigan. (EPA OIG photo)
              connections to minimize the level of lead
              leaching into drinking water. Flint’s treatment of the new drinking water source did
              not include a process for reducing the corrosion of lead-containing pipes and
              connections, which allowed lead to begin leaching into drinking water.

                                                    After the source switch, residents began
     Potential Health Effects From                  reporting to the EPA that there were color and
        Lead in Drinking Water                      odor problems with the water. In February
                                                    2015, the public health risk escalated as
   High levels of lead may cause liver or
   kidney damage. Long-term lead exposure           indications of lead were identified in the
   in adults can lead to nervous system             drinking water supply. In April 2015, the EPA
   problems and reproductive, brain and             discovered that the necessary corrosion control
   kidney damage, and can ultimately cause          had not been added in the community water
   death. Children under the age of 6 are
                                                    system since the source switch. In August and
   especially vulnerable to lead poisoning,
   which can severely affect mental and             September 2015, private researchers identified
   physical development.                            numerous homes with lead contamination, and
                                                    also identified an increase in the blood lead
                                                    levels of children living in Flint.




17-P-0004                                                                                                 1
                 In October 2015, Flint switched back to purchasing treated water from Detroit Water
                 and Sewerage. In January 2016, the EPA Administrator directed the headquarters’
                 Office of Enforcement and Compliance Assurance (OECA) to issue an emergency
                 administrative order under Section 1431 of the SDWA. This order required the city
                 to, among other things: continue to add corrosion inhibitors; demonstrate it has the
                 technical, managerial and financial capacity to operate the system presently and
                 before it switches to a new water source; and sample water quality and make data
                 publicly available.

                 On the day the EPA issued the emergency order, the EPA Administrator
                 established the agency’s Policy on Elevation of Critical Public Health Issues.
                 This policy, which supports the EPA’s mission to protect human health and the
                 environment, calls for EPA leaders to encourage staff to elevate issues that have
                 the following characteristics:

                         “There appears to be a substantial threat to public health;
                         “EPA is or can reasonably be expected to be a focus of the need for action;
                          and/or
                         “Other authorities appear to be unable to address or are unsuccessful in
                          effectively addressing such a threat;
                         “Recourse to normal enforcement and compliance tools is not appropriate
                          or unlikely to succeed in the near term;
                         “High and sustained public attention is possible.”

                 After the emergency order was issued, OECA provided SDWA enforcement
                 training to some headquarters and regional managers and staff. In addition, the
                 EPA Region 5 acting Regional Administrator stated he is taking steps to
                 implement the Administrator’s new policy.

                 What SDWA and EPA Guidance Provides

                 Congress enacted the SDWA in 1974 to protect the quality of drinking water in
                 the United States. Public water systems are required to comply with SDWA.
                 States, territories and tribes (collectively referred to as “states” herein) have
                 primary implementation and enforcement authority.1 The EPA retains national
                 oversight responsibility for state administration and enforcement of SDWA.

                 Section 1431 provides the EPA with emergency authority to address imminent
                 and substantial endangerment to human health from drinking water
                 contamination. The EPA can use this discretionary authority whenever:



1
  Nearly all states, including Michigan, have primacy to implement the SDWA. Primacy is granted to states that
adopt regulations at least as stringent as national requirements, develop adequate procedures for enforcement
(including conducting monitoring and inspections), adopt authority for administrative penalties, and maintain
records and make reports as the EPA may require.


17-P-0004                                                                                                        2
               (1) contamination is in or likely to enter a drinking water source which may
                   present an imminent and substantial endangerment to the health of
                   persons; and
               (2) the appropriate state and local authorities have not acted to protect human
                   health.

            The EPA’s authorized actions include issuing administrative orders requiring
            specific actions that are necessary to protect human health or commencing a civil
            judicial action.

            In 1994, the EPA Administrator delegated the authority to issue administrative
            emergency orders under Section 1431 to EPA Regional Administrators and, in
            multi-regional cases or cases of national significance, to the Assistant
            Administrator for OECA. The authority to make a Section 1431 judicial referral
            remains with headquarters.

