Notice of Availability of Permits Improvement Team Concept Paper on Environmental Permitting and Task Force Recommendations

[[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.

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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.

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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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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

co

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