[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Notices]
[Pages 21856-21880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11453]
[[Page 21855]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
Permits Improvement Team Concept Paper on Environmental Permitting and
Task Force Recommendations; Availability; Notice
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices
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[[Page 21856]]
ENVIRONMENTAL PROTECTION AGENCY
[FRL-5501-7]
Notice of Availability of Permits Improvement Team Concept Paper
on Environmental Permitting and Task Force Recommendations
AGENCY: Environmental Protection Agency.
ACTION: Final draft of Permits Improvement Team's Recommendations.
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SUMMARY: The PIT was formed in July 1994 to evaluate the Agency's
permitting programs, both delegated and administered directly, and
develop recommendations to improve the effectiveness and efficiency of
the permitting process. The PIT is composed of representatives from EPA
Headquarters and Regional Office and state, tribal and local permitting
agencies. The PIT held numerous stakeholder meetings to solicit input
on the most critical permitting issues and to obtain feedback on the
initial recommendations.
Although significant input on the PIT's recommendations has been
received through our stakeholder meetings, a brief final review by
appropriate Federal Advisory Committee Act (FACA) organizations (Common
Sense Initiative, National Environmental Justice Advisory Council and
Federal Facilities Environmental Restoration Dialogue Committee) is
being provided. This is being done to ensure that the recommendations
are not inconsistent with the efforts of these Agency advisory groups.
After making any changes based on this review, the PIT recommendations
will be submitted to Administrator Browner for her consideration.
Should she endorse the recommendations, implementation will commence.
Stakeholders will continue to be involved in specific permit reform
efforts.
The PIT Concept Paper on Environmental Permitting and Task Force
Recommendations follows this notice. In addition, the document can be
obtained via the Internet at
`gopher://gopher.epa.gov' or
`http://www.epa.gov'. After reaching either of these Internet sites,
locate the search function and type `Permit Improvement Team' to locate
the Concept Paper on Environmental Permitting and Task Force
Recommendations. A copy can also be obtained by writing to the Permits
Improvement Team, Mail Stop 100, 2890 Woodbridge Ave., Edison, NJ
08837.
If an organization would like to discuss the PIT recommendations a
meeting can be arranged, provided funding is available in the Agency's
budget. Contact Lance Miller, PIT Executive Director at the above
address to arrange a meeting.
Dated: April 19, 1996.
Elliott P. Laws,
Designated Federal Official.
PERMITS IMPROVEMENT TEAM FINAL DRAFT OF CONCEPT PAPER ON ENVIRONMENTAL
PERMITTING AND TASK FORCE RECOMMENDATIONS
April 1996
CONCEPT PAPER ON ENVIRONMENTAL PERMITTING
I. Introduction
A. Purpose of the Concept Paper
Over the past 25 years, EPA has continually searched to find the
best ways to protect the environment. Among the most successful methods
have been EPA's programs requiring industrial and municipal facilities
to obtain permits to control their pollutant emissions 1 to the
air, land and water. Programs such as New Source Review for air
emissions, National Pollutant Discharge Elimination System (NPDES) for
water discharges and the Resource Conservation and Recovery Act (RCRA)
for hazardous waste management have in many ways reduced the negative
impacts of industrial and municipal facilities on human health and the
environment.
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\1\ The terms ``emission'', ``release'' and ``discharge'' are
used interchangeably in this paper.
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But numerous environmental challenges remain. Perhaps the greatest
challenge for EPA today is to answer the public demand for more
environmental protection at less cost. This demand of ``more for less''
requires EPA to examine both the philosophy and practice of its
permitting systems, to determine how they can be made to function more
effectively while at the same time decreasing costs for environmental
agencies and the regulated community.
This concept paper seeks to resolve these concerns by establishing
a revised approach to environmental permitting: public performance-
based permitting. This approach incorporates two concepts; one, the
establishment of a defined level of performance to be achieved by the
permittee and two, providing the public with the necessary information
so they can monitor the permitting process and compliance of permitted
facilities. Once the final draft of this concept paper has been
completed and approved (following the incorporation of additional
comments), it will serve as a statement of official EPA policy on
environmental permitting. As such, it will be used by EPA permit
programs as guidance. EPA Program offices affected by these changes
will need to develop plans that outline what they must do to implement
these principles (e.g., policy, regulatory or process changes)
consistent with statutory requirements. Theses plans could take the
form of program specific strategic plans that would include short and
long-term goals for moving the public performance-based permitting
concepts forward. It is important to note that some EPA programs, such
as NPDES permitting, are already applying many of these principles, and
therefore may have fewer changes to make.
Other environmental permitting programs, such as those of state,
tribal or local governments, are strongly encouraged to adopt these
principles where appropriate.
B. EPA's Relationship With State, Tribal and Local Environmental
Agencies
Before discussing the principles of a modified permitting system,
it is important to understand the context in which these principles
would be carried out. Rather than issuing most permits itself, EPA
generally has established programs to authorize state, tribal and local
permitting authorities, to perform most of the permitting. Recently,
EPA and the states signed an agreement, the National Environmental
Performance Partnership System, aimed at making EPA oversight of states
less uniform and prescriptive and more based on performance, so that
states with more effective programs and proven environmental results
may receive less oversight. A similar approach is being developed for
tribes. This concept paper follows the principles of the new EPA/state
relationship, with the goals of making EPA permitting systems more
performance-based and providing authorized permitting authorities more
flexibility to find the best approaches to permitting and data
management. The principles in this paper, therefore, should be
understood as approaches that EPA would like to encourage through
flexibility and assistance to state, tribal and local governments, and
not as any kind of new mandates. A key aspect of that assistance is the
provision of information from EPA databases. A comprehensive effort to
upgrade the quality and breadth of these databases is needed. Some of
the individual Task Force recommendations that follow this paper
identify specific projects to improve the Agency's delivery of
[[Page 21857]]
information. In addition, specific changes to the permitting system
need to be developed through continued dialogue with state, tribal and
local environmental agencies and other stakeholders.2
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\2\ The term stakeholder(s) is used in this paper to refer to
all groups interested in environmental permitting, including
environmental, community and environmental justice groups, regulated
entities, and state, tribal and local permitting agencies.
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C. Permits Improvement Initiatives
While EPA and many other environmental agencies have taken, and are
taking, specific actions to improve their permitting systems, there is
also a need to re-examine EPA's overall approach to permitting. Toward
this end, the Permits Improvement Team (PIT) was founded by EPA's
Administrator in July 1994 to comprehensively examine the permit reform
efforts going on around the country and determine how, taking the best
of these efforts, EPA's overall approach to permitting could be
improved. (A compilation of over 100 environmental agency permitting
reform projects, entitled ``The Inventory of USEPA/State Permit
Improvement Initiatives'' can be accessed via the internet at `gopher:/
/gopher.epa.gov' or at `http://www.epa.gov'. After reaching either of
these internet sites, locate the search function and type `Permit
Improvement Team' to locate the inventory. A hard copy of the inventory
can be obtained by calling 908-321-6782.)
D. Public Performance-Based Permitting
The purpose of permitting is to establish the level of performance
needed by facilities or individuals to protect human health and the
environment. To do so, EPA has in some cases set performance standards,
determined the technical means by which facilities must comply with
these standards, and then required monitoring and inspection to assure
their compliance. In some instances, standards were highly prescriptive
(including detailed technology or management requirements) that
eliminate or severely restrict alternative approaches to achieving
compliance. In other cases EPA bases a standard on a technology, which
can be viewed by the regulated community as the technology of choice.
It is the contention of this paper that too much time and resources
are spent reviewing the technical means by which a permittee will
comply with permit conditions. While detailed technical reviews were
warranted 25 years ago, sufficient progress has been made in verifying
technology and increasing corporate environmental responsibility that
it is now appropriate to re-evaluate this approach. In instances where
technologies are new or unique, detailed technical review may still be
warranted; in circumstances where proven or verified technology is
being permitted, however, such level of review may be inappropriate.
Conducting detailed technical reviews for off-the-shelf technologies
has resulted in several negative consequences:
Permitting agencies are overloaded with routine detailed
paperwork to review. This takes time away from other activities, as
verifying the equivalency of performance for innovative technologies,
causes permit actions to take an unacceptable amount of time, and
prevents a more logical and beneficial ordering of priorities. In
addition, the excessive focus on the means of compliance distracts
attention from evaluation of progress on the end of improving
environmental conditions.
The regulated community, in addition to sometimes being
burdened by unwarranted paperwork, a slow permitting process and
unnecessary economic hardships, is in some cases not provided the
flexibility--or any incentives--to seek the kind of technological
innovations which could prevent pollution at its source, and/or provide
better environmental results at lower cost.
The permitting process is largely focused on technical
issues, sometimes, beyond the grasp and interest of the general public.
The permitting agency and permittee can spend much time grappling with
these issues, while the public is usually excluded until such a time
when these issues have been resolved through the writing of a draft
permit. The public's ability and opportunity to judge the permit
process and results can thus be unduly limited.
In order to remedy this situation, this paper proposes a permitting
approach called public performance-based permitting, or P3. The essence
of this approach is to shift the focus of environmental permitting
towards the measurement and assurance of performance, while providing
flexibility as to how a permittee will meet performance standards. The
focus of this system will not simply be performance, but performance
within a public arena: to the extent possible and appropriate, the
public should be involved in the setting of performance standards and
the measurement and judgement of performance. It is recognized that the
existing environmental statutes may limit EPA's latitude in fully
implementing this approach. As EPA seeks changes to its various
permitting programs in accordance with this approach, specific
legislative barriers will be identified. As opportunities develop to
address these barriers, specific legislative changes will be proposed.
The P3 principle includes three different types of performance. The
existing permitting programs each contain elements of this principle.
The objective of the permitting programs will be to more fully
implement each type of performance.
1. Environmental results: How are permitted activities actually
affecting the environment? To improve knowledge and understanding of
this performance factor, this paper proposes that permitting agencies
increase ambient (environmental) monitoring as a permit condition in
selected permits, while comparatively reducing other emissions
monitoring and reporting requirements. Ambient monitoring results shall
be reported to the public in understandable terms. Ambient monitoring
would not eliminate individual facility monitoring requirements.
2. Facility compliance: How well are permitted facilities complying
with their permits over time? To increase the rates at which facilities
comply with their permit conditions, permitting agencies should (1)
establish reporting requirements based on a facility's level of
compliance (e.g., reduce reporting for facilities with good compliance
records) and potential impact of an activity, (2) create incentives for
pollution prevention and technological innovation, and (3) provide
compliance assistance to facilities that are making good-faith efforts
but finding it difficult to comply (e.g., small businesses and local
governments). Furthermore, compliance data will be put in
understandable terms and made available to the public.
3. Agency performance: How good a job are EPA and other
environmental permitting agencies doing? To ensure that they continue
to protect the environment in the most effective and efficient ways
possible, this paper recommends that EPA devise methods to measure the
performance of permitting systems and to continually improve these
systems based on performance data received. These methods shall be
provided for the use of state, tribal and local environmental agencies
as well. Information on the performance of all permitting agencies
should be publicly reported in understandable terms.
[[Page 21858]]
The proposals for these three types of performance are detailed in
the following sections. But first, it is necessary to discuss in more
detail the importance of public participation in the approach to
permitting specified in this concept paper.
Traditionally, permitting agencies have limited public
participation to public comment periods and hearings at the latter
stages of the permit process. This concept paper sets forth a more open
process that provides the public opportunities for earlier and more
meaningful participation, within the context of the requirements
specified in federal and state laws. This model is inspired by some
recent initiatives in public participation, including EPA's RCRA
Expanded Public Participation rule and the Chemical Manufacturing
Association's (CMA) Responsible Care Program.
These initiatives are based on the concept of direct reporting of
information to the public early in the permitting process and in
understandable terms. In addition to increasing public awareness
regarding facility operations, these programs can serve as a powerful
incentive for facilities to reduce their toxic emissions, so as to
avoid arousing public concern. P3 would extend these concepts to the
public reporting of ambient monitoring results, facility compliance
data and information on how well EPA and permitting agencies are
performing.
Furthermore, an effective permitting process (for individual
permits) requires that the public be involved early and intimately
enough that their needs and concerns may be incorporated into permits
and other aspects of facility and/or agency policy. Such opportunities
can defuse the kinds of adversarial relationships which otherwise may
slow and obstruct the permitting system with, for example, lawsuits or
permit appeals.
To address these types of concerns, the CMA established its
Responsible Care program. Under this program, chemical plants are
encouraged to establish community advisory panels, through which the
facility and members of its surrounding community can establish a
continuing dialogue. The Departments of Defense and Energy have
developed similar programs to encourage community participation in
their environmental projects. Such forums allow the public and the
facility new opportunities to educate each other on their respective
needs and concerns, and to jointly resolve differences on environmental
issues. EPA will encourage the development of community advisory panels
at more facilities, by facilitating the establishment of similar
committees in situations where the public and regulated community
determine it would be beneficial.
Public performance-based permitting is designed to change the
relationships among permitting agencies, permittees and the general
public. The permitting process is currently often burdened with
mistrust and adversarial relationships among all three of these
parties. If these relationships can be rebuilt on a basis of trust,
partnering, accountability and cooperation, the most serious obstacles
to an effective and efficient permitting system will have been removed.
(See Figure I)
The PIT specifically notes that there are regulatory or statutory
barriers to some of the approaches listed below. The Agency's ability
to implement each of these options under current law would need to be
investigated further as these options are developed in more detail.
II. Environmental Results
The ultimate measure of the performance of EPA's environmental
permitting systems is the condition of the air, land and water. Current
permitting systems focus primarily on gathering information about
permittees' compliance, but comparatively little information is
gathered on the actual effects of permitted activities on human health
and the environment. To a large extent, environmental permitting
systems also lack the flexibility to restructure and rearrange their
priorities in response to such environmental performance data, since
they are often set up to issue individual permits based solely on the
potential impacts of each facility. However, changes are being proposed
in this area as permitting authorities consider ecosystem and community
based approaches to permit issuance.
Yet in order to answer public demands for more environmental
protection at less cost, there is a need to determine how to focus more
resources on the activities producing the greatest environmental
impact, while divesting from activities of lesser significance. To do
so effectively, better information is needed on the effects industrial
and municipal activities are actually having on the air, land and
water.
This should be accomplished through, for example, an increase in
the use of ambient monitoring as a permit condition. Practically
speaking, this cannot be done overnight. EPA needs to research how to
perform ambient monitoring in a cost-effective manner, how to collect
useful data and how to trace pollution found through such monitoring
back to the source(s). Different media present varying challenges: air
monitoring, for example, is particularly complex. It might be
beneficial to work on these issues in a multi-program team with Office
of Research and Development (ORD) support.