            The EPA’s Final Guidance on Emergency Authority under Section 1431 of the
            Safe Drinking Water Act (1991) is designed, in part, to encourage more
            widespread use of the EPA’s Section 1431 authority by more fully explaining
            situations where this authority may be applied. This guidance clarifies that the
            EPA may use its emergency authority even when a state is acting or is going to
            act. Regarding whether the state action is in fact protecting the public from the
            contaminants in a timely fashion:

                   If EPA has information that State/local agencies are going to act,
                   EPA must decide whether the action is timely and protective of
                   public health. If EPA determines that the action is insufficient and
                   State and local agencies do not plan to take stronger or additional
                   actions to ensure public health protection, in a timely way, EPA
                   should proceed with an action under Section 1431.

Scope and Methodology
            We began our evaluation in February 2016, and our work is ongoing. We are
            conducting this performance audit in accordance with generally accepted
            government auditing standards. Those standards require that we plan and perform
            our work to obtain sufficient, appropriate evidence to provide a reasonable basis
            for our findings and conclusions based on our audit objectives. Our ongoing work
            may provide supplemental findings to this report. We believe that the evidence
            obtained provides a reasonable basis for the findings and conclusions in this
            report based on our audit objectives.

            We reviewed the laws, regulations, policies, procedures and guidance related to
            the SDWA program. At EPA headquarters, we interviewed the EPA
            Administrator, and staff and officials from the Office of General Counsel, Office



17-P-0004                                                                                        3
                  of Water and OECA. We also interviewed staff and officials in EPA Region 5,
                  including the former EPA Region 5 Regional Administrator and the Region 5
                  acting Regional Administrator. Further, we interviewed staff from the Michigan
                  Department of Environmental Quality (MDEQ), former and current employees of
                  the city of Flint, and Flint residents. In addition, we reviewed criteria documents
                  provided to us by the EPA and MDEQ.

Results of Review

                  Based on information we obtained, EPA Region 5 had the information it needed
                  about the drinking water issues in Flint in June 2015 to exercise its discretionary
                  authority to issue an emergency order under SDWA Section 1431. The
                  information EPA Region 5 had in June 2015 met the two requirements necessary
                  for an emergency order under SDWA Section 1431, as shown in Table 1:

                  Table 1: SDWA Section 1431 Emergency Order Requirements and EPA’s
                  Information about Flint Events in June 2015
                   Emergency order
                   requirement                         EPA’s information about Flint events by June 2015
                   1. The contamination may             EPA Region 5 received the first Flint drinking water
                      present imminent and               distribution system lead sampling test result,
                      substantial endangerment           indicating a requirement for corrosion control
                      to human health.                   (February 2015).2
                                                        State informed EPA Region 5 that no corrosion
                                                         control was in place (April 2015).
                                                        EPA Region 5 had information that at least four
                                                         homes had lead in drinking water in concentrations
                                                         above the action level (June 2015). 3
                   2. Appropriate state and             State informed EPA that no corrosion control was in
                      local authorities have not         place (April 2015).
                      acted to protect the health       State and city had not disclosed risk of potential lead
                      of persons.                        exposure to the public.
                  Source: SDWA Section 1431 and OIG analysis of EPA Region 5 documents.




2
  Under SDWA, the Lead and Copper Rule requires optimized corrosion control for systems servicing populations
over 50,000. The rule also deems a drinking water system to have optimized corrosion control when lead sampling
results fall at 5 parts per billion or less at test sites throughout the system. The city’s lead sampling results were
6 parts per billion.
3
  The Lead and Copper Rule requires that drinking water utilities take action when lead exceeds 15 parts per billion
in a sample of homes. An action level exceedance is not a violation, but it triggers other required actions to
minimize exposure to lead and copper in drinking water. Those other actions include water quality parameter
monitoring, corrosion control treatment, source water monitoring/treatment, public education, and lead service line
replacement.



17-P-0004                                                                                                            4
                EPA Region 5 Had Sufficient Information and the Authority to Issue
                an Emergency Order in June 2015, but Did Not

                By June 2015, EPA Region 5 had information that the city of Flint exceeded the
                lead level at which corrosion control is required, and that Flint was not using a
                corrosion inhibitor. EPA Region 5 also had information that at least four homes
                had concentrations of lead in household drinking water above the action level of
                15 parts per billion. These factors and others indicated that some residents were
                being exposed to lead-contaminated water, and that exposure to lead-
                contaminated drinking water was likely to increase as corrosion continued within
                the distribution system.

