[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Notices]
[Pages 21856-21880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11453]



      

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Part III





Environmental Protection Agency





_______________________________________________________________________



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

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

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5501-7]


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

AGENCY: Environmental Protection Agency.

ACTION: Final draft of Permits Improvement Team's Recommendations.

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SUMMARY: The PIT was formed in July 1994 to evaluate the Agency's 
permitting programs, both delegated and administered directly, and 
develop recommendations to improve the effectiveness and efficiency of 
the permitting process. The PIT is composed of representatives from EPA 
Headquarters and Regional Office and state, tribal and local permitting 
agencies. The PIT held numerous stakeholder meetings to solicit input 
on the most critical permitting issues and to obtain feedback on the 
initial recommendations.
    Although significant input on the PIT's recommendations has been 
received through our stakeholder meetings, a brief final review by 
appropriate Federal Advisory Committee Act (FACA) organizations (Common 
Sense Initiative, National Environmental Justice Advisory Council and 
Federal Facilities Environmental Restoration Dialogue Committee) is 
being provided. This is being done to ensure that the recommendations 
are not inconsistent with the efforts of these Agency advisory groups. 
After making any changes based on this review, the PIT recommendations 
will be submitted to Administrator Browner for her consideration. 
Should she endorse the recommendations, implementation will commence. 
Stakeholders will continue to be involved in specific permit reform 
efforts.
    The PIT Concept Paper on Environmental Permitting and Task Force 
Recommendations follows this notice. In addition, the document can be 
obtained via the Internet at
`gopher://gopher.epa.gov' or
`http://www.epa.gov'. After reaching either of these Internet sites, 
locate the search function and type `Permit Improvement Team' to locate 
the Concept Paper on Environmental Permitting and Task Force 
Recommendations. A copy can also be obtained by writing to the Permits 
Improvement Team, Mail Stop 100, 2890 Woodbridge Ave., Edison, NJ 
08837.
    If an organization would like to discuss the PIT recommendations a 
meeting can be arranged, provided funding is available in the Agency's 
budget. Contact Lance Miller, PIT Executive Director at the above 
address to arrange a meeting.

    Dated: April 19, 1996.
Elliott P. Laws,
Designated Federal Official.

PERMITS IMPROVEMENT TEAM FINAL DRAFT OF CONCEPT PAPER ON ENVIRONMENTAL 
PERMITTING AND TASK FORCE RECOMMENDATIONS

April 1996

CONCEPT PAPER ON ENVIRONMENTAL PERMITTING

I. Introduction

A. Purpose of the Concept Paper

    Over the past 25 years, EPA has continually searched to find the 
best ways to protect the environment. Among the most successful methods 
have been EPA's programs requiring industrial and municipal facilities 
to obtain permits to control their pollutant emissions <SUP>1 to the 
air, land and water. Programs such as New Source Review for air 
emissions, National Pollutant Discharge Elimination System (NPDES) for 
water discharges and the Resource Conservation and Recovery Act (RCRA) 
for hazardous waste management have in many ways reduced the negative 
impacts of industrial and municipal facilities on human health and the 
environment.
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    \1\ The terms ``emission'', ``release'' and ``discharge'' are 
used interchangeably in this paper.
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    But numerous environmental challenges remain. Perhaps the greatest 
challenge for EPA today is to answer the public demand for more 
environmental protection at less cost. This demand of ``more for less'' 
requires EPA to examine both the philosophy and practice of its 
permitting systems, to determine how they can be made to function more 
effectively while at the same time decreasing costs for environmental 
agencies and the regulated community.
    This concept paper seeks to resolve these concerns by establishing 
a revised approach to environmental permitting: public performance-
based permitting. This approach incorporates two concepts; one, the 
establishment of a defined level of performance to be achieved by the 
permittee and two, providing the public with the necessary information 
so they can monitor the permitting process and compliance of permitted 
facilities. Once the final draft of this concept paper has been 
completed and approved (following the incorporation of additional 
comments), it will serve as a statement of official EPA policy on 
environmental permitting. As such, it will be used by EPA permit 
programs as guidance. EPA Program offices affected by these changes 
will need to develop plans that outline what they must do to implement 
these principles (e.g., policy, regulatory or process changes) 
consistent with statutory requirements. Theses plans could take the 
form of program specific strategic plans that would include short and 
long-term goals for moving the public performance-based permitting 
concepts forward. It is important to note that some EPA programs, such 
as NPDES permitting, are already applying many of these principles, and 
therefore may have fewer changes to make.
    Other environmental permitting programs, such as those of state, 
tribal or local governments, are strongly encouraged to adopt these 
principles where appropriate.

B. EPA's Relationship With State, Tribal and Local Environmental 
Agencies

    Before discussing the principles of a modified permitting system, 
it is important to understand the context in which these principles 
would be carried out. Rather than issuing most permits itself, EPA 
generally has established programs to authorize state, tribal and local 
permitting authorities, to perform most of the permitting. Recently, 
EPA and the states signed an agreement, the National Environmental 
Performance Partnership System, aimed at making EPA oversight of states 
less uniform and prescriptive and more based on performance, so that 
states with more effective programs and proven environmental results 
may receive less oversight. A similar approach is being developed for 
tribes. This concept paper follows the principles of the new EPA/state 
relationship, with the goals of making EPA permitting systems more 
performance-based and providing authorized permitting authorities more 
flexibility to find the best approaches to permitting and data 
management. The principles in this paper, therefore, should be 
understood as approaches that EPA would like to encourage through 
flexibility and assistance to state, tribal and local governments, and 
not as any kind of new mandates. A key aspect of that assistance is the 
provision of information from EPA databases. A comprehensive effort to 
upgrade the quality and breadth of these databases is needed. Some of 
the individual Task Force recommendations that follow this paper 
identify specific projects to improve the Agency's delivery of

[[Page 21857]]

information. In addition, specific changes to the permitting system 
need to be developed through continued dialogue with state, tribal and 
local environmental agencies and other stakeholders.<SUP>2
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    \2\ The term stakeholder(s) is used in this paper to refer to 
all groups interested in environmental permitting, including 
environmental, community and environmental justice groups, regulated 
entities, and state, tribal and local permitting agencies.
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C. Permits Improvement Initiatives

    While EPA and many other environmental agencies have taken, and are 
taking, specific actions to improve their permitting systems, there is 
also a need to re-examine EPA's overall approach to permitting. Toward 
this end, the Permits Improvement Team (PIT) was founded by EPA's 
Administrator in July 1994 to comprehensively examine the permit reform 
efforts going on around the country and determine how, taking the best 
of these efforts, EPA's overall approach to permitting could be 
improved. (A compilation of over 100 environmental agency permitting 
reform projects, entitled ``The Inventory of USEPA/State Permit 
Improvement Initiatives'' can be accessed via the internet at `gopher:/
/gopher.epa.gov' or at `http://www.epa.gov'. After reaching either of 
these internet sites, locate the search function and type `Permit 
Improvement Team' to locate the inventory. A hard copy of the inventory 
can be obtained by calling 908-321-6782.)

D. Public Performance-Based Permitting

    The purpose of permitting is to establish the level of performance 
needed by facilities or individuals to protect human health and the 
environment. To do so, EPA has in some cases set performance standards, 
determined the technical means by which facilities must comply with 
these standards, and then required monitoring and inspection to assure 
their compliance. In some instances, standards were highly prescriptive 
(including detailed technology or management requirements) that 
eliminate or severely restrict alternative approaches to achieving 
compliance. In other cases EPA bases a standard on a technology, which 
can be viewed by the regulated community as the technology of choice.
    It is the contention of this paper that too much time and resources 
are spent reviewing the technical means by which a permittee will 
comply with permit conditions. While detailed technical reviews were 
warranted 25 years ago, sufficient progress has been made in verifying 
technology and increasing corporate environmental responsibility that 
it is now appropriate to re-evaluate this approach. In instances where 
technologies are new or unique, detailed technical review may still be 
warranted; in circumstances where proven or verified technology is 
being permitted, however, such level of review may be inappropriate. 
Conducting detailed technical reviews for off-the-shelf technologies 
has resulted in several negative consequences:
    <bullet> 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.
    <bullet> 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.
    <bullet> The permitting process is largely focused on technical 
issues, sometimes, beyond the grasp and interest of the general public. 
The permitting agency and permittee can spend much time grappling with 
these issues, while the public is usually excluded until such a time 
when these issues have been resolved through the writing of a draft 
permit. The public's ability and opportunity to judge the permit 
process and results can thus be unduly limited.
    In order to remedy this situation, this paper proposes a permitting 
approach called public performance-based permitting, or P3. The essence 
of this approach is to shift the focus of environmental permitting 
towards the measurement and assurance of performance, while providing 
flexibility as to how a permittee will meet performance standards. The 
focus of this system will not simply be performance, but performance 
within a public arena: to the extent possible and appropriate, the 
public should be involved in the setting of performance standards and 
the measurement and judgement of performance. It is recognized that the 
existing environmental statutes may limit EPA's latitude in fully 
implementing this approach. As EPA seeks changes to its various 
permitting programs in accordance with this approach, specific 
legislative barriers will be identified. As opportunities develop to 
address these barriers, specific legislative changes will be proposed.
    The P3 principle includes three different types of performance. The 
existing permitting programs each contain elements of this principle. 
The objective of the permitting programs will be to more fully 
implement each type of performance.
    1. Environmental results: How are permitted activities actually 
affecting the environment? To improve knowledge and understanding of 
this performance factor, this paper proposes that permitting agencies 
increase ambient (environmental) monitoring as a permit condition in 
selected permits, while comparatively reducing other emissions 
monitoring and reporting requirements. Ambient monitoring results shall 
be reported to the public in understandable terms. Ambient monitoring 
would not eliminate individual facility monitoring requirements.
    2. Facility compliance: How well are permitted facilities complying 
with their permits over time? To increase the rates at which facilities 
comply with their permit conditions, permitting agencies should (1) 
establish reporting requirements based on a facility's level of 
compliance (e.g., reduce reporting for facilities with good compliance 
records) and potential impact of an activity, (2) create incentives for 
pollution prevention and technological innovation, and (3) provide 
compliance assistance to facilities that are making good-faith efforts 
but finding it difficult to comply (e.g., small businesses and local 
governments). Furthermore, compliance data will be put in 
understandable terms and made available to the public.
    3. Agency performance: How good a job are EPA and other 
environmental permitting agencies doing? To ensure that they continue 
to protect the environment in the most effective and efficient ways 
possible, this paper recommends that EPA devise methods to measure the 
performance of permitting systems and to continually improve these 
systems based on performance data received. These methods shall be 
provided for the use of state, tribal and local environmental agencies 
as well. Information on the performance of all permitting agencies 
should be publicly reported in understandable terms.

[[Page 21858]]

    The proposals for these three types of performance are detailed in 
the following sections. But first, it is necessary to discuss in more 
detail the importance of public participation in the approach to 
permitting specified in this concept paper.
    Traditionally, permitting agencies have limited public 
participation to public comment periods and hearings at the latter 
stages of the permit process. This concept paper sets forth a more open 
process that provides the public opportunities for earlier and more 
meaningful participation, within the context of the requirements 
specified in federal and state laws. This model is inspired by some 
recent initiatives in public participation, including EPA's RCRA 
Expanded Public Participation rule and the Chemical Manufacturing 
Association's (CMA) Responsible Care Program.
    These initiatives are based on the concept of direct reporting of 
information to the public early in the permitting process and in 
understandable terms. In addition to increasing public awareness 
regarding facility operations, these programs can serve as a powerful 
incentive for facilities to reduce their toxic emissions, so as to 
avoid arousing public concern. P3 would extend these concepts to the 
public reporting of ambient monitoring results, facility compliance 
data and information on how well EPA and permitting agencies are 
performing.
    Furthermore, an effective permitting process (for individual 
permits) requires that the public be involved early and intimately 
enough that their needs and concerns may be incorporated into permits 
and other aspects of facility and/or agency policy. Such opportunities 
can defuse the kinds of adversarial relationships which otherwise may 
slow and obstruct the permitting system with, for example, lawsuits or 
permit appeals.
    To address these types of concerns, the CMA established its 
Responsible Care program. Under this program, chemical plants are 
encouraged to establish community advisory panels, through which the 
facility and members of its surrounding community can establish a 
continuing dialogue. The Departments of Defense and Energy have 
developed similar programs to encourage community participation in 
their environmental projects. Such forums allow the public and the 
facility new opportunities to educate each other on their respective 
needs and concerns, and to jointly resolve differences on environmental 
issues. EPA will encourage the development of community advisory panels 
at more facilities, by facilitating the establishment of similar 
committees in situations where the public and regulated community 
determine it would be beneficial.
    Public performance-based permitting is designed to change the 
relationships among permitting agencies, permittees and the general 
public. The permitting process is currently often burdened with 
mistrust and adversarial relationships among all three of these 
parties. If these relationships can be rebuilt on a basis of trust, 
partnering, accountability and cooperation, the most serious obstacles 
to an effective and efficient permitting system will have been removed. 
(See Figure I)
    The PIT specifically notes that there are regulatory or statutory 
barriers to some of the approaches listed below. The Agency's ability 
to implement each of these options under current law would need to be 
investigated further as these options are developed in more detail.

II. Environmental Results

    The ultimate measure of the performance of EPA's environmental 
permitting systems is the condition of the air, land and water. Current 
permitting systems focus primarily on gathering information about 
permittees' compliance, but comparatively little information is 
gathered on the actual effects of permitted activities on human health 
and the environment. To a large extent, environmental permitting 
systems also lack the flexibility to restructure and rearrange their 
priorities in response to such environmental performance data, since 
they are often set up to issue individual permits based solely on the 
potential impacts of each facility. However, changes are being proposed 
in this area as permitting authorities consider ecosystem and community 
based approaches to permit issuance.
    Yet in order to answer public demands for more environmental 
protection at less cost, there is a need to determine how to focus more 
resources on the activities producing the greatest environmental 
impact, while divesting from activities of lesser significance. To do 
so effectively, better information is needed on the effects industrial 
and municipal activities are actually having on the air, land and 
water.
    This should be accomplished through, for example, an increase in 
the use of ambient monitoring as a permit condition. Practically 
speaking, this cannot be done overnight. EPA needs to research how to 
perform ambient monitoring in a cost-effective manner, how to collect 
useful data and how to trace pollution found through such monitoring 
back to the source(s). Different media present varying challenges: air 
monitoring, for example, is particularly complex. It might be 
beneficial to work on these issues in a multi-program team with Office 
of Research and Development (ORD) support.