BILLING CODE 6560-50-P
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[GRAPHIC] [TIFF OMITTED] TN10MY96.077
BILLING CODE 6560-50-C
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Despite these challenges, some programs are already beginning to
achieve these objectives. The Greater Houston Partnership, for example,
is a voluntary program under which Houston-area refineries have set up
an air monitoring network. In the short term, EPA will encourage and
set up more such pilots and feed all results into a study of how to run
effective ambient monitoring programs. These pilots should cover each
media (air, surface water and ground water) jointly or separately, and
some of the pilots should incorporate the concept of involving the
community in monitoring, facilitated by experts from government or the
private sector.
At the same time, it is important not to increase the information-
gathering and reporting burden on permitted facilities. On many
occasions, the regulated community has raised concerns about having to
meet duplicative or counter-productive compliance monitoring, reporting
or record-keeping requirements. In exchange for increasing ambient
monitoring requirements, therefore, EPA shall concurrently identify and
eliminate other compliance information requirements. The Office of
Enforcement and Compliance Assurance and the Program offices, in
consultation with stakeholders, will conduct thorough program reviews
that rank compliance monitoring, reporting and record-keeping
requirements according to the best estimate of their actual value to
the environment and to determine where different media requirements for
compliance information duplicate and/or conflict with one another. The
reviews should be followed by proposals and schedules for permit
programs to streamline reporting requirements.
This approach is an element in several other EPA initiatives. In
response to a Presidential initiative, EPA is examining how it can
reduce paperwork requirements by 25%. This effort should be a major
portion of the reviews discussed in the preceding paragraph. In
addition, EPA's ``one-stop reporting initiative'' aims to streamline
reporting requirements, for example by replacing separate facility
identification codes used by different EPA programs with a single
facility identifier.
Increasing ambient monitoring while decreasing other compliance
information requirements at the source would allow permitting agencies
to prioritize permitting information requirements based on real
environmental impacts. But permitting agencies should be encouraged and
allowed to take this idea one step further, and prioritize which
facilities will receive full-fledged individual permits and which
facilities can receive general (non-individual) permits or no permit at
all, based on certain conditions or levels of emissions (this would
require statutory amendments for some programs). The better ambient
information becomes, the more precisely permitting agencies can and
should gear environmental permitting systems to the most significant
risks to the environment. This could entail protection of high quality
areas as well as focusing on areas where environmental standards are
not being achieved.
One major reform being developed by the PIT is to establish
criteria to determine when individual permits are needed and when they
could be replaced with types of permits requiring less administrative
oversight and cost, without any impact to the environment. Such
alternatives to individual permits include general permits, permits-by-
rule, hybrid permits, and conditional and de minimis exemptions from
permitting. Criteria developed by the PIT's Alternatives to Individual
Permits Task Force include:
Issue permits only where there is a real or potential
adverse environmental impact and the regulatory agency needs to be
involved (add value) in developing proper controls. This would require
revision to certain environmental statutes.
Issue individual permits only where there is a potential
for significant environmental impact or high degree of variability in
regulatory requirements at individual facilities.
It is important that the public be involved in the development and
implementation of any alternatives to individual permits, and that
adequate compliance and enforcement programs be put in place where
alternatives to individual permits are developed.
In the long term, and in conjunction with the pilots and research
discussed above--and recognizing the legal constraints that may exist--
EPA Program offices will revise policies and regulations to provide
state, tribal and local permitting agencies more flexibility and
guidance to: increase ambient monitoring, reduce end-of-pipe/stack
monitoring and reporting requirements, adjust databases to focus on
ambient data, and tier permitting systems based on the actual
environmental impacts of different types of facilities and activities.
Some programs (e.g. OW) are already developing guidance for reducing
reporting and monitoring requirements.
III. Permittee Compliance
A. Hierarchy of Permitting Standards
While permitting systems need to be better geared towards actual
environmental impacts, as discussed above, they still must include
sufficient monitoring to determine permittee compliance. The key is to
make permitting systems less prescriptive and more performance-based,
or in other words, to continue to tell a permittee what standards to
achieve, but to no longer mandate, in most cases, how they are to
achieve them.
This more flexible approach is designed to:
Help the environment by encouraging pollution prevention;
Help permittees by giving them the opportunity to develop
more cost-effective (and equally or more environmentally effective)
approaches to pollution control and prevention; and
Help permitting agencies by allowing them to shift
resources from extensive engineering and paperwork reviews to a focus
on ambient monitoring, standard setting, compliance assistance and
enforcement.
Permitting based on performance standards rather than on technology
or management requirements is not a completely new idea. EPA's NPDES
program, for example, currently uses such an approach to a large
extent. Performance-based permitting will now be the preferred
approach, wherever feasible and appropriate, for all of EPA's
permitting programs, and State, tribal and local governments will be
provided the flexibility and guidance to implement similar approaches.
Programs not using performance-based permitting will need to justify
why that approach is not appropriate (e.g., see Underground Injection
Control (UIC) example below).
Thus, EPA programs will follow the hierarchy of preferred
approaches shown below in setting permitting standards:
i. Set performance standards based on ambient environmental goals.
ii. Set performance standards based on technological achievability.
iii. Set technology- or management-specific standards. The ideal
approach is where EPA sets performance standards based on actual
environmental needs and projected impacts. EPA and other environmental
agencies should follow this approach wherever possible and appropriate.
It may be appropriate to combine the above approaches in an overall
permitting system (e.g. establish a base level of performance and only
require higher levels of performance where
[[Page 21861]]
environmental conditions are not being achieved). This later approach
is currently prescribed by statute in many of the Agency's permitting
programs.
In cases where EPA is not able to establish permit conditions based
on environmental needs, e.g., due to costs and complexities involved
with obtaining useful ambient data, or due to methodological
difficulties (there are significant difficulties with implementing
ambient standard schemes, including contentious scientific issues), the
second-best approach is for performance standards to be based on what
is technologically achievable. For example, based on EPA's knowledge of
the removal efficiency of a particular water pollution control device,
the Water program may set a numerical standard that facilities will
have to meet in order to be in compliance with statutorily established
control standards. While the permitting program will make information
available about what technologies are capable of achieving that
standard, it will allow the facilities to make their own determination
of what technologies to use to meet the numerical standard. In some
cases, facilities may substitute a technology or procedure at earlier
stages of its process, rather than at the end of the pipe or
smokestack, so as to more efficiently prevent pollution and save having
to deal with its consequences.
There will be instances in which technology- or management-specific
standards are warranted. For example, the underground injection control
(UIC) program has a non-degradation policy backed up by engineering
requirements that are supported by industry as well as by the
permitting agency. In this program, the cost of ambient monitoring to
ensure compliance would be excessive compared to establishing technical
requirements.
B. Increasing facilities' Operational Flexibility
In addition to allowing permittees the flexibility to determine the
technical means by which they meet EPA standards, there are several
other ways to increase permittees' operating flexibility. Permitting
agencies should consider these alternatives and incorporate them into
their permitting processes as appropriate. Any alternatives that
provide increased flexibility to the regulated community need to ensure
that the requirements are enforceable.
First, permitting agencies' review of permits should be more
performance-based. This would involve reducing review steps to those
needed to reasonably demonstrate that the permittee will meet
performance standards. Upfront technical (engineering) reviews,
therefore, would be reduced or even eliminated where possible and
appropriate. In general, where technologies are already proven or
verified, there would be less need to perform technical review as part
of the permitting process. EPA will give state, tribal and local
governments the flexibility to reduce such reviews. EPA Program offices
will evaluate existing regulations, policies and priorities that limit
this flexibility and make appropriate revisions where authorized by
statute. In addition, EPA will evaluate whether to shift grants funding
from this stage of the permitting process to other more productive
stages (such as compliance assistance and enforcement). This
flexibility in use of grants is consistent with the Performance
Partnership Grant program proposed in the FY96 EPA budget.
As an example, the lengthy and detailed technical reviews often
conducted under the RCRA program may be less necessary for many
standard container and tank storage operations. The PIT is working on a
project with California and Texas to develop a general (non-individual)
permit for this class of facilities, thus substantially streamlining
the RCRA permitting program.
As noted in Section II, permitting agencies should also be given
the leeway to reduce reporting and compliance monitoring requirements
which are deemed to be unnecessary or duplicative.
Second, permitting agencies will be allowed to reduce the number of
times permits need to be formally modified. Currently, lengthy permit
modification processes discourage facilities from making needed process
changes--including changes which could reduce emissions. Generally,
permit modifications should be required only where process changes will
increase pollution, or are needed to ensure proper operation or
monitoring of a facility (this is likely to require regulatory
revisions in some permit programs). Permitting agencies should be able
to tailor their permit modification requirements by facility;
facilities with good compliance records may be made subject to less
prescriptive requirements. Each EPA permitting program shall review
their modification requirements and make appropriate revisions to only
require permit modifications where needed to protect human health and
the environment.
As discussed in Section I-D above, permitted facilities should be
encouraged to establish mechanisms for conducting regular dialogue with
the public, such as community advisory committees. Major changes in
plant operations may well be appropriate topics for dialogue regardless
of whether a permit modification is required.
Third, permitting agencies should use the permitting process to
encourage municipal and industrial facilities to practice pollution
prevention. One of the primary purposes of making permitting
performance-based rather than technology-based is to encourage and
allow facilities to pursue innovative technological approaches to
preventing pollution at the source. However, additional incentives and
technical assistance are needed. In addition to pollution prevention
technologies, the permitting system should encourage the use of more
cost effective innovative technologies of any type, where practicable
and consistent with legal requirements.
In many cases, encouraging pollution prevention and innovative
technologies will require facility-specific actions, e.g., drafting a
flexible permit that allows the permittee discretion to do what is
needed to prevent pollution. This is the approach of a major EPA
initiative, Project XL, under which facilities are exempted from
certain regulatory requirements if they can demonstrate that they will
achieve better environmental results through other means. In addition,
the PIT is working on a project with the state of New Jersey, under
EPA's Environmental Technology Initiative (ETI), to develop and
implement a protocol to encourage the utilization of innovative
technologies and pollution prevention.
ETI is also sponsoring more than two dozen other projects, programs
and demonstrations in order to remove barriers to technology innovation
in the permitting process, through facility-specific actions as well as
more general regulatory, administrative and procedural changes. The
Office of Policy, Planning and Evaluation has established a program to
coordinate these ETI permitting projects and to provide information and
assistance to other EPA offices, state, tribal, and local permitting
agencies, and outside groups.
Turning to the additional incentives needed for encouraging
pollution prevention the Pollution Prevention Incentives Task Force
recommends, among other things: (1) increasing the use of facility-wide
permitting, and (2) inserting language in general permits stating that
pollution prevention is the preferred means of reaching compliance.
Permitting agencies, at their discretion, may decide to use
[[Page 21862]]
similar incentives to encourage recycling or other beneficial
management methods as well as pollution prevention.
EPA's Multi-Media Pollution Prevention (M2P2) Permit Project is
currently working with several states on multimedia permitting. This
should become the long-term direction of EPA's permitting programs;
however, the transition from single-medium to multi-media permitting
will take time and careful planning. EPA's evaluation under the M2P2
Project will be used to plan that transition.
C. Public Performance-Based Compliance Assurance and Enforcement
Regardless of the level of flexibility provided to permittees,
there will always be a need for environmental agencies to monitor,
assure and enforce compliance with permits. In fact, where upfront
technical reviews are reduced or eliminated, these functions become
even more important. Whereas the existing permitting system is in some
way geared to hold all permittees to requirements based on the worst-
case scenario, the proposed system would gear requirements to actual
environmental performance. A tiered approach to compliance assurance,
is one possible approach, under which less significant violators are
provided technical assistance, while more significant violators become
subject to penalties that should be harsh enough to deter activities
that may threaten human health or the environment.
In addition, information about permittee compliance performance
should become available to the public in clear, user-friendly databases
and publications. It is not enough for an industrial or municipal
facility to perform to the satisfaction of the permitting agency; the
surrounding community has the right to know how well a facility is
complying with its permits and use this information for itself. The
concept behind this approach is to employ the power of public
disclosure, so that a permittee would be deterred from violating
permits by the public relations implications of poor compliance, or
conversely be encouraged to maintain a high level of compliance by the
public relations benefit of being in compliance.
The Office of Enforcement and Compliance Assurance (OECA), in
consultation with appropriate stakeholder, will investigate and
recommend ways to publicize, in an easy to understand format,
facilities' compliance records. Some possibilities are an annual report
(developed by the permitting authority) or requiring compliance
reporting as part of a facility's permit. This compliance reporting
could be based on a third-party audit, conducted by an impartial
auditor, or a self-audit, possibly used at facilities with excellent
compliance histories. The developed approach would probably have to be
piloted in particular media programs, Regions or states before it is
ready to be applied to all permitting programs individually and on a
multimedia basis. It will also require study by OECA to ensure that
this system is successfully designed to be legally defensible, fair,
efficient and enforceable.
The criteria behind the compliance reporting should take several
factors into account. First, there should be a clear distinction
between paperwork violations of little or no direct consequence to the
environment and permit violations with the actual potential to damage
the environment or human health. It is recognized that certain
paperwork requirements are critical to determining permit compliance.
Furthermore, continued violation of paperwork requirements should
result in enforcement action. Second, there could be separate ranking
systems for small and large facilities, since they face different
challenges when it comes to permit compliance. (With small facilities,
the greatest challenge can be having the time and resources to
understand and afford to comply with permit requirements. With larger
facilities, the top challenge may be achieving compliance given
different process lines, smokestacks, discharge pipes, etc.).
Regardless of the final criteria used, they should be clear enough that
there is no dispute as to whether or not a facility is in compliance.
Compliance assurance and enforcement activities should also take
into consideration facilities' compliance records. This could help EPA
and state, tribal and local permitting agencies to better target
inspections, enforcement actions and penalties based on the severity of
the violations. For smaller facilities with labelling or paperwork
violations, EPA may target technical assistance at them (e.g., in
cooperation with universities or other programs which provide such
assistance) so as to improve their understanding of permit requirements
and how to comply with them.
On the other hand, facilities whose non-compliance has the
potential to threaten human health and the environment more
significantly, should be much higher priorities for reporting,
monitoring and attention. In the most severe cases, EPA or the
permitting authority should reserve the option of halting a plant's
operations until it complies with essential permit conditions. This
targeted enforcement approach should make it possible to respond to the
worst threats in a more immediate fashion.
IV. Agency Performance
No reform can ever permanently solve every problem with a
particular system, because problems and public perceptions of them are
constantly evolving. Therefore EPA, state, tribal and local permitting
programs should institute systems of continuous evaluation and
improvement of their own performance.
As illustrated in Figure II, this system would involve several
steps:
(1) Identify performance standards for the permit program: the
PIT's Performance Measures Task Force has developed draft standards by
which permit program performance could be measured, including
timeliness of permit reviews, permit backlogs and customer
satisfaction.
