21856 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

1The terms ‘‘emission’’, ‘‘release’’ and

‘‘discharge’’ are used interchangeably in this paper.

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.

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.

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
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 21857

2The 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.

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

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.
21858 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

The proposals for these three types of

performance are detailed in the

following sections. But first, it is

necessary to discuss in more detail the

importance of public participation in

the approach to permitting specified in

this concept paper.

Traditionally, permitting agencies

have limited public participation to

public comment periods and hearings at

the latter stages of the permit process.

This concept paper sets forth a more

open process that provides the public

opportunities for earlier and more

meaningful participation, within the

context of the requirements specified in

federal and state laws. This model is

inspired by some recent initiatives in

public participation, including EPA’s

RCRA Expanded Public Participation

rule and the Chemical Manufacturing

Association’s (CMA) Responsible Care

Program.

These initiatives are based on the

concept of direct reporting of

information to the public early in the

permitting process and in

understandable terms. In addition to

increasing public awareness regarding

facility operations, these programs can

serve as a powerful incentive for

facilities to reduce their toxic emissions,

so as to avoid arousing public concern.

P3 would extend these concepts to the

public reporting of ambient monitoring

results, facility compliance data and

information on how well EPA and

permitting agencies are performing.

Furthermore, an effective permitting

process (for individual permits) requires

that the public be involved early and

intimately enough that their needs and

concerns may be incorporated into

permits and other aspects of facility

and/or agency policy. Such

opportunities can defuse the kinds of

adversarial relationships which

otherwise may slow and obstruct the

permitting system with, for example,

lawsuits or permit appeals.

To address these types of concerns,

the CMA established its Responsible

Care program. Under this program,

chemical plants are encouraged to

establish community advisory panels,

through which the facility and members

of its surrounding community can

establish a continuing dialogue. The

Departments of Defense and Energy

have developed similar programs to

encourage community participation in

their environmental projects. Such

forums allow the public and the facility

new opportunities to educate each other

on their respective needs and concerns,

and to jointly resolve differences on

environmental issues. EPA will

encourage the development of

community advisory panels at more

facilities, by facilitating the

establishment of similar committees in

situations where the public and

regulated community determine it

would be beneficial.

Public performance-based permitting

is designed to change the relationships

among permitting agencies, permittees

and the general public. The permitting

process is currently often burdened with

mistrust and adversarial relationships

among all three of these parties. If these

relationships can be rebuilt on a basis of

trust, partnering, accountability and

cooperation, the most serious obstacles

to an effective and efficient permitting

system will have been removed. (See

Figure I)

The PIT specifically notes that there

are regulatory or statutory barriers to

some of the approaches listed below.

The Agency’s ability to implement each

of these options under current law

would need to be investigated further as

these options are developed in more

detail.

II. Environmental Results

The ultimate measure of the

performance of EPA’s environmental

permitting systems is the condition of

the air, land and water. Current

permitting systems focus primarily on

gathering information about permittees’

compliance, but comparatively little

information is gathered on the actual

effects of permitted activities on human

health and the environment. To a large

extent, environmental permitting

systems also lack the flexibility to

restructure and rearrange their priorities

in response to such environmental

performance data, since they are often

set up to issue individual permits based

solely on the potential impacts of each

facility. However, changes are being

proposed in this area as permitting

authorities consider ecosystem and

community based approaches to permit

issuance.

Yet in order to answer public

demands for more environmental

protection at less cost, there is a need to

determine how to focus more resources

on the activities producing the greatest

environmental impact, while divesting

from activities of lesser significance. To

do so effectively, better information is

needed on the effects industrial and

municipal activities are actually having

on the air, land and water.

This should be accomplished through,

for example, an increase in the use of

ambient monitoring as a permit

condition. Practically speaking, this

cannot be done overnight. EPA needs to

research how to perform ambient

monitoring in a cost-effective manner,

how to collect useful data and how to

trace pollution found through such

monitoring back to the source(s).

Different media present varying

challenges: air monitoring, for example,

is particularly complex. It might be

beneficial to work on these issues in a

multi-program team with Office of

Research and Development (ORD)

support.

