The Nation's Hazardous
Waste Management
Program at a Crossroads

Implementation Study


Table of Contents
    Preface .............................. v
    Acknowledgments ............. vii
    List of Figures .................... xi
    List of Tables ..................... xii

  1. RCRA at a Crossroads:
    A Direction for the Future ........................ . ............................ 1

  2. The Road Just Travelled:
    A Chronicle of the RCRA Subtitle C Program ...................... 5

  3. Federal/State Alliance:
    A Working Relationship [[[ 13

  4. The Regulations Machine:
    Too Many, Too Fast. [[[ 31

  5. The Permit Dilemma:
    Deadlines vs. Need [[[ 41

  6. Compliance and Enforcement:
    Better Targeting for Better Results ..................................... 57

  7. Corrective Action:
    A Strategy for Protection .............................. ...................... 75

  8. Maximizing Program Resources:
    Human and Fiscal Factors ................................................. 85

  9. Information Management:


    This study represents the collective efforts of a substantial portion of the
national community interested in, involved in, and affected by the Resource
Conservation and Recovery Act (RCRA) hazardous waste program. An
Executive Committee, chaired by Christian Holmes, Allyn Davis, and Bill
Muszynski, established seven subcommittees to investigate the areas identified
as critical to the RCRA Subtitle C program: evolution, the state/federal
relationship, regulation development, permitting, compliance and
enforcement, corrective action (cleanup), and program resources. In addition,
two focus groups examined the roles and needs of information management
and science and technology in the Subtitle C program.

    Comprised of personnel from EPA headquarters, EPA regional, and state
offices, these subcommittees conducted over two hundred interviews and
evaluated EPA data bases, surveys, articles, and reports issued by Congress,
the General Accounting Office, and the Office of the Inspector General. This
reports draws on a wide-ranging and dynamic spectrum of individuals from
all  sectors  affected by the program—environmental groups, industry,
Congressional staff, and current and past state, regional, and headquarters
staff. The entire effort was undertaken, written, produced, and endorsed by
state, regional, and headquarters personnel. This unified effort to investigate,
evaluate, and recommend action is unprecedented in the RCRA program.

    I thank all who participated in developing this study. Their hard work
and commitment are responsible for the RCRA program's impressive record
of success to date, and will continue to be the program's most valuable asset.
I will continue to look to the participants in this study for further guidance
and creative assistance as I seek to improve and build upon the foundation
the RCRA program has established.
                                           Don R. Clay /"   S
                                           Assistant Admintsirator
                                           Office of Solid Waste and
                                             Emergency Response


   We acknowledge the hard work and dedication of the following persons who
participated in the conception, research, development, and writing of this report.

The RCRA Implementation Study Task Force

RIS Chair: Christian Holmes, Principal Deputy Assistant Administrator, OSWER
Co-Chairs: Al Davis, Waste Management Division Director, Region 6
          Bill Muszynski, Deputy Regional Administrator, Region 2
Study Staff

       Ken Patterson (OSWER)
       Nancy Browne (OWPE)
       Mary Jean Osborne (OWPE)

       Editor: Joan O'Callaghan (OSW)
       Design and Layout: Michael Boone (OSWER)
Executive Committee

      Irv Auerbach (OPPE)
      George Bonina (OAR)
      Ron Brand (OUST)
      Susan Bromm (OWPE)
      Lew Crampton (OA)
      Bruce Diamond (OWPE)
      Tom Dunne (Region 10)
      Barbara Elkus (OUST)
      Nancy Firestone (OA)
      Len Fleckenstein (OPPE)
      Lisa Friedman (OGC)
      Mary Gade (OSWER)
      Ed Hanley (OARM)
      Walt Kovalick (OSWER)
Hemy Longest (OERR)
Sylvia Lowrance (OSW)
Jim Marshall (Region 2)
Suzanne Rudzinski (OSW)
Mike Sanderson (Region 7)
Dave Shelton (State of Colorado)
Connie Simon (Region 2)
Kathie Stein (OE)
Rich Svanda (State of Minnesota)
Dave Ullrich (Region 5)
Arthur Weissman (OWPE)
David Ziegele (OPPE)
Regulations Subcommittee
Chair: Barbara Elkus (OUST)

      Jan Auerbach (OPTS)
      Dave Fege (OPPE)
      John Heffelfinger (OUST)
      Carolyn Kenmore (OERR)
Jeff Scott (Region 9)
Larry Wapensky (Region 8)
John Wilson (OPPE)
Denise Wright (OSW)

              Compliance and Enforcement Subcommittee
              Co-Chairs: Conrad Simon (Region 2)
                        Susan Bromm (OWPE)
                     Alan Antley (Region 4)
                     Joel Blumenstein (Region 1)
                     Tom Eaton (State of Washington)
                     Ken Gigliello (OWPE)                _		_&._ „,
                     Cindy Gilder (State of Washington)     Karen Schwinn (Region 9)
                     Brenda Hagman (State of Wisconsin)
 George Meyer (Region 2)
 Tim Mott (OWPE)
 Bill Muno (Region 5)
              Evolution Subcommittee
              Chair: Len Fleckenstein (OPPE)

                     Beth Cavalier (OPPE)
                     Evyonne Harris (OPPE)
                     Maria Hebenstreit (OPPE)
                     Lynn Luderer (OPPE)
 Judy Johnson (OPPE)
 Betty Walter (OPPE)
 Alan Youkeles (OPPE)
              Permitting Subcommittee
              Chair: Dave Ullrich (Region 5)

                     Irv Auerbach (OPPE)
                     Karl Bremer (Region 5)
                     Liz Cotsworth (OSW)
                     Larry Eastep (State of Illinois)
Dave Pagan (OSW)
Bill Honker (Region 6)
John Humphries (Region 3)
              Federal/State Roles Subcommittee
              Co-Chairs: Rich Svanda (State of Minnesota)
                        Suzanne Rudzinski (OSW)

                    Joe Carra (OPTS)
                    Susan Ferguson (State of Texas)
                    Steve Heare (OWPE)
                    Judy Kertcher (Region 5)
Nick DiPasquale (State of Montana)
Bill Pounds (State of Pennsylvania)
Guanita Reiter (Region 6)
             Resources Subcommittee
             Chair: Mike Sanderson (Region 7)