(2) Determine how these standards would be measured: e.g., design
surveys to measure customer satisfaction. As part of EPA's Customer
Service efforts, surveys have been drafted for citizens involved in
permitting decisions, permit applicants and delegated/authorized
permitting agencies. Customer service standards have also been drafted
based on these surveys. Surveying will begin in Federal Fiscal Year
1996. This step needs to be carefully designed to avoid burdening
agencies with tedious ``bean-counting'' exercises. Streamlined ways of
recording performance, including user-friendly electronic means, are
encouraged.
(3) Compile performance data: e.g., conduct surveys, measure
performance rates, etc.
(4) Report to public on permit program performance: compile results
into a regular (e.g., yearly) report on performance which is clearly
understandable and easily accessible, in print as well as on the
Internet. Establish mechanisms to receive public feedback, via
Internet, phone and mail. Permit programs may also decide to hold
public meetings or focus groups to obtain more feedback, as
appropriate.
(5) Review permit program standards, processes and approaches based
on evaluation results and public feedback: permit programs should
conduct periodic program evaluations based on the input received from
this process. They should determine what changes to implement in their
programs to respond to any shortcomings in performance.
[[Page 21863]]
Performance standards will also need to be periodically revised to
respond fully to program needs.
(6) Revise permitting program processes and approaches: implement
the changes that have been identified and return to step one of the
continuous performance improvement system.
The performance of EPA and other permitting agencies, like the
performance of permittees and the actual condition of the environment,
needs to be publicly reported in clear, understandable terms. By
bringing these types of performance into the light, public performance-
based permitting will focus attention on the results of environmental
permitting systems, and use those results to continually make these
systems more responsive and environmentally protective.
ADMINISTRATIVE STREAMLINING--TASK FORCE RECOMMENDATIONS
Goal for Administrative Streamlining
The goal of the Administrative Streamlining Task Force was to
improve the permit process by analyzing successful permit programs
across the country and recommend permitting process changes (guidance,
policy, regulations, procedures) designed to apply these successes more
broadly.
Recommendations
1. Create a Predictable, User-Friendly Federal Permit Process
a. Information and Process
Currently, EPA permitting programs have different processes that
follow different timeframes (See Attachment 1). The lack of
coordination among these programs, and the lack of predictability
created by this situation, can unnecessarily complicate the permitting
process for permittees, state, tribal and local permitting authorities,
and the public. In addition, EPA's oversight of delegated or authorized
permitting programs varies by Region and media program.
Therefore, EPA should to the extent consistent with its various
statutory authorities develop one unified, standard timeline model
applicable to all of its permitting programs (it may be necessary to
have one model for new permit applications and permit modifications and
another for facilities that are required to upgrade to meet new
requirements). It may also be necessary to have different timelines
based on the type of permit (e.g. major or minor). This model timeline
is intended to be used as a management tool for permitting agencies to
set realistic and desirable time goals; if goals are not being met,
permitting agencies should review their processes to identify and
eliminate inefficiencies and unnecessary or unproductive procedures.
In the short term, one uniform model should be approved by EPA as
non-binding guidance for state, tribal and local permitting
authorities. Where allowed by statute or regulation, EPA permitting
programs should provide sufficient flexibility to allow authorized
permitting authorities to adopt this timeline in lieu of specific
program timeframes.
Appendix 2 contains a proposed uniform timeline model. Under this
model, the timeline would be subject to extension if the applicant
consents to negotiate permit terms, if the applicant must submit
further information, or if the permitting agency determines that the
project is unusually complicated. The process should include a
mechanism that clearly identifies the reason for any time extension and
whether the applicant is responsible for any actions that would re-
start the clock on the timeline. The applicant's failure to submit
needed information would constitute a basis for denying the
application. The timeline could include options for enforcing the time
limits and ``calling the question'' on the permit action, as determined
by each permitting jurisdiction.
Several options for ``calling the question'' on a permit
application were considered by the Task Force. One option would include
a refund of permit fees for failure to meet the timelines. A few states
have implemented this approach. Another option would be a judicial
cause of action or other administrative remedy to compel agency action
on the permit, if the controlling statute made meeting the deadline a
non-discretionary duty. A third option would be to allow a permit to go
into effect automatically if the agency does not meet the deadline.
This option is inconsistent with current law and would be contrary to
the PIT's recommendations to enhance public participation and is
therefore not endorsed by the PIT. In addition, this option may also
foreclose the ability of the permitting authority to adequately
evaluate appropriate considerations under Title VI of the 1964 Civil
Rights Act, such as, any disproportionate impact of the permit action
on minority communities.
Permits that are issued by the Regions or by state, tribal or local
permitting authorities that are authorized pursuant to federal law
would have legal impediments to some of the above options. Most
importantly, if the last option caused the elimination of required
public participation the resulting permit would not comply with federal
law.
The proposed timeline includes a notice to the public of either the
complete application, the proposed draft permit, or both, depending on
program needs and statutory constraints.
Implementation (short term): Each EPA Program office should release
a uniform model timeline (by permit type--major/minor) to its
authorized authorities as guidance, and establish, as policy, that
Regions and state, tribal and local permitting authorities, to the
extent allowed by statute and regulations, will be allowed to follow
this timeline in lieu of specific EPA permitting program timeframes
that may otherwise conflict with it.
Implementation (long term): A high-level cross-office team should
be established in FY96 to reach consensus on what changes should be
made to EPA statutes, regulations, policies, guidances and processes so
as to bring all major EPA permit programs under a single uniform
timeline and oversight approach. This team should also define the
resource burden of making these revisions along with the potential
savings from reducing EPA oversight of delegated or authorized agency
issued permits. The PIT has already identified some of the statutory
and regulatory barriers to a uniform timeline. The proposed team would,
with stakeholder input, agree on the specific changes to be made and
work with Program offices to ensure that these changes are implemented
or proposed for statutory change.
b. Single Point of Contact for All Media Permits
In addition to basic level, point of entry offices, each permitting
agency should assign senior permitting personnel to projects in which a
facility receives multiple permits. This can help ensure cross-program
permit coordination and provide each permittee with one senior staff
contact to coordinate the resolution of any cross-cutting issues. In
cases where state/tribal/local permits and federal permits are being
issued to the same facility, permit coordination is also needed between
the permitting agencies.
Example: EPA Region 6 multi-media permit teams.
Implementation: We recommend that a PIT workgroup draft policy and
operational guidance, to be issued by EPA's Administrator, for Regional
Administrators to implement a single
[[Page 21864]]
point of contact approach during FY 1996.
2. Encourage and Implement Flexible Permitting Projects
EPA and state, tribal and local permitting authorities should
create opportunities for facilities to negotiate alternative permit
conditions that maximize operational flexibility and encourage
pollution prevention while maintaining or increasing levels of
environmental protection. Each permitting agency should identify those
situations where a modification can occur without review. Presently,
initiatives such as Project XL, the Common Sense Initiative (CSI), the
Environmental Technology Initiative (ETI) and the Clean Air Act Title V
permit program are piloting approaches and mechanisms to promote
greater flexibility in permits.
Examples of flexible permits:
Intel Corporation, U.S. EPA, the Oregon Department of
Environmental Quality, and the Pacific Northwest Pollution Prevention
Research Center developed a flexible Title V operating permit with the
goal of accommodating shifts in emissions within the facility and
encouraging pollution prevention, while preserving the enforceability
of the Clean Air Act's requirements. Under ETI, EPA Regions 1, 9 and 10
are working with the Office of Air and Radiation; the Office of
Prevention, Pesticides and Toxics; and the Office of Policy, Planning
and Evaluation to expand the Intel flexible permitting experience to
several other states and industries. This national expansion of the
Intel experience will provide EPA and the States with valuable
information and will help ensure the development of enforceable Title V
regulations that allow for permit flexibility and the incorporation of
pollution prevention and innovative control technologies.
EPA and Minnesota Pollution Control Agency worked with 3M
corporation to develop a flexible permit which, while ensuring all
necessary environmental protection, allows the source to make physical
and operational changes without triggering major new source review
requirements under the Clean Air Act.
Implementation: EPA should, through Regional Offices, serve as a
clearinghouse for good examples of flexible permits and serve as a
resource to state, local and tribal governments and the public in
implementing these approaches. This proposal should be implemented
through the electronic clearinghouse recommended in 4d below, as well
as through the Regional Permit Process Assistance program recommended
in 5 below.
3. Tier Permitting Programs in Proportion to Environmental Significance
EPA should establish a policy and guidance to encourage state,
tribal and local permitting authorities to tier their permit programs
according to the environmental significance of facilities' polluting
activities. Such a policy should allow agencies to reduce monitoring or
other reporting requirements for less significant activities so
agencies can focus on the actions with the greatest potential for
environmental impact.
Suggested ways to do this include: increasing thresholds for small
emissions; exploring use of impartial third-party certification
systems; exempting certain activities; requiring less frequent/
consolidated reporting; expediting the review for low tier permits; and
providing incentives for good compliance records and for use of
pollution prevention approaches. Some of these approaches would require
regulatory and possibly statutory changes in order to be implemented.
Examples: A number of states are moving towards tiered permits, to
reduce permit process requirements in accordance with the location of
the project, environmental significance of the impact imposed by the
project, etc. Examples include California Tiered Permitting for
hazardous wastes, Minnesota's Air and RCRA Programs, and the
Massachusetts 401 Certification Program.
Implementation: As an FY96 project, a PIT workgroup should conduct
an analysis of current approaches to tiered permitting, and then, based
on this analysis, draft EPA policy and guidance promoting such
approaches where appropriate. This analysis should also focus on
projects such as Project XL, to determine where principles applied to
individual facilities (e.g., pollution prevention incentives) can and
should be applied to whole classes of facilities.
4. Establish Computer Systems
a. Integrated Facility Data Bases with Geographic Information System
(GIS) Interface
Permitting authorities should combine cross-media information for
each facility into a single database which provides instant access and
search capability. EPA has initiated this task at the national level
through the efforts of the Key Identifiers Workgroup.
Example: Massachusetts DEP's Environmental Protection Integrated
Computer System (EPICS) system takes information supplied by 12
separate MADEP divisions, such as air emissions, hazardous waste and
water supply and combines it into a single database. This gives MADEP
employees instant access to all the agency's information and allows
them to search for data on a facility by entering its name and
location. This and a two-year cross-training program have allowed
inspectors to do multi-media inspections. EPICS is currently developing
an interface with GIS to help site new businesses and to assess
cumulative threats to resources for targeted compliance/enforcement.
b. Permit Software Systems
EPA should collect and make available state, tribal, local and
regionally developed software for a menu-driven system to train permit-
writers and assist them in drafting permits. The system should contain
and cross-reference all appropriate regulations and procedures, and
provide a mechanism for tracking.
Examples: Maryland/Region 3 software program for NPDES permit
writing and tracking. Also, the Indiana Department of Environmental
Management has begun a project to develop a menu-driven, expert system
to help permit writers in drafting permits. This project was started in
an effort to provide training to new permit writers in the state. The
expert system takes permit writers through the process of writing a
permit, cross-references all appropriate state regulations and internal
procedures, and results in a draft permit. This system could also be
made available to permittees and the public.
c. Electronic Permitting and Reporting
EPA should facilitate permitting authority efforts to provide
permit application forms on disk or by dial-in, issue permits
electronically (while providing for public notice, access and
opportunity to comment), develop permit tracking capability, and
establish electronic facility-based compliance reporting. Model permits
(like the RCRA model permit) in electronic format may be provided to
applicants to fill-out as a supplemental part of their permit
application if they choose to do so. This can greatly reduce the time
required for a permit writer to transform permit application proposals
into permit conditions. The permit writer can also easily verify that
the permit conditions proposed by the applicant meet all applicable
requirements. The use of electronic exchanges in permitting will not
replace the need to continue to
[[Page 21865]]
provide appropriate permitting information through non-electronic
means.
d. Electronic Database/Clearinghouse
EPA should establish, provide access to and maintain an electronic
database/clearinghouse which contains relevant information necessary
for permit writers in all media, including: pollution prevention,
toxics use reduction, pollution allocation/Total Maximum Daily Load
(TMDL) models, site specific protocols, etc.
Implementation: Recommendations 4a-c above should be referred to
EPA's Office of Information Resource Management to identify existing
capabilities, develop resource needs and schedules to adopt across
media Program offices. Recommendation 4d should be referred to Research
Triangle Park's Internet Group to identify existing capabilities,
develop resource needs and a schedule to allow adoption across media
Program offices.
5. Regional Permit Process Assistance
Under the National Environmental Performance Partnership System
agreed to between EPA and the states on May 17, 1995, EPA will be
reducing direct oversight of authorized state programs. The Regions are
in an excellent position to help the states improve their permitting
processes by keeping abreast of the latest changes that are being
implemented, and sharing that information with the states. Working
together, a Region and state would identify areas in need of
improvement in a permitting process and evaluate existing approaches
that have been utilized to help address the identified area.
Implementation: As an FY96 PIT pilot project, a Region and a state
(possibly Texas) should develop an approach whereby the Region would
assist the state in evaluating a permitting process. The purpose of
this evaluation would be for the Region to help identify improvements
that could be implemented. The Region would make use of national
clearinghouses and data bases (see recommendation 4d) to help identify
approaches that could be of assistance to the state. The Region could
also provide any needed training to the state. The state would make the
final decision on implementing any improvements.
The Region (with input from the state) would prepare a report on
the lessons learned from this pilot and, working with a PIT workgroup,
propose an approach that other Regions could utilize in providing
assistance to states and tribes in their respective region.
Attachments:
1. A table of current permit program timetables.
2. A proposed uniform timeline for all major and minor federal
permits (see Recommendation 1.a., above).
Attachment 1.--Federal Permit Programs, Current Timetables
----------------------------------------------------------------------------------------------------------------
Public notice Public hearing
Statute requirement requirement Permit duration
----------------------------------------------------------------------------------------------------------------
RCRA \1\............................. Notice of draft permit 30 day public notice. 10 years, review every
in newspaper and Required if written 5 years for land
radio. 45 day comment opposition to draft disposal facilities.
period. permit. May be reviewed/
modified at any time.
Prevention of Significant air quality Notice of draft permit 30 day notice. Silent No expiration date. New
Deterioration (PSD). in newspaper. 30 day on threshold. permit required to
comment period. modify.
Clean Air Act Title V................ Notice of draft permit 30 day notice. Silent Up to 5 years. 3 types
in newspaper. 30 day on threshold. of modifications
comment period. follow new permit
process.
NPDES................................ Notice of draft permit 30 day notice. Silent 5 years.
in newspaper. 30 day on threshold.
comment period.