                Additional information from the public provided further evidence of Flint
                drinking water abnormalities. Between April 2014 (month of the water source
                switch) and June 2015, EPA Region 5 received many documented complaints
                from Flint residents.4

                By June 2015, EPA Region 5 also knew that the state and local authorities were
                not acting quickly to protect human health. In February 2015, the state initially
                told the EPA that Flint had an optimized corrosion control program in place.
                Subsequently, in April 2015, the state admitted that Flint was not using corrosion
                control, but the state also said none was required. Neither state nor local
                authorities disclosed the risks of potential lead contamination to residents.

                EPA Region 5 began discussing the issue with the state and offered the state
                technical assistance in February 2015. However, instead of acting immediately to
                protect human health, the state delayed action by awaiting the results of the
                second round of lead sampling (not anticipated until August 2015). The state
                argued Flint had as many as 5 years from the date of the source switch to optimize
                corrosion control. The city of Flint also did not take action.

                On June 24, 2015, an EPA Region 5 regulations manager produced an interim
                report about lead contamination identified in Flint homes and described major
                public health concerns in the city of Flint. However, on July 9, 2015, the then
                Flint mayor held a press conference assuring Flint residents that the water was
                safe to drink. Despite these conditions, the region did not issue an emergency
                order because the region concluded the state’s ongoing activities were a
                jurisdictional bar preventing the EPA from issuing a SDWA Section 1431
                emergency order.

                The EPA’s 1991 guidance on taking emergency action under Section 1431
                describes how and when the EPA can use its emergency authority even if a state
                or local agency acts:


4
 These complaints were submitted to EPA Region 5 directly or forwarded to Region 5 from the EPA OIG or the
White House.


17-P-0004                                                                                                    5
                        The Regions should not view this standard - whether a State or
                        local authority has acted to protect the health of persons - as an
                        issue of whether these authorities have “failed” to protect public
                        health. Instead, these authorities intentionally may defer action to
                        EPA because the Section 1431 authority may be more powerful or
                        expeditious…. Further, State or local authorities may decide to
                        take action jointly with EPA. In such cases, EPA would determine
                        that State and local authorities have not acted (on their own) to
                        protect the health of persons. Therefore, EPA may proceed with
                        Section 1431 actions when State and local authorities are working
                        jointly with EPA.

                Our analysis of the publicly available data on SDWA Section 1431 actions taken
                by EPA regions prior to the Flint incident shows that it is rare for a region to issue
                an emergency order to a municipality in a state with primacy. OIG analysis
                showed that the vast majority of the SDWA Section 1431 emergency orders taken
                by EPA occurred in Wyoming and in Indian country, where the EPA regions
                directly implement SDWA and there is no “state” entity to consider. Based on the
                publicly available data, the majority of Section 1431 emergency orders issued by
                the EPA were to businesses and federal facilities.5

                Emergency action by EPA Region 5 could have required the city and state to
                provide alternative water supplies to affected residents, study the extent and
                severity of lead contamination within the water system, or immediately begin
                corrective actions to reduce and eliminate lead contamination in the drinking
                water system. However, EPA Region 5 did not intervene under SDWA Section
                1431 to require immediate actions to protect human health, and the conditions in
                Flint continued.

                In the absence of EPA
                intervention in Flint, the state
                continued to delay taking
                action to require corrosion
                control or provide alternative
                drinking water supplies.
                Additional data in August and
                September 2015
                demonstrated lead
                                                    EPA emergency response vehicle in Flint. (EPA OIG photo)
                contamination was
                widespread, and also demonstrated an increase in the blood lead levels of children
                living in Flint. It was not until December 2015 that Flint began adding a corrosion
                inhibitor to optimize corrosion control in the water system.



5
  OIG analyzed information from the EPA’s public Enforcement and Compliance History Online database. The EPA
informed the OIG that this public database does not reflect all EPA Section 1431 actions taken.