BILLING CODE 6560-50-P

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[GRAPHIC] [TIFF OMITTED] TN10MY96.077



BILLING CODE 6560-50-C

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    Despite these challenges, some programs are already beginning to 
achieve these objectives. The Greater Houston Partnership, for example, 
is a voluntary program under which Houston-area refineries have set up 
an air monitoring network. In the short term, EPA will encourage and 
set up more such pilots and feed all results into a study of how to run 
effective ambient monitoring programs. These pilots should cover each 
media (air, surface water and ground water) jointly or separately, and 
some of the pilots should incorporate the concept of involving the 
community in monitoring, facilitated by experts from government or the 
private sector.
    At the same time, it is important not to increase the information-
gathering and reporting burden on permitted facilities. On many 
occasions, the regulated community has raised concerns about having to 
meet duplicative or counter-productive compliance monitoring, reporting 
or record-keeping requirements. In exchange for increasing ambient 
monitoring requirements, therefore, EPA shall concurrently identify and 
eliminate other compliance information requirements. The Office of 
Enforcement and Compliance Assurance and the Program offices, in 
consultation with stakeholders, will conduct thorough program reviews 
that rank compliance monitoring, reporting and record-keeping 
requirements according to the best estimate of their actual value to 
the environment and to determine where different media requirements for 
compliance information duplicate and/or conflict with one another. The 
reviews should be followed by proposals and schedules for permit 
programs to streamline reporting requirements.
    This approach is an element in several other EPA initiatives. In 
response to a Presidential initiative, EPA is examining how it can 
reduce paperwork requirements by 25%. This effort should be a major 
portion of the reviews discussed in the preceding paragraph. In 
addition, EPA's ``one-stop reporting initiative'' aims to streamline 
reporting requirements, for example by replacing separate facility 
identification codes used by different EPA programs with a single 
facility identifier.
    Increasing ambient monitoring while decreasing other compliance 
information requirements at the source would allow permitting agencies 
to prioritize permitting information requirements based on real 
environmental impacts. But permitting agencies should be encouraged and 
allowed to take this idea one step further, and prioritize which 
facilities will receive full-fledged individual permits and which 
facilities can receive general (non-individual) permits or no permit at 
all, based on certain conditions or levels of emissions (this would 
require statutory amendments for some programs). The better ambient 
information becomes, the more precisely permitting agencies can and 
should gear environmental permitting systems to the most significant 
risks to the environment. This could entail protection of high quality 
areas as well as focusing on areas where environmental standards are 
not being achieved.
    One major reform being developed by the PIT is to establish 
criteria to determine when individual permits are needed and when they 
could be replaced with types of permits requiring less administrative 
oversight and cost, without any impact to the environment. Such 
alternatives to individual permits include general permits, permits-by-
rule, hybrid permits, and conditional and de minimis exemptions from 
permitting. Criteria developed by the PIT's Alternatives to Individual 
Permits Task Force include:
    <bullet> 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.
    <bullet> Issue individual permits only where there is a potential 
for significant environmental impact or high degree of variability in 
regulatory requirements at individual facilities.
    It is important that the public be involved in the development and 
implementation of any alternatives to individual permits, and that 
adequate compliance and enforcement programs be put in place where 
alternatives to individual permits are developed.
    In the long term, and in conjunction with the pilots and research 
discussed above--and recognizing the legal constraints that may exist--
EPA Program offices will revise policies and regulations to provide 
state, tribal and local permitting agencies more flexibility and 
guidance to: increase ambient monitoring, reduce end-of-pipe/stack 
monitoring and reporting requirements, adjust databases to focus on 
ambient data, and tier permitting systems based on the actual 
environmental impacts of different types of facilities and activities. 
Some programs (e.g. OW) are already developing guidance for reducing 
reporting and monitoring requirements.

III. Permittee Compliance

A. Hierarchy of Permitting Standards

    While permitting systems need to be better geared towards actual 
environmental impacts, as discussed above, they still must include 
sufficient monitoring to determine permittee compliance. The key is to 
make permitting systems less prescriptive and more performance-based, 
or in other words, to continue to tell a permittee what standards to 
achieve, but to no longer mandate, in most cases, how they are to 
achieve them.
    This more flexible approach is designed to:
    <bullet> Help the environment by encouraging pollution prevention;
    <bullet> Help permittees by giving them the opportunity to develop 
more cost-effective (and equally or more environmentally effective) 
approaches to pollution control and prevention; and
    <bullet> Help permitting agencies by allowing them to shift 
resources from extensive engineering and paperwork reviews to a focus 
on ambient monitoring, standard setting, compliance assistance and 
enforcement.
    Permitting based on performance standards rather than on technology 
or management requirements is not a completely new idea. EPA's NPDES 
program, for example, currently uses such an approach to a large 
extent. Performance-based permitting will now be the preferred 
approach, wherever feasible and appropriate, for all of EPA's 
permitting programs, and State, tribal and local governments will be 
provided the flexibility and guidance to implement similar approaches. 
Programs not using performance-based permitting will need to justify 
why that approach is not appropriate (e.g., see Underground Injection 
Control (UIC) example below).
    Thus, EPA programs will follow the hierarchy of preferred 
approaches shown below in setting permitting standards:
    i. Set performance standards based on ambient environmental goals.
    ii. Set performance standards based on technological achievability.
    iii. Set technology- or management-specific standards. The ideal 
approach is where EPA sets performance standards based on actual 
environmental needs and projected impacts. EPA and other environmental 
agencies should follow this approach wherever possible and appropriate. 
It may be appropriate to combine the above approaches in an overall 
permitting system (e.g. establish a base level of performance and only 
require higher levels of performance where

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environmental conditions are not being achieved). This later approach 
is currently prescribed by statute in many of the Agency's permitting 
programs.
    In cases where EPA is not able to establish permit conditions based 
on environmental needs, e.g., due to costs and complexities involved 
with obtaining useful ambient data, or due to methodological 
difficulties (there are significant difficulties with implementing 
ambient standard schemes, including contentious scientific issues), the 
second-best approach is for performance standards to be based on what 
is technologically achievable. For example, based on EPA's knowledge of 
the removal efficiency of a particular water pollution control device, 
the Water program may set a numerical standard that facilities will 
have to meet in order to be in compliance with statutorily established 
control standards. While the permitting program will make information 
available about what technologies are capable of achieving that 
standard, it will allow the facilities to make their own determination 
of what technologies to use to meet the numerical standard. In some 
cases, facilities may substitute a technology or procedure at earlier 
stages of its process, rather than at the end of the pipe or 
smokestack, so as to more efficiently prevent pollution and save having 
to deal with its consequences.
    There will be instances in which technology- or management-specific 
standards are warranted. For example, the underground injection control 
(UIC) program has a non-degradation policy backed up by engineering 
requirements that are supported by industry as well as by the 
permitting agency. In this program, the cost of ambient monitoring to 
ensure compliance would be excessive compared to establishing technical 
requirements.

B. Increasing facilities' Operational Flexibility

    In addition to allowing permittees the flexibility to determine the 
technical means by which they meet EPA standards, there are several 
other ways to increase permittees' operating flexibility. Permitting 
agencies should consider these alternatives and incorporate them into 
their permitting processes as appropriate. Any alternatives that 
provide increased flexibility to the regulated community need to ensure 
that the requirements are enforceable.
    First, permitting agencies' review of permits should be more 
performance-based. This would involve reducing review steps to those 
needed to reasonably demonstrate that the permittee will meet 
performance standards. Upfront technical (engineering) reviews, 
therefore, would be reduced or even eliminated where possible and 
appropriate. In general, where technologies are already proven or 
verified, there would be less need to perform technical review as part 
of the permitting process. EPA will give state, tribal and local 
governments the flexibility to reduce such reviews. EPA Program offices 
will evaluate existing regulations, policies and priorities that limit 
this flexibility and make appropriate revisions where authorized by 
statute. In addition, EPA will evaluate whether to shift grants funding 
from this stage of the permitting process to other more productive 
stages (such as compliance assistance and enforcement). This 
flexibility in use of grants is consistent with the Performance 
Partnership Grant program proposed in the FY96 EPA budget.
    As an example, the lengthy and detailed technical reviews often 
conducted under the RCRA program may be less necessary for many 
standard container and tank storage operations. The PIT is working on a 
project with California and Texas to develop a general (non-individual) 
permit for this class of facilities, thus substantially streamlining 
the RCRA permitting program.
    As noted in Section II, permitting agencies should also be given 
the leeway to reduce reporting and compliance monitoring requirements 
which are deemed to be unnecessary or duplicative.
    Second, permitting agencies will be allowed to reduce the number of 
times permits need to be formally modified. Currently, lengthy permit 
modification processes discourage facilities from making needed process 
changes--including changes which could reduce emissions. Generally, 
permit modifications should be required only where process changes will 
increase pollution, or are needed to ensure proper operation or 
monitoring of a facility (this is likely to require regulatory 
revisions in some permit programs). Permitting agencies should be able 
to tailor their permit modification requirements by facility; 
facilities with good compliance records may be made subject to less 
prescriptive requirements. Each EPA permitting program shall review 
their modification requirements and make appropriate revisions to only 
require permit modifications where needed to protect human health and 
the environment.
    As discussed in Section I-D above, permitted facilities should be 
encouraged to establish mechanisms for conducting regular dialogue with 
the public, such as community advisory committees. Major changes in 
plant operations may well be appropriate topics for dialogue regardless 
of whether a permit modification is required.
    Third, permitting agencies should use the permitting process to 
encourage municipal and industrial facilities to practice pollution 
prevention. One of the primary purposes of making permitting 
performance-based rather than technology-based is to encourage and 
allow facilities to pursue innovative technological approaches to 
preventing pollution at the source. However, additional incentives and 
technical assistance are needed. In addition to pollution prevention 
technologies, the permitting system should encourage the use of more 
cost effective innovative technologies of any type, where practicable 
and consistent with legal requirements.
    In many cases, encouraging pollution prevention and innovative 
technologies will require facility-specific actions, e.g., drafting a 
flexible permit that allows the permittee discretion to do what is 
needed to prevent pollution. This is the approach of a major EPA 
initiative, Project XL, under which facilities are exempted from 
certain regulatory requirements if they can demonstrate that they will 
achieve better environmental results through other means. In addition, 
the PIT is working on a project with the state of New Jersey, under 
EPA's Environmental Technology Initiative (ETI), to develop and 
implement a protocol to encourage the utilization of innovative 
technologies and pollution prevention.
    ETI is also sponsoring more than two dozen other projects, programs 
and demonstrations in order to remove barriers to technology innovation 
in the permitting process, through facility-specific actions as well as 
more general regulatory, administrative and procedural changes. The 
Office of Policy, Planning and Evaluation has established a program to 
coordinate these ETI permitting projects and to provide information and 
assistance to other EPA offices, state, tribal, and local permitting 
agencies, and outside groups.
    Turning to the additional incentives needed for encouraging 
pollution prevention the Pollution Prevention Incentives Task Force 
recommends, among other things: (1) increasing the use of facility-wide 
permitting, and (2) inserting language in general permits stating that 
pollution prevention is the preferred means of reaching compliance. 
Permitting agencies, at their discretion, may decide to use

[[Page 21862]]

similar incentives to encourage recycling or other beneficial 
management methods as well as pollution prevention.
    EPA's Multi-Media Pollution Prevention (M2P2) Permit Project is 
currently working with several states on multimedia permitting. This 
should become the long-term direction of EPA's permitting programs; 
however, the transition from single-medium to multi-media permitting 
will take time and careful planning. EPA's evaluation under the M2P2 
Project will be used to plan that transition.

C. Public Performance-Based Compliance Assurance and Enforcement

    Regardless of the level of flexibility provided to permittees, 
there will always be a need for environmental agencies to monitor, 
assure and enforce compliance with permits. In fact, where upfront 
technical reviews are reduced or eliminated, these functions become 
even more important. Whereas the existing permitting system is in some 
way geared to hold all permittees to requirements based on the worst-
case scenario, the proposed system would gear requirements to actual 
environmental performance. A tiered approach to compliance assurance, 
is one possible approach, under which less significant violators are 
provided technical assistance, while more significant violators become 
subject to penalties that should be harsh enough to deter activities 
that may threaten human health or the environment.
    In addition, information about permittee compliance performance 
should become available to the public in clear, user-friendly databases 
and publications. It is not enough for an industrial or municipal 
facility to perform to the satisfaction of the permitting agency; the 
surrounding community has the right to know how well a facility is 
complying with its permits and use this information for itself. The 
concept behind this approach is to employ the power of public 
disclosure, so that a permittee would be deterred from violating 
permits by the public relations implications of poor compliance, or 
conversely be encouraged to maintain a high level of compliance by the 
public relations benefit of being in compliance.
    The Office of Enforcement and Compliance Assurance (OECA), in 
consultation with appropriate stakeholder, will investigate and 
recommend ways to publicize, in an easy to understand format, 
facilities' compliance records. Some possibilities are an annual report 
(developed by the permitting authority) or requiring compliance 
reporting as part of a facility's permit. This compliance reporting 
could be based on a third-party audit, conducted by an impartial 
auditor, or a self-audit, possibly used at facilities with excellent 
compliance histories. The developed approach would probably have to be 
piloted in particular media programs, Regions or states before it is 
ready to be applied to all permitting programs individually and on a 
multimedia basis. It will also require study by OECA to ensure that 
this system is successfully designed to be legally defensible, fair, 
efficient and enforceable.
    The criteria behind the compliance reporting should take several 
factors into account. First, there should be a clear distinction 
between paperwork violations of little or no direct consequence to the 
environment and permit violations with the actual potential to damage 
the environment or human health. It is recognized that certain 
paperwork requirements are critical to determining permit compliance. 
Furthermore, continued violation of paperwork requirements should 
result in enforcement action. Second, there could be separate ranking 
systems for small and large facilities, since they face different 
challenges when it comes to permit compliance. (With small facilities, 
the greatest challenge can be having the time and resources to 
understand and afford to comply with permit requirements. With larger 
facilities, the top challenge may be achieving compliance given 
different process lines, smokestacks, discharge pipes, etc.). 
Regardless of the final criteria used, they should be clear enough that 
there is no dispute as to whether or not a facility is in compliance.
    Compliance assurance and enforcement activities should also take 
into consideration facilities' compliance records. This could help EPA 
and state, tribal and local permitting agencies to better target 
inspections, enforcement actions and penalties based on the severity of 
the violations. For smaller facilities with labelling or paperwork 
violations, EPA may target technical assistance at them (e.g., in 
cooperation with universities or other programs which provide such 
assistance) so as to improve their understanding of permit requirements 
and how to comply with them.
    On the other hand, facilities whose non-compliance has the 
potential to threaten human health and the environment more 
significantly, should be much higher priorities for reporting, 
monitoring and attention. In the most severe cases, EPA or the 
permitting authority should reserve the option of halting a plant's 
operations until it complies with essential permit conditions. This 
targeted enforcement approach should make it possible to respond to the 
worst threats in a more immediate fashion.