                    Bill Child (State of Illinois)
                    Mike Gearheard (Region 10)
                    Bill Honker (Region 6)
                    Nancy Hunt (OE)
                    Meg Kelly (OSWER)
                    Paul Newton (OHRM)
Barbara Pastalove (Region 2)
Robert Pavlik (OHRM)
Joe Salata (OARM)
Bob Titus (OARM)
Rich Vaille (Region 9)

Corrective Action Subcommittee
Chair: Russ Wyer (OSW)
Deputy Chair: Arthur Weissman (OWPE)

      Hugh Davis (OWPE)
      Joe Kotlinski (Region 3)
      Mike Mason (OPPE)
      Doug McCurry (Region 4)
      Mark Mercer (OERR)
      Brian Monson (ASTSWMO)
Carolyn Offutt (OERR)
Scott Parrish (OWPE)
Kevin Pierard (Region 5)
Anne Price (OSW)
Harriet Tregoning (OPPE)
Focus Groups
Information Management
Lead: George Bonina (OAR)

       Jim Craig (OPPE)
       Diane Niedzalkowski (OPPE)
Alex Salpeter (OSWER)
Nathan Wilkes (OPPE)
Co-Leads:  Joe DeSantis (ORD)
          Jay Benforado (ORD)

       Jim Cummings (OSWER)
       Chris DeRosa (ORD)
       Al Galli (ORD)
       Larry Johnson (ORD)
       Ron Hill (ORD)
       Cal Lawrence (ORD)
Lee Mulkey (ORD)
Bruce Peirano (ORD)
Ann Pitchford (ORD)
Joe Williams (ORD)
Llew Williams (ORD)
 Lead: Skip Luken (OPPE)

       Druscilla Hufford (OPPE)
       Deb Dobkowski (OSW)
       Alan Carlin (OPPE)

             We would also like to acknowledge the contributions of the following
             persons to this study:
                    Donna Allen (OSWER)
                    Bob Ambrose (ORD)
                    Terry Anderson (Region 8)
                    Tony Baney (OPTS)
                    Tish Barbee (OSWER)
                    Ben Blaney (ORD)
                    Bob Brown (OSW)
                    Michael Burns (OSW)
                    John Cross (OPPE)
                    Jeff Denit (OSW)
                    Robert Dyer (ORD)
                    Marcie Eskin (Region 5)
                    Shelly Evans (ORD)
                    Kathy Frevert (OPPE)
                    Kristina Heinemann (OPPE)
Marianne Lamont (OSWER)
Sarah Larson (OPPE)
William La Veille (ORD)
Thea McManus (OSW)
Rodney Midgett (OAR)
Rett Nelson (Region 5)
Paul Nowak (OSW)
Gayle Padgett (OSWER)
Kathy Petrucelli, (OARM)
Dick Scalif (ORD)
Andrew Teplitzky (OSW)
Rich Traub (Region 5)
Mary Wiggington (ORD)
Alex Wolfe (OSW)
Darwin Wright (ORD
Nancy Zahedi (OPPE)

List of  Figures
Figure 1:    Public Ranks Hazardous Waste As a Top
           Environmental Concern	5

Figure 2:    Universe of RCRA Generators and Facilities
           Continues to Grow	...8

Figure 3:    Several Issues Create Friction	14

Figure 4:    Perceived and Preferred Priorities Differ	16

Figure 5:    States Authorized for RCRA Base Program and
           Corrective Action	21

Figure 6:    Cited Barriers to State Authorization	23

Figure 7:    Several Factors Delay the Authorization Process	27

Figure 8:    OSWER Promulgates Regulations Faster Than
           Other EPA Offices	31

Figure 9:    Since HSWA's Passage, Many Facilities Have
           Chosen to Close	43

Figure 10:  EPA and the States Have Made Over 1,000
           Permit Determinations	44

Figure 11:  Hundreds of Closing Facilities Still Need Attention	45

Figure 12:  RCRA Permitting Process Is Very Comprehensive	50

Figure 13:  Permit Review Process Is Excessively Long	51

Figure 14:  Row Chart of the Federal RCRA C&E Process	59

Figure 15:  Number of Defendants Convicted During FY 1989	62

Figure 16:  A Nationwide Inspector Profile	67

Figure 17:  Only a Small Percentage of RCRA Handlers
           Get Inspected Each Year	68

Figure 18:  STARS Measures Only a Small Percentage
           of Enforcement	70

Figure 19:  Hazardous Waste Universe Is Huge	19

List of Figures
               Figure 20:  Headquarters Resources Have Remained Constant	85

               Figure 21:  Regional and State Resources Have Remained	86
                          Generally Constant

               Figure 22:  Corrective Action is Gaining on Prevention in
                          the Regions	88

               Figure 23;  Projected Corrective Action Resource Needs
                          Are Increasing	88

               Figure 24:  Regional Contractor Dollars Have Increased,
                          While Work Years Have Remained Constant	89

               Figure 25:  Total RCRA Implementation Resources	91

               Figure 26:  Scientific and Technical Staff Turnover Rate
                          Exceeds 20% in Six Regions	92

               Figure 27:  Current Training Program Is Not Meeting
                          Staff Needs	93

List of Tables
Table 1:    Several Elements Determine the Nature
          of a Relationship	13

Table 2:    Current Roles Contrast Sharply with
          Perceived Appropriate Roles	20

Table 3:    Preamble Are Excessively Long	37

Table 4:    Hundreds of New Facilities May Be Added
          to the RCRA Universe	45

Table 5:    Permit Process Causes Significant Delays	50

Table 6:    RCRA Inspector Turnover Rates Are High	67

Table 7:    Most Enforcement Actions Are Informal	70

Table 8:    Percent of Violations for Which No Action
          Was Taken is Low	70

Table 9:    Percent Returned to Compliance Is Decreasing	71

Table 10:  The Corrective Action Workload is Enormous	77

Table 11:  Several RCRA Program Areas Use Modeling	106

Table 12:  Models Are Not Available or Applied for
          Some Media and Pollutants	107


                  CHAPTER 1
                  RCRA at a Crossroads:
                  A  Direction  for the  Future
    In the last decade, the Resource Conservation
and Recovery Act (RCRA) has revolutionized the
management of hazardous waste. Its impact on the
nation and on protecting human health and the
environment has been undeniable. The program's
comprehensive national regulatory structure has
made significant strides in ensuring compliance
with the law. Yet, since RCRA was enacted in 1976,
no single analysis has evaluated the progress of
RCRA's hazardous waste program and the key
issues affecting the program as it enters the 1990s.
Therefore, during his confirmation hearings before
the Senate  Environment and  Public  Works
Committee, Assistant Administrator Don R. Clay
committed theOfficeofSolidWasteand Emergency
Response to  a  comprehensive review  of  the
implementation of the hazardous waste provisions
of RCRA.