UIC.................................. Notice of draft permit 30 day notice. Silent Classes I & V: Up to 10
in newspaper. 30 day on threshold. years. Classes II &
comment period. III: Up to operating
life.
----------------------------------------------------------------------------------------------------------------
\1\ These requirements do not include the changes for enhancing public participation included in RCRA Expanded
Public Participation Rule.
BILLING CODE 6560-01-P
[[Page 21866]]
[GRAPHIC] [TIFF OMITTED] TN10MY96.078
Notes
* Opportunities or requirement for public participation.
(1) Time frames can be waived with mutual consent, or if
applicant is unresponsive.
(2) Procedure to apply to all programs except siting.
(3) Major projects receive full public participation
opportunity. They are the projects most likely to have significant
environmental impact.
(4) Minor projects receive internal review only. They represent
minimal or no environmental threat.
(5) ``Complete'' notice can be published when application is
determined to be complete, or when draft permit has been agreed on,
or at both milestones.
(6) Public hearings may be evidentiary or administrative, at
states' option.
BILLING CODE 6560-50-C
[[Page 21867]]
ALTERNATIVES TO INDIVIDUAL PERMITS--TASK FORCE RECOMMENDATIONS
A. Background/Approach
The Permits Improvement Team is exploring alternatives to
individual permits in order to deliver government services more
efficiently, target EPA resources at environmental priorities, and
encourage pollution prevention. EPA's National Performance Review
included the goal ``Target Permit Priorities'', with the following
objectives:
Issue individual permits only where there is a high degree
of environmental concern and where it is necessary to apply tailored or
site-specific requirements.
Use alternatives where possible, such as compliance with
self-implementing regulations (e.g., permit-by-rule) and general or
class permits.
This report refers to six different types of permitting, defined
below:
Individual permitting refers to authorization granted to a person
through an adjudicatory process on a site-specific basis. Typically,
the permittee initiates the individual permitting process through
submission of an application. The permitting agency then develops a
proposed permit (which may or may not be developed in coordination with
the permit applicant) and publishes notice of the proposed permit for
public comment. After consideration of public comments, the permitting
agency will issue a final decision on the permit application. In some
instances, permitting agencies provide an opportunity for
administrative appeal of a final permit before it becomes effective.
General permitting refers to a rulemaking-type process where
requirements are developed based on a prototype facility. The
permitting agency develops a general permit applicable to facilities or
activities of substantially similar nature. General permit
authorization is granted after a person registers with the permitting
authority its intention to comply with the terms of the general permit.
The general permit rulemaking process may be initiated by the
permitting agency or by petition to that agency. Depending on
programmatic needs and legal requirements, a hearing may be required on
whether the general permit applies to a particular facility (or
activity). Typically, general permits are issued for environmental
activities of ``medium to low'' concern where there is little
variability from the prototype facility or activity considered in
development of the general permit. Under the Clean Water Act, general
permits are widely used, particularly for storm water discharges.
Public involvement occurs at time of development of the general permit.
Hybrid permitting refers to a combination of general permitting and
individual permitting. Though the permittee is subject to a single
permit, the permit terms with which the permittee must comply are
developed in part through rulemaking (general permit) and in part
through adjudicatory processes to determine site-specific requirements
(or to comply with site-specific notice or applicability requirements).
Hybrid permitting is not currently used by EPA, so there is no
established procedure, but such a process could be established through
modification of the general permitting process. Hybrid permitting may
be more appropriate than general permitting where there is greater
variability from the prototype, or where there is a statutory
requirement for site-specific hearings.
Permitting-by-rule (PBR) refers to authorization that does not
require subsequent action either by the permit applicant or the
permitting authority. For certain RCRA requirements, EPA has issued
permits-by-rule when compliance with a permit under one statute is
``deemed'' to be permitted under RCRA. Alternatively, a general permit
that does not require registration may be considered to be a permit-by-
rule.
De minimis exemptions to permitting refers to the regulatory
exclusion of an activity that might otherwise fall within the scope of
activity regulated by a statute. Application of the de minimis
exemption theory is subject to some legal restrictions.
Conditional exemptions refer to activities which are not subject to
permitting if the conditions of the exemption are met. Conditional
exemptions would be used where it is important to establish some ``non-
permit'' substantive standards; e.g., a standard of performance or
management practice. Conditional exemptions may represent an
enforceable means to establish that a facility/site/source falls below
some ``applicability threshold'' for a given permit program (such as a
de minimis pollution threshold). Conditionally exempt activity is not
subject to permitting, but is subject to some enforceable requirement.
The conditional exemption theory has not yet been tested in the courts.
B. Methodology for Choosing Recommendations
This Task Force's recommendations were based upon the following
criteria:
Issue permits only where there is a real or potential
adverse environmental impact and the regulatory agency needs to be
involved (add value) in developing proper controls.
Issue individual permits only where there is a potential
significant environmental impact or high degree of variability in
regulatory requirements at individual facilities.
Involve the public in the development and implementation
of any alternatives to individual permits.
Ensure adequate compliance and enforcement activities
where alternatives to individual permits are developed.
C. Recommendations
These recommendations need to be implemented by the applicable EPA
Headquarters permitting program. As part of that implementation, each
Program office needs to review their legal authority for utilizing
alternatives to individual permits. If the statutory authority exists
but current regulations restrict the use of alternative approaches, the
Program office will propose appropriate revisions.
General Recommendations
1. Each Program office should formally consider the appropriateness
of using alternative permit approaches. Consider the degree of
environmental risk, level of public interest, site variability in
application of requirements and duplication of state, tribal, and local
permits in establishing permitting approach.
2. In administering EPA-issued permits, each Regional office should
consider the performance of state, tribal and local permit programs
that may regulate the same or similar activities. Regional offices may
appropriately provide a less rigorous level of review in those
jurisdictions where the state, tribal or local permitting authority
provides equivalent protection. In some cases, where a facility may
operate lawfully without a federal permit, it maybe appropriate for the
Regional office to place lower priority on issuing federal permits in
such jurisdictions. Where the facility is required to have a federal
permit, EPA Program offices should investigate the development of
general permits that reference the state, tribal, or local permits.
This recommendation does not solve the underlying problem of
authorizing state, tribal and local permitting
[[Page 21868]]
programs that provide a substantially equivalent program but not
identical to EPA's approach. Each Program office should revise their
regulations to streamline the authorization process and provide for
greater flexibility where allowed by statute. If a statutory barrier
exists, the Program office should seek revisions to the statute to
provide clear direction on when authorization can occur.
3. Each EPA Program office should develop and maintain a
clearinghouse of permit alternatives being developed and used in
federal and state/tribal/local programs throughout the country. The
Program offices should consult with their state, tribal and local
counterparts to determine the most appropriate information to provide,
given available resources. State, tribal and local permitting programs
are encouraged to submit copies of any alternative permit approaches in
electronic form for ready use by other permitting authorities
interested in pursuing similar approaches.
Program Specific Recommendations
1. Stormwater--National Pollutant Discharge Elimination System (NPDES)
a. The Task Force agrees with the Office of Water's ongoing permit
reform efforts for Phase I and Phase II, conducted under a Federal
Advisory Committee Act (FACA) charter, and recommends they be
continued.
b. The Task Force agrees with the further development of general
permits as part of Office of Wastewater Management's (OWM) projected
permit improvements in the NPDES program in the final 1992 Non-
Construction Industrial permit and the proposed Multi-Sector stormwater
general permit and recommends they be continued. Specifically;
The development of general permit language that emphasizes
pollution prevention (P2) and Best Management Practices (BMP)in the
Non-Construction Industrial permit and the Multi-Sector permit.
The establishment of appropriate monitoring requirements,
based on industry type, water quality, or capability to implement BMP.
c. The Task Force recommends the continued use of the clearinghouse
for general permits.
d. Where non-approved states, tribes, or localities are issuing
substantially similar permits, EPA Regions should defer to those
permitting authorities by prioritizing permitting actions to focus on
non-approved permitting authorities without substantially similar
programs.
2. NPDES--Process Wastewater
a. Because of the need to control specific dischargers, individual
permits should be maintained for water quality limited areas, where
Total Maximum Daily Loads (TMDL's) are necessary or wherever specific
conditions to be addressed in a permit are not amenable to a general
permit.
b. Permit duration should be increased from 5 to 10 years or the
life of the facility. Under this approach, there should be a provision
to allow permits to be re-opened if there are facility, regulatory, or
water quality changes. This recommendation requires a statutory change.
This increase would be an incentive for states to move toward the
watershed protection approach.
c. OWM should develop and expand the use of general permits in non-
water quality limited areas and non-TMDL areas through policy
directives, development of general permit boilerplates and
establishment of a national clearinghouse of general permits.
d. A permit-by-rule (PBR) should be established for de minimis
discharges that establishes threshold conditions below which no
reporting would be required. They could be based on industry-type,
percentage of loading, etc. The rationale for the established PBR for
Metal Products should be used to develop de minimis PBR's for other
discharge categories.
Recommend PIT FY'96 Pilot Project with the State of Washington,
Region X and OW to develop PBR for de minimis discharges.
e. Overall monitoring requirements should be decreased, but include
ambient as well as end-of-pipe monitoring. Ambient monitoring would be
used primarily to set permit limits where national technology based
standards and state water quality based standards have not achieved
environmental goals.
The PIT recommends a Pilot Project be conducted by OW, with a
Region and State, to determine achievement of program goals.
3. Toxic Substances Control Act (TSCA)
The Task Force's initial recommendations included the consolidation
of PCB disposal requirements into the RCRA requirements. However, the
current position of the Office of Solid Waste (OSW)/Office of Pollution
Prevention and Toxics (OPPT) workgroup evaluating this issue, for a
variety of reasons, is to leave the two programs separate but to
improve communications to make them more compatible. This Task Force
defers to the workgroup on this issue.
The workgroup is identifying options that can be readily
implemented to improve the disposal of PCB's, while considering costs
to industry, states (unfunded mandates), and EPA. Several potential
goals have been identified to help direct the workgroup's efforts:
1. State primacy for the PCB disposal program (one stop shopping)
(may require statutory change);
2. Consolidation of hazardous waste requirements (avoid program
duplication); and
3. Utilization of EPA grant money for state actions (PCB and
hazardous wastes).
The Task Force recommends that the PCB combustion authorization
requirements be incorporated into the Air permit program if legally
permissible. Other portions of the TSCA program would remain in OPPT.
This recommendation is consistent with the recommendation below
concerning the Resource Conservation and Recovery Act (RCRA) combustion
program. This recommendation avoids the problems associated with
incorporating the PCB disposal program into RCRA, but would place all
permitted air emissions under one program.
The PIT recommends an OPPT and Office of Air and Radiation (OAR)
workgroup be formed to develop appropriate procedures.
4. Safe Drinking Water Act--Underground Injection Control (UIC) Program
a. Shallow injection wells (Class V wells): Continue use of
authorization by rule, which has been granted to all Class V wells,
providing that they comply with certain minimal requirements (e.g.,
well inventory) unless the well may endanger underground sources of
drinking water.
b. Injection of fluids related to oil and gas production (Class II
wells): Where appropriate, continue use of area permits; promote use of
non-individual permits by authorized permitting authorities.
c. Individual permitting should continue for Class I wells (deep
wells for industrial, municipal and hazardous waste).
5. RCRA Permit Program (See Attachment for More Detail)
The PIT specifically notes that there are regulatory or statutory
barriers to some of the approaches listed below. The Agency's ability
to implement each of these options under the current law would need to
be investigated further as
[[Page 21869]]
these options are developed in more detail.
RCRA Base Program
a. Maintain individual permits for facilities requiring operating
and post-closure land disposal permits.
b. OSW should establish a general permit boilerplate and promote
the use of general permits for non-commercial storage or treatment
facilities, including, for example, laboratories. The general permit
conditions may need to be supplemented, in some cases, with site-
specific conditions identified by the permitting authority or through
local public participation. In this situation the permit would be a
hybrid permit.
PIT FY'96 project to pilot the use of general permits in the states
of California and Texas with Regions VI and IX and OSW.
c. Extend the generator storage time frames from 90 to 270 days for
laboratories as part of regulatory re-invention.
d. For hazardous waste combustion facilities, Regional offices
should incorporate RCRA requirements into the Air permit program, where
both apply; a facility's Air permit would address both Air and RCRA
combustion and emission requirements (this is one alternative provided
for in EPA's proposed Hazardous Waste Combustion Regulation, Subpart
O). Other RCRA requirements (e.g. storage and non-thermal treatment,
corrective action) would be addressed through either an individual,
general or hybrid permit. This recommendation should be implemented
after the proper regulatory authorities are in place. Revised RCRA and
CAA regulations are expected to be proposed in March 1996.
RCRA Corrective Action
a. Allow a facility to perform corrective action through a state/
EPA order cross-referenced in the permit, or through an individual,
general or hybrid permit.
b. Prioritize the issuance of corrective action permits and orders
by focusing on state programs that are not authorized and that do not
have substantially similar cleanup programs. States with substantially
similar programs should be a lower priority. The de-coupling of
corrective action from RCRA permitting is being considered as part of
the Subpart S regulations (see Advanced Notice of Rule Making--expected
to be issued 4/96) and Post-Closure rule (Subpart C) proposal. Under
this approach a Region would be relying upon another agency to serve as
lead in this situation.
c. EPA should focus the majority of its corrective action resources
on states without substantially similar cleanup programs. To achieve
maximum overall environmental benefit, EPA should also explore allowing
EPA RCRA resources to be shifted to support states in clean-up of
higher state priority non-RCRA facilities. The legal authority to
implement this recommendation needs to be evaluated.
d. Subpart S needs to provide incentives for performing clean-ups
by allowing conditional exemptions from permitting for:
--On-site storage of contaminated media and off-site storage and
transfer of clean-up waste, especially from spill response activities,
--Non-RCRA facilities performing voluntary clean-ups.
e. Low-priority RCRA facilities should be allowed to conduct
voluntary (early) corrective action through general or hybrid permits,
memoranda of agreement between the facility and the permitting
authority that achieve defined performance standards, or through
amendments to the interim status regulations. There may be obstacles to
using memoranda of agreements, since they would not provide legal
protection to a facility that is required to obtain a federal permit.
f. Investigate third-party certification of general and hybrid
permits for hazardous waste management that is generated through
corrective action activities. (See Administrative Streamlining
Recommendation #3, page 23, for broader recommendation concerning
third-party certifications.)
PIT recommends review of MA initiative to utilize third party
certification to determine if it is appropriate in RCRA.
g. Fast-track the Hazardous Waste Identification Rule (HWIR) and
Definition of Solid Waste Rule, to limit regulation to wastes that are
truly hazardous, allow general or hybrid permits to regulate recyclers
and utilize the HWIR media rule concept of remediation management plans
(RMP) for off-site storage and treatment of remedial waste.