IV. Agency Performance

    No reform can ever permanently solve every problem with a 
particular system, because problems and public perceptions of them are 
constantly evolving. Therefore EPA, state, tribal and local permitting 
programs should institute systems of continuous evaluation and 
improvement of their own performance.
    As illustrated in Figure II, this system would involve several 
steps:
    (1) Identify performance standards for the permit program: the 
PIT's Performance Measures Task Force has developed draft standards by 
which permit program performance could be measured, including 
timeliness of permit reviews, permit backlogs and customer 
satisfaction.
    (2) Determine how these standards would be measured: e.g., design 
surveys to measure customer satisfaction. As part of EPA's Customer 
Service efforts, surveys have been drafted for citizens involved in 
permitting decisions, permit applicants and delegated/authorized 
permitting agencies. Customer service standards have also been drafted 
based on these surveys. Surveying will begin in Federal Fiscal Year 
1996. This step needs to be carefully designed to avoid burdening 
agencies with tedious ``bean-counting'' exercises. Streamlined ways of 
recording performance, including user-friendly electronic means, are 
encouraged.
    (3) Compile performance data: e.g., conduct surveys, measure 
performance rates, etc.
    (4) Report to public on permit program performance: compile results 
into a regular (e.g., yearly) report on performance which is clearly 
understandable and easily accessible, in print as well as on the 
Internet. Establish mechanisms to receive public feedback, via 
Internet, phone and mail. Permit programs may also decide to hold 
public meetings or focus groups to obtain more feedback, as 
appropriate.
    (5) Review permit program standards, processes and approaches based 
on evaluation results and public feedback: permit programs should 
conduct periodic program evaluations based on the input received from 
this process. They should determine what changes to implement in their 
programs to respond to any shortcomings in performance.

[[Page 21863]]

Performance standards will also need to be periodically revised to 
respond fully to program needs.
    (6) Revise permitting program processes and approaches: implement 
the changes that have been identified and return to step one of the 
continuous performance improvement system.
    The performance of EPA and other permitting agencies, like the 
performance of permittees and the actual condition of the environment, 
needs to be publicly reported in clear, understandable terms. By 
bringing these types of performance into the light, public performance-
based permitting will focus attention on the results of environmental 
permitting systems, and use those results to continually make these 
systems more responsive and environmentally protective.

ADMINISTRATIVE STREAMLINING--TASK FORCE RECOMMENDATIONS

Goal for Administrative Streamlining

    The goal of the Administrative Streamlining Task Force was to 
improve the permit process by analyzing successful permit programs 
across the country and recommend permitting process changes (guidance, 
policy, regulations, procedures) designed to apply these successes more 
broadly.

Recommendations

1. Create a Predictable, User-Friendly Federal Permit Process

a. Information and Process
    Currently, EPA permitting programs have different processes that 
follow different timeframes (See Attachment 1). The lack of 
coordination among these programs, and the lack of predictability 
created by this situation, can unnecessarily complicate the permitting 
process for permittees, state, tribal and local permitting authorities, 
and the public. In addition, EPA's oversight of delegated or authorized 
permitting programs varies by Region and media program.
    Therefore, EPA should to the extent consistent with its various 
statutory authorities develop one unified, standard timeline model 
applicable to all of its permitting programs (it may be necessary to 
have one model for new permit applications and permit modifications and 
another for facilities that are required to upgrade to meet new 
requirements). It may also be necessary to have different timelines 
based on the type of permit (e.g. major or minor). This model timeline 
is intended to be used as a management tool for permitting agencies to 
set realistic and desirable time goals; if goals are not being met, 
permitting agencies should review their processes to identify and 
eliminate inefficiencies and unnecessary or unproductive procedures.
    In the short term, one uniform model should be approved by EPA as 
non-binding guidance for state, tribal and local permitting 
authorities. Where allowed by statute or regulation, EPA permitting 
programs should provide sufficient flexibility to allow authorized 
permitting authorities to adopt this timeline in lieu of specific 
program timeframes.
    Appendix 2 contains a proposed uniform timeline model. Under this 
model, the timeline would be subject to extension if the applicant 
consents to negotiate permit terms, if the applicant must submit 
further information, or if the permitting agency determines that the 
project is unusually complicated. The process should include a 
mechanism that clearly identifies the reason for any time extension and 
whether the applicant is responsible for any actions that would re-
start the clock on the timeline. The applicant's failure to submit 
needed information would constitute a basis for denying the 
application. The timeline could include options for enforcing the time 
limits and ``calling the question'' on the permit action, as determined 
by each permitting jurisdiction.
    Several options for ``calling the question'' on a permit 
application were considered by the Task Force. One option would include 
a refund of permit fees for failure to meet the timelines. A few states 
have implemented this approach. Another option would be a judicial 
cause of action or other administrative remedy to compel agency action 
on the permit, if the controlling statute made meeting the deadline a 
non-discretionary duty. A third option would be to allow a permit to go 
into effect automatically if the agency does not meet the deadline. 
This option is inconsistent with current law and would be contrary to 
the PIT's recommendations to enhance public participation and is 
therefore not endorsed by the PIT. In addition, this option may also 
foreclose the ability of the permitting authority to adequately 
evaluate appropriate considerations under Title VI of the 1964 Civil 
Rights Act, such as, any disproportionate impact of the permit action 
on minority communities.
    Permits that are issued by the Regions or by state, tribal or local 
permitting authorities that are authorized pursuant to federal law 
would have legal impediments to some of the above options. Most 
importantly, if the last option caused the elimination of required 
public participation the resulting permit would not comply with federal 
law.
    The proposed timeline includes a notice to the public of either the 
complete application, the proposed draft permit, or both, depending on 
program needs and statutory constraints.
    Implementation (short term): Each EPA Program office should release 
a uniform model timeline (by permit type--major/minor) to its 
authorized authorities as guidance, and establish, as policy, that 
Regions and state, tribal and local permitting authorities, to the 
extent allowed by statute and regulations, will be allowed to follow 
this timeline in lieu of specific EPA permitting program timeframes 
that may otherwise conflict with it.
    Implementation (long term): A high-level cross-office team should 
be established in FY96 to reach consensus on what changes should be 
made to EPA statutes, regulations, policies, guidances and processes so 
as to bring all major EPA permit programs under a single uniform 
timeline and oversight approach. This team should also define the 
resource burden of making these revisions along with the potential 
savings from reducing EPA oversight of delegated or authorized agency 
issued permits. The PIT has already identified some of the statutory 
and regulatory barriers to a uniform timeline. The proposed team would, 
with stakeholder input, agree on the specific changes to be made and 
work with Program offices to ensure that these changes are implemented 
or proposed for statutory change.
b. Single Point of Contact for All Media Permits
    In addition to basic level, point of entry offices, each permitting 
agency should assign senior permitting personnel to projects in which a 
facility receives multiple permits. This can help ensure cross-program 
permit coordination and provide each permittee with one senior staff 
contact to coordinate the resolution of any cross-cutting issues. In 
cases where state/tribal/local permits and federal permits are being 
issued to the same facility, permit coordination is also needed between 
the permitting agencies.
    Example: EPA Region 6 multi-media permit teams.
    Implementation: We recommend that a PIT workgroup draft policy and 
operational guidance, to be issued by EPA's Administrator, for Regional 
Administrators to implement a single

[[Page 21864]]

point of contact approach during FY 1996.

2. Encourage and Implement Flexible Permitting Projects

    EPA and state, tribal and local permitting authorities should 
create opportunities for facilities to negotiate alternative permit 
conditions that maximize operational flexibility and encourage 
pollution prevention while maintaining or increasing levels of 
environmental protection. Each permitting agency should identify those 
situations where a modification can occur without review. Presently, 
initiatives such as Project XL, the Common Sense Initiative (CSI), the 
Environmental Technology Initiative (ETI) and the Clean Air Act Title V 
permit program are piloting approaches and mechanisms to promote 
greater flexibility in permits.
    Examples of flexible permits:
    <bullet> 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.
    <bullet> EPA and Minnesota Pollution Control Agency worked with 3M 
corporation to develop a flexible permit which, while ensuring all 
necessary environmental protection, allows the source to make physical 
and operational changes without triggering major new source review 
requirements under the Clean Air Act.
    Implementation: EPA should, through Regional Offices, serve as a 
clearinghouse for good examples of flexible permits and serve as a 
resource to state, local and tribal governments and the public in 
implementing these approaches. This proposal should be implemented 
through the electronic clearinghouse recommended in 4d below, as well 
as through the Regional Permit Process Assistance program recommended 
in 5 below.

3. Tier Permitting Programs in Proportion to Environmental Significance

    EPA should establish a policy and guidance to encourage state, 
tribal and local permitting authorities to tier their permit programs 
according to the environmental significance of facilities' polluting 
activities. Such a policy should allow agencies to reduce monitoring or 
other reporting requirements for less significant activities so 
agencies can focus on the actions with the greatest potential for 
environmental impact.
    Suggested ways to do this include: increasing thresholds for small 
emissions; exploring use of impartial third-party certification 
systems; exempting certain activities; requiring less frequent/
consolidated reporting; expediting the review for low tier permits; and 
providing incentives for good compliance records and for use of 
pollution prevention approaches. Some of these approaches would require 
regulatory and possibly statutory changes in order to be implemented.
    Examples: A number of states are moving towards tiered permits, to 
reduce permit process requirements in accordance with the location of 
the project, environmental significance of the impact imposed by the 
project, etc. Examples include California Tiered Permitting for 
hazardous wastes, Minnesota's Air and RCRA Programs, and the 
Massachusetts 401 Certification Program.
    Implementation: As an FY96 project, a PIT workgroup should conduct 
an analysis of current approaches to tiered permitting, and then, based 
on this analysis, draft EPA policy and guidance promoting such 
approaches where appropriate. This analysis should also focus on 
projects such as Project XL, to determine where principles applied to 
individual facilities (e.g., pollution prevention incentives) can and 
should be applied to whole classes of facilities.

4. Establish Computer Systems

a. Integrated Facility Data Bases with Geographic Information System 
(GIS) Interface
    Permitting authorities should combine cross-media information for 
each facility into a single database which provides instant access and 
search capability. EPA has initiated this task at the national level 
through the efforts of the Key Identifiers Workgroup.
    Example: Massachusetts DEP's Environmental Protection Integrated 
Computer System (EPICS) system takes information supplied by 12 
separate MADEP divisions, such as air emissions, hazardous waste and 
water supply and combines it into a single database. This gives MADEP 
employees instant access to all the agency's information and allows 
them to search for data on a facility by entering its name and 
location. This and a two-year cross-training program have allowed 
inspectors to do multi-media inspections. EPICS is currently developing 
an interface with GIS to help site new businesses and to assess 
cumulative threats to resources for targeted compliance/enforcement.
b. Permit Software Systems
    EPA should collect and make available state, tribal, local and 
regionally developed software for a menu-driven system to train permit-
writers and assist them in drafting permits. The system should contain 
and cross-reference all appropriate regulations and procedures, and 
provide a mechanism for tracking.
    Examples: Maryland/Region 3 software program for NPDES permit 
writing and tracking. Also, the Indiana Department of Environmental 
Management has begun a project to develop a menu-driven, expert system 
to help permit writers in drafting permits. This project was started in 
an effort to provide training to new permit writers in the state. The 
expert system takes permit writers through the process of writing a 
permit, cross-references all appropriate state regulations and internal 
procedures, and results in a draft permit. This system could also be 
made available to permittees and the public.
c. Electronic Permitting and Reporting
    EPA should facilitate permitting authority efforts to provide 
permit application forms on disk or by dial-in, issue permits 
electronically (while providing for public notice, access and 
opportunity to comment), develop permit tracking capability, and 
establish electronic facility-based compliance reporting. Model permits 
(like the RCRA model permit) in electronic format may be provided to 
applicants to fill-out as a supplemental part of their permit 
application if they choose to do so. This can greatly reduce the time 
required for a permit writer to transform permit application proposals 
into permit conditions. The permit writer can also easily verify that 
the permit conditions proposed by the applicant meet all applicable 
requirements. The use of electronic exchanges in permitting will not 
replace the need to continue to

[[Page 21865]]

provide appropriate permitting information through non-electronic 
means.
d. Electronic Database/Clearinghouse
    EPA should establish, provide access to and maintain an electronic 
database/clearinghouse which contains relevant information necessary 
for permit writers in all media, including: pollution prevention, 
toxics use reduction, pollution allocation/Total Maximum Daily Load 
(TMDL) models, site specific protocols, etc.
    Implementation: Recommendations 4a-c above should be referred to 
EPA's Office of Information Resource Management to identify existing 
capabilities, develop resource needs and schedules to adopt across 
media Program offices. Recommendation 4d should be referred to Research 
Triangle Park's Internet Group to identify existing capabilities, 
develop resource needs and a schedule to allow adoption across media 
Program offices.

5. Regional Permit Process Assistance

    Under the National Environmental Performance Partnership System 
agreed to between EPA and the states on May 17, 1995, EPA will be 
reducing direct oversight of authorized state programs. The Regions are 
in an excellent position to help the states improve their permitting 
processes by keeping abreast of the latest changes that are being 
implemented, and sharing that information with the states. Working 
together, a Region and state would identify areas in need of 
improvement in a permitting process and evaluate existing approaches 
that have been utilized to help address the identified area.
    Implementation: As an FY96 PIT pilot project, a Region and a state 
(possibly Texas) should develop an approach whereby the Region would 
assist the state in evaluating a permitting process. The purpose of 
this evaluation would be for the Region to help identify improvements 
that could be implemented. The Region would make use of national 
clearinghouses and data bases (see recommendation 4d) to help identify 
approaches that could be of assistance to the state. The Region could 
also provide any needed training to the state. The state would make the 
final decision on implementing any improvements.
    The Region (with input from the state) would prepare a report on 
the lessons learned from this pilot and, working with a PIT workgroup, 
propose an approach that other Regions could utilize in providing 
assistance to states and tribes in their respective region.
    Attachments:
    1. A table of current permit program timetables.
    2. A proposed uniform timeline for all major and minor federal 
permits (see Recommendation 1.a., above).