   This RCRA Implementation Study provides a
landmark opportunity to ensure that our nation
achieves the greatest reduction in risks to human
health and  the environment,  relative  to  the
enormous resources  we are investing  in  the
hazardous waste program. The entire program has
sprung up  in a very short period, reacting to
Congressional deadlines and public pressures. EPA
now believes it is time to be proactive, rather than
reactive,  in fashioning a plan for managing
hazardous waste in the future. What improvements
are necessary to make RCRA more rational? How
can we provide clear incentives for the regulated
community to prevent pollution?  How can we
simplify and streamline this complex regulatory

   EPA sets forth in this study for the first time its
philosophy for the management of hazardous waste
in the coming decade, together with the detailed
rationale underlying that philosophy. Based  on
extensive analysis of perspectives gained from
federal  and  state  officials, public  interest
representatives, and the regulated community, this
study sets the direction for implementing RCRA
and provides the  basis for the EPA's strategic
decision making over the next  decade.
   The chapters that follow contain a wealth of
ideas for refining and building upon the foundation
established by RCRA to date.  Of course, EPA
cannot implement all of these recommendations at
once.  Rather, we view this study as a "living
document," and specifically invite all interested
parties to assist us in identifying the changes most
critical to the program right now. Our follow-up
strategy will be refined by that input, as well as
tempered by budget realities, in the course of its
implementation. Nonetheless, we are excited by
the challenges posed in making our philosophy a
reality, and welcome the opportunity to work with
the large community of persons interested in, and
affected by, the RCRA program.
Principal Findings

   The following general findings provide the
basis for RCRA's direction for the future:

•  The RCRA Subtitle C program has established a
   sweeping framework for  the management of
   hazardous waste in this country, and has made
   tremendous progress in reducing both short-
   and long-term risks.

•  Priorities need to be clarified across a broad range
   of activities. RCRA is plagued by too many
   "high" priorities, many of which are conflicting
   or unrealistic.

•  Human resources need invigorating. The RCRA
   workforce is talented and committed,butneeds
   more training, support, and incentives to be

•  Waste minimization  efforts  need emphasis to
   promote the "conservation and recovery" in

•  The roles of involved parties are unclear\ including
   EPA headquarters and regional offices, states,
   the Office of Management and Budget, the
   courts, Congress, and the public.

 2  Chapter 1
    Weneedbettermeasuresforjudging\ih.e program's
    performance and for setting realistic goals.

    We need to steer theprogram in a direction that will
    encourage innovation in  hazardous waste
    management and cleanup.

    and external groups, as well as within EPA.
Direction for the Future

    As discussed in more detail in each individual
chapter of this study, EPA's direction for RCRA's
future has the following core elements:

Establishing and Communicating Clear

    The most difficult part of developing an action
plan is setting clear priorities based on both the
environmental benefits to be gained and the risks
they will reduce, avoid, or eliminate. EPA will
proactively communicate these priorities to groups
within the RCRA program (headquarters,  the
regions, and the  states)  and external groups
(Congress,  the  public,  and   the regulated
community), highlighting the need for flexibility as
well as the trade-offs the program must make to
achieve them. To the extent available data permit,
EPA must set program goals and allocate resources
based  on environmental  benefit—that  is, risk
reduced or avoided from specific actions.  Where
EPA's priorities conflict with Congressional and
court mandates, EPA will consult with interested
and affected parties to discuss their concerns and
enlist their support.

Balancing Prevention and Cleanup Efforts

    We must maintain a strong  presence at
treatment, storage, and disposal facilities to ensure
that they continue to manage waste properly and
prevent releases. Within the next six months, EPA
will set priorities for: (1) maintaining safe capacity
for wastes through  the issuance of  operating
permits; and (2) ensuring that waste management
facilities that close do so properly and are issued
post-closure permits for continued monitoring of
the facility after closure.  The corrective action
(cleanup) needs  of both operating  and closing
facilities are substantial, and must be considered in
setting priorities.
    We will begin an action plan that, over the next
eight years, will evaluate the universe of RCRA
facilities  subject to corrective action,  halt the
movement of contamination at those  facilities,
develop and implement national criteria for setting
prioritiesamongfacilities, and develop performance
standards for their successful cleanup.

    We will also investigate legislative changes
that would allow "de-coupling" corrective action
from the permitting process.  This action would
help us deal first with facilities that present the
greatest risks and  then address less hazardous
situations.  To implement this strategy, EPA will
need flexibility in  meeting the 1992 statutorily
mandated deadline for issuingpermits to treatment
and storage facilities.

    EPA  will clearly specify what is expected of
facilities when they conduct correctiveaction. Firms
that have a positive environmental and compliance
record can then start cleanup activities and control
problems early, with some confidence that they are
doing what would be required of them under an
order or  a permit.  Similarly, EPA will develop
performance standards against which industry can
target its  cleanup goals.

Developing Clear and Concise Regulations

    To create more comprehensible regulations and
potentially reduce the costs of compliance for the
regulated community, EPA will begin evaluating
major regulations within a reasonable time frame
after their promulgation.   Current and  future
regulations need to be reviewed for their ease of
implementation, enf orceability, and environmental
impact. This process will include soliciting feedback
from regions, the states, industry, and the public.

    EPA will start by clarifying the definitions of
"solid waste" and "hazardous waste," so that
facilities  clearly understand they are subject to
the size of the RCRA universe. Both short-term
fixes to clarify and reformat the current definitions
as well as  long-term statutory changes, will be

    Revisiting regulations,  however, must  be
balanced  with developing new rules. The current
work group process for regulatory development
must be improved.  Toward this end, EPA will
clearly define the roles of work group members,
encourage coordination with other program offices,
and promote the participation of both the regions
and the states.

                                                                     RCRA at a Crossroads   3
Emphasizing Waste Minimization

    EPA's rules and permits have had great success
in reducing the volume of mismanaged hazardous
waste. However, continuing to focus on "end-of-
pipe" solutions will not solve our nation's hazardous
waste problems. The ultimate battle will be won by
the facilities that actually produce the waste in the
first place.