17-P-0004                                                                                                 6
            Region 5 did not formally brief OECA about Flint’s water issues until September,
            2015. Staff and managers in OECA viewed the Flint situation as one in which it
            was appropriate for the region to take Section 1431 action, and recommended that
            the region take such action. However, Region 5 declined to take emergency
            action, on the basis that the ongoing state actions constituted a jurisdictional bar.

            Table 2 provides examples of federal, state and local events occurring in Flint
            during the fall and early winter.

            Table 2: Examples of Federal, State and Local Actions in Flint—
            September 2015 through January 2016
             Month        Event
             September     External researchers inform the EPA about broader scope of lead
                            contamination and elevated blood lead levels in Flint children.
                           Flint mayor announces that corrosion control will be initiated; invites
                            EPA experts to Flint.
                           City of Flint and Genesee County issue formal health advisory.
             October       Region 5 establishes Flint task force to provide technical expertise.
                           Michigan develops a 10-point action plan.
                           Flint returns to purchasing treated water from Detroit Water and
                            Sewerage.
             November      EPA Office of Water issues memo verifying that the Lead and Copper
                            Rule requires that large drinking water systems, such as Flint, have
                            optimized corrosion control technologies in place.
                           Region 5 Flint task force concludes that contamination in Flint is still
                            not controlled, because the city did not comply with a request for
                            information that would give this assurance.
             December      Flint begins to implement supplemental corrosion control.
                           Flint mayor declares state of emergency.
             January       Michigan governor declares state of emergency.
                           President declares federal state of emergency for Flint.
                           EPA issues emergency order to MDEQ and Flint.
            Source: OIG

            According to OECA staff and management, as these events unfolded, OECA
            continued to discuss a Section 1431 action with EPA Region 5 leadership,
            stressing that this would formalize the state’s planned actions. This would also
            have federalized the response. However, OECA and the EPA Administrator’s
            office did not initiate SDWA 1431 action from the EPA headquarters level, and
            continued to rely on EPA Region 5’s determination that the state was acting.
            However, the contamination continued.

            The Administrator, in delegating to OECA the authority for SDWA Section 1431
            emergency action, limited OECA to taking these actions in “multi-regional cases
            or cases of national significance.” However, the Administrator retains the
            authority to act in all cases. Only in January 2016 did it become clear to OECA
            that even though the contamination continued to be unresolved by months of
            ongoing activity, the EPA Region 5 Regional Administrator did not adequately
            recognize the available authority under Section 1431 to take an emergency action.


17-P-0004                                                                                              7
            The EPA Administrator directed OECA to issue an emergency order to the state
            of Michigan, MDEQ and the city of Flint on January 21, 2016.

            While the 1991 guidance provides that the EPA may proceed if state actions do
            not serve to protect public health, the guidance does not provide examples of state
            actions that would and would not be deemed timely and protective. The guidance
            also does not provide a checklist or other tools for determining when the Regional
            Administrators and OECA Assistant Administrator should consider emergency
            action under SDWA Section 1431.

            We are issuing a management alert report on this matter to promote awareness
            and facilitate EPA action to clarify and update its guidance and scenarios under
            which a SDWA Section 1431 emergency order should be considered. The OIG’s
            evaluation of the Flint drinking water crisis is ongoing, and we expect to issue an
            additional report when our work concludes.

 Conclusion

            EPA Region 5 had sufficient information to issue an emergency order to Flint as
            early as June 2015, but did not. Issuing an emergency order to a state or local entity
            is a rare occurrence at the EPA. The former EPA Region 5 Regional Administrator
            believed that the state of Michigan’s actions to address the Flint situation barred
            formal federal action. While events were complicated, given what we know about
            the consequences of the Flint drinking water contamination, it is clear that EPA
            intervention was delayed. These situations should generate a greater sense of
            urgency. The EPA must be better prepared and able to timely intercede in public
            health emergencies like that which occurred in Flint.