6. Air--New Source Review (NSR) Permit Program
a. The Task Force agrees with the Office of Air Quality Planning
and Standards (OAQPS) NSR reform efforts, particularly the following;
Implementing plant-wide applicability limit (PAL) policy.
Allowing states more flexibility to match the level of
permitting effort to environmental significance. This recognizes that
there may be facilities which do not require permits at all.
Including special provisions to encourage the use of
innovative technologies.
Acknowledging and promoting pollution prevention
activities.
If the NSR reforms do not receive stakeholder support, consider
establishing a PIT workgroup to conduct an independent evaluation and
develop recommendations.
b. Develop a more expansive definition of minor sources through the
use of the following:
Re-define the potential to emit to recognize the inherent
operating limitations in defining this concept. The current definition
is not realistic in addressing the highest environmental priorities.
Develop and promote the use of general permits by
preparing boilerplate language for applicable sources and establishing
a national clearinghouse of general permits.
c. State, tribal and local permitting authorities should establish
additional de minimis levels for selected minor sources under which no
permit would be required, in conformance with existing regulations.
This will provide that only true health and environmental risks require
permits.
7. Air--Title V Permit Program
a. The Task Force supports the National White Paper and
Supplemental Part 70 proposal, and recommends:
Evaluating techniques to take inherent operating
limitations into account in determining potential to emit.
Investigating methods to simplify the renewal process to
allow for automatic renewal upon recertification that no facility
changes have occurred and no new requirements have come into effect
since the initial permit issuance.
b. Develop and promote the use of general permits for sources with
low actual emissions by preparing boilerplate language for applicable
sources and establishing a national clearinghouse of general permits.
PIT recommends a FY'96 pilot project with the State of Iowa, Region
VII and OAQPS to develop general title V permits (e.g. for paint
booths). This project should be coordinated with the ongoing ETI Title
V project.
c. Allow a self-implementation alternative for facilities with
actual emissions of less than 50% of applicable standards.
Implement flexible permits, through the use of plant-wide
applicability (PAL) limits.
[[Page 21870]]
Allow states more flexibility in deciding the most
effective monitoring methods and controls.
d. Allow state, tribal and local permitting authorities to
establish additional de minimis levels for selected minor sources under
which no permit would be required. This will provide that only true
health and environmental risks require permits. For example, in MA,
emissions below 1 ton/year do not require a permit.
D. Attachment
A more complete discussion of the RCRA proposals follows.
Attachment--RCRA Alternative Permitting Recommendations
Task Force recommendations do not cover all aspects of RCRA
permitting, but highlight areas both where continued use of individual
permits seem most appropriate, as well as areas where alternatives may
be particularly useful. Also, as is the case with some recommendations
in other programs, there are regulatory or statutory barriers to some
of the approaches listed below. The Agency's ability to implement each
of these options under current law would need to be investigated
further as these options are developed in greater detail.
RCRA Base Program
1. Continued Use of Individual Permits
The Task Force recommends continuing to use individual permits for
facilities requiring operating and post-closure land disposal permits.
Although some aspects of these facilities could be regulated by general
permits or other alternatives to individual permits, the Task Force
felt that the potential environmental impacts of these facilities
particularly warranted regulatory attention and public comment on an
individualized basis.
The Task Force also recognized that combustion facilities
(incinerators, burners and industrial furnaces) warranted highly
focused regulatory and public attention on an individual basis.
However, efficiency could be obtained by having the impacts of these
facilities reviewed in concert with air permitting. If so, the RCRA
program could issue a general or hybrid permit to address any
additional technical requirements not covered by the Clean Air Act
permit process (e.g., corrective action), and could also address permit
requirements for any ancillary units (e.g., storage units).
2. Ninety-Day Accumulation and Treatment for Generators
The Task Force also recommends providing guidance or otherwise
clarifying the enforcement discretion available when a facility exceeds
applicable time frames or violates any of the management conditions
referenced in 40 C.F.R. Sec. 262.34. The Task Force recommends that it
be made clear that enforcement against such a facility may be handled
as a violation of the specific requirements of Sec. 262.34 (e.g.,
storage over 90 days, failure to mark containers, etc.) rather than as
a failure to have a permit. Some prior agency statements have suggested
that a facility that failed to mark a container would necessarily be
subject to full permit requirements. 3
---------------------------------------------------------------------------
\3\ See, e.g., In the Matter of Humko Products, Docket No. V-W-
84-R-014 (March 7, 1985) at p. 20 (facility storing waste over 90
days ``is subject to * * * the permit requirements of 40 CFR Part
270''), p. 26 n. 12; Permit Policy Compendium No. 9453.1989(05),
Letter from Sylvia Lowrance to Stephen Axtell, April 21, 1989
(generator who fails to mark accumulation date ``has not met the
pre-conditions for the exemption from permitting requirements and is
an operator * * * subject to permit requirements'').
---------------------------------------------------------------------------
3. Third Party Certifications
The Task force recommends consideration of the use of third party
certifications both for corrective action and for hazardous waste
management requirements. Where, for example, a regulatory agency might
otherwise be inclined to require extensive regulatory review of a
corrective action, unit design, contingency plan, or other RCRA-
regulated activity in the context of an individual permit review, the
agency might be able to shift that activity to a general or hybrid
permit if the facility notification were accompanied by a third party
certification that indicated comparable review has been conducted by an
independent third party. There is a legal concern, however, presented
by EPA's need to defend information and conclusions in the permitting
decision that EPA itself did not develop.
RCRA Corrective Action
1. Corrective Action
Where a state with a well developed cleanup program is authorized
for the base RCRA program, but has not yet become authorized for
corrective action, the Task Force recommends that EPA consider issuing
a ``rider'' general permit that would require treatment, storage or
disposal (TSD) facilities receiving state RCRA permits to satisfy
corrective action obligations by complying with the requirements of the
state's cleanup program. For this approach to be legally defensible,
EPA would need to explain the basis for finding that the state controls
satisfy federal corrective action requirements. Another option would be
for the federal permit to set a schedule of compliance for corrective
action measures contingent on completion of the state cleanup in order
to see whether further corrective action measures are necessary at that
point. For this approach to be effective, EPA must be willing to defer
to the State's overall site prioritization system. This may mean that
there is less near-term cleanup at RCRA facilities, if there are higher
priority non-RCRA facilities.4
---------------------------------------------------------------------------
\4\ EPA sometimes currently defers on a case-by-case basis to
other cleanup programs in deciding how to address corrective action
in a RCRA permit. In considering this recommendation, EPA might also
consider whether its current practice sufficiently meets the goals
of this recommendation, or whether there are alternative means of
achieving a similar result through improvements on existing
practice. For example, are there better ways of reflecting this
deferral process in the permit than is currently the case.
---------------------------------------------------------------------------
Under this approach, EPA could then focus its resources and
attention on corrective action in states without cleanup programs and
on high priority RCRA facilities not otherwise being addressed by the
states.
General or hybrid permits could include provisions that authorize
low-priority TSD facilities not otherwise receiving regulatory
attention to conduct early cleanups, subject to performance standards
identified in the general permit (or through use of Memoranda of
Agreement between the facility and permitting authority). Again,
however, there may be legal barriers to these approaches under the
current statute and regulations. An analysis of the possible
alternatives to individual permits for corrective action and the legal
barriers to those alternatives is ongoing within the PIT and its
subgroup on general permits.
Another way to ensure that facilities receive federal permits would
be for EPA to issue a permit that simply ``copies'' the state's permit,
relying on the state's supporting record. EPA would not develop a
record for the permit independently. In this approach, the facility
would obtain a federal permit and would not be liable for operating
without a permit. However, this approach would be viable only to the
extent EPA feels comfortable that it will be able to defend against any
permit challenges based on a record developed by a separate entity
(i.e., the state). The issue of deferral to the state, in general, is
one that is still being examined by the PIT subgroup.
[[Page 21871]]
2. Non-RCRA Cleanups
Many facilities that do not require RCRA permits have the potential
to trigger RCRA permit requirements while conducting cleanups, whether
voluntarily or under State direction. Many persons have noted that the
possibility of subjecting a facility to full RCRA permitting, including
fenceline-to-fenceline corrective action for cleanup activity is a
disincentive to conducting focused cleanup and conversion of
brownfields. EPA is currently developing approaches to many of these
problems through the HWIR rulemakings. The Task Force recommends
considering alternative approaches to permitting through the following
scenarios which may go beyond the HWIR concepts in some applications:
Off-site storage and transfer of cleanup waste, where the
cleanup activity is being directed or supervised by EPA or a State
regulatory agency ;
On-site storage of contaminated media (includes voluntary
cleanups as well as cleanups under regulatory supervision)(action would
be subject to best management practices); and
Activities at facilities not currently subject to RCRA
conducting voluntary cleanup.
Of these various options, the last is most expansive, and goes
beyond the more limited proposal for on-site storage of contaminated
media. The second and third recommendations go beyond the HWIR
approaches currently being considered in that they would apply to
voluntary cleanups as well as cleanups under regulatory oversight.
ENHANCED PUBLIC PARTICIPATION TASK FORCE RECOMMENDATIONS
A. Background
An important ingredient for improving the permitting process is
improving and expanding public involvement in the process. The Enhanced
Public Participation Task Force was tasked with developing
recommendations for providing opportunities for early and more
meaningful public participation, including provisions for addressing
environmental justice concerns.
Public participation has many aspects. It can be seen as
involvement through participation in the permitting process--e.g.,
providing notice of upcoming events, or opportunities for meetings with
businesses, communities, and regulating agencies. It can also be seen
as involvement through access to quality information--e.g., businesses
need quality information to identify opportunities to prevent pollution
and save money, and communities need access to information to
participate in decision-making in a meaningful and informed manner.
The Task Force looked into both areas, and developed five
recommendations. The first three recommendations discussed in this
report focus on short-term products (i.e., ones that might be developed
in FY 1996) that are intended to fill an immediate need for
information. These products may be used by permitting agencies,
industry, and communities alike to (1) learn about potential ways to
involve themselves or each other in the permitting process, and (2)
find out what types of information are available, and how they can
access it. These three recommendations were discussed with stakeholders
and modified to incorporate their comments.
The remaining two recommendations were developed based on general
public participation discussions that took place during the PIT's
stakeholder meetings. These recommendations are good candidate projects
for the continuing efforts of the PIT.
B. Task Force Recommendations
1. Develop An ``Easy Reference'' Guidance for Public Participation
Activities
Description: The purpose of the guidance should be to serve as a
valuable reference of public involvement activities. The guidance
should not cover every possible type of activity. Rather, it should
serve as a supplement to existing guidance developed by EPA Program
offices, trade associations, or environmental groups. It could be used
by businesses, communities, and permitting agencies in putting together
public involvement strategies appropriate for particular situations. We
recommend that the guidance be kept fairly short, perhaps 20 pages, in
order to facilitate quick reference. The guidance should consist of
three sections: an introduction, a matrix of public involvement
techniques, and an attachment with additional reference information.
The introduction should lay out both the purpose and limitations of
the guidance. The introduction should also:
Encourage all stakeholders--regulators, facilities, and
communities--to take an active role in opening up the permitting
process and promoting meaningful public involvement;
Urge industry and communities to explore innovative public
involvement programs, such as the Responsible Care Program (through
CMA) and Good Neighbor Agreements (through the Good Neighbor Project);
and
Encourage regulators, facilities, and communities to
coordinate public involvement activities across media programs whenever
appropriate and feasible.
The matrix of public involvement activities should list a wide
variety of public involvement techniques, and provide a brief
description of the activity (technique), and some of its advantages and
disadvantages. Any activity currently required by an EPA Program office
will be footnoted as a regulatory requirement. Since final
recommendations regarding alternatives to individual permits have not
yet been implemented, the easy-reference guidance should not attempt to
``tier'' public involvement activities by type of permit. The guidance
should, however, have a mechanism to help people determine what
activities they could use.
For its ``first edition,'' the guidance should identify ``Level I''
and ``Level II'' activities. Level I activities are those that should
be considered for use in every situation, regardless of the type of
permit, type of facility, or level of community interest. Level II
activities represent a variety of ways to go beyond basic approaches to
public involvement, and should be considered for use as necessary to
meet the needs of the situation at hand. When developing subsequent
editions of the easy-reference guidance, the mechanism for ``ranking''
activities (i.e., Levels I and II) should be re-evaluated to determine
if it is still appropriate or if it should be replaced.
The attachment for additional resources should include: (1) the
main telephone numbers of all State environmental permitting agencies;
(2) the main telephone numbers of all EPA regional permitting offices;
(3) a list of all the EPA-sponsored hotlines and information centers,
and (4) a recap of the activities required by each EPA media Program
office and a list of resources (e.g., guidance manuals) available
through those offices.
Implementation: The RCRA Permits Branch in the Office of Solid
Waste should take the lead on developing the initial edition of the
easy-reference guidance. A draft of the guidance should be shared with
a PIT workgroup for review and comment, as well as with the Siting and
Public Participation Subcommittees of the National Environmental
Justice Advisory Committee (NEJAC).
Hardcopy Distribution: The PIT should distribute copies to its
stakeholder mailing list. The PIT should
[[Page 21872]]
also provide camera-ready copies of the guidance to the Office of
Communications, Education and Public Affairs (OCEPA) and to the Office
of Regional Operations, State/Local Relations (OROSLR) so they may
distribute the guidance to their respective contacts and mailing lists.
Furthermore, each media program office at the federal, state, local and
tribal levels should also be encouraged to distribute the guidance as
widely as possible.
Electronic Distribution: The Enhanced Public Participation Task
Force leader should coordinate with appropriate Agency personnel to
post the easy-reference guidance on the Internet. Access to the
guidance should be provided through EPA's home page as well as through
each media office's menus.
Training: The Enhanced Public Participation Task Force should
coordinate with the Training Task Force to evaluate potential ways to
provide training, if necessary, on techniques included in the easy-
reference guidance.
2. Utilize the Environmental Justice (EJ) Public Participation
Checklist as Guidance to the Extent Appropriate and Feasible
Description: The environmental justice movement has sparked a lot
of discussion on ways to improve communications and working relations
among agencies, industries, and communities. The InterAgency Working
Group on Environmental Justice, led by EPA, developed a Public
Participation Checklist that lays out ways to identify, inform, and
involve stakeholders (e.g., environmental organizations, business and
trade associations, civic/public interest groups, grassroots/community-
based organizations, tribal governments, and industry). It reflects a
combination of: guiding principles for setting up and conducting
activities, such as public meetings; specific activities for ensuring
widespread and meaningful involvement; and recommendations on how to
effectively carry out those activities.