BILLING CODE 6560–50–P
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 21859

BILLING CODE 6560–50–C
21860 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

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-byrule, 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-ofpipe/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 costeffective (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 managementspecific 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
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 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 performancebased. 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 facilityspecific 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
21862 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

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 multimedia 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 thirdparty 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 ‘‘beancounting’’ 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.
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 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 nonbinding 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 highlevel 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
21864 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

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 permitwriters 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
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 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

Statute Public notice

requirement

Public hearing

requirement Permit duration

RCRA1 .......................................... Notice of draft permit in newspaper and radio. 45 day comment period.30 day public notice. Required if

written opposition to draft permit.

10 years, review every 5 years for

land disposal facilities. May be

reviewed/modified at any time.

Prevention of Significant air quality

Deterioration (PSD).

Notice of draft permit in newspaper. 30 day comment period.30 day notice. Silent on threshold No expiration date. New permit required to modify.

Clean Air Act Title V ..................... Notice of draft permit in newspaper. 30 day comment period.30 day notice. Silent on threshold Up to 5 years. 3 types of modifications follow new permit process.

NPDES .......................................... Notice of draft permit in newspaper. 30 day comment period.30 day notice. Silent on threshold 5 years.

UIC ................................................ Notice of draft permit in newspaper. 30 day comment period.30 day notice. Silent on threshold Classes I & V: Up to 10 years.

Classes II & III: Up to operating

life.

1These requirements do not include the changes for enhancing public participation included in RCRA Expanded Public Participation Rule.

BILLING CODE 6560–01–P
21866 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

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
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 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 selfimplementing regulations (e.g., permitby-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 sitespecific 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-byrule.

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 ‘‘nonpermit’’ 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
21868 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

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
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 21869

these options are developed in more

detail.

RCRA Base Program

a. Maintain individual permits for

facilities requiring operating and postclosure 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 sitespecific 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 reinvention.

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 nonthermal 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 cleanup 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.
21870 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

3See, 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 preconditions for the exemption from permitting

requirements and is an operator * * * subject to

permit requirements’’).

4 EPA sometimes currently defers on a case-bycase 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.

• 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 postclosure 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. § 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 § 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. 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

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 lowpriority 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.
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 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 fencelineto-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 easyreference 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
21872 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

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 easyreference 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/communitybased 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 cameraready 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-inprogress (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
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 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 mediaby-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 userfriendly. 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.
21874 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

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:

ll% determinations made within 30

days;

ll% determinations made between 30

and 60 days;

ll% 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:

ll% proposals/decisions made within

60 days;

ll% proposals/decisions made

between 60 and 90 days;

ll% 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:

ll% decisions made within 60 days;

ll% decisions made between 60 and

90 days.

Where substantial and complex

comments are received and no public

hearing:

ll% decisions made within 90 days;

ll% decisions made between 90 and

120 days.

When a public hearing is held:

ll% decisions made within 180 days;

ll% 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:

ll% effective within 90 days;

ll% effective between 90 and 270

days;

ll% effective between 270 and 455

days;

ll% 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 ll 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
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 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 ll (days,

weeks, months) with a range of ll to

ll (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:

ll% No resubmittals required

ll% One resubmittal required

ll% Two resubmittals required

ll% 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 (#)
21876 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

1Type of Permit—Each permitting authority

would individually define the permit universe that

would be included within the performance or

tracking measure.

for ll (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 llll (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.

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 shorthand 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 ‘‘technologybased’’ rules are interpreted by permit

writers. Often, they interpret the rules as
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 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 industryby-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
21878 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

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 nonprofit 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 thirdparty 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 offthe-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
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices 21879

5A significant permitting rule should be

determined by considering its environmental

impacts, community concerns, and/or complexity

of the regulated facilities.

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 PermitsBy-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:
21880 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Notices

6A significant permitting action should be

determined by considering the environmental

impacts, community concerns, and/or complexity

of the facility being permitted.

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—multimedia/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 multimedia 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, subjectbased 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.

[FR Doc. 96–11453 Filed 5–9–96; 8:45 am]

BILLING CODE 6560–50–P