                           Attachment 1.--Federal Permit Programs, Current Timetables                           
----------------------------------------------------------------------------------------------------------------
                                            Public notice            Public hearing                             
               Statute                       requirement              requirement            Permit duration    
----------------------------------------------------------------------------------------------------------------
RCRA \1\.............................  Notice of draft permit   30 day public notice.    10 years, review every 
                                        in newspaper and         Required if written      5 years for land      
                                        radio. 45 day comment    opposition to draft      disposal facilities.  
                                        period.                  permit.                  May be reviewed/      
                                                                                          modified at any time. 
Prevention of Significant air quality  Notice of draft permit   30 day notice. Silent    No expiration date. New
 Deterioration (PSD).                   in newspaper. 30 day     on threshold.            permit required to    
                                        comment period.                                   modify.               
Clean Air Act Title V................  Notice of draft permit   30 day notice. Silent    Up to 5 years. 3 types 
                                        in newspaper. 30 day     on threshold.            of modifications      
                                        comment period.                                   follow new permit     
                                                                                          process.              
NPDES................................  Notice of draft permit   30 day notice. Silent    5 years.               
                                        in newspaper. 30 day     on threshold.                                  
                                        comment period.                                                         
UIC..................................  Notice of draft permit   30 day notice. Silent    Classes I & V: Up to 10
                                        in newspaper. 30 day     on threshold.            years. Classes II &   
                                        comment period.                                   III: Up to operating  
                                                                                          life.                 
----------------------------------------------------------------------------------------------------------------
\1\ These requirements do not include the changes for enhancing public participation included in RCRA Expanded  
  Public Participation Rule.                                                                                    

BILLING CODE 6560-01-P

[[Page 21866]]

[GRAPHIC] [TIFF OMITTED] TN10MY96.078



Notes

    * Opportunities or requirement for public participation.
    (1) Time frames can be waived with mutual consent, or if 
applicant is unresponsive.
    (2) Procedure to apply to all programs except siting.
    (3) Major projects receive full public participation 
opportunity. They are the projects most likely to have significant 
environmental impact.
    (4) Minor projects receive internal review only. They represent 
minimal or no environmental threat.
    (5) ``Complete'' notice can be published when application is 
determined to be complete, or when draft permit has been agreed on, 
or at both milestones.
    (6) Public hearings may be evidentiary or administrative, at 
states' option.

BILLING CODE 6560-50-C

[[Page 21867]]

ALTERNATIVES TO INDIVIDUAL PERMITS--TASK FORCE RECOMMENDATIONS

A. Background/Approach

    The Permits Improvement Team is exploring alternatives to 
individual permits in order to deliver government services more 
efficiently, target EPA resources at environmental priorities, and 
encourage pollution prevention. EPA's National Performance Review 
included the goal ``Target Permit Priorities'', with the following 
objectives:
    <bullet> 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.
    <bullet> Use alternatives where possible, such as compliance with 
self-implementing regulations (e.g., permit-by-rule) and general or 
class permits.
    This report refers to six different types of permitting, defined 
below:
    Individual permitting refers to authorization granted to a person 
through an adjudicatory process on a site-specific basis. Typically, 
the permittee initiates the individual permitting process through 
submission of an application. The permitting agency then develops a 
proposed permit (which may or may not be developed in coordination with 
the permit applicant) and publishes notice of the proposed permit for 
public comment. After consideration of public comments, the permitting 
agency will issue a final decision on the permit application. In some 
instances, permitting agencies provide an opportunity for 
administrative appeal of a final permit before it becomes effective.
    General permitting refers to a rulemaking-type process where 
requirements are developed based on a prototype facility. The 
permitting agency develops a general permit applicable to facilities or 
activities of substantially similar nature. General permit 
authorization is granted after a person registers with the permitting 
authority its intention to comply with the terms of the general permit. 
The general permit rulemaking process may be initiated by the 
permitting agency or by petition to that agency. Depending on 
programmatic needs and legal requirements, a hearing may be required on 
whether the general permit applies to a particular facility (or 
activity). Typically, general permits are issued for environmental 
activities of ``medium to low'' concern where there is little 
variability from the prototype facility or activity considered in 
development of the general permit. Under the Clean Water Act, general 
permits are widely used, particularly for storm water discharges. 
Public involvement occurs at time of development of the general permit.
    Hybrid permitting refers to a combination of general permitting and 
individual permitting. Though the permittee is subject to a single 
permit, the permit terms with which the permittee must comply are 
developed in part through rulemaking (general permit) and in part 
through adjudicatory processes to determine site-specific requirements 
(or to comply with site-specific notice or applicability requirements). 
Hybrid permitting is not currently used by EPA, so there is no 
established procedure, but such a process could be established through 
modification of the general permitting process. Hybrid permitting may 
be more appropriate than general permitting where there is greater 
variability from the prototype, or where there is a statutory 
requirement for site-specific hearings.
    Permitting-by-rule (PBR) refers to authorization that does not 
require subsequent action either by the permit applicant or the 
permitting authority. For certain RCRA requirements, EPA has issued 
permits-by-rule when compliance with a permit under one statute is 
``deemed'' to be permitted under RCRA. Alternatively, a general permit 
that does not require registration may be considered to be a permit-by-
rule.
    De minimis exemptions to permitting refers to the regulatory 
exclusion of an activity that might otherwise fall within the scope of 
activity regulated by a statute. Application of the de minimis 
exemption theory is subject to some legal restrictions.
    Conditional exemptions refer to activities which are not subject to 
permitting if the conditions of the exemption are met. Conditional 
exemptions would be used where it is important to establish some ``non-
permit'' substantive standards; e.g., a standard of performance or 
management practice. Conditional exemptions may represent an 
enforceable means to establish that a facility/site/source falls below 
some ``applicability threshold'' for a given permit program (such as a 
de minimis pollution threshold). Conditionally exempt activity is not 
subject to permitting, but is subject to some enforceable requirement. 
The conditional exemption theory has not yet been tested in the courts.

B. Methodology for Choosing Recommendations

    This Task Force's recommendations were based upon the following 
criteria:
    <bullet> 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.
    <bullet> Issue individual permits only where there is a potential 
significant environmental impact or high degree of variability in 
regulatory requirements at individual facilities.
    <bullet> Involve the public in the development and implementation 
of any alternatives to individual permits.
    <bullet> Ensure adequate compliance and enforcement activities 
where alternatives to individual permits are developed.

C. Recommendations

    These recommendations need to be implemented by the applicable EPA 
Headquarters permitting program. As part of that implementation, each 
Program office needs to review their legal authority for utilizing 
alternatives to individual permits. If the statutory authority exists 
but current regulations restrict the use of alternative approaches, the 
Program office will propose appropriate revisions.

General Recommendations

    1. Each Program office should formally consider the appropriateness 
of using alternative permit approaches. Consider the degree of 
environmental risk, level of public interest, site variability in 
application of requirements and duplication of state, tribal, and local 
permits in establishing permitting approach.
    2. In administering EPA-issued permits, each Regional office should 
consider the performance of state, tribal and local permit programs 
that may regulate the same or similar activities. Regional offices may 
appropriately provide a less rigorous level of review in those 
jurisdictions where the state, tribal or local permitting authority 
provides equivalent protection. In some cases, where a facility may 
operate lawfully without a federal permit, it maybe appropriate for the 
Regional office to place lower priority on issuing federal permits in 
such jurisdictions. Where the facility is required to have a federal 
permit, EPA Program offices should investigate the development of 
general permits that reference the state, tribal, or local permits.
    This recommendation does not solve the underlying problem of 
authorizing state, tribal and local permitting

[[Page 21868]]

programs that provide a substantially equivalent program but not 
identical to EPA's approach. Each Program office should revise their 
regulations to streamline the authorization process and provide for 
greater flexibility where allowed by statute. If a statutory barrier 
exists, the Program office should seek revisions to the statute to 
provide clear direction on when authorization can occur.
    3. Each EPA Program office should develop and maintain a 
clearinghouse of permit alternatives being developed and used in 
federal and state/tribal/local programs throughout the country. The 
Program offices should consult with their state, tribal and local 
counterparts to determine the most appropriate information to provide, 
given available resources. State, tribal and local permitting programs 
are encouraged to submit copies of any alternative permit approaches in 
electronic form for ready use by other permitting authorities 
interested in pursuing similar approaches.

Program Specific Recommendations

1. Stormwater--National Pollutant Discharge Elimination System (NPDES)

    a. The Task Force agrees with the Office of Water's ongoing permit 
reform efforts for Phase I and Phase II, conducted under a Federal 
Advisory Committee Act (FACA) charter, and recommends they be 
continued.
    b. The Task Force agrees with the further development of general 
permits as part of Office of Wastewater Management's (OWM) projected 
permit improvements in the NPDES program in the final 1992 Non-
Construction Industrial permit and the proposed Multi-Sector stormwater 
general permit and recommends they be continued. Specifically;
    <bullet> 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.
    <bullet> The establishment of appropriate monitoring requirements, 
based on industry type, water quality, or capability to implement BMP.
    c. The Task Force recommends the continued use of the clearinghouse 
for general permits.
    d. Where non-approved states, tribes, or localities are issuing 
substantially similar permits, EPA Regions should defer to those 
permitting authorities by prioritizing permitting actions to focus on 
non-approved permitting authorities without substantially similar 
programs.

2. NPDES--Process Wastewater

    a. Because of the need to control specific dischargers, individual 
permits should be maintained for water quality limited areas, where 
Total Maximum Daily Loads (TMDL's) are necessary or wherever specific 
conditions to be addressed in a permit are not amenable to a general 
permit.
    b. Permit duration should be increased from 5 to 10 years or the 
life of the facility. Under this approach, there should be a provision 
to allow permits to be re-opened if there are facility, regulatory, or 
water quality changes. This recommendation requires a statutory change. 
This increase would be an incentive for states to move toward the 
watershed protection approach.
    c. OWM should develop and expand the use of general permits in non-
water quality limited areas and non-TMDL areas through policy 
directives, development of general permit boilerplates and 
establishment of a national clearinghouse of general permits.
    d. A permit-by-rule (PBR) should be established for de minimis 
discharges that establishes threshold conditions below which no 
reporting would be required. They could be based on industry-type, 
percentage of loading, etc. The rationale for the established PBR for 
Metal Products should be used to develop de minimis PBR's for other 
discharge categories.
    Recommend PIT FY'96 Pilot Project with the State of Washington, 
Region X and OW to develop PBR for de minimis discharges.
    e. Overall monitoring requirements should be decreased, but include 
ambient as well as end-of-pipe monitoring. Ambient monitoring would be 
used primarily to set permit limits where national technology based 
standards and state water quality based standards have not achieved 
environmental goals.
    The PIT recommends a Pilot Project be conducted by OW, with a 
Region and State, to determine achievement of program goals.

3. Toxic Substances Control Act (TSCA)

    The Task Force's initial recommendations included the consolidation 
of PCB disposal requirements into the RCRA requirements. However, the 
current position of the Office of Solid Waste (OSW)/Office of Pollution 
Prevention and Toxics (OPPT) workgroup evaluating this issue, for a 
variety of reasons, is to leave the two programs separate but to 
improve communications to make them more compatible. This Task Force 
defers to the workgroup on this issue.
    The workgroup is identifying options that can be readily 
implemented to improve the disposal of PCB's, while considering costs 
to industry, states (unfunded mandates), and EPA. Several potential 
goals have been identified to help direct the workgroup's efforts:
    1. State primacy for the PCB disposal program (one stop shopping) 
(may require statutory change);
    2. Consolidation of hazardous waste requirements (avoid program 
duplication); and
    3. Utilization of EPA grant money for state actions (PCB and 
hazardous wastes).
    The Task Force recommends that the PCB combustion authorization 
requirements be incorporated into the Air permit program if legally 
permissible. Other portions of the TSCA program would remain in OPPT. 
This recommendation is consistent with the recommendation below 
concerning the Resource Conservation and Recovery Act (RCRA) combustion 
program. This recommendation avoids the problems associated with 
incorporating the PCB disposal program into RCRA, but would place all 
permitted air emissions under one program.
    The PIT recommends an OPPT and Office of Air and Radiation (OAR) 
workgroup be formed to develop appropriate procedures.

4. Safe Drinking Water Act--Underground Injection Control (UIC) Program

    a. Shallow injection wells (Class V wells): Continue use of 
authorization by rule, which has been granted to all Class V wells, 
providing that they comply with certain minimal requirements (e.g., 
well inventory) unless the well may endanger underground sources of 
drinking water.
    b. Injection of fluids related to oil and gas production (Class II 
wells): Where appropriate, continue use of area permits; promote use of 
non-individual permits by authorized permitting authorities.
    c. Individual permitting should continue for Class I wells (deep 
wells for industrial, municipal and hazardous waste).

5. RCRA Permit Program (See Attachment for More Detail)

    The PIT specifically notes that there are regulatory or statutory 
barriers to some of the approaches listed below. The Agency's ability 
to implement each of these options under the current law would need to 
be investigated further as

[[Page 21869]]

these options are developed in more detail.

RCRA Base Program

    a. Maintain individual permits for facilities requiring operating 
and post-closure land disposal permits.
    b. OSW should establish a general permit boilerplate and promote 
the use of general permits for non-commercial storage or treatment 
facilities, including, for example, laboratories. The general permit 
conditions may need to be supplemented, in some cases, with site-
specific conditions identified by the permitting authority or through 
local public participation. In this situation the permit would be a 
hybrid permit.
    PIT FY'96 project to pilot the use of general permits in the states 
of California and Texas with Regions VI and IX and OSW.
    c. Extend the generator storage time frames from 90 to 270 days for 
laboratories as part of regulatory re-invention.
    d. For hazardous waste combustion facilities, Regional offices 
should incorporate RCRA requirements into the Air permit program, where 
both apply; a facility's Air permit would address both Air and RCRA 
combustion and emission requirements (this is one alternative provided 
for in EPA's proposed Hazardous Waste Combustion Regulation, Subpart 
O). Other RCRA requirements (e.g. storage and non-thermal treatment, 
corrective action) would be addressed through either an individual, 
general or hybrid permit. This recommendation should be implemented 
after the proper regulatory authorities are in place. Revised RCRA and 
CAA regulations are expected to be proposed in March 1996.