Although the checklist was initially developed in the context of
environmental justice, to help federal agencies prepare for the first
public meeting to discuss their EJ strategies, it embodies sound
principles that apply to public participation for all communities.
Therefore, the Task Force recommends that:
(1) EPA (through its Office of Communications, Education, and
Public Affairs) should widely distribute the EJ checklist for use as
guidance, so that permitting agencies, businesses and the public may
benefit from it.
(2) A PIT workgroup continue to coordinate with the Office of
Environmental Justice (OEJ) and the InterAgency Working Group on
Environmental Justice in order to promote consistency in Agency
approaches to enhancing public involvement. The Task Force should
forward any suggestions it receives for modifying or enhancing the EJ
Checklist to the OEJ and/or InterAgency Working Group.
Implementation: Public Participation Task Force representatives
should meet with contacts in OEJ to: (1) review and discuss suggestions
the PIT received regarding the Checklist, (2) develop an introduction
to accompany the Checklist (describing its origins, etc.), and (3) to
plan for further interactions between the two groups. Any changes to
the Checklist should be made by OEJ or the InterAgency Working Group,
since they originated the Checklist. Their continued ``ownership'' of
the Checklist, and our combined efforts to keep the list current, will
help ensure that the two teams continue to work in partnership to
address environmental justice concerns, particularly in the context of
public involvement. If OEJ (or the InterAgency Working Group) chooses
to revise the Checklist, a PIT workgroup could provide assistance.
Hardcopy Distribution: Once the list is revised, OEJ should provide
a camera-ready copy of the Checklist to the Office of Communications,
Education and Public Affairs (OCEPA) for distribution to its contacts
and mailing lists. In addition, camera-ready copies should also be
provided to the Office of Regional Operations, State/Local Relations
(OROSLR) so they can distribute the Checklist to their contacts and
mailing lists. Finally, each media program office at the federal,
state, tribal and local levels should be encouraged to distribute the
Checklist as widely as possible.
The Task Force assumes that OEJ sends the checklist out to its
contacts across the country, and that these contacts include EJ and
community groups. In order to target industry for receiving copies of
the Checklist, OEJ should provide the Checklist to trade associations
for distribution to their member companies.
Electronic Distribution: The Task Force leader should coordinate
with appropriate Agency personnel to post the EJ Checklist on the
Internet. Access to the Checklist should be provided through EPA's home
page as well as through each media office's menus.
3. Develop an Inventory of Mechanisms That Promote Access to
Environmental Information
Description: Access to information is an essential component of
public involvement. Meaningful, quality information is needed by
regulators, regulated industries, and the public alike in order to
promote sound environmental decision-making. Within the federal
government, offices are revisiting what types of information should be
collected and how information may be more readily shared.
An inventory with abstracts of existing sources of information, as
well as of the efforts underway to improve quality of and access to
information, and the appropriate contact person or office for each,
would be a useful reference document. It could be used to inform
agencies, businesses and the public of the wide variety of mechanisms
available to them.
Development: The inventory of mechanisms should be developed under
the direction of EPA's Office of Information Resources Management
(OIRM). Identifying and describing the numerous and diverse data
systems, information sources, and so on is beyond the scope of PIT
resources; however, a PIT workgroup should meet with OIRM to discuss
the project and to be available to provide assistance on an as-needed
basis.
Primary focus of the inventory should be on Agency automated
sources of information (e.g., data systems, bulletin boards),
``hardcopy'' information sources (e.g., Toxic Release Inventory (TRI)
Report), and means of accessing information sources (e.g., through the
Freedom of Information Act (FOIA) process, the Internet, via the
National Technical Information Service--NTIS). The inventory should
also, to the extent possible and feasible, discuss efforts-in-progress
(e.g., the Key Identifier and One-Stop Public Access and Reporting
Initiative). The inventory should include innovative systems promoted
by Program offices to improve community involvement and help empower
communities (e.g., Landview II being used by the Office of Solid Waste
and Emergency Response). Finally, the inventory should include
mechanisms to obtain access to pollution prevention information, such
as on-line EPA computer systems like Enviro$ense or the Technology
Transfer Network.
The inventory of mechanisms should be presented in an
understandable, user friendly manner. In addition, because not every
agency, business and member of the public will have electronic access
[[Page 21873]]
to bulletin board systems and the Internet, proposals for increasing
access to information should also include making material easily
available in the traditional manners (e.g., printed copies at agency
offices, in information repositories, mailed to interested parties,
announced in press releases or through radio ads).
Distribution: Distribution of the inventory should be coordinated
by OCEPA. The inventory should be available in hardcopy format as well
as through the Internet.
In addition, OCEPA should investigate more effective ways to
publicize the many sources of information the Agency has, and the
avenues to obtaining that information. For example, the Agency develops
a thick (over 600 pages!) publication entitled ``Access EPA''--a
comprehensive directory with detailed descriptions of the Agency's
information resources. Unfortunately, relatively few people know of, or
have access to, ``Access EPA.'' OCEPA should look into the feasibility
of using innovative mechanisms to more widely and effectively
distribute this directory, such as entering into an agreement with a
national bookstore chain to get their stores to carry ``Access EPA''
and/or certain other EPA publications.
4. Explore, and Possibly Conduct Pilots for, the Development and Use of
Comprehensive Multi-Media Community Involvement Plans
Background: Under the Agency's current regulations, there are
various public participation requirements in each media program area--
hazardous waste, water, and air. The requirements focus on the
individual media permit, and are not consistent across programs. In
meeting their regulatory obligations for each media permit, industries
and regulators alike often create more confusion than clarity among
members of the public who, for the most part, do not segment their
involvement along statutory lines--their interests lay with the
facility in its entirety. Moreover, having to conduct multiple, yet
similar, activities (e.g., one public hearing for the air permit and
another for the RCRA permit) imposes an unnecessary burden on a
facility; having to keep track of and attend these multiple activities
imposes an unnecessary burden on the public. Further exacerbating the
problem is the way information about a facility is collected and
reported--also a media-by-media approach. No clear picture of the
facility as a whole, its total emissions or releases, its comprehensive
compliance record, is readily available.
Discussion: In order to create an environment that truly fosters
effective interactions between facilities and their neighboring
communities, the Agency needs to make the entire public participation
process more user-friendly. Using Community Involvement Plans (CIPs),
in concert with some programmatic adjustments from other PIT Task
Forces, could accomplish this objective.
It is envisioned that a facility, in close coordination with
community stakeholders, would be responsible for drafting a CIP. The
elements of a CIP would most likely vary, although certain core
elements may ultimately be defined. In essence, the CIP would serve as
a vehicle through which a facility and a community could form a multi-
media approach tailored to meet their particular situation. They could
address issues on an aggregate basis, instead of on the media-by-media
basis perpetuated by EPA's current structure and regulations. At a
minimum, a CIP should set objectives for educating the community on the
facility and its operations and for providing routine opportunities for
information exchange. Techniques to achieve these objectives could
include: community advisory panels, facility tours, integrated
compliance reporting, and so on.
The appropriate role of the regulatory agency would also need to be
laid out in the CIP. There would need to be an incentive offered in
exchange for a facility undertaking the integrated approach to public
involvement embodied by the CIP concept--for example, expedited permit
processing, aggregated (multi-media) permit processing, or relief from
media-specific public participation regulatory obligations. This does
not mean, however, that the regulator does not continue to play a key
role--the permitting agency would need to interface with both the
facility and the community.
Implementation Ideas: The Task Force recommends that the CIP
concept be piloted with a few facilities and their neighboring
communities. It may be possible to coordinate this effort with other
Agency initiatives, such as Project XL or Brownfields, that are
intended to pilot innovative approaches to environmental management.
The PIT could take the lead on evaluating the results of the pilots. If
the efforts prove successful, the Agency should promote widespread use
of CIPs and pursue the regulatory changes needed to implement the
incentives described above.
Pros--There are many potential benefits to be gained by
using CIPs. For example, they move us away from a ``command and
control'' approach by allowing flexibility to follow a plan that makes
sense for the situation at hand. If CIPs ultimately replace media-
specific public participation requirements, there would still be a
basic ``level playing field'' by virtue of the fact that everyone would
have to develop a plan founded on mutual (facility, community,
regulator) needs and concerns. Finally, CIPs enable a facility and a
community to deal with issues on an aggregate basis, which may help to
move EPA towards a more integrated approach to environmental
management.
Cons--Providing some relief from current media-specific
public participation requirements in exchange for using CIPs will
necessarily result in a lack of consistency in approaches to public
participation. The lack of consistency could create confusion for
industry, communities, and regulators alike--no one would be certain
what they should do or what their opportunities for involvement are. In
considering this aspect, however, it is important (1) to remember that
there is already inconsistency in public participation requirements
across the Agency's media programs; (2) to question whether the desire
for consistency outweighs the need for flexibility; and (3) to focus on
the need for improved results.
5. Develop a Series of Case Studies on the Effectiveness of Public
Participation Activities
Description: Guidance materials and checklists for promoting public
participation provide very useful tools. However, there is a lot that
can be learned from real world successes and failures as well. A
compilation of actual case studies would be a useful tool to help
permitting agencies, industry, and communities put suggested public
involvement activities into a context meaningful to their own
situations--in other words, it gives people something concrete they can
relate to.
Development: The Task Force recommends that a PIT workgroup compile
a number of case studies as a project in FY 1996. The PIT should
collect existing case studies from various sources, such as (but not
limited to) EPA Program offices, Regional or State community relations
offices, and environmental justice groups. Further, the PIT could
develop its own case studies based on recommendation 4, above.
[[Page 21874]]
PERFORMANCE MEASURES--TASK FORCE RECOMMENDATIONS
Background
An important aspect of improving the environmental permitting
process concerns how the performance and success of the permitting
programs are measured. To often in the past, regulatory agencies have
measured success based on the number of permits that have been issued.
This ``bean counting'' has been identified as one of the problems in
the current system that needs to be improved.
On September 11, 1993, President Clinton signed Executive Order
12862, Setting Customer Service Standards. This Order, in part,
requires each department and agency to ``post service standards and
measure results against them''. The performance measures presented
below have been prepared to comply with the Executive Order. These
measures will be publicly available so that all Agency stakeholders can
review the performance of the permitting programs.
The Performance Measures Task Force developed the following
performance and tracking measures based on the input received at
stakeholder meetings held during the PIT project and the written
comments received on the draft recommendations. The performance
measures will be used to evaluate how a permitting program is doing in
achieving environmental results and customer satisfaction. The measures
focus on the performance of the permitting process and are designed to
evaluate the system as a whole. These measures will help EPA identify
where changes may be needed in a program to achieve the desired
results. The tracking measures provide information on changes to the
permitting processes over time and will be used to identify areas of
opportunity for process improvement.
The performance and tracking measures are broken down into the
following three categories:
1. Process--those measures that specify how the permitting process
is doing compared to established criteria;
2. Results--those measures that determine whether the permits are
having their desired outcome; and
3. Customer Service--those measures that evaluate how the general
public and regulated community feel about the permitting process.
It is recommended that the performance and tracking measures be
piloted in a Region that is still issuing a significant number of
permits. This will allow the measures to be field tested and any
modifications made prior to full implementation. The Permits
Improvement Team would assist the Regional office as necessary.
It is further recommended that each Regional office provide these
measures to any state, tribe or local government, that is authorized to
issue permits, for their consideration. These permitting authorities
should not be required to adopt these measures. They should be free to
modify them or develop their own measures of a successful permitting
program.
Generic Performance Measures
Process
1. Timeliness
Each Regional office that is issuing permits will establish
processing time goals for each type of permit they issue (presented as
a percentage of applications processed within a specified timeframe).
Each Regional media permitting program will determine the
appropriateness of dividing their permit universe based on the degree
of environmental impact (e.g. minor, significant minor, major). Four
distinct processing times will be established to cover the entire
permitting process, from receipt of application to permit
effectiveness. In addition, the total processing time of each permit
will be a tracking measure.
Example: For (type of permit \1\), the time required from receipt
of an application to agency determination that the application is
complete is as follows:
____% determinations made within 30 days;
____% determinations made between 30 and 60 days;
____% determinations made between 60 and 90 days.
For (type of permit \1\), the time required from receipt of a
complete application to issuance of the proposed (or final if no public
comment is necessary) agency decision to approve or deny the permit is
as follows:
____% proposals/decisions made within 60 days;
____% proposals/decisions made between 60 and 90 days;
____% proposals/decisions made between 90 and 180 days.
For (type of permit \1\), the time required from the issuance of
the proposed decision to approve or deny the permit to the final agency
action is as follows:
Where limited and straightforward comments are received and no
public hearing:
____% decisions made within 60 days;
____% decisions made between 60 and 90 days.
Where substantial and complex comments are received and no public
hearing:
____% decisions made within 90 days;
____% decisions made between 90 and 120 days.
When a public hearing is held:
____% decisions made within 180 days;
____% decisions made between 180 and 240 days.
For (type of permit \1\) that are appealed, the time required from
issuance of the Region's final permit decision to the effective date of
the permit is as follows:
____% effective within 90 days;
____% effective between 90 and 270 days;
____% effective between 270 and 455 days;
____% not effective within 455 days.
Purpose: To have the Regional offices focus on each step of the
permit process. The time required to process a permit is influenced by
the performance of both the regulatory agency and the permittee as well
as by the level of public comment. To achieve the most rapid processing
of a permit as possible the agency and permittee need to work together
(and with the public as necessary). Therefore, this performance measure
is written to identify how long the permit process is taking for each
of the major steps. If the actual processing time of the Regional
office is longer than the established goal, steps can be identified to
improve the performance in that area.
2. Number of Pending Permits
Each Regional office that is issuing permits will establish a goal
for the maximum number of permits for new discharges, emissions or
releases (either new facilities or modifications required to address a
new discharge at an existing facility) that have exceeded the specified
times for approval or disapproval provided in 1 above.
Example: (#) of new applications and permit modifications for (type
of permit \1\) have not been approved or disapproved within the ____
days set as the maximum for this type of permit action.
Purpose: To provide a measure of the number of permits for new
discharges that have not been processed within the defined time
periods. This performance measure is just for new discharges. Backlogs
of permit renewals are a tracking measure (see below), since there may
be a need to prioritize the issuance of certain renewals (e.g.
ecosystem based priorities) rather than renew a permit after it has
expired but remains in effect. Trend analyses would
[[Page 21875]]
allow the regulatory agency to readily determine whether they are
improving or falling further behind. A backlog above the goal would
trigger an evaluation to determine its cause and how to improve the
Region's performance.
Results
1. Environmental Indicators
The success of permitting programs need to evaluated based on the
environmental conditions that exist in a particular area. Although
permitted discharges are not the only source of pollutants, they are
regulated to limit their impact so that environmental goals are
achieved. Therefore, it is recommended that all permitting authorities
develop specific environmental indicators that will be used to evaluate
the overall success of their permitting programs.