    Thus, EPA will explore ways to create economic
incentives  that  will unleash  entrepreneurial
ingenuity in developing waste minimization and
recycling techniques. We will emphasize waste
minimization  in  our day-to-day  program
operations. We will incorporate it in enforcement
actions—for example,  by  using settlements
creatively to foster waste minimization and by
emphasizing it during compliance activities.

Supporting Compliance and Enforcement

    The RCRA program has issued more rules in a
shorter time than any other environmental program.
This trend will continue in the next few years as
EPA continues to meet RCRA's statutory deadlines.
The number and complexity of these requirements
have severely taxed the ability of the regulators and
the regulated community to keep up  with and
respond to them. The challenge today is to provide
the tools needed by both to ensure that new rules
are fully understood, fully complied with, and
soundly implemented.

    Thus, EPA will undertake  more targeted
enforcement initiatives.   For  example,  while
continuing to emphasize treatment, storage, and
disposal facilities, EPA will target compliance by
hazardous waste generators and identify hazardous
waste handlers who have not notified EPA of their

    To enhance our deterrence efforts, EPA will
strive  to seek higher judicial and administrative
penalties and strengthen criminal enforcement. In
addition, we will ensure that EPA regional RCRA
programs have sufficient support in the Office of
Regional Counsel.

Speeding Up State Authorization

    The states have traditionally been the principal
implementors of the hazardous waste program.
Their  ability and willingness to  carry out the
program is critical to its success, especially in view
of the enormous challenges of the corrective action
program. We must better define the role of EPA
and the states. We have been operating under the
assumption that the states and EPA were partners,
while the roles more closely resembled  those of
client and contractor.

    To streamline the process of authorizing states
to implement the corrective action program/EPA
will  transfer authorization responsibility from
headquarters to the regional offices. We will also
investigate the commissioning of states, partial and
conditional  authorization, and  limited  self-
certification when considering statutory changes.

Attracting, Retaining, and Developing

    Continued   achievement   of   RCRA's
environmental goals turns on  the ability of EPA
and  the states to maintain a highly skilled and
motivated work force. The program's future success
will be defined by the quality of the public servants
responsible for its implementation. Federal and
state personnel have been severely taxed by the
workload  of recent years.   In  order to more
effectively  meet program needs,  EPA will
investigate ways  to move  extramural  contract
resources to the intramural workyear appropriation
and  state grants.

    Currently, little time is available for the personal
growth, training, and technical development that is
crucial as RCRA confronts challenges on the cutting
edge of technology, science, and the law. As a first
step in its effort to attract and retain talented and
committed staff, EPA will establish a centralized
training program for federal and state personnel.
EPA will also ensure  that RCRA program positions
achieve parity with  similar  positions in the
Superfund program.

Developing More and Better
Environmental Data

    Although the body of hazardous waste data is
considerably better today than in the past, we still
need  more information about the  regulated
universe, the amount and nature of waste generated,
the  science  of ground water, and the real and
potential risks at RCRA facilities.  In contrast to the
air and surface water programs, where monitoring
has been in place over two decades, a sizable body
of ground-water monitoring  data is only now
becoming available.

    The  RCRA  program can improve  its
information if it implements a process that involves

 4  Chapter 1
headquarters, the regions, the states, and the
regulated community. We must define what the
RCRA program wants to measure by developing
environmentally based goals and objectives. Using
these milestones, we must develop an information
management plan that serves as the blueprint for
systems. The plan must recognize the complexity
and cost of information, and must be flexible enough
to respond to changing needs. We must assemble
and analyze the data so that we know where the
greatest environmental risks f romhazardous waste
occur, and can measure the program's success in
terms of risks reduced or avoided, rather than the
number of activities undertaken (permits issued,
inspections performed, etc.).

Accelerating Scientific and Technological

    Foreachadvancemadeindealingwith complex
waste management and ground-water protection,
EPA has uncovered new questions.  The science
and technology associated with waste minimization
and cleanup are still at a relatively primitive stage.
The challenge for EPA is to rapidly accelerate the
scientific and technological knowledge base, which
will speed up prevention and cleanup at thousands
of sites.

   We will  apply the knowledge gained in the
Superfund  program  to  RCRA sites, and not
duplicate the research already undertaken by the
Superfund program. In addition, we will conduct
the technology development component of RCRA
within  the  same office  that  oversees the
development of  innovative  technologies for

Communicating More Effectively

   The need to communicate earlier, more often,
and better applies to communications with groups
insidetheRCRA regulatory program (headquarters,
regions, and states) as well as to external groups
(Congress, the public, the regulated community).
EPA needs to communicate its vision, plans, and
priorities, as well as its successes and failures, to all
of these groups.
The Challenge Ahead
    The chapters that follow contain the specifics
of EPA's direction for the future of RCRA, and form
the foundation for our decision making in the area
of hazardous waste management into the 1990s.
These chapters represent the collective efforts of
hundreds of experts and interested parties in many
fields of endeavor, and contain many excellent
ideas too  numerous  to  mention in this brief
overview.  Of course, the RCRA program cannot,
and should not, absorb all of these changes at once.
Rather, our goal is to  use this study as a tool for
guiding, in close cooperation with the Congress,
our nation's strategic decision making in the area of
hazardous waste  management  through  the
upcoming budget cycles, operating plans, and
individual program management decisions. The
Congress has played a critical role in shaping the
nation's hazardous waste management program,
and  future  successes will  depend  on close
cooperation between Congress and the Executive

   The challenges are great. However, RCRA has
achieved an impressive record in establishing a
national hazardous waste management scheme in
a very few years. The potential ahead to refine,
improve, and build upon that record is enormous,
and EPA welcomes the opportunity to work with
the RCRA hazardous waste community to achieve
our goals.

                 CHAPTER 2
                 The Road Just Travelled:
                 A Chronicle  of the  RCRA Subtitle C Program
The Program's Legislative

   In 1965, Congress passed  the Solid Waste
Disposal Act. This was the first federal law that
required environmentally sound methods  for
disposal of household, municipal, commercial, and
industrial refuse. Congress then amended the law
in 1970 by passing the Resource Recovery Act.

