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DEP Did Not Ensure That All Toxics Users Filed Biennial Toxics Use Reduction Plan Summaries and Annual Toxics Use Reports.

By not ensuring compliance with TURA, DEP cannot be certain that all toxics users are working toward and promoting TUR in their workplaces.

Table of Contents

Overview

DEP, which is responsible for enforcing the Massachusetts Toxics Use Reduction Act (TURA), did not ensure that all toxics users submitted complete annual toxics use reports and biennial toxics use reduction (TUR) plan summaries. We obtained the entire population of TUR plans and toxics use reports filed for reporting years 2016 and 2017, which were due during our audit period. We compared the list of plan filings by each company against report filings and identified two instances, not investigated by DEP, where a TUR plan summary was not fully completed for the 2017 reporting cycle. (In both instances, one of the components of the TUR plan summary was submitted incomplete.)

Additionally, we identified two instances where a toxics user filed a toxics use report for the 2016 reporting cycle but not for 2017. DEP attempted to contact each toxics user twice but received no response and did not confirm with the toxics users that they were not required to file the reports.

Without ensuring compliance with TURA, DEP cannot be certain that all toxics users in the Commonwealth are working toward and promoting TUR in their workplaces.

Authoritative Guidance

Section 50 of Title 310 of the Code of Massachusetts Regulations (CMR) details the reporting requirements for toxics users. Specifically, 310 CMR 50.32(1) states,

On or before July 1 of each year, toxics users shall submit a toxics use report including information associated with each covered toxic manufactured, processed, or otherwise used at a facility.

Additionally, 310 CMR 50.41(5) states,

Toxics users shall complete plan updates every two years beginning with the date on which the initial plan is due.

Further, 310 CMR 50.04 states,

Any noncompliance with . . . any provision of 310 CMR 50.00 shall constitute a violation . . . for which [DEP] may take an enforcement action.

Finally, Section 3 of Chapter 21I of the Massachusetts General Laws states that DEP has the authority to enforce the laws and regulations governing TURA, such as the above, to ensure that toxics users are working toward reducing toxics use:

[DEP] shall ensure that, to the maximum extent practicable, any toxics user found to be violating any law or standard for which the department has enforcement jurisdiction shall practice toxics use reduction in order to come into compliance with the violated law or standard.

Reasons for Issue

DEP has inadequate policies, procedures, and other internal controls in place to ensure that all toxics users file the required reports and plans. DEP’s management told us that they believed they were not required to follow any specific procedures to identify noncompliance.

Recommendations

  1. DEP should develop policies and procedures regarding its process to ensure that toxics users have filed the required reports and plans.
  2. DEP should establish monitoring controls to ensure that these policies and procedures are followed.

Auditee’s Response

MassDEP has a robust set of policies and procedures for ensuring compliance with required reporting and plan summary submittals. MassDEP has procedures in place for the toxic use reduction (TUR) program to receive, review and conduct [quality assurance / quality control] of required submittals, respond to deficiencies and issue enforcement. MassDEP was successful in ensuring compliance with toxics use planning and reporting requirements for the period under review, although we will endeavor to improve the system and procedures even more. MassDEP agrees that a central internal control document is necessary and is currently working on assembling all existing policies and procedures so these elements are readily accessible in one location.

A toxics user is not required to submit the toxics use reduction (TUR) plan itself to MassDEP, but is required to biennially submit an electronic form, that consists of three components, to document that a TUR plan was completed. G.L. c. 21I, §11(F); 310 CMR 50.41(4) and 50.47. These components are: (1) the Plan Summary Submittal Selection Form; (2) a TUR Plan Summary Form for each chemical (system generated form based on Selection Form); and (3) a TUR Plan Summary Certification signed by the Toxic Use Reduction Planner and a Senior Management Official of the company. 310 CMR 50.47(1).

The Auditor identified two companies for which a TUR plan summary was not completed for the 2017 reporting cycle. MassDEP’s E-DEP filing system is designed with functionality to prevent a submittal if all three components of a plan summary are not complete. For these two companies, due to an undetermined system error, only two (Plan Summary Submittal Selection Form and TUR Plan Summary Certification) of the three components were received. In both instances, the missing component (TUR Plan Summary Form) is a system-generated form for each chemical listed. As this appears to be a technology issue, MassDEP, with the Executive Office of Energy and Environmental Affairs Information Technology Unit, is investigating why the TUR Plan Summary Form was not generated for these two companies, out of 433 filers in 2017. Until this system issue is resolved, the program is going to institute an additional staff review of plan submittal documentation to identify any incomplete Plan Summary Forms. Nonetheless, for the period under review, 99.5% of submitted forms were accurate and complete. For the two companies whose forms were missing a field, MassDEP has confirmed that the facility plans were updated as of 2017.

Additionally, the audit report notes (without further identification) “two instances where a toxics user filed a toxics use report for the 2016 reporting cycle but not for 2017. DEP attempted to contact each toxics user twice but received no response and did not confirm that the toxics users were not required to file the reports.” During the audit, the Auditor identified 29 companies that filed TUR reports in 2016 but were not among the 433 filers in 2017. MassDEP had in fact investigated those 29 companies and confirmed by phone and email contact that 27 were not subject to the TUR program filing due to either the closure of the facility or the fact that the facility’s usage of reportable chemicals fell below TUR program thresholds. For the two cited in the report, MassDEP reached out through phone and email and did not receive a response. Internet research regarding the companies’ status, including corporate filings on the Secretary of the Commonwealth’s website, did not yield any information on the status of the two filers. MassDEP will undertake additional measures to confirm filer status, including physical visits to such facilities either by MassDEP staff or in cooperation with local authorities, when an existing filer fails to file a new report and the agency is unable to otherwise confirm the reason.

Auditor’s Reply

Although OSA observed that DEP had a process in place for ensuring that toxics users filed required reports and plans, DEP did not provide OSA with any written policies and procedures regarding this process or any documentation to substantiate that it had established other essential controls, such as monitoring controls, to ensure that the process was consistently followed.

OSA found two instances during the audit period where a TUR plan summary was not fully completed for the 2017 reporting cycle. OSA acknowledges that this represents a small percentage of the summaries filed during this cycle, but believes that since these reports relate to a public safety activity, any issues of noncompliance should be brought to DEP management’s attention. Based on DEP’s response, our audit work in this area was beneficial to DEP, as it indicated that it will investigate, and presumably be able to resolve, this technology issue.

As noted above, during our audit, OSA also found two instances of toxics users filing annual reports in 2016, but not in 2017, that DEP did not properly investigate during its quality assurance process. We acknowledge that DEP attempted to contact both of these users, but we believe that due diligence would have required DEP to continue to investigate and definitively determine why the users failed to file the reports.

Based on its response, DEP is taking measures to address our concerns in this area.

Date published: June 15, 2020
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