The Agency is in the process of developing environmental indicators
for the nation. Once the national indicators are determined each
Regional office will work with the respective state and tribal
governments to establish specific indicators for that jurisdiction.
This is being accomplished through the development of Environmental
Performance Agreements (EnPA) with states and tribes. EnPA's will
include indicators that will be re-evaluated yearly and updated,
revised or replaced as needed to accurately measure environmental
progress. The first EnPA's will be for states and tribes volunteering
in Fiscal Year 1996, with full implementation scheduled for FY97. A key
component of the EnPA's is stakeholder participation, which includes
the development of appropriate environmental indicators for each
jurisdiction. The environmental indicators will be used to determine
priorities for the next year, including permitting activities.
2. Level of Compliance
The compliance status of all permitted facilities is an important
performance measure for permitting programs. In order for environmental
protection to occur, facilities must be in compliance with their
permits. Just issuing the permit doesn't ensure protection, therefore,
it is necessary to determine the level of compliance with those permits
to help identify where greater clarity of permit conditions is needed
and where to provide technical assistance.
The initial PIT recommendations on how to measure the level of
compliance did not contain sufficient detail to allow stakeholders to
give their opinion on this approach. The comments received focused on
the need for more detail to better define this performance measure. In
addition, the Agency has compliance categories for the individual media
programs. However, for the most part these have not been developed with
stakeholder input. Therefore, it is recommended that a project team of
EPA Headquarters and Regional offices and state and tribal agencies be
established to further develop this measure as needed. The project team
would work with stakeholder groups in the development of a proposal to
measure the level of compliance of permitted entities and identify the
causes of non-compliance. The Office of Enforcement and Compliance
Assurance (OECA) should be responsible for establishing and leading the
broad based project team.
Customer Service
1. Customer Satisfaction
Customer service surveys and standards have been drafted for three
groups to which EPA provides service: citizens participating in the
permitting process; permit applicants; and authorized state, tribal or
local governments. The surveys have been approved by the Office of
Management and Budget (OMB) and EPA plans to begin using the surveys in
FY'96. The customer service standards will be discussed with
stakeholder groups prior to finalization. EPA will prepare a report on
the results of the customer service surveys in September 1996.
The Office of Policy Planning and Evaluation (OPPE) has been
recommended to conduct the surveys and analyze the results. Each
Regional permitting office would receive a report identifying any
situations where the customer service standards were not met. In these
cases, the Regional office could hold focus group meetings or other
outreach activities with appropriate stakeholders to determine a course
of action that is intended to improve customer service.
Generic Tracking Measures
Process
1. Time Required for Permit Issuance
Each Regional office that is issuing permits will determine the
average time required from receipt of a permit application to the
Region's final permit decision (this does not include the time to
address any appeals). The range of time required to issue each type of
permit will also be determined. This information will be made available
in any fact sheets and permit application information distributed by
the Regional office.
Example: The average time required to issue (type of permit 1)
is ____ (days, weeks, months) with a range of ____ to ____ (days,
weeks, months).
Purpose: To provide the applicant and public with an estimate of
the total time required to process a given type of permit. This
measure, coupled with the timeliness performance measure will show the
amount of time the applicant spends working on the permit as well as
EPA.
2. Permit Application Completeness
Each Regional office that is issuing permits will track the number
of resubmittals (additional/revised information required for the
permitting authority to be able to act on the application) required to
obtain a complete application. This information will be presented as a
percentage of the total universe of permit applications received.
Example: The percentage of (type of permit 1) applications
requiring resubmittal prior to being complete is as follows:
____% No resubmittals required
____% One resubmittal required
____% Two resubmittals required
____% Three or more resubmittals required
Purpose: To have the Regional offices track and make public the
number of resubmittals needed to obtain a complete permit application.
Regional offices should work with their regulated community to identify
causes of excessive resubmittals and determine corrective actions.
Permitting programs with high percentages of applications requiring
multiple resubmittals would indicate a problem somewhere in the permit
process. This could include the information being requested, the
clarity of the deficiency letter, the training provided to the
regulated community, etc. Trend analysis could be used to determine if
progress was being made to reduce the number of applications requiring
resubmittal.
3. Cost of Permitting Program
Each Regional office that is issuing permits will estimate the
total agency work hours required to process each type of permit they
issue and the average number of work hours required to process each
individual permit. This information will allow the EPA Region to sum
the totals from each permit category to obtain the overall work hours
expended on environmental permitting in that Region.
Example: The total work hours of processing all (type of permit
1) was (#)
[[Page 21876]]
for ____ (calendar or fiscal year). The average work hours expended on
each permit, based on the processing of (#) permits, is (#) for the
same reporting period.
Purpose: To provide an estimate of the total work hours expended on
environmental permitting programs. The average work hours information
would be useful in determining if programs of similar complexity had
significantly different averages. This information could also be used
to compare the average processing times of the Regional offices.
Evaluations could then be conducted to determine the cause of the
difference and learn from successful programs. Trend analysis could be
used to determine if work hours are increasing or decreasing.
4. Number of Pending Renewal (Air/Water) and Interim Status (RCRA)
Permits
Each Regional office that is issuing permits will track the number
of permits that have expired but remain in effect and have not been
renewed, or in the case of RCRA, the number of facilities that are
operating under an interim status designation.
Example: (#) (type of permit 1) have not been renewed by the
expiration date as of ________ (reporting period).
Purpose: To provide a measure of the number of permits that have
not been renewed by their expiration date. Trend analyses would allow
the Regional office to readily determine whether the number is
increasing or decreasing. Additional analysis would be needed to
determine if an increasing trend was a problem or the result of a
decision by the Region to focus on ecosystems and allow permits in non-
priority areas to remain in effect.
Results
1. Pollution Prevention/Innovative Technology
Each Regional office that is issuing permits will track the number
and percent of their permits that include innovative technology or
pollution prevention conditions that are included as a means, in whole
or in part, to achieve compliance. These conditions could include
actual pollution prevention activities or investigations into possible
pollution prevention techniques that could assist the facility in
complying with permit conditions. Discharge, emission and release
limitations would not be considered pollution prevention conditions.
The Regions would require the same information from delegated state,
tribal and local agencies.
Example: (#) and (%) of (type of permit \1\) that includes
pollution prevention conditions (this term requires definition) in the
permit as a means, in whole or in part, to achieve compliance with
permit conditions.
---------------------------------------------------------------------------
\1\ Type of Permit--Each permitting authority would individually
define the permit universe that would be included within the
performance or tracking measure.
---------------------------------------------------------------------------
Example: (#) and (%) of (type of permit \1\) that utilize
innovative technology (this term requires definition) to achieve
compliance with permit conditions.
Purpose: To determine the effectiveness of permitting programs in
encouraging the use of pollution prevention and innovative
technologies. If the percentage is below what a regulatory agency was
hoping to achieve, additional analyses could be conducted to determine
why pollution prevention approaches or innovative technologies were not
being used to achieve permit compliance. This tracking measure should
be reevaluated, within 1-2 years, to determine if it should be changed
to a performance measure, with a specific goal as to the percentage of
permits that should utilize pollution prevention techniques or
innovative technologies to achieve compliance.
POLLUTION PREVENTION INCENTIVES--TASK FORCE RECOMMENDATIONS
A. Background/Approach
The Pollution Prevention Incentives Task Force derived its mission
from the recommendations of the National Performance Review (NPR). The
NPR stated that EPA should encourage pollution prevention (P2) by
providing flexibility, creating P2 incentives in permits and compliance
approaches, and issuing guidance on how to implement innovative
strategies and procedures. The NPR also recommended that EPA facilitate
permitting of innovative technologies and identify what changes are
necessary to achieve this.
EPA has a strong commitment to fostering pollution prevention
because experience has shown that it is good for the environment and
the economy alike. To implement P2 on a larger scale calls for flexible
thinking, concrete and ambitious goal-setting, strong commitment at all
levels of government and industry, and an innovative effort that only
business can supply. The P2 Incentives Task Force explored these
dynamics to help EPA improve the permitting system to encourage
investment in P2 measures.
The Pollution Prevention Act of 1990 establishes a hierarchy for
environmental protection (source reduction, reuse, recycle, treat,
store and dispose) with P2 as the preferred approach. As the hierarchy
acknowledges, P2 approaches are not attainable in all instances. In the
discussion that follows, many of the recommendations are relevant to
P2, recycling, or other innovative approaches.
Streamlined permitting may have an important role in fostering P2.
The PIT is focusing on eliminating factors of the permitting system
that are overly rigid, cumbersome, and time-consuming. These changes
can free up additional resources for potential investments in P2. Yet,
streamlined permitting might not mean more pollution prevention unless
we also allow greater flexibility, and design incentives to encourage
P2-based activity.
This Task Force is emphasizing incentives for P2 because, as a
general rule, it is in industry's interest to prevent pollution. Our
goal is to create permitting incentives and eliminate barriers for
industry to do what is largely in their own best interest.
The following Task Force recommendations present approaches for
forging the necessary connection between more efficient permitting and
real progress in preventing pollution.
B. Task Force Recommendations
1. Link Performance-Based Permitting with Facility-Based Permitting,
Consolidation of Permitting Requirements, and Cross-Media Permitting
The Task Force recommends that EPA and state, tribal and local
permitting authorities use performance-based permitting as a means of
achieving greater flexibility. By performance-based permitting, the
Task Force means permitting which recognizes that a standard containing
a numeric level does not automatically dictate which technology
facilities are to use. On the rule development side, this means writing
standards that set numeric levels where possible and appropriate. Many
EPA technology-based rules have in fact been written that way. This is
because ``technology-based'' is short-hand for a rule that sets a
standard at the numeric level at which the referenced-technology
performs. The reference technology is determined by the type of
standard being set, such as best demonstrated available technology.
What is key is how ``technology-based'' rules are interpreted by
permit writers. Often, they interpret the rules as
[[Page 21877]]
requiring the use of the referenced technology. To avoid this, EPA
rulemakings should explicitly acknowledge that permit writers are
authorized to evaluate technologies other than the referenced
technology. Flexibility is needed to allow facilities to use innovative
approaches that prevent pollution and achieve greater emission
reductions across media. Flexibility would not be allowed to compromise
environmental protection, since the permit writer would still have to
be satisfied that the permit applicant could meet the performance
standard in question.
It is key to recognize that permit writers are generally burdened
with heavy case loads, and that it substantially increases their burden
if they must regularly evaluate alternative technologies to determine
whether they perform at a level equivalent to that of the standard's
reference technology. Making it easier for permit writers to evaluate
alternative technologies is a task that EPA and state, tribal and local
permitting authorities need to address systemically. Hopefully, some of
the specific steps provided at the end of this section will meet this
need.
The steps in this recommendation should provide the following
advantages: (1) making it easier for facilities to use innovative
technologies (often key for P2); (2) giving facilities more latitude to
explore P2 approaches; and (3) giving facilities a greater economic
incentive to explore P2 approaches. Looking at a facility as a whole,
rather than a collection of individual pipes each of which needs to
meet an individual emission level, can often provide significantly
greater opportunities for preventing pollution and making wise
investments that yield long-term savings.
The Task Force recommends that EPA, state, tribal and local
permitting authorities take steps to link performance-based permitting
with facility-based permitting, consolidation of permitting
requirements by industry sector, and cross-media permitting. These
recommendations build on the Administrative Streamlining Task Force's
recommendation for flexible permitting. It is important to note that
the focus here is on facility-based permitting, and not company-based,
which is a different issue.
These steps are also in line with the alternatives being explored
in a host of new EPA initiatives, including several priority projects
of the Administration's program to reinvent environmental regulation.
Project XL, and alternative strategies for industry sectors,
communities, and federal agencies, can address a combination of
facility-based permitting and cross-media permitting issues;
consolidating federal air rules for the chemical industry will be a
test case for consolidation. Demonstration projects in multi-media
permitting, as led by the Pollution Prevention Policy Staff are
expected to produce several multi-media P2-oriented permits in the next
year. The Environmental Technology Initiative's (ETI's) Innovative
Technology Permitting Program, being implemented by the Office of
Policy, Planning and Evaluation, is currently advancing over two dozen
projects designed to eliminate barriers to technology innovation in the
permitting process. In addition, ETI's Environmental Technology
Verification Program, being implemented by the Office of Research and
Development, will soon begin providing credible performance information
on more cost effective innovative technologies.
Based on the foregoing, the Task Force recommends the following:
a. The concepts of this first recommendation should be incorporated
into CSI, Project XL, ETI, and multi-media permitting. PIT members will
work with these initiatives to help achieve the implementation of these
concepts.
b. As Regional offices disinvest from oversight of state permit
programs, they should collaborate with state, tribal, and local
permitting authorities in assessing relevant P2 techniques, where
appropriate.
c. To the extent possible, subsequent EPA rulemakings should
explicitly acknowledge that permit writers are authorized to exercise
their judgment in establishing performance-based limitations based on
the technology referenced in the development of the regulatory
standard. For example, in the NPDES program, the permitting authority
does not approve technologies. The permit writer prepares a permit
which includes limitations and conditions, and it is up to the facility
to determine how they will meet the permit limits.
d. Examine what steps would be necessary to move towards
institutionalizing some of the approaches described above in core EPA
programs. This should be undertaken by a PIT workgroup.
e. State permitting authorities should use the results of the
Environmental Technology Verification Program or similar state programs
to reduce the need for testing and indepth engineering review during
permitting.
2. Create Industry-Sector Inventories of Regulatory Thresholds for
Permitting.
The Task Force recommends developing a public inventory of existing
federal regulatory thresholds for permitting requirements on an
industry-by-industry basis. Specifying the thresholds would help
facilities to assess the costs and benefits of going below the
thresholds and opting out of the permitting system. The Task Force
believes that in most instances the savings achievable by getting out
of the permitting system would more than offset the investments needed
to get releases below thresholds.
Data in this inventory could serve as a reference point for
discussions between communities and local facilities about financial
incentives for using pollution prevention approaches. Mutual
discussions could more easily be tied to the financial incentives for a
facility to reduce releases to a level where permitting is reduced or
unnecessary, and outcomes that could represent cost savings to the
facility.
The Office of Pollution Prevention and Toxics (OPPT) in EPA is
piloting this approach for the metal finishing industry, which is
comprised mainly of small to medium-sized businesses. Since industry
faces federal and state regulations, OPPT will try to include key state
regulatory requirements, too. If it appears that some opportunities for
getting below certain thresholds bear more promise than others, EPA
would emphasize those opportunities most likely to result in success.
EPA recognizes that some explanation about possible permit
variances or exemptions will be needed in an industry-sector inventory.