RCRA Corrective Action

    a. Allow a facility to perform corrective action through a state/
EPA order cross-referenced in the permit, or through an individual, 
general or hybrid permit.
    b. Prioritize the issuance of corrective action permits and orders 
by focusing on state programs that are not authorized and that do not 
have substantially similar cleanup programs. States with substantially 
similar programs should be a lower priority. The de-coupling of 
corrective action from RCRA permitting is being considered as part of 
the Subpart S regulations (see Advanced Notice of Rule Making--expected 
to be issued 4/96) and Post-Closure rule (Subpart C) proposal. Under 
this approach a Region would be relying upon another agency to serve as 
lead in this situation.
    c. EPA should focus the majority of its corrective action resources 
on states without substantially similar cleanup programs. To achieve 
maximum overall environmental benefit, EPA should also explore allowing 
EPA RCRA resources to be shifted to support states in clean-up of 
higher state priority non-RCRA facilities. The legal authority to 
implement this recommendation needs to be evaluated.
    d. Subpart S needs to provide incentives for performing clean-ups 
by allowing conditional exemptions from permitting for:

--On-site storage of contaminated media and off-site storage and 
transfer of clean-up waste, especially from spill response activities,
--Non-RCRA facilities performing voluntary clean-ups.

    e. Low-priority RCRA facilities should be allowed to conduct 
voluntary (early) corrective action through general or hybrid permits, 
memoranda of agreement between the facility and the permitting 
authority that achieve defined performance standards, or through 
amendments to the interim status regulations. There may be obstacles to 
using memoranda of agreements, since they would not provide legal 
protection to a facility that is required to obtain a federal permit.
    f. Investigate third-party certification of general and hybrid 
permits for hazardous waste management that is generated through 
corrective action activities. (See Administrative Streamlining 
Recommendation #3, page 23, for broader recommendation concerning 
third-party certifications.)
    PIT recommends review of MA initiative to utilize third party 
certification to determine if it is appropriate in RCRA.
    g. Fast-track the Hazardous Waste Identification Rule (HWIR) and 
Definition of Solid Waste Rule, to limit regulation to wastes that are 
truly hazardous, allow general or hybrid permits to regulate recyclers 
and utilize the HWIR media rule concept of remediation management plans 
(RMP) for off-site storage and treatment of remedial waste.

6. Air--New Source Review (NSR) Permit Program

    a. The Task Force agrees with the Office of Air Quality Planning 
and Standards (OAQPS) NSR reform efforts, particularly the following;
    <bullet> Implementing plant-wide applicability limit (PAL) policy.
    <bullet> 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.
    <bullet> Including special provisions to encourage the use of 
innovative technologies.
    <bullet> 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:
    <bullet> 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.
    <bullet> 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:
    <bullet> Evaluating techniques to take inherent operating 
limitations into account in determining potential to emit.
    <bullet> 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.
    <bullet> Implement flexible permits, through the use of plant-wide 
applicability (PAL) limits.

[[Page 21870]]

    <bullet> Allow states more flexibility in deciding the most 
effective monitoring methods and controls.
    d. Allow state, tribal and local permitting authorities to 
establish additional de minimis levels for selected minor sources under 
which no permit would be required. This will provide that only true 
health and environmental risks require permits. For example, in MA, 
emissions below 1 ton/year do not require a permit.

D. Attachment

    A more complete discussion of the RCRA proposals follows.

Attachment--RCRA Alternative Permitting Recommendations

    Task Force recommendations do not cover all aspects of RCRA 
permitting, but highlight areas both where continued use of individual 
permits seem most appropriate, as well as areas where alternatives may 
be particularly useful. Also, as is the case with some recommendations 
in other programs, there are regulatory or statutory barriers to some 
of the approaches listed below. The Agency's ability to implement each 
of these options under current law would need to be investigated 
further as these options are developed in greater detail.

RCRA Base Program

1. Continued Use of Individual Permits

    The Task Force recommends continuing to use individual permits for 
facilities requiring operating and post-closure land disposal permits. 
Although some aspects of these facilities could be regulated by general 
permits or other alternatives to individual permits, the Task Force 
felt that the potential environmental impacts of these facilities 
particularly warranted regulatory attention and public comment on an 
individualized basis.
    The Task Force also recognized that combustion facilities 
(incinerators, burners and industrial furnaces) warranted highly 
focused regulatory and public attention on an individual basis. 
However, efficiency could be obtained by having the impacts of these 
facilities reviewed in concert with air permitting. If so, the RCRA 
program could issue a general or hybrid permit to address any 
additional technical requirements not covered by the Clean Air Act 
permit process (e.g., corrective action), and could also address permit 
requirements for any ancillary units (e.g., storage units).

2. Ninety-Day Accumulation and Treatment for Generators

    The Task Force also recommends providing guidance or otherwise 
clarifying the enforcement discretion available when a facility exceeds 
applicable time frames or violates any of the management conditions 
referenced in 40 C.F.R. Sec. 262.34. The Task Force recommends that it 
be made clear that enforcement against such a facility may be handled 
as a violation of the specific requirements of Sec. 262.34 (e.g., 
storage over 90 days, failure to mark containers, etc.) rather than as 
a failure to have a permit. Some prior agency statements have suggested 
that a facility that failed to mark a container would necessarily be 
subject to full permit requirements. <SUP>3
---------------------------------------------------------------------------

    \3\ See, e.g., In the Matter of Humko Products, Docket No. V-W-
84-R-014 (March 7, 1985) at p. 20 (facility storing waste over 90 
days ``is subject to * * * the permit requirements of 40 CFR Part 
270''), p. 26 n. 12; Permit Policy Compendium No. 9453.1989(05), 
Letter from Sylvia Lowrance to Stephen Axtell, April 21, 1989 
(generator who fails to mark accumulation date ``has not met the 
pre-conditions for the exemption from permitting requirements and is 
an operator * * * subject to permit requirements'').
---------------------------------------------------------------------------

3. Third Party Certifications

    The Task force recommends consideration of the use of third party 
certifications both for corrective action and for hazardous waste 
management requirements. Where, for example, a regulatory agency might 
otherwise be inclined to require extensive regulatory review of a 
corrective action, unit design, contingency plan, or other RCRA-
regulated activity in the context of an individual permit review, the 
agency might be able to shift that activity to a general or hybrid 
permit if the facility notification were accompanied by a third party 
certification that indicated comparable review has been conducted by an 
independent third party. There is a legal concern, however, presented 
by EPA's need to defend information and conclusions in the permitting 
decision that EPA itself did not develop.

RCRA Corrective Action

1. Corrective Action

    Where a state with a well developed cleanup program is authorized 
for the base RCRA program, but has not yet become authorized for 
corrective action, the Task Force recommends that EPA consider issuing 
a ``rider'' general permit that would require treatment, storage or 
disposal (TSD) facilities receiving state RCRA permits to satisfy 
corrective action obligations by complying with the requirements of the 
state's cleanup program. For this approach to be legally defensible, 
EPA would need to explain the basis for finding that the state controls 
satisfy federal corrective action requirements. Another option would be 
for the federal permit to set a schedule of compliance for corrective 
action measures contingent on completion of the state cleanup in order 
to see whether further corrective action measures are necessary at that 
point. For this approach to be effective, EPA must be willing to defer 
to the State's overall site prioritization system. This may mean that 
there is less near-term cleanup at RCRA facilities, if there are higher 
priority non-RCRA facilities.<SUP>4
---------------------------------------------------------------------------

    \4\  EPA sometimes currently defers on a case-by-case basis to 
other cleanup programs in deciding how to address corrective action 
in a RCRA permit. In considering this recommendation, EPA might also 
consider whether its current practice sufficiently meets the goals 
of this recommendation, or whether there are alternative means of 
achieving a similar result through improvements on existing 
practice. For example, are there better ways of reflecting this 
deferral process in the permit than is currently the case.
---------------------------------------------------------------------------

    Under this approach, EPA could then focus its resources and 
attention on corrective action in states without cleanup programs and 
on high priority RCRA facilities not otherwise being addressed by the 
states.
    General or hybrid permits could include provisions that authorize 
low-priority TSD facilities not otherwise receiving regulatory 
attention to conduct early cleanups, subject to performance standards 
identified in the general permit (or through use of Memoranda of 
Agreement between the facility and permitting authority). Again, 
however, there may be legal barriers to these approaches under the 
current statute and regulations. An analysis of the possible 
alternatives to individual permits for corrective action and the legal 
barriers to those alternatives is ongoing within the PIT and its 
subgroup on general permits.
    Another way to ensure that facilities receive federal permits would 
be for EPA to issue a permit that simply ``copies'' the state's permit, 
relying on the state's supporting record. EPA would not develop a 
record for the permit independently. In this approach, the facility 
would obtain a federal permit and would not be liable for operating 
without a permit. However, this approach would be viable only to the 
extent EPA feels comfortable that it will be able to defend against any 
permit challenges based on a record developed by a separate entity 
(i.e., the state). The issue of deferral to the state, in general, is 
one that is still being examined by the PIT subgroup.

[[Page 21871]]

2. Non-RCRA Cleanups

    Many facilities that do not require RCRA permits have the potential 
to trigger RCRA permit requirements while conducting cleanups, whether 
voluntarily or under State direction. Many persons have noted that the 
possibility of subjecting a facility to full RCRA permitting, including 
fenceline-to-fenceline corrective action for cleanup activity is a 
disincentive to conducting focused cleanup and conversion of 
brownfields. EPA is currently developing approaches to many of these 
problems through the HWIR rulemakings. The Task Force recommends 
considering alternative approaches to permitting through the following 
scenarios which may go beyond the HWIR concepts in some applications:
    <bullet> Off-site storage and transfer of cleanup waste, where the 
cleanup activity is being directed or supervised by EPA or a State 
regulatory agency ;
    <bullet> 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
    <bullet> 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:
    <bullet> Encourage all stakeholders--regulators, facilities, and 
communities--to take an active role in opening up the permitting 
process and promoting meaningful public involvement;
    <bullet> 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
    <bullet> Encourage regulators, facilities, and communities to 
coordinate public involvement activities across media programs whenever 
appropriate and feasible.
    The matrix of public involvement activities should list a wide 
variety of public involvement techniques, and provide a brief 
description of the activity (technique), and some of its advantages and 
disadvantages. Any activity currently required by an EPA Program office 
will be footnoted as a regulatory requirement. Since final 
recommendations regarding alternatives to individual permits have not 
yet been implemented, the easy-reference guidance should not attempt to 
``tier'' public involvement activities by type of permit. The guidance 
should, however, have a mechanism to help people determine what 
activities they could use.
    For its ``first edition,'' the guidance should identify ``Level I'' 
and ``Level II'' activities. Level I activities are those that should 
be considered for use in every situation, regardless of the type of 
permit, type of facility, or level of community interest. Level II 
activities represent a variety of ways to go beyond basic approaches to 
public involvement, and should be considered for use as necessary to 
meet the needs of the situation at hand. When developing subsequent 
editions of the easy-reference guidance, the mechanism for ``ranking'' 
activities (i.e., Levels I and II) should be re-evaluated to determine 
if it is still appropriate or if it should be replaced.
    The attachment for additional resources should include: (1) the 
main telephone numbers of all State environmental permitting agencies; 
(2) the main telephone numbers of all EPA regional permitting offices; 
(3) a list of all the EPA-sponsored hotlines and information centers, 
and (4) a recap of the activities required by each EPA media Program 
office and a list of resources (e.g., guidance manuals) available 
through those offices.
    Implementation: The RCRA Permits Branch in the Office of Solid 
Waste should take the lead on developing the initial edition of the 
easy-reference guidance. A draft of the guidance should be shared with 
a PIT workgroup for review and comment, as well as with the Siting and 
Public Participation Subcommittees of the National Environmental 
Justice Advisory Committee (NEJAC).
    Hardcopy Distribution: The PIT should distribute copies to its 
stakeholder mailing list. The PIT should

[[Page 21872]]

also provide camera-ready copies of the guidance to the Office of 
Communications, Education and Public Affairs (OCEPA) and to the Office 
of Regional Operations, State/Local Relations (OROSLR) so they may 
distribute the guidance to their respective contacts and mailing lists. 
Furthermore, each media program office at the federal, state, local and 
tribal levels should also be encouraged to distribute the guidance as 
widely as possible.
    Electronic Distribution: The Enhanced Public Participation Task 
Force leader should coordinate with appropriate Agency personnel to 
post the easy-reference guidance on the Internet. Access to the 
guidance should be provided through EPA's home page as well as through 
each media office's menus.
    Training: The Enhanced Public Participation Task Force should 
coordinate with the Training Task Force to evaluate potential ways to 
provide training, if necessary, on techniques included in the easy-
reference guidance.

2. Utilize the Environmental Justice (EJ) Public Participation 
Checklist as Guidance to the Extent Appropriate and Feasible

    Description: The environmental justice movement has sparked a lot 
of discussion on ways to improve communications and working relations 
among agencies, industries, and communities. The InterAgency Working 
Group on Environmental Justice, led by EPA, developed a Public 
Participation Checklist that lays out ways to identify, inform, and 
involve stakeholders (e.g., environmental organizations, business and 
trade associations, civic/public interest groups, grassroots/community-
based organizations, tribal governments, and industry). It reflects a 
combination of: guiding principles for setting up and conducting 
activities, such as public meetings; specific activities for ensuring 
widespread and meaningful involvement; and recommendations on how to 
effectively carry out those activities.
    Although the checklist was initially developed in the context of 
environmental justice, to help federal agencies prepare for the first 
public meeting to discuss their EJ strategies, it embodies sound 
principles that apply to public participation for all communities. 
Therefore, the Task Force recommends that:
    (1) EPA (through its Office of Communications, Education, and 
Public Affairs) should widely distribute the EJ checklist for use as 
guidance, so that permitting agencies, businesses and the public may 
benefit from it.
    (2) A PIT workgroup continue to coordinate with the Office of 
Environmental Justice (OEJ) and the InterAgency Working Group on 
Environmental Justice in order to promote consistency in Agency 
approaches to enhancing public involvement. The Task Force should 
forward any suggestions it receives for modifying or enhancing the EJ 
Checklist to the OEJ and/or InterAgency Working Group.
    Implementation: Public Participation Task Force representatives 
should meet with contacts in OEJ to: (1) review and discuss suggestions 
the PIT received regarding the Checklist, (2) develop an introduction 
to accompany the Checklist (describing its origins, etc.), and (3) to 
plan for further interactions between the two groups. Any changes to 
the Checklist should be made by OEJ or the InterAgency Working Group, 
since they originated the Checklist. Their continued ``ownership'' of 
the Checklist, and our combined efforts to keep the list current, will 
help ensure that the two teams continue to work in partnership to 
address environmental justice concerns, particularly in the context of 
public involvement. If OEJ (or the InterAgency Working Group) chooses 
to revise the Checklist, a PIT workgroup could provide assistance.
    Hardcopy Distribution: Once the list is revised, OEJ should provide 
a camera-ready copy of the Checklist to the Office of Communications, 
Education and Public Affairs (OCEPA) for distribution to its contacts 
and mailing lists. In addition, camera-ready copies should also be 
provided to the Office of Regional Operations, State/Local Relations 
(OROSLR) so they can distribute the Checklist to their contacts and 
mailing lists. Finally, each media program office at the federal, 
state, tribal and local levels should be encouraged to distribute the 
Checklist as widely as possible.
    The Task Force assumes that OEJ sends the checklist out to its 
contacts across the country, and that these contacts include EJ and 
community groups. In order to target industry for receiving copies of 
the Checklist, OEJ should provide the Checklist to trade associations 
for distribution to their member companies.
    Electronic Distribution: The Task Force leader should coordinate 
with appropriate Agency personnel to post the EJ Checklist on the 
Internet. Access to the Checklist should be provided through EPA's home 
page as well as through each media office's menus.