            To that end, the EPA has since taken some responsive steps by issuing the policy
            on elevation of critical public health issues and conducting SDWA enforcement
            trainings. However, the EPA can do more to emphasize that SDWA Section 1431
            is a tool that should be used in cases where responding with urgency will protect
            human health. This management alert identifies initial actions we believe the EPA
            must take to clarify regions’ authorities to use this tool, and to clarify OECA’s
            role in recommending and taking emergency action to immediately address urgent
            drinking water issues.

            Specifically, the EPA should update its 1991 SDWA Section 1431 guidance to
            include relevant examples of how and when Section 1431 orders have been
            issued, and examples of timely and protective state action. The updated guidance
            should include the current delegation of authority for issuing Section 1431 orders,
            and should establish a guide to give employees direction about when Section 1431
            emergency action could be taken. Further, the EPA should require all relevant
            EPA drinking water and water enforcement management and staff to attend
            training on the use of the authorities provided in SDWA Section 1431. As the



17-P-0004                                                                                         8
            OIG completes its work, it will examine the management and program controls in
            place at the EPA and make further recommendations as warranted.

Recommendations
            We recommend that the Assistant Administrator for Enforcement and Compliance
            Assurance:

               1. Update the EPA’s Final Guidance on Emergency Authority under
                  Section 1431 of the Safe Drinking Water Act (1991) to:

                      a. Include the most relevant examples of Safe Drinking Water Act
                         Section 1431 orders nationwide and examples of state actions that
                         would be considered timely and protective.

                      b. Reflect the current delegations of authority to both the Regional
                         Administrators and the Assistant Administrator for Enforcement
                         and Compliance Assurance.

                      c. Establish checklists for when both the Regional Administrators and
                         the Assistant Administrator for Enforcement and Compliance
                         Assurance should consider emergency action under the Safe
                         Drinking Water Act Section 1431.

               2. Train, in cooperation with the Assistant Administrator for Water, all
                  relevant EPA drinking water and water enforcement program management
                  and staff on the Safe Drinking Water Act Section 1431 authority and
                  updated guidance.




17-P-0004                                                                                    9
                               Status of Recommendations and
                                 Potential Monetary Benefits

                                                            RECOMMENDATIONS

                                                                                                                                              Potential
                                                                                                                                 Planned     Monetary
    Rec.    Page                                                                                                                Completion    Benefits
    No.      No.                                 Subject                                Status1        Action Official             Date      (in $000s)

     1        9     Update the EPA’s Final Guidance on Emergency Authority under                  Assistant Administrator for
                    Section 1431 of the Safe Drinking Water Act (1991) to:                            Enforcement and
                                                                                                   Compliance Assurance
                         a. Include the most relevant examples of Safe Drinking
                            Water Act Section 1431 orders nationwide and
                            examples of state actions that would be considered
                            timely and protective.

                         b. Reflect the current delegations of authority to both the
                            Regional Administrators and the Assistant Administrator
                            for Enforcement and Compliance Assurance.

                         c. Establish checklists for when both the Regional
                            Administrators and the Assistant Administrator for
                            Enforcement and Compliance Assurance should
                            consider emergency action under the Safe Drinking
                            Water Act Section 1431.

     2        9     Train, in cooperation with the Assistant Administrator for Water,             Assistant Administrator for
                    all relevant EPA drinking water and water enforcement program                     Enforcement and
                    management and staff on the Safe Drinking Water Act Section                    Compliance Assurance
                    1431 authority and updated guidance.




1   O = Recommendation is open with agreed-to corrective actions pending.
    C = Recommendation is closed with all agreed-to actions completed.
    U = Recommendation is unresolved with resolution efforts in progress.




17-P-0004                                                                                                                                          10
                                                                              Appendix A

                                    Distribution
Office of the Administrator
Assistant Administrator for Enforcement and Compliance Assurance
Regional Administrator, Region 5
Agency Follow-Up Official (the CFO)
Agency Follow-Up Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Principal Deputy Assistant Administrator, Office of Enforcement and Compliance Assurance
Deputy Assistant Administrator, Office of Enforcement and Compliance Assurance
Deputy Regional Administrator, Region 5
Audit Follow-Up Coordinator, Office of Enforcement and Compliance Assurance
Audit Follow-Up Coordinator, Region 5




17-P-0004                                                                                  11