   As the complexity and breadth of the waste
managementproblemgrew,thefederal government
geared toward preventing significant contamination
problems from occurring in the future.  To address
these needs, Congress amended the law again in
1976 by enacting the Resource Conservation and
Recovery Act (RCRA).  RCRA laid out a basic
framework for regulating waste generators, waste
transporters, and waste management facilities.
   In the late 1970s, EPA focused on the regulation
of municipal (nonhazardous) wastes. Around the
same time, however, more and more information
was surfacing about the health and environmental
impacts of hazardous wastes.  Studies showed
extensive and continuing contamination of ground
water, inadequate training or funding for many
state waste management programs, and far more
technical complexity than originally thought in the
area  of ground-water  protection.   The highly
publicized disasters at Love Canal and other toxic
waste sites highlighted that existing methods of
hazardous waste disposal, particularly land
disposal, were  not  safe.   Acting through
environmental groups, the news media, and elected
officials, the public expressed a clear preference for
reducing and, where possible, eliminating all risks
from hazardous waste (see Figure 1).

   As a result, Congress revised RCRA, first in
1980  and again in 1984,  under  the title of the
                                        FIGURE 1
Public Ranks Haza
Actively used hazardous waste sites:
; Abandoned hazardous waste sites:
: Water pollution from industrial waste:
:Worker exposure to toxic chemicals
'Accidental oil spills;:
: Destruction of ozone layers
Radiation from nuclear power plant accidents;
industrial accidents releasing pollutants
Radiation from radioactive wastes;
;Outdoor air pollution from factories, etc.
rdous Waste As a Top Environmental Concern
,,,,,,, ,,,,,' ' | 67%

| 65%
- v
VZ""Z""."V.V.'.'"'"'. . .' .' .'. '. '.". 	 .'.".'""'.'.'.". 	 .'."." '.'".'.'.'.'.'.'.'.'.l ".'.'J 63%

' " |63%

j 60%

VZ.'.^ZZ" '.'.".'„ 	 .' 	 .'.' 	 160%

•••;'•"""•'•'•"•'•••"'"••••' 	 '....L..^...'..'"..m..,,M,.,..u|60%

- J58%

J 58%

^' '.""'.'.'.'.'.'.'.'.. .'.'..'. .'..'.'„ 	 | 56%
•i 	 • 	 1 	 i ' ' " ' ' ' i i
50% " 55% 60% 65% 70%
;% of respondents citing the concern;
Source: National polls.

6  Chapter 2
Hazardous and Solid Waste Amendments (HSWA). •
With these revisions, EPA  had in place  three
comprehensive waste management programs: the
Subtitle C program, which establishes a system for
controlling/MZHrdoHS waste from its generation until
its ultimate disposal; the Subtitle D program, which
establishes a system for controlling solid (primarily
nonhazardous) waste, such as household waste; and
the Subtitle I program, which regulates toxic
substances  and petroleum  products stored  in
underground tanks.
The Early RCRA Program

    The early years of the RCRA program were
regulations, reliance on performance-based rules,
and slow program implementation.

Development of the Base RCRA

    Because RCRA was a new program, little
environmental data  were available on waste
generation, the nature of the hazards posed by the
wastes, or the likelihood for adverse human or
environmental exposures from those wastes. In
fact, during the  early 1980s, the technical and
scientific  tools  needed to  gather baseline
environmental data were largely unavailable, and
the analytic methods for testing complex waste
matrices were just emerging. And, unlike its history
in  the air  and water programs, EPA  had no
regulatory  experience  in  hazardous  waste
management— there had been no federal program
to address hazards from wastes generated as part
of theproduction process. Asaresult,theregulatory
program was slow to get started.

    In May  1980, EPA promulgated regulations
covering the identification and listing of hazardous
wastes; standards for generators and transporters
of hazardous wastes; permittingprocedures; interim
standards for hazardous waste treatment, storage,
and disposal facilities; and requirements and
procedures for state authorization.  Then in 1982,
responsibility requirements for treatment, storage,
and disposal facilities, and permitting standards
for land  disposal facilities.   Together,  these
regulations formed the "base" regulatory program.
Reliance on Performance-Based Rules

   Lack of data contributed to two fundamental
policy choices. First, EPA chose to bring under the
hazardous waste management system: (1) wastes
that  contained more than a specified  level of
hazardous constituents; (2) wastes that exhibited a
hazardous characteristic (e.g., ignitibility); and (3)
specific waste streams from particular industries,
as data on them became available.  This allowed
EPA to identify a broad spectrum of wastes for
regulation without  a  great  deal  of empirical

   Second, in designing the standards that would
apply to the facilities managing hazardous wastes,
EPA  developed  general performance-based
requirements that would be effective until site-
specific permits were issued to facilities. Complying
with  performance-based  standards  required
meeting generic criteria specific to types of facilities
(e.g., the same general requirements applied to all
disposal facilities). Facilities complying with these
requirements were regarded as "interim-status"
facilities until they received site-specific permits.

Slow Program Implementation

   Federal implementation of the base program
was slow during the early 1980s as EPA looked to
the  states  to  take  the lead  on program
implementation.  EPA and Congress envisioned
that  a  successful national  hazardous  waste
management program would be put in place only
through joint action between the federal and state
governments. Thus, assuming that the states would
soon be  issuing  the more stringent  and
comprehensive site-specific permits, EPA focused
on authorizing states  to  implement  the base
program. By the end of 1984, forty-two states had
received interim authorization to implement the
base program. However, in focusing its energy on
authorizing states, EPA was slow to develop and
promulgate other important rules.

   The Paperwork Reduction Act of  1980  and
Executive Order 12291, issued in 1981, reflected a
government-wideemphasisonreducing industry's
paperwork  burden and   cost associated with
complying with federal regulations. The Executive
Order authorized the Office of Management and
Budget to review proposed or final regulations for
these purposes. Because of the regulatory climate,
RCRA rulemakingcontinuedonlyslowly,and EPA

                                                                   The Road Just Travelled  7
revised, suspended, or deferred a number of
requirements (e.g., ban on  liquids in landfills,
requirements for ground-water monitoring). Asa
result  of the controversy surrounding  the
management of the Superfund program, waste
management program issues also became a source
of considerable friction with Congress. All of these
factors led Congress to distrust EPA's commitment
to the effective implementation of the hazardous
waste program.
Reauthorization of RCRA:
A Pivotal Year

    When RCRA was due for reauthorization in
1984, Congress wanted to prevent future Superfund
sites, but lacked confidence in EPA's ability to
develop an effective prevention program. Congress
was also strongly influenced by environmental
groups demanding a detailed and comprehensive
statute for the control of hazardous wastes. At the
same time, the Administration did not offer its own
bill for RCRA reauthorization, which prevented
EPA from  proposing  its vision for  the RCRA
program as HSWA was being debated.