In some instances, for example, emissions trading is allowed, and a
facility may have legitimately purchased an emissions trading credit.
EPA will need to provide sufficient explanation so that users of the
inventory will find its data relevant and meaningful to their own
applications.
To be clear, the scope of an inventory will be limited to linking
permitting thresholds with the economic incentives for getting below
thresholds. It will not provide facility-specific information or
health/environmental effects data.
The Task Force's specific recommendations are:
a. OPPT should develop a pilot inventory for an industry sector,
such as metal finishing (this effort has already started).
b. OECA and OPPT should investigate whether OECA industry sector
notebooks (developed for compliance assistance) could be used as a
basis to
[[Page 21878]]
help industry conduct analyses between the costs of compliance and the
costs of getting below permitting thresholds.
3. Explore Offering Alternative Emissions Tracking in Exchange for
Using P2 Practices
The Task Force recommends that EPA explore whether an alternative
emissions tracking approach could be offered in exchange for a facility
commitment to use P2 practices to achieve compliance in whole or in
part. Federal permitting requirements generally require facilities to
monitor releases (using EPA-approved methodology) and report this data
to regulatory agencies. An alternative approach would be to allow a
facility to use third-party auditors to convert its proprietary process
control measurements into release data that would be reported to EPA as
public data.
A primary reason EPA is interested in this approach is that using
process data encourages facilities to find opportunities for pollution
prevention. Second, it may provide communities with significantly more
reliable data on facility emissions in their communities. Third, there
may be a significant economic incentive for industry to avoid the cost
of expensive monitoring equipment.
The recommended approach is basically an equivalent alternative to
current monitoring requirements. (Reducing monitoring requirements is
beyond the scope of this particular recommendation.) The Task Force
acknowledges that EPA would need to verify P2 commitments made in
exchange for using this alternative.
EPA recognizes that there are some concerns about whether the
public would have confidence in this recommended approach. One concern
is that industry consultants might lack credibility with local
communities. The key difference in what the Task Force is proposing is
that industry would not pay a third-party auditor directly. The apt
analogy is the third-party auditor system used in this country for
accrediting laboratories. Labs pay a non-profit organization for the
services of the third-party auditors. The auditor's sponsoring
organization (the non-profit) has an overriding interest in maintaining
the integrity and independence of their auditors, because a biased
auditor reflects badly on the organization and the entire accreditation
system.
Third-party auditors would have to be trained and accredited by an
accrediting organization. Among other things, they would probably need
to be trained in knowing what kind of data to get from facilities, and
learning the calculations to perform to convert facility process data
into reportable emissions data. Given the great diversity of American
industry, this may be an idea that could be piloted on an industry-
sector basis.
The Task Force recommends the following specific steps:
a. A PIT workgroup should consult with the project team for
piloting third-party audits for industry compliance (one of the
President's 25 initiatives for reinventing environmental regulation) to
further investigate the viability of this approach.
b. This PIT workgroup should also explore potential overlap with
International Organization for Standardization (ISO) 14000 efforts.
4. Share P2 Data With Permit Applicants and Affected Communities, and
Give Basic P2 Training to Permit Writers
The Task Force recommends that EPA and state, tribal and local
permitting authorities share P2 data with permit applicants and
affected communities, and give basic P2 training to permit writers.
Both of these ideas would provide a way for P2 to be emphasized up-
front in the permitting process.
Most permit writers are at the state, tribal, and local level and
face workloads that are generally perceived as heavy. To date, their
experience with P2 has ranged from no involvement to personal
commitment to P2, with lack of time and knowledge often being cited as
barriers to their promoting P2.
Despite this perception about the difficulty permit writers face in
promoting P2, a recent survey of permit writers in northeastern states
conducted by the Northeast Waste Management Officials' Association
(NEWMOA) indicates the vast majority of those surveyed wanted P2
training. They said they wanted training in when, how, and where they
can use P2 directly in their jobs, and under what authority they can
act. NEWMOA is piloting a P2 training for permit writers, based on a
review of many permits where P2 has already been incorporated. Efforts
such as NEWMOA's could serve as a model for training in other parts of
the country, and could be tailored according to the permitting
authority and regional needs.
At a minimum, permit writers could serve as a reference for
facilities on where to turn (such as local technical assistance
centers) for P2 information. It is key that they have a baseline of
information about P2 concepts and appreciate the value of sharing P2
data with facilities. Training could most effectively be offered at the
state and EPA regional level. EPA, in consultation with states, tribes
and local permitting authorities, should evaluate whether P2 reference
materials need to be developed and sent to permit applicants and made
available to the public.
The Task Force recommends that pollution prevention be made part of
the core training for permit writers being advocated by the PIT
Training Task Force. Stakeholders have suggested that P2 training
should also be given to enforcement and regulatory personnel.
5. Develop an Enforcement Policy to Accommodate the Possibility That
Innovative P2 Technologies May Not Perform as Expected or May Take
Longer to Achieve Compliance
The Task Force believes it is key to examine the current incentives
and disincentives for pollution prevention in environmental enforcement
policies as well as in permitting. One reason is that innovative P2
technologies do not always perform as expected. A facility may have
little incentive to invest in an innovative P2 technology--and risk its
compliance on how that technology will perform--if there is no ``soft
landing'' enforcement policy to cushion against enforcement penalties
in the event the technology fails to perform as expected. Some form of
risk-sharing, such as mitigation of penalties, should be accepted by
EPA.
A second reason that enforcement policies are key to encouraging P2
through permitting is that using P2 approaches--such as process
changes--sometimes takes longer than using off-the-shelf control
devices. If EPA can offer no extension in compliance deadlines (as
appropriate for making P2 changes), facilities may opt for using
control devices to ensure they meet these deadlines.
The Task Force recommends that the PIT and the Office of
Enforcement and Compliance Assurance (OECA) establish a workgroup to
explore a ``soft landing'' enforcement policy for facilities that adopt
innovative P2 technologies, including those verified by EPA or states,
that fail to perform as expected. A soft landing policy could remove a
significant disincentive against using innovative technologies by
providing a cushion against enforcement penalties or costly remedial
solutions, and allowing a facility some flexibility in reaching
compliance. For example, a facility might be allowed time to achieve
compliance through adjusting some other part of its process, allowing
it to keep its P2 technology intact.
In addition, the workgroup should identify more ways to offer
compliance extensions, consistent with statutory
[[Page 21879]]
compliance extension mechanisms, in exchange for commitments to use P2
approaches for compliance. (The Task Force supports EPA's recently
initiated pilot efforts like Project XL that will be exploring this
kind of an approach.) The Task Force also recommends that OECA and EPA
Program offices consider using an approach developed by stakeholders in
the Industrial Pollution Prevention Project (IP3): through rule-
specific guidance, allowing permit modifications to be made under
specified conditions that extend the time for compliance. This approach
has received EPA-wide endorsement as part of the Clean Water Act
reauthorization process.
The Task Force recognizes the need to address boundaries as to how
``soft'' a soft landing enforcement policy should be, and how long a
compliance extension should reasonably be. EPA has previously explored
these issues in the IP3, and will need to clarify them again. The State
of New Jersey, through an Environmental Technology Initiative grant,
will be exploring these limits in its own programs.
6. In All General Permits and Permits-By-Rule, Include Language That
Explains the Preference for Using P2 Approaches and the Potential
Economic Benefits of P2
The Task Force recommends that EPA and state, tribal and local
permitting authorities incorporate language in all general permits and
permits-by-rule that explains the environmental management hierarchy
(source reduction, reuse, recycle, treat, store and dispose), the
preference for using P2 to achieve compliance, and the potential
economic benefits associated with P2. If there are differences between
EPA's and a state, tribal or local permitting authorities' hierarchy,
the permitting authority could list both.
Individual permits are not included in this recommendation because
it is recognized that, in these cases, major opportunities for P2 can
be identified while the permit conditions are being developed before
permit issuance. Therefore, for individual permits, it would be better
to put this type of language up-front in the process, such as in permit
call-in letters or model permit applications used in the RCRA program.
Also, implementing recommendation 4 would encourage including P2 up-
front in the process of preparing individual permits.
It is recommended that a PIT workgroup develop sample language and
make it available for distribution through core training sessions for
permit writers. The workgroup should include permit writers from the
Regions and state, tribal and local permitting agencies.
TRAINING TASK FORCE RECOMMENDATIONS
Background
The National Performance Review Team for Permit Streamlining
identified training for permit professionals as a priority. Their
specific recommendation included the following suggestions: establish
an EPA Permits Institute, require State/Federal permit professionals to
complete core curriculum, review permit organizational staffing for
appropriate skills mix and provide financial/other incentives and
awards to permit professionals. In addition to these specific
proposals, training was also highlighted under the category of
``Increasing Access to Permitting Information.'' Suggestions under this
category discussed training for the public and applicants. Specific
recommendations included: draft clear, understandable guidance manuals
for states, tribes, local authorities, applicants and the general
public; and hold periodic training workshops in conjunction with state
associations, trade associations and citizens' groups. The PITs
Training Task Force chose to address training broadly to include the
regulated community, public and permit professionals.
Overview
Effective environmental permitting relies upon effective
transmittal and use of information by all interested parties. State,
tribal, local and EPA permit writers need information of the specific
characteristics of the facilities being permitted, and need knowledge
of the applicable statutes and regulations. The regulated community
also needs information, in particular of the permitting process and how
regulators use their information. Citizens and environmental groups
also need to know the permitting process in order to effectively
participate in the permitting process.
The lack of information leads to several problems. Delays in
completing permits occur if permittees and citizens do not understand
the permitting process and use the appeals process to delay issuance
until they are satisfied they fully understand all provisions of the
permit, including how each provision was developed. Inconsistencies
between permits, that should be similar, occur if permit writers do not
understand the basis and reason of the underlying regulations or do not
know of applicable guidance.
Recommendations
In order to provide the necessary information to EPA, state, tribal
and local permit writers, the regulated community, and citizens and
environmental groups, the Task Force recommends four actions.
1. Provide information to the regulated community and others. The
Task Force recommends that EPA national Program offices use a series of
informational tools to educate permittees and citizens about the permit
process. Specific tools to be used or developed are:
a. Using the Internet, trade associations and small business
development centers to announce training opportunities and distribute
training materials. The announcement should include an explanation of
the contents of the training. Program offices should also coordinate to
standardize and post these announcements and develop and implement a
program to educate the public on the permitting process using tools
such as: press releases, infomercials, radio/TV announcements and
commercials.
b. Development of a generic fact sheet which summarizes a new
permitting project in plain English and may be used as a tool to
explain to interested parties the permitting action. The Program
offices should coordinate in the development of these fact sheets to
achieve as much consistency in format and information provided as
possible. After the generic fact sheet is developed, all permitting
authorities should prepare a fact sheet, following the model, as part
of the permitting process.
c. Develop a clearinghouse of existing model permitting
applications and instructions (this should be accomplished in
cooperation with state, tribal, and local associations). In addition,
the Program offices should request the permitting authorities,
especially in EPA, to use ``plain English'' instructions with
application forms and to include a single point of contact (see
Administrative Streamlining Task Force report).
2. Provide information on every new significant 5 rule. The
Task Force recommends the development and use of a series of
informational tools to educate Regional, state, tribal, and local
permitting authorities, permittees, and citizens about the requirements
and reasons for new rules. Specific actions are:
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\5\ A significant permitting rule should be determined by
considering its environmental impacts, community concerns, and/or
complexity of the regulated facilities.
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[[Page 21880]]
a. Program offices should prepare, as part of regulatory
development for significant rules, a package of information which
explains the new requirements, including information about permitting
and any implementing guidance. The information package should contain
materials targeted to different audiences, the regulated community, the
permitting authorities and the public and provide contacts for
additional information. This package of information must be available
at the time of promulgation (e.g., via Internet). Include in the
Federal Register information about the availability of this material.
b. A PIT workgroup (including representatives from program the
offices) should develop a standardized fact sheet format to be used
with each new significant rule. Once developed, the Program offices
should use this format for transmitting information about each new
significant rule either electronically (e.g., Internet) and/or via
mailing lists.
3. Define and provide training on core skills and knowledge needed
to issue permits. The Task Force has developed the core skills and
knowledge that are recommended for permit writers to be effective in
their jobs. The Task Force recommends that the Administrator endorse a
training program for permit writers, including the core curriculum for
permit writers (listed below). This will require the commitment of
resources to develop the training and travel funds to attend the
training. A PIT workgroup (comprised of representatives from each
Program office) should take the lead in designing the training program.
States, tribes, and local permitting authorities should participate on
the workgroup. Each Program office also needs to identify the
additional media specific knowledge which would be necessary for that
program. All training should be made available to interested parties,
both internal and external to EPA. Examples of these core skills and
knowledge include:
The need and purpose of permits,
Factors that comprise an enforceable permit,
Applicable parts of the environmental statutes,
When a permit application is complete,
Pollution prevention and innovative technology,
Waste management hierarchy,
Development of permit conditions,
Public speaking and communicating with different
audiences,
Technical writing,
Sensitivity (understanding needs of stakeholders),
Environmental justice,
Holistic view of permitting--multi-media/coordination of
permits, and
Training on the new permitting approach (if adopted).
4. Store and provide critical knowledge. The Task Force has
identified a series of tools to better provide written guidance and
accumulated permitting office experience to Regions, states, tribes,
local authorities, permittees, and citizens. The Task Force recommends
that the national Program offices develop these tools and make them
available as needed. These tools are:
a. Provide electronically (Internet) an index and synopsis of
guidance documents.
b. Creation of EPA subject-based work groups, for example to
coordinate issuance of combustion permits between the Air, RCRA and
TSCA programs. To assist in the development of the subject based work
groups, the Regions should establish regional multi-media permit
coordination work groups. Representatives from the regional multi-media
permit coordination work groups and the Headquarters Program offices
will participate on the subject-based work groups. The work groups will
focus on implementing more organized permit ``quality control'' (e.g.,
collecting, storing and disseminating EPA, state, tribal, local
agencies, and permit writers appeal issues (major and minor) and/or
other issues that have an impact on the effectiveness and
enforceability of permits).
c. Establishing quasi-independent permit review teams to assure the
issuance of quality permits. The review teams may consist of
representatives from the above-mentioned, subject-based work groups.
The review teams would evaluate significant permitting actions 6
to assure all aspects of the permitting process were addressed
(environmental justice, pollution prevention, public notice/hearing,
and understandable compliance terms). In FY-96, the permit review team
and a state volunteer will conduct a pilot to assess the effectiveness
of the permit review team.
\6\ A significant permitting action should be determined by
considering the environmental impacts, community concerns, and/or
complexity of the facility being permitted.
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[FR Doc. 96-11453 Filed 5-9-96; 8:45 am]
BILLING CODE 6560-50-P