3. Develop an Inventory of Mechanisms That Promote Access to 
Environmental Information

    Description: Access to information is an essential component of 
public involvement. Meaningful, quality information is needed by 
regulators, regulated industries, and the public alike in order to 
promote sound environmental decision-making. Within the federal 
government, offices are revisiting what types of information should be 
collected and how information may be more readily shared.
    An inventory with abstracts of existing sources of information, as 
well as of the efforts underway to improve quality of and access to 
information, and the appropriate contact person or office for each, 
would be a useful reference document. It could be used to inform 
agencies, businesses and the public of the wide variety of mechanisms 
available to them.
    Development: The inventory of mechanisms should be developed under 
the direction of EPA's Office of Information Resources Management 
(OIRM). Identifying and describing the numerous and diverse data 
systems, information sources, and so on is beyond the scope of PIT 
resources; however, a PIT workgroup should meet with OIRM to discuss 
the project and to be available to provide assistance on an as-needed 
basis.
    Primary focus of the inventory should be on Agency automated 
sources of information (e.g., data systems, bulletin boards), 
``hardcopy'' information sources (e.g., Toxic Release Inventory (TRI) 
Report), and means of accessing information sources (e.g., through the 
Freedom of Information Act (FOIA) process, the Internet, via the 
National Technical Information Service--NTIS). The inventory should 
also, to the extent possible and feasible, discuss efforts-in-progress 
(e.g., the Key Identifier and One-Stop Public Access and Reporting 
Initiative). The inventory should include innovative systems promoted 
by Program offices to improve community involvement and help empower 
communities (e.g., Landview II being used by the Office of Solid Waste 
and Emergency Response). Finally, the inventory should include 
mechanisms to obtain access to pollution prevention information, such 
as on-line EPA computer systems like Enviro$ense or the Technology 
Transfer Network.
    The inventory of mechanisms should be presented in an 
understandable, user friendly manner. In addition, because not every 
agency, business and member of the public will have electronic access

[[Page 21873]]

to bulletin board systems and the Internet, proposals for increasing 
access to information should also include making material easily 
available in the traditional manners (e.g., printed copies at agency 
offices, in information repositories, mailed to interested parties, 
announced in press releases or through radio ads).
    Distribution: Distribution of the inventory should be coordinated 
by OCEPA. The inventory should be available in hardcopy format as well 
as through the Internet.
    In addition, OCEPA should investigate more effective ways to 
publicize the many sources of information the Agency has, and the 
avenues to obtaining that information. For example, the Agency develops 
a thick (over 600 pages!) publication entitled ``Access EPA''--a 
comprehensive directory with detailed descriptions of the Agency's 
information resources. Unfortunately, relatively few people know of, or 
have access to, ``Access EPA.'' OCEPA should look into the feasibility 
of using innovative mechanisms to more widely and effectively 
distribute this directory, such as entering into an agreement with a 
national bookstore chain to get their stores to carry ``Access EPA'' 
and/or certain other EPA publications.

4. Explore, and Possibly Conduct Pilots for, the Development and Use of 
Comprehensive Multi-Media Community Involvement Plans

    Background: Under the Agency's current regulations, there are 
various public participation requirements in each media program area--
hazardous waste, water, and air. The requirements focus on the 
individual media permit, and are not consistent across programs. In 
meeting their regulatory obligations for each media permit, industries 
and regulators alike often create more confusion than clarity among 
members of the public who, for the most part, do not segment their 
involvement along statutory lines--their interests lay with the 
facility in its entirety. Moreover, having to conduct multiple, yet 
similar, activities (e.g., one public hearing for the air permit and 
another for the RCRA permit) imposes an unnecessary burden on a 
facility; having to keep track of and attend these multiple activities 
imposes an unnecessary burden on the public. Further exacerbating the 
problem is the way information about a facility is collected and 
reported--also a media-by-media approach. No clear picture of the 
facility as a whole, its total emissions or releases, its comprehensive 
compliance record, is readily available.
    Discussion: In order to create an environment that truly fosters 
effective interactions between facilities and their neighboring 
communities, the Agency needs to make the entire public participation 
process more user-friendly. Using Community Involvement Plans (CIPs), 
in concert with some programmatic adjustments from other PIT Task 
Forces, could accomplish this objective.
    It is envisioned that a facility, in close coordination with 
community stakeholders, would be responsible for drafting a CIP. The 
elements of a CIP would most likely vary, although certain core 
elements may ultimately be defined. In essence, the CIP would serve as 
a vehicle through which a facility and a community could form a multi-
media approach tailored to meet their particular situation. They could 
address issues on an aggregate basis, instead of on the media-by-media 
basis perpetuated by EPA's current structure and regulations. At a 
minimum, a CIP should set objectives for educating the community on the 
facility and its operations and for providing routine opportunities for 
information exchange. Techniques to achieve these objectives could 
include: community advisory panels, facility tours, integrated 
compliance reporting, and so on.
    The appropriate role of the regulatory agency would also need to be 
laid out in the CIP. There would need to be an incentive offered in 
exchange for a facility undertaking the integrated approach to public 
involvement embodied by the CIP concept--for example, expedited permit 
processing, aggregated (multi-media) permit processing, or relief from 
media-specific public participation regulatory obligations. This does 
not mean, however, that the regulator does not continue to play a key 
role--the permitting agency would need to interface with both the 
facility and the community.
    Implementation Ideas: The Task Force recommends that the CIP 
concept be piloted with a few facilities and their neighboring 
communities. It may be possible to coordinate this effort with other 
Agency initiatives, such as Project XL or Brownfields, that are 
intended to pilot innovative approaches to environmental management. 
The PIT could take the lead on evaluating the results of the pilots. If 
the efforts prove successful, the Agency should promote widespread use 
of CIPs and pursue the regulatory changes needed to implement the 
incentives described above.
    <bullet> 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.
    <bullet> Cons--Providing some relief from current media-specific 
public participation requirements in exchange for using CIPs will 
necessarily result in a lack of consistency in approaches to public 
participation. The lack of consistency could create confusion for 
industry, communities, and regulators alike--no one would be certain 
what they should do or what their opportunities for involvement are. In 
considering this aspect, however, it is important (1) to remember that 
there is already inconsistency in public participation requirements 
across the Agency's media programs; (2) to question whether the desire 
for consistency outweighs the need for flexibility; and (3) to focus on 
the need for improved results.

5. Develop a Series of Case Studies on the Effectiveness of Public 
Participation Activities

    Description: Guidance materials and checklists for promoting public 
participation provide very useful tools. However, there is a lot that 
can be learned from real world successes and failures as well. A 
compilation of actual case studies would be a useful tool to help 
permitting agencies, industry, and communities put suggested public 
involvement activities into a context meaningful to their own 
situations--in other words, it gives people something concrete they can 
relate to.
    Development: The Task Force recommends that a PIT workgroup compile 
a number of case studies as a project in FY 1996. The PIT should 
collect existing case studies from various sources, such as (but not 
limited to) EPA Program offices, Regional or State community relations 
offices, and environmental justice groups. Further, the PIT could 
develop its own case studies based on recommendation 4, above.

[[Page 21874]]

PERFORMANCE MEASURES--TASK FORCE RECOMMENDATIONS

Background

    An important aspect of improving the environmental permitting 
process concerns how the performance and success of the permitting 
programs are measured. To often in the past, regulatory agencies have 
measured success based on the number of permits that have been issued. 
This ``bean counting'' has been identified as one of the problems in 
the current system that needs to be improved.
    On September 11, 1993, President Clinton signed Executive Order 
12862, Setting Customer Service Standards. This Order, in part, 
requires each department and agency to ``post service standards and 
measure results against them''. The performance measures presented 
below have been prepared to comply with the Executive Order. These 
measures will be publicly available so that all Agency stakeholders can 
review the performance of the permitting programs.
    The Performance Measures Task Force developed the following 
performance and tracking measures based on the input received at 
stakeholder meetings held during the PIT project and the written 
comments received on the draft recommendations. The performance 
measures will be used to evaluate how a permitting program is doing in 
achieving environmental results and customer satisfaction. The measures 
focus on the performance of the permitting process and are designed to 
evaluate the system as a whole. These measures will help EPA identify 
where changes may be needed in a program to achieve the desired 
results. The tracking measures provide information on changes to the 
permitting processes over time and will be used to identify areas of 
opportunity for process improvement.
    The performance and tracking measures are broken down into the 
following three categories:
    1. Process--those measures that specify how the permitting process 
is doing compared to established criteria;
    2. Results--those measures that determine whether the permits are 
having their desired outcome; and
    3. Customer Service--those measures that evaluate how the general 
public and regulated community feel about the permitting process.
    It is recommended that the performance and tracking measures be 
piloted in a Region that is still issuing a significant number of 
permits. This will allow the measures to be field tested and any 
modifications made prior to full implementation. The Permits 
Improvement Team would assist the Regional office as necessary.
    It is further recommended that each Regional office provide these 
measures to any state, tribe or local government, that is authorized to 
issue permits, for their consideration. These permitting authorities 
should not be required to adopt these measures. They should be free to 
modify them or develop their own measures of a successful permitting 
program.

Generic Performance Measures

Process

1. Timeliness
    Each Regional office that is issuing permits will establish 
processing time goals for each type of permit they issue (presented as 
a percentage of applications processed within a specified timeframe). 
Each Regional media permitting program will determine the 
appropriateness of dividing their permit universe based on the degree 
of environmental impact (e.g. minor, significant minor, major). Four 
distinct processing times will be established to cover the entire 
permitting process, from receipt of application to permit 
effectiveness. In addition, the total processing time of each permit 
will be a tracking measure.
    Example: For (type of permit \1\), the time required from receipt 
of an application to agency determination that the application is 
complete is as follows:

____% determinations made within 30 days;
____% determinations made between 30 and 60 days;
____% determinations made between 60 and 90 days.

    For (type of permit \1\), the time required from receipt of a 
complete application to issuance of the proposed (or final if no public 
comment is necessary) agency decision to approve or deny the permit is 
as follows:

____% proposals/decisions made within 60 days;
____% proposals/decisions made between 60 and 90 days;
____% proposals/decisions made between 90 and 180 days.

    For (type of permit \1\), the time required from the issuance of 
the proposed decision to approve or deny the permit to the final agency 
action is as follows:
    Where limited and straightforward comments are received and no 
public hearing:

____% decisions made within 60 days;
____% decisions made between 60 and 90 days.
    Where substantial and complex comments are received and no public 
hearing:

____% decisions made within 90 days;
____% decisions made between 90 and 120 days.

    When a public hearing is held:

____% decisions made within 180 days;
____% decisions made between 180 and 240 days.

    For (type of permit \1\) that are appealed, the time required from 
issuance of the Region's final permit decision to the effective date of 
the permit is as follows:

____% effective within 90 days;
____% effective between 90 and 270 days;
____% effective between 270 and 455 days;
____% not effective within 455 days.

    Purpose: To have the Regional offices focus on each step of the 
permit process. The time required to process a permit is influenced by 
the performance of both the regulatory agency and the permittee as well 
as by the level of public comment. To achieve the most rapid processing 
of a permit as possible the agency and permittee need to work together 
(and with the public as necessary). Therefore, this performance measure 
is written to identify how long the permit process is taking for each 
of the major steps. If the actual processing time of the Regional 
office is longer than the established goal, steps can be identified to 
improve the performance in that area.
2. Number of Pending Permits
    Each Regional office that is issuing permits will establish a goal 
for the maximum number of permits for new discharges, emissions or 
releases (either new facilities or modifications required to address a 
new discharge at an existing facility) that have exceeded the specified 
times for approval or disapproval provided in 1 above.
    Example: (#) of new applications and permit modifications for (type 
of permit \1\) have not been approved or disapproved within the ____ 
days set as the maximum for this type of permit action.
    Purpose: To provide a measure of the number of permits for new 
discharges that have not been processed within the defined time 
periods. This performance measure is just for new discharges. Backlogs 
of permit renewals are a tracking measure (see below), since there may 
be a need to prioritize the issuance of certain renewals (e.g. 
ecosystem based priorities) rather than renew a permit after it has 
expired but remains in effect. Trend analyses would

[[Page 21875]]

allow the regulatory agency to readily determine whether they are 
improving or falling further behind. A backlog above the goal would 
trigger an evaluation to determine its cause and how to improve the 
Region's performance.

Results

1. Environmental Indicators
    The success of permitting programs need to evaluated based on the 
environmental conditions that exist in a particular area. Although 
permitted discharges are not the only source of pollutants, they are 
regulated to limit their impact so that environmental goals are 
achieved. Therefore, it is recommended that all permitting authorities 
develop specific environmental indicators that will be used to evaluate 
the overall success of their permitting programs.
    The Agency is in the process of developing environmental indicators 
for the nation. Once the national indicators are determined each 
Regional office will work with the respective state and tribal 
governments to establish specific indicators for that jurisdiction. 
This is being accomplished through the development of Environmental 
Performance Agreements (EnPA) with states and tribes. EnPA's will 
include indicators that will be re-evaluated yearly and updated, 
revised or replaced as needed to accurately measure environmental 
progress. The first EnPA's will be for states and tribes volunteering 
in Fiscal Year 1996, with full implementation scheduled for FY97. A key 
component of the EnPA's is stakeholder participation, which includes 
the development of appropriate environmental indicators for each 
jurisdiction. The environmental indicators will be used to determine 
priorities for the next year, including permitting activities.
2. Level of Compliance
    The compliance status of all permitted facilities is an important 
performance measure for permitting programs. In order for environmental 
protection to occur, facilities must be in compliance with their 
permits. Just issuing the permit doesn't ensure protection, therefore, 
it is necessary to determine the level of compliance with those permits 
to help identify where greater clarity of permit conditions is needed 
and where to provide technical assistance.
    The initial PIT recommendations on how to measure the level of 
compliance did not contain sufficient detail to allow stakeholders to 
give their opinion on this approach. The comments received focused on 
the need for more detail to better define this performance measure. In 
addition, the Agency has compliance categories for the individual media 
programs. However, for the most part these have not been developed with 
stakeholder input. Therefore, it is recommended that a project team of 
EPA Headquarters and Regional offices and state and tribal agencies be 
established to further develop this measure as needed. The project team 
would work with stakeholder groups in the development of a proposal to 
measure the level of compliance of permitted entities and identify the 
causes of non-compliance. The Office of Enforcement and Compliance 
Assurance (OECA) should be responsible for establishing and leading the 
broad based project team.