    HSWA's passage into law in November 1984
began a new phase for the  Subtitle G program.
HSWA was extremely detailed and comprehensive,
and it fundamentally altered the RCRA program
and EPA's management of it.  Through  HSWA,
Congress became the  driving force  behind  the

HSWA Greatly Expanded the Regulated

    To strengthen the nation's shield  against
hazardous  wastes, HSWA  established over 70
statutory requirements (often with  very tight
deadlines) for EPA's action. They can generally be
summarized as follows:

•   Move away from land disposal as the primary
    means of hazardous waste management by
    requiring treatment of wastes before their final

•   Reduce the environmental and health risks
    posed by hazardous waste still managed at
    land disposal  facilities  by  establishing
    minimum technology requirements.

•   Close down facilities that cannot safely manage
•  Decrease  and  clean up releases  to  the
   environment from waste management units by
   requiring facilities to take corrective action.

•  Issue permits for all  treatment, storage, and
   disposal facilities  within prescribed  time

•  Cl'ose the loopholes in the types of wastes and
   waste management facilities notcovered under

•  Expand the universe  of regulated sources by
   including generators of  small quantities of
   hazardous wastes.

•  Minimize the  amounts of  wastes  being

   With this comprehensive sweep of hazardous
waste  issues, HSWA  greatly  expanded  the
magnitude of waste types and waste management
facilities requiring regulation. Today the RCRA
regulated  universe consists  of 4,700 hazardous
waste treatment, storage, and disposal facilities.
Within these facilities are approximately 81,000
waste management units, most of which are units
thathave received hazardous waste and from which
contamination may have spread to the soil and
ground water. In addition to these 4,700 facilities
are 211,000 facilities that generate hazardous waste.

   As Figure 2 illustrates, thenumber of generators
covered by RCRA requirements has  increased
almost nine-fold over the last ten years, with the
largest increase resulting from EPA's regulation of
small-quantity generators in 1985. This regulation
aloneincreased the RCRA universe by an estimated
118,000 handlers.    Similarly, the universe of
treatment, storage, and disposal facilities requiring
a permit and/or a closure plan also increased by
approximately 1,000 from 1980 to 1990.

HSWA Modified EPA's Role As an
Administrative Agency

   The traditional role of an administrative agency
is to  use technical and scientific expertise to best
apply the public policies embodied in law and to
manage the implementation of those policies.
HSWA's specificity fundamentally altered EPA's
role in both.

   The HSWA statute often defined the technical
standards for waste management (e.g., the number
and typesoflandfillliners required at wastedisposal
facilities).   In  addition, Congress prescribed

8  Chapter 2
                                           FIGURE 2
           Universe of RCRA Generators and Facilities Continues to Grow
        250.000 T
        200,000 -•

     2  150,000 • •
     £  100.000 - -
         50.000 • •

J? f J
.,...'.?. 	 !..„«.,

ff .
" ^ 4'
•> f

'yff'f 'ft?

          Treatment, storage, and
             Disposal Facilities
                 1980      1990      1992*

                  I   I Smalt-quantity generators

                  f  1 Large-quantity generators

        Anticipated increases due to new regulations - - e,g.,Toxiclty Characterfstic Leaching Procedure, Hazardous Waste Fuel rule.
schedules for  issuing  permits,  specified  the
frequency of inspections at waste management
facilities,and specified newprogramrequirements,
including a corrective action program to clean up
contamination at facilities.  To ensure that EPA
issued new regulations quickly, Congress incl uded
statutory deadlines with "hammer provisions" for
certain regulations.  Most notably, the hammer
provisions would have prohibited the land disposal
of hazardous wastes, unless EPA issued regulations
that sharply restricted what could be disposed of in
land-based waste management units by a specified

Close Congressional Oversight Limited

   Although HSWA was extremely prescriptive,
EPA retained considerable discretion in some
regulatory and policy matters. However, attempts
to  exercise   this  discretion  were  sometimes
influenced  by  unusually close   Congressional
oversight of the hazardous waste  programs—
seemingly closer than that of other environmental
programs. This resulted in Congress setting EPA's
agenda and scheduling specific implementation
deadlines for the hazardous waste program.

   For example, through the 1985 Congressional
hearings   on  ground-water   monitoring
requirements, Congress made it clear that EPA was
to be held accountable for state performance. This
meant that EPA had to closely oversee the states'
programs and be intimately familiar with what was
happening with individual facilities in the states.
In addition, HSWA required that its implementing
regulations become effective  in all states upon
promulgation,  which  means  that  EPA  has to
implement those regulations until the states become
authorized to do so.  The net effect was to shift
control of much of the RCRA program from the
states back to EPA.

    As another example, EPA had already begun
developing risk-based treatment standards before
HSWA's passage and continued to promote a risk-
based approach after HSWA.  Through hearings
and  written comments on the proposed  rule,

                                                                   The Road Just Travelled  9
Congress made clear its desire for technology-based
standards. As a result, EPA reversed its decision
and issued technology-based treatment standards.

Courts Also Quickened Implementation

   Traditionally, the courts have deferred to EPA
on policy  issues, allowing EPA  to use its own
judgment  when  it  has  statutory  discretion.
However, like Congress, the courts have played a
strong role in determining the pace of the program's

   Earlier in the history of the program, the courts
had sympathized with the immensity of EP A's task
for implementing HSWA.  However, they later
became less tolerant of EPA's pace.  As a result,
several  successful  lawsuits  brought   by
environmental groups have kept EPA to tight time
schedules  for promulgating regulations  and
implementing the program.

Trade-Offs of Meeting Deadlines

   While issuing congressionally  mandated
regulations  and  permits at a record pace
accomplished a  great  deal to  protect  the
environment, adhering to the very demanding
regulatory development schedule has prevented
EPA from attending to other very important

Program Evaluation and Long-Term
Priorities Have Been Lacking

   In responding to the priorities set by Congress
in HSWA, EPA has been unable to evaluate the
program's progress, develop long-term priorities
to address waste handlers based on environmental
risk, or ensure the most effective use of available
resources to address the worst sites first.

Training Has Taken a Back Seat

   EPA has  been unable to focus  on solidly
establishing  the components fundamental to
successfully implementing regulations, such as
training personnel. Almost six years after HSW A's
passage, it is still true that little time is available to
the average  regional or state  employee to
understand each new rule, how it fits  into the
overall program, and how to best  manage its
implementation to achieveoptimumenvironmental
Old Regulations Have Not Been Revised

    The flood  of  new  regulations,  the new
requirements layered on pre-existing regulations,
and the inability to revisit existing regulations to
understand how well the new and old requirements
will work together have  caused great confusion
and frustration among regulators and the regulated
community.  In keeping  up with the regulatory
schedule, EPA has not had the time to review
promulgated  rules  for  implementability,
enforceability, or clarity.

New Regulations Have Made It Difficult
for State Programs

    EPA regional staff have been forced to shift into
a production and implementation mode, largely
foregoing their role in overseeing state programs,
helping the  states develop their programs, and
evaluating programs. And the states have been
required to constantly revise their programs to be
consistent with  the federal program when new
rules have been published.
Environmental Data Have Not Been

    By devoting its  energy  and  resources to
regulatory production and implementation, EPA
has been  unable  to focus on  gathering  and
developing data that would help identify which
problems pose the greatest risks to health and the
environment and how those risks can best be
reduced, avoided, or eliminated.
State Authorization Has Slowed Down

   Since HSW A's passage, EPA has been far more
concerned with meeting statutory deadlines than
with authorizing states.  As a result, the fast pace
that EPA achieved during its authorization of states
for the base regulatory program has dramatically
slowed down.
Options Have Not Been Examined

   In the rush to meet statutory deadlines for
issuing regulations, little time has been devoted to
discussing regulatory alternatives, either within
EPA,or with states,industry, environmental groups,
or the public.

10 Chapter 2
Potential Cross-Media Conflicts Have
Needed Attention

   The program has not had the time to examine
potential regulatory overlapsorinconsistencies with
otherenvironmental programs. This type of analysis
is inherently difficult, given the different statutory
frameworks for  the environmental programs.
Nevertheless, it may be important if one of the
unintentional effects of the RCRA regulations was
to encourage a shift of pollution from the land to the
air or water.
An Opportunity for Choice

    Public and Congressional expectations have
historically been beyond the reach of the RCRA
program's capacity. That capacity will continue to
be severely taxed as a result of the time and resources
required if EPA continues to successfully meet
Congressional deadlines (see Appendix A).

    In 1993 the total number of treatment, storage,
and disposal facilities will most likely exceed 6,000—
a 30 percent increase over 1990. And while many
other facilities may never be regulated  under
Subtitle C, they will—and do—require the time
and attention of RCRA personnel both in EPA and
in the states. These facilities fall into the "special
waste" or "industrial waste" category, and include
the vast amounts of wastes generated by the mining

    EPA  now  has  an  opportunity to choose a
direction for the program and set its own priorities,
rather than continuing in a reactive mode, driven
                              RCRA ACCOMPLISHMENTS

  The hazardous waste program has made tremendous progress in a few short years.  The following list
   highlights program accomplishments in the areas Of regulatory development and implementation.
Statutory and Regulatory Accomplishments

Established  "cradle-to-grave" tracking  of
hazardous waste.

Established design and performance standards
for landfills and  treatment technologies.

Developed  a  comprehensive regulatory system
and issued required regulations, such as the small-
quantity generator regulations, the land disposal
restrictions, the Toxicity Characteristic Leaching
Procedure rule, and the draft corrective action

Caused  the  closure  of a large number  of
mismanaged facilities;two-thirdsof non-compliant
land disposal facilities closed.

Prevented the disposal of untreated wastes into
and onto the land.
 implementation Accomplishments

 Permitted more than  900 hazardous  waste
 management facilities.

 Assessed over 1,600 facilities to determine if there
 werereleases from solid waste mahagementunits.

 Established an enforcement presence in the field,
 including a strong criminal enforcement program.

 Authorized 46 states for the base RCRA program,

 Increased  industry  emphasis  on   waste

 Greatly improved waste management, treatment,
 with interim-status standards and facility-Specific
 permit requirements.                    " "

 Ensured advances in the science of ground-water
 monitoring by developing standard monitoring
 methods and protocols with the American Society
 of Testing and Materials,

                                                                    The Road Just Travelled 11
by public perceptions and expectations and by
Congressional deadlines. EPA has better relations
with Congress now than it did in 1984, and a proven
track record in being responsive to Congress by
meeting most of the HSWA deadlines. Senior EPA
managers can greatly influence the program by
communicating their priorities internally and
externally andbyworkingwith Congresses RCRA/
HSWA reauthorization is debated. If EPA does not
attempt to set an agenda for the hazardous waste
program, it can expect Congress to do so through
more legislative hammer provisions. As history
demonstrates, EPA could then remain in a reactive
positionindefinitely, at considerable cost to program
managers, staff, and the regulated community.

   The following chapters identify, discuss, and
offer recommendations to improve the short- and
long-term implementation, enforcement,  and
evaluation of the RCRA program.


                  CHAPTER 3
                  Federal/State Alliance:
                  A Working  Relationship

    In 1976, both EPA and Congress envisioned
that a  successful  national  hazardous waste
management program would be put in place only
through joint state and federal action. The statute
made clear that Congress intended the states to
assume primary implementation of the program.
However, the statute also reserved some specific
program implementation responsibilities for the
federal government.

    "Authorization" is the mechanism by which
EPA passes the program to the states. EPA reviews
a state's hazardous waste management program
and, if it is acceptable, "authorizes" the state to run
its program in lieu of the federal government's.

    The state/federal relationship has followed a
cyclical pattern. In the early developmental stages
of the program, the relationship between EPA and
the  states was flexible.  However, this situation
changed dramatically with the advent of the 1984
Hazardous and Solid Waste Amendments (HSW A).
EPA's focus on meeting HSWA's prescriptive
mandates and deadlines led to reduced flexibility
in its relationship with the states.

    This reactive tendency was furthered by the
1985 Congressional hearings on the compliance of
            hazardous waste  management  facilities with
            ground-water monitoring requirements.  These
            widely publicized hearings dramatically changed
            the nature of the oversight process.  At these
            hearings, EPA regional and headquarters program
            managers  were rigorously questioned about
            individual sites in authorized states, and EPA was
            criticized heavily for not being intimately familiar
            with every detail of what was happening at each of
            those sites. As a result of this painful experience,
            EPA began to demand extremely detailed site
            information from authorized states, and the era of
            micro-management in RCRA began.

               This  intense scrutiny  of site-specific
            information, together with the impact of HSWA
            (whereby EPA regulations became immediately
            effective even in authorized  states), has seriously
            eroded the working relationship between EPA and
            the states. Only in the last couple of years has the
            overall relationship begun to improve somewhat.