Customer Service

1. Customer Satisfaction
    Customer service surveys and standards have been drafted for three 
groups to which EPA provides service: citizens participating in the 
permitting process; permit applicants; and authorized state, tribal or 
local governments. The surveys have been approved by the Office of 
Management and Budget (OMB) and EPA plans to begin using the surveys in 
FY'96. The customer service standards will be discussed with 
stakeholder groups prior to finalization. EPA will prepare a report on 
the results of the customer service surveys in September 1996.
    The Office of Policy Planning and Evaluation (OPPE) has been 
recommended to conduct the surveys and analyze the results. Each 
Regional permitting office would receive a report identifying any 
situations where the customer service standards were not met. In these 
cases, the Regional office could hold focus group meetings or other 
outreach activities with appropriate stakeholders to determine a course 
of action that is intended to improve customer service.

Generic Tracking Measures

Process

1. Time Required for Permit Issuance
    Each Regional office that is issuing permits will determine the 
average time required from receipt of a permit application to the 
Region's final permit decision (this does not include the time to 
address any appeals). The range of time required to issue each type of 
permit will also be determined. This information will be made available 
in any fact sheets and permit application information distributed by 
the Regional office.
    Example: The average time required to issue (type of permit <SUP>1) 
is ____ (days, weeks, months) with a range of ____ to ____ (days, 
weeks, months).
    Purpose: To provide the applicant and public with an estimate of 
the total time required to process a given type of permit. This 
measure, coupled with the timeliness performance measure will show the 
amount of time the applicant spends working on the permit as well as 
EPA.
2. Permit Application Completeness
    Each Regional office that is issuing permits will track the number 
of resubmittals (additional/revised information required for the 
permitting authority to be able to act on the application) required to 
obtain a complete application. This information will be presented as a 
percentage of the total universe of permit applications received.
    Example: The percentage of (type of permit <SUP>1) applications 
requiring resubmittal prior to being complete is as follows:

____% No resubmittals required
____% One resubmittal required
____% Two resubmittals required
____% Three or more resubmittals required

    Purpose: To have the Regional offices track and make public the 
number of resubmittals needed to obtain a complete permit application. 
Regional offices should work with their regulated community to identify 
causes of excessive resubmittals and determine corrective actions. 
Permitting programs with high percentages of applications requiring 
multiple resubmittals would indicate a problem somewhere in the permit 
process. This could include the information being requested, the 
clarity of the deficiency letter, the training provided to the 
regulated community, etc. Trend analysis could be used to determine if 
progress was being made to reduce the number of applications requiring 
resubmittal.
3. Cost of Permitting Program
    Each Regional office that is issuing permits will estimate the 
total agency work hours required to process each type of permit they 
issue and the average number of work hours required to process each 
individual permit. This information will allow the EPA Region to sum 
the totals from each permit category to obtain the overall work hours 
expended on environmental permitting in that Region.
    Example: The total work hours of processing all (type of permit 
<SUP>1) was (#)

[[Page 21876]]

for ____ (calendar or fiscal year). The average work hours expended on 
each permit, based on the processing of (#) permits, is (#) for the 
same reporting period.
    Purpose: To provide an estimate of the total work hours expended on 
environmental permitting programs. The average work hours information 
would be useful in determining if programs of similar complexity had 
significantly different averages. This information could also be used 
to compare the average processing times of the Regional offices. 
Evaluations could then be conducted to determine the cause of the 
difference and learn from successful programs. Trend analysis could be 
used to determine if work hours are increasing or decreasing.
4. Number of Pending Renewal (Air/Water) and Interim Status (RCRA) 
Permits
    Each Regional office that is issuing permits will track the number 
of permits that have expired but remain in effect and have not been 
renewed, or in the case of RCRA, the number of facilities that are 
operating under an interim status designation.
    Example: (#) (type of permit <SUP>1) have not been renewed by the 
expiration date as of ________ (reporting period).
    Purpose: To provide a measure of the number of permits that have 
not been renewed by their expiration date. Trend analyses would allow 
the Regional office to readily determine whether the number is 
increasing or decreasing. Additional analysis would be needed to 
determine if an increasing trend was a problem or the result of a 
decision by the Region to focus on ecosystems and allow permits in non-
priority areas to remain in effect.

Results

1. Pollution Prevention/Innovative Technology
    Each Regional office that is issuing permits will track the number 
and percent of their permits that include innovative technology or 
pollution prevention conditions that are included as a means, in whole 
or in part, to achieve compliance. These conditions could include 
actual pollution prevention activities or investigations into possible 
pollution prevention techniques that could assist the facility in 
complying with permit conditions. Discharge, emission and release 
limitations would not be considered pollution prevention conditions. 
The Regions would require the same information from delegated state, 
tribal and local agencies.
    Example: (#) and (%) of (type of permit \1\) that includes 
pollution prevention conditions (this term requires definition) in the 
permit as a means, in whole or in part, to achieve compliance with 
permit conditions.
---------------------------------------------------------------------------

    \1\ Type of Permit--Each permitting authority would individually 
define the permit universe that would be included within the 
performance or tracking measure.
---------------------------------------------------------------------------

    Example: (#) and (%) of (type of permit \1\) that utilize 
innovative technology (this term requires definition) to achieve 
compliance with permit conditions.
    Purpose: To determine the effectiveness of permitting programs in 
encouraging the use of pollution prevention and innovative 
technologies. If the percentage is below what a regulatory agency was 
hoping to achieve, additional analyses could be conducted to determine 
why pollution prevention approaches or innovative technologies were not 
being used to achieve permit compliance. This tracking measure should 
be reevaluated, within 1-2 years, to determine if it should be changed 
to a performance measure, with a specific goal as to the percentage of 
permits that should utilize pollution prevention techniques or 
innovative technologies to achieve compliance.

POLLUTION PREVENTION INCENTIVES--TASK FORCE RECOMMENDATIONS

A. Background/Approach

    The Pollution Prevention Incentives Task Force derived its mission 
from the recommendations of the National Performance Review (NPR). The 
NPR stated that EPA should encourage pollution prevention (P2) by 
providing flexibility, creating P2 incentives in permits and compliance 
approaches, and issuing guidance on how to implement innovative 
strategies and procedures. The NPR also recommended that EPA facilitate 
permitting of innovative technologies and identify what changes are 
necessary to achieve this.
    EPA has a strong commitment to fostering pollution prevention 
because experience has shown that it is good for the environment and 
the economy alike. To implement P2 on a larger scale calls for flexible 
thinking, concrete and ambitious goal-setting, strong commitment at all 
levels of government and industry, and an innovative effort that only 
business can supply. The P2 Incentives Task Force explored these 
dynamics to help EPA improve the permitting system to encourage 
investment in P2 measures.
    The Pollution Prevention Act of 1990 establishes a hierarchy for 
environmental protection (source reduction, reuse, recycle, treat, 
store and dispose) with P2 as the preferred approach. As the hierarchy 
acknowledges, P2 approaches are not attainable in all instances. In the 
discussion that follows, many of the recommendations are relevant to 
P2, recycling, or other innovative approaches.
    Streamlined permitting may have an important role in fostering P2. 
The PIT is focusing on eliminating factors of the permitting system 
that are overly rigid, cumbersome, and time-consuming. These changes 
can free up additional resources for potential investments in P2. Yet, 
streamlined permitting might not mean more pollution prevention unless 
we also allow greater flexibility, and design incentives to encourage 
P2-based activity.
    This Task Force is emphasizing incentives for P2 because, as a 
general rule, it is in industry's interest to prevent pollution. Our 
goal is to create permitting incentives and eliminate barriers for 
industry to do what is largely in their own best interest.
    The following Task Force recommendations present approaches for 
forging the necessary connection between more efficient permitting and 
real progress in preventing pollution.

B. Task Force Recommendations

1. Link Performance-Based Permitting with Facility-Based Permitting, 
Consolidation of Permitting Requirements, and Cross-Media Permitting

    The Task Force recommends that EPA and state, tribal and local 
permitting authorities use performance-based permitting as a means of 
achieving greater flexibility. By performance-based permitting, the 
Task Force means permitting which recognizes that a standard containing 
a numeric level does not automatically dictate which technology 
facilities are to use. On the rule development side, this means writing 
standards that set numeric levels where possible and appropriate. Many 
EPA technology-based rules have in fact been written that way. This is 
because ``technology-based'' is short-hand for a rule that sets a 
standard at the numeric level at which the referenced-technology 
performs. The reference technology is determined by the type of 
standard being set, such as best demonstrated available technology.
    What is key is how ``technology-based'' rules are interpreted by 
permit writers. Often, they interpret the rules as

[[Page 21877]]

requiring the use of the referenced technology. To avoid this, EPA 
rulemakings should explicitly acknowledge that permit writers are 
authorized to evaluate technologies other than the referenced 
technology. Flexibility is needed to allow facilities to use innovative 
approaches that prevent pollution and achieve greater emission 
reductions across media. Flexibility would not be allowed to compromise 
environmental protection, since the permit writer would still have to 
be satisfied that the permit applicant could meet the performance 
standard in question.
    It is key to recognize that permit writers are generally burdened 
with heavy case loads, and that it substantially increases their burden 
if they must regularly evaluate alternative technologies to determine 
whether they perform at a level equivalent to that of the standard's 
reference technology. Making it easier for permit writers to evaluate 
alternative technologies is a task that EPA and state, tribal and local 
permitting authorities need to address systemically. Hopefully, some of 
the specific steps provided at the end of this section will meet this 
need.
    The steps in this recommendation should provide the following 
advantages: (1) making it easier for facilities to use innovative 
technologies (often key for P2); (2) giving facilities more latitude to 
explore P2 approaches; and (3) giving facilities a greater economic 
incentive to explore P2 approaches. Looking at a facility as a whole, 
rather than a collection of individual pipes each of which needs to 
meet an individual emission level, can often provide significantly 
greater opportunities for preventing pollution and making wise 
investments that yield long-term savings.
    The Task Force recommends that EPA, state, tribal and local 
permitting authorities take steps to link performance-based permitting 
with facility-based permitting, consolidation of permitting 
requirements by industry sector, and cross-media permitting. These 
recommendations build on the Administrative Streamlining Task Force's 
recommendation for flexible permitting. It is important to note that 
the focus here is on facility-based permitting, and not company-based, 
which is a different issue.
    These steps are also in line with the alternatives being explored 
in a host of new EPA initiatives, including several priority projects 
of the Administration's program to reinvent environmental regulation. 
Project XL, and alternative strategies for industry sectors, 
communities, and federal agencies, can address a combination of 
facility-based permitting and cross-media permitting issues; 
consolidating federal air rules for the chemical industry will be a 
test case for consolidation. Demonstration projects in multi-media 
permitting, as led by the Pollution Prevention Policy Staff are 
expected to produce several multi-media P2-oriented permits in the next 
year. The Environmental Technology Initiative's (ETI's) Innovative 
Technology Permitting Program, being implemented by the Office of 
Policy, Planning and Evaluation, is currently advancing over two dozen 
projects designed to eliminate barriers to technology innovation in the 
permitting process. In addition, ETI's Environmental Technology 
Verification Program, being implemented by the Office of Research and 
Development, will soon begin providing credible performance information 
on more cost effective innovative technologies.
    Based on the foregoing, the Task Force recommends the following:
    a. The concepts of this first recommendation should be incorporated 
into CSI, Project XL, ETI, and multi-media permitting. PIT members will 
work with these initiatives to help achieve the implementation of these 
concepts.
    b. As Regional offices disinvest from oversight of state permit 
programs, they should collaborate with state, tribal, and local 
permitting authorities in assessing relevant P2 techniques, where 
appropriate.
    c. To the extent possible, subsequent EPA rulemakings should 
explicitly acknowledge that permit writers are authorized to exercise 
their judgment in establishing performance-based limitations based on 
the technology referenced in the development of the regulatory 
standard. For example, in the NPDES program, the permitting authority 
does not approve technologies. The permit writer prepares a permit 
which includes limitations and conditions, and it is up to the facility 
to determine how they will meet the permit limits.
    d. Examine what steps would be necessary to move towards 
institutionalizing some of the approaches described above in core EPA 
programs. This should be undertaken by a PIT workgroup.
    e. State permitting authorities should use the results of the 
Environmental Technology Verification Program or similar state programs 
to reduce the need for testing and indepth engineering review during 
permitting.

2. Create Industry-Sector Inventories of Regulatory Thresholds for 
Permitting.

    The Task Force recommends developing a public inventory of existing 
federal regulatory thresholds for permitting requirements on an 
industry-by-industry basis. Specifying the thresholds would help 
facilities to assess the costs and benefits of going below the 
thresholds and opting out of the permitting system. The Task Force 
believes that in most instances the savings achievable by getting out 
of the permitting system would more than offset the investments needed 
to get releases below thresholds.
    Data in this inventory could serve as a reference point for 
discussions between communities and local facilities about financial 
incentives for using pollution prevention approaches. Mutual 
discussions could more easily be tied to the financial incentives for a 
facility to reduce releases to a level where permitting is reduced or 
unnecessary, and outcomes that could represent cost savings to the 
facility.
    The Office of Pollution Prevention and Toxics (OPPT) in EPA is 
piloting this approach for the metal finishing industry, which is 
comprised mainly of small to medium-sized businesses. Since industry 
faces federal and state regulations, OPPT will try to include key state 
regulatory requirements, too. If it appears that some opportunities for 
getting below certain thresholds bear more promise than others, EPA 
would emphasize those opportunities most likely to result in success.
    EPA recognizes that some explanation about possible permit 
variances or exemptions will be needed in an industry-sector inventory. 
In some instances, for example, emissions trading is allowed, and a 
facility may have legitimately purchased an emissions trading credit. 
EPA will need to provide sufficient explanation so that users of the 
inventory will find its data relevant and meaningful to their own 
applications.
    To be clear, the scope of an inventory will be limited to linking 
permitting thresholds with the economic incentives for getting below 
thresholds. It will not provide facility-specific information or 
health/environmental effects data.
    The Task Force's specific recommendations are:
    a. OPPT should develop a pilot inventory for an industry sector, 
such as metal finishing (this effort has already started).
    b. OECA and OPPT should investigate whether OECA industry sector 
notebooks (developed for compliance assistance) could be used as a 
basis to

[[Page 21878]]

help industry conduct analyses between the costs of compliance and the 
costs of getting below permitting thresholds.

3. Explore Offering Alternative Emissions Tracking in Exchange for 
Using P2 Practices

    The Task Force recommends that EPA explore whether an alternative 
emissions tracking approach could be offered in exchange for a facility 
commitment to use P2 practices to achieve compliance in whole or in 
part. Federal permitting requirements generally require facilities to 
monitor releases (using EPA-approved methodology) and report this data 
to regulatory agencies. An alternative approach would be to allow a 
facility to use third-party auditors to convert its proprietary process 
control measurements into release data that would be reported to EPA as 
public data.
    A primary reason EPA is interested in this approach is that using 
process data encourages facilities to find opportunities for pollution 
prevention. Second, it may provide communities with significantly more 
reliable data on facility emissions in their communities. Third, there 
may be a significant economic incentive for industry to avoid the cost 
of expensive monitoring equipment.
    The recommended approach is basically an equivalent alternative to 
current monitoring requirements. (Reducing monitoring requirements is 
beyond the scope of this particular recommendation.) The Task Force 
acknowledges that EPA would need to verify P2 commitments made in 
exchange for using this alternative.
    EPA recognizes that there are some concerns about whether the 
public would have confidence in this recommended approach. One concern 
is that industry consultants might lack credibility with local 
communities. The key difference in what the Task Force is proposing is 
that industry would not pay a third-party auditor directly. The apt 
analogy is the third-party auditor system used in this country for 
accrediting laboratories. Labs pay a non-profit organization for the 
services of the third-party auditors. The auditor's sponsoring 
organization (the non-profit) has an overriding interest in maintaining 
the integrity and independence of their auditors, because a biased 
auditor reflects badly on the organization and the entire accreditation 
system.
    Third-party auditors would have to be trained and accredited by an 
accrediting organization. Among other things, they would probably need 
to be trained in knowing what kind of data to get from facilities, and 
learning the calculations to perform to convert facility process data 
into reportable emissions data. Given the great diversity of American 
industry, this may be an idea that could be piloted on an industry-
sector basis.
    The Task Force recommends the following specific steps:
    a. A PIT workgroup should consult with the project team for 
piloting third-party audits for industry compliance (one of the 
President's 25 initiatives for reinventing environmental regulation) to 
further investigate the viability of this approach.
    b. This PIT workgroup should also explore potential overlap with 
International Organization for Standardization (ISO) 14000 efforts.

4. Share P2 Data With Permit Applicants and Affected Communities, and 
Give Basic P2 Training to Permit Writers

    The Task Force recommends that EPA and state, tribal and local 
permitting authorities share P2 data with permit applicants and 
affected communities, and give basic P2 training to permit writers. 
Both of these ideas would provide a way for P2 to be emphasized up-
front in the permitting process.
    Most permit writers are at the state, tribal, and local level and 
face workloads that are generally perceived as heavy. To date, their 
experience with P2 has ranged from no involvement to personal 
commitment to P2, with lack of time and knowledge often being cited as 
barriers to their promoting P2.
    Despite this perception about the difficulty permit writers face in 
promoting P2, a recent survey of permit writers in northeastern states 
conducted by the Northeast Waste Management Officials' Association 
(NEWMOA) indicates the vast majority of those surveyed wanted P2 
training. They said they wanted training in when, how, and where they 
can use P2 directly in their jobs, and under what authority they can 
act. NEWMOA is piloting a P2 training for permit writers, based on a 
review of many permits where P2 has already been incorporated. Efforts 
such as NEWMOA's could serve as a model for training in other parts of 
the country, and could be tailored according to the permitting 
authority and regional needs.
    At a minimum, permit writers could serve as a reference for 
facilities on where to turn (such as local technical assistance 
centers) for P2 information. It is key that they have a baseline of 
information about P2 concepts and appreciate the value of sharing P2 
data with facilities. Training could most effectively be offered at the 
state and EPA regional level. EPA, in consultation with states, tribes 
and local permitting authorities, should evaluate whether P2 reference 
materials need to be developed and sent to permit applicants and made 
available to the public.
    The Task Force recommends that pollution prevention be made part of 
the core training for permit writers being advocated by the PIT 
Training Task Force. Stakeholders have suggested that P2 training 
should also be given to enforcement and regulatory personnel.

5. Develop an Enforcement Policy to Accommodate the Possibility That 
Innovative P2 Technologies May Not Perform as Expected or May Take 
Longer to Achieve Compliance

    The Task Force believes it is key to examine the current incentives 
and disincentives for pollution prevention in environmental enforcement 
policies as well as in permitting. One reason is that innovative P2 
technologies do not always perform as expected. A facility may have 
little incentive to invest in an innovative P2 technology--and risk its 
compliance on how that technology will perform--if there is no ``soft 
landing'' enforcement policy to cushion against enforcement penalties 
in the event the technology fails to perform as expected. Some form of 
risk-sharing, such as mitigation of penalties, should be accepted by 
EPA.
    A second reason that enforcement policies are key to encouraging P2 
through permitting is that using P2 approaches--such as process 
changes--sometimes takes longer than using off-the-shelf control 
devices. If EPA can offer no extension in compliance deadlines (as 
appropriate for making P2 changes), facilities may opt for using 
control devices to ensure they meet these deadlines.
    The Task Force recommends that the PIT and the Office of 
Enforcement and Compliance Assurance (OECA) establish a workgroup to 
explore a ``soft landing'' enforcement policy for facilities that adopt 
innovative P2 technologies, including those verified by EPA or states, 
that fail to perform as expected. A soft landing policy could remove a 
significant disincentive against using innovative technologies by 
providing a cushion against enforcement penalties or costly remedial 
solutions, and allowing a facility some flexibility in reaching 
compliance. For example, a facility might be allowed time to achieve 
compliance through adjusting some other part of its process, allowing 
it to keep its P2 technology intact.
    In addition, the workgroup should identify more ways to offer 
compliance extensions, consistent with statutory

[[Page 21879]]

compliance extension mechanisms, in exchange for commitments to use P2 
approaches for compliance. (The Task Force supports EPA's recently 
initiated pilot efforts like Project XL that will be exploring this 
kind of an approach.) The Task Force also recommends that OECA and EPA 
Program offices consider using an approach developed by stakeholders in 
the Industrial Pollution Prevention Project (IP3): through rule-
specific guidance, allowing permit modifications to be made under 
specified conditions that extend the time for compliance. This approach 
has received EPA-wide endorsement as part of the Clean Water Act 
reauthorization process.
    The Task Force recognizes the need to address boundaries as to how 
``soft'' a soft landing enforcement policy should be, and how long a 
compliance extension should reasonably be. EPA has previously explored 
these issues in the IP3, and will need to clarify them again. The State 
of New Jersey, through an Environmental Technology Initiative grant, 
will be exploring these limits in its own programs.

6. In All General Permits and Permits-By-Rule, Include Language That 
Explains the Preference for Using P2 Approaches and the Potential 
Economic Benefits of P2

    The Task Force recommends that EPA and state, tribal and local 
permitting authorities incorporate language in all general permits and 
permits-by-rule that explains the environmental management hierarchy 
(source reduction, reuse, recycle, treat, store and dispose), the 
preference for using P2 to achieve compliance, and the potential 
economic benefits associated with P2. If there are differences between 
EPA's and a state, tribal or local permitting authorities' hierarchy, 
the permitting authority could list both.
    Individual permits are not included in this recommendation because 
it is recognized that, in these cases, major opportunities for P2 can 
be identified while the permit conditions are being developed before 
permit issuance. Therefore, for individual permits, it would be better 
to put this type of language up-front in the process, such as in permit 
call-in letters or model permit applications used in the RCRA program. 
Also, implementing recommendation 4 would encourage including P2 up-
front in the process of preparing individual permits.
    It is recommended that a PIT workgroup develop sample language and 
make it available for distribution through core training sessions for 
permit writers. The workgroup should include permit writers from the 
Regions and state, tribal and local permitting agencies.

TRAINING TASK FORCE RECOMMENDATIONS

Background

    The National Performance Review Team for Permit Streamlining 
identified training for permit professionals as a priority. Their 
specific recommendation included the following suggestions: establish 
an EPA Permits Institute, require State/Federal permit professionals to 
complete core curriculum, review permit organizational staffing for 
appropriate skills mix and provide financial/other incentives and 
awards to permit professionals. In addition to these specific 
proposals, training was also highlighted under the category of 
``Increasing Access to Permitting Information.'' Suggestions under this 
category discussed training for the public and applicants. Specific 
recommendations included: draft clear, understandable guidance manuals 
for states, tribes, local authorities, applicants and the general 
public; and hold periodic training workshops in conjunction with state 
associations, trade associations and citizens' groups. The PITs 
Training Task Force chose to address training broadly to include the 
regulated community, public and permit professionals.

Overview

    Effective environmental permitting relies upon effective 
transmittal and use of information by all interested parties. State, 
tribal, local and EPA permit writers need information of the specific 
characteristics of the facilities being permitted, and need knowledge 
of the applicable statutes and regulations. The regulated community 
also needs information, in particular of the permitting process and how 
regulators use their information. Citizens and environmental groups 
also need to know the permitting process in order to effectively 
participate in the permitting process.
    The lack of information leads to several problems. Delays in 
completing permits occur if permittees and citizens do not understand 
the permitting process and use the appeals process to delay issuance 
until they are satisfied they fully understand all provisions of the 
permit, including how each provision was developed. Inconsistencies 
between permits, that should be similar, occur if permit writers do not 
understand the basis and reason of the underlying regulations or do not 
know of applicable guidance.

Recommendations

    In order to provide the necessary information to EPA, state, tribal 
and local permit writers, the regulated community, and citizens and 
environmental groups, the Task Force recommends four actions.
    1. Provide information to the regulated community and others. The 
Task Force recommends that EPA national Program offices use a series of 
informational tools to educate permittees and citizens about the permit 
process. Specific tools to be used or developed are:
    a. Using the Internet, trade associations and small business 
development centers to announce training opportunities and distribute 
training materials. The announcement should include an explanation of 
the contents of the training. Program offices should also coordinate to 
standardize and post these announcements and develop and implement a 
program to educate the public on the permitting process using tools 
such as: press releases, infomercials, radio/TV announcements and 
commercials.
    b. Development of a generic fact sheet which summarizes a new 
permitting project in plain English and may be used as a tool to 
explain to interested parties the permitting action. The Program 
offices should coordinate in the development of these fact sheets to 
achieve as much consistency in format and information provided as 
possible. After the generic fact sheet is developed, all permitting 
authorities should prepare a fact sheet, following the model, as part 
of the permitting process.
    c. Develop a clearinghouse of existing model permitting 
applications and instructions (this should be accomplished in 
cooperation with state, tribal, and local associations). In addition, 
the Program offices should request the permitting authorities, 
especially in EPA, to use ``plain English'' instructions with 
application forms and to include a single point of contact (see 
Administrative Streamlining Task Force report).
    2. Provide information on every new significant <SUP>5 rule. The 
Task Force recommends the development and use of a series of 
informational tools to educate Regional, state, tribal, and local 
permitting authorities, permittees, and citizens about the requirements 
and reasons for new rules. Specific actions are:
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    \5\ A significant permitting rule should be determined by 
considering its environmental impacts, community concerns, and/or 
complexity of the regulated facilities.

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[[Page 21880]]

    a. Program offices should prepare, as part of regulatory 
development for significant rules, a package of information which 
explains the new requirements, including information about permitting 
and any implementing guidance. The information package should contain 
materials targeted to different audiences, the regulated community, the 
permitting authorities and the public and provide contacts for 
additional information. This package of information must be available 
at the time of promulgation (e.g., via Internet). Include in the 
Federal Register information about the availability of this material.
    b. A PIT workgroup (including representatives from program the 
offices) should develop a standardized fact sheet format to be used 
with each new significant rule. Once developed, the Program offices 
should use this format for transmitting information about each new 
significant rule either electronically (e.g., Internet) and/or via 
mailing lists.
    3. Define and provide training on core skills and knowledge needed 
to issue permits. The Task Force has developed the core skills and 
knowledge that are recommended for permit writers to be effective in 
their jobs. The Task Force recommends that the Administrator endorse a 
training program for permit writers, including the core curriculum for 
permit writers (listed below). This will require the commitment of 
resources to develop the training and travel funds to attend the 
training. A PIT workgroup (comprised of representatives from each 
Program office) should take the lead in designing the training program. 
States, tribes, and local permitting authorities should participate on 
the workgroup. Each Program office also needs to identify the 
additional media specific knowledge which would be necessary for that 
program. All training should be made available to interested parties, 
both internal and external to EPA. Examples of these core skills and 
knowledge include:
    <bullet> The need and purpose of permits,
    <bullet> Factors that comprise an enforceable permit,
    <bullet> Applicable parts of the environmental statutes,
    <bullet> When a permit application is complete,
    <bullet> Pollution prevention and innovative technology,
    <bullet> Waste management hierarchy,
    <bullet> Development of permit conditions,
    <bullet> Public speaking and communicating with different 
audiences,
    <bullet> Technical writing,
    <bullet> Sensitivity (understanding needs of stakeholders),
    <bullet> Environmental justice,
    <bullet> Holistic view of permitting--multi-media/coordination of 
permits, and
    <bullet> Training on the new permitting approach (if adopted).
    4. Store and provide critical knowledge. The Task Force has 
identified a series of tools to better provide written guidance and 
accumulated permitting office experience to Regions, states, tribes, 
local authorities, permittees, and citizens. The Task Force recommends 
that the national Program offices develop these tools and make them 
available as needed. These tools are:
    a. Provide electronically (Internet) an index and synopsis of 
guidance documents.
    b. Creation of EPA subject-based work groups, for example to 
coordinate issuance of combustion permits between the Air, RCRA and 
TSCA programs. To assist in the development of the subject based work 
groups, the Regions should establish regional multi-media permit 
coordination work groups. Representatives from the regional multi-media 
permit coordination work groups and the Headquarters Program offices 
will participate on the subject-based work groups. The work groups will 
focus on implementing more organized permit ``quality control'' (e.g., 
collecting, storing and disseminating EPA, state, tribal, local 
agencies, and permit writers appeal issues (major and minor) and/or 
other issues that have an impact on the effectiveness and 
enforceability of permits).
    c. Establishing quasi-independent permit review teams to assure the 
issuance of quality permits. The review teams may consist of 
representatives from the above-mentioned, subject-based work groups. 
The review teams would evaluate significant permitting actions <SUP>6 
to assure all aspects of the permitting process were addressed 
(environmental justice, pollution prevention, public notice/hearing, 
and understandable compliance terms). In FY-96, the permit review team 
and a state volunteer will conduct a pilot to assess the effectiveness 
of the permit review team.

    \6\ A significant permitting action should be determined by 
considering the environmental impacts, community concerns, and/or 
complexity of the facility being permitted.
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[FR Doc. 96-11453 Filed 5-9-96; 8:45 am]
BILLING CODE 6560-50-P