               A  better understanding of the state/federal
            relationship can be gained by examining it in the
            context of the elements of relationships in general.
            Relationships are characterized by a number of
            different elements that, when considered together,
            define the nature of the relationship (see Table 1).
            "Ownership" in the relationship and mutual trust
            are the outgrowths of the other elements.  The
                                          TABLE 1
              Several Elements Determine the Nature of a Relationship
    Directed; need not be shared
                 Spelled out
                 Spelled out
          Formal, less frequent
           Formal, spelled out
Goals and priorities
Jointly developed; must be shared
Informal, frequent
Informal, understood

14  Chapters
current relationship between most states and the
EPA regions actually falls somewhere between
client/contractor and partnership.

    By examining our observations about these
elements, we will attempt to define the nature of the
state/federal relationship in implementing the
RCRA program. It is important to note that EPA
and the states are working together now and are
achieving  significant environmental  results.
Further, some EPA/state relationships are very
good.  However, as in any relationship, there is
room for improvement. The focus of this chapter is
on the friction points in the relationship that need
improvement—particularly those that are within
EPA's control — as well as on how that friction is
manifested in the authorization process.
Findings and Recommendations

    Areas of friction among headquarters, the
regions, and the states include the nature of EPA's
relationship with the states, priorities and planning,
expectations, definition of roles, communication,
and the authorization process. Figure 3 illustrates
the frequency with which various issues were cited
personnel interviewed for this study.
Nature of the EPA/State Relationship

    The perception of an unequal partnership, the
need for clear ownership of the program, and the
emphasis on federal accountability for program
activities are all major sources of friction in the
EPA/state relationship.

"Partnership" or Working Relationship?

FINDING: The EPA/state relationship suffers from
not living up to the promise of a "partnership."

DISCUSSION: The relationship between EPA and
the states authorized to implement RCRA is often
referred to as a "partnership."  However, many
people take issue with this term,  with some
characterizing the current relationship as "parent/
child," and others as  "contractor/client."  Few
agree it meets their personal definition of an equal
partnership.    Continued  use  of  the  word
"partnership"  to describe the  state/federal
relationship is at best misleading and, at worst, the
cause of unnecessary friction.

RECOMMENDATIONS: Acknowledge thatalthough
the actual relationship between EPA and the states
has some  elements of a partnership, it also has
elements of a client/contractor arrangement. Thus,
   Cumbersome Authorization Process
       EPA Timeliness/ Consistency
               Differing Priorities
       Focus on Form vs. Substance
             EPA Attitude/Control
              Oversight Practices
         Prescriptiveness of Process
                  Unclear Roles i
       Unclear Standards/ Guidance
           Unrealistic Expectations
          HSWA Scope/ Deadlines
         Inadequate State Capability
             "Partnership" Fallacy
                              Several Issues Create Friction
                                      D State
   M Region
•  Headquarters
                                               Number of Times Cited (weighted)

                                                                     Federal/State Alliance  15
the  term "working  relationship"  should be
substituted for "partnership."

Who Owns the Program?

FINDING: Program ownership and resources are
major friction  points in  the state/federal
relationship.  States feel excluded from planning
and setting priorities, but are then expected to buy
into  the  ever-increasing  costs of  program

DISCUSSION:  Funding and program ownership
are closely related. While most respondents feel
that the federal and state governments should share
program costs, many  states believe that federal
mandates should be supported with federal funds.
However, some EPA regional offices think that the
states must provide whatever additional funds are
needed to operate an "ideal" program.  As the
growing  workload for the RCRA program has
surpassed  available  resources, the  sense of
frustration and level of friction between the states
and EPA have grown (see Figure 3), particularly
since the states feel that EPA decision making has
failed  to  fully consider the  states'  costs of
implementing the program.  One interviewee
summed up these concerns by observing, "States
are angry because they are paying more than their
share, while having no  impact  on  [EPA]
headquarters' concepts and  rulemaking; instead
states' comments are ignored."

RECOMMENDATION: Calculate the federal and state
resources needed  to effectively implement each
new regulation, and, to the extent possible, base
decisions requiringactivitiesonbudgeted resources.

States See Federal Control As Excessive

FINDING: ThereisgeneralagreementthatCongress
and the public will always hold EPA accountable,
so EPA needs to exercise some control over state
implementation of RCRA. However, the amount
of control needed and how it should be exercised
are matters of considerable disagreement.

DISCUSSION:   Many states view EPA's concern
over  its  accountability to  Congress,  and its
subsequent reaction to this concern, as responsible
for EPA's exercising increased control  over the
states.   The  1985 Congressional hearings led
headquarters  to believe that it must be able to
quickly respond in detail to Congressional inquiries
on individual facilities. That idea is still prevalent
today. The new management information system,
RCRIS, was  specifically  designed  to allow
headquarters and  the  regions direct access to
detailed site information compiled and entered by
the states.  This intense scrutiny of site-specific
information has seriously eroded the state/EPA
working relationship by appearing to shift control
of the relationship to EPA.
 Priorities and Planning

    The states and EPA generally have a common
 understanding of the top four priorities for the
 RCRA program,  as specified in  the  Agency
 Operating Guidance. However, those interviewed
 have different views about what the program's top
 four priorities should be (see Figure 4). For example,
 the states and the regions indicated that waste
 minimization should be one of the RCRA program's
 top  priorities,  yet  none of  the  headquarters
 respondents included it.  State authorization also
 figured prominently as a priority, ranking third on
 the list of preferred priorities.

    The discrepancies between what the priorities
 are and what the parties feel they should be are
 indicative of shortcomings in the current priority-
 setting and planning processes.  Unlike a true
 partnership, in which goals and priorities are jointly
 developed and shared, EPA'scurrentplanningand
 priority-setting  processes are often viewed as
 reactive rather than proactive, lacking a common
 focus, and unilaterally developed without input
 from the states.

 External Influences Have Been Setting
 EPA's Goals and Priorities

 FINDjNG: EPA and the states believe they have
 limited ability to influence national planning and
 priority setting.  This is due to the fact that EPA is
 not sufficiently proactive with Congress, resulting
 in strong Congressional impact on planning and

 DISCUSSION: Most of the states and regions believe
 that goals and priorities are not jointly developed,
but rather are imposed from the top down. Many
headquarters personnel, including those at high
levels in the organization, also feel that their ability
to affect the process is minimal. Many initiatives
are undertaken as a result of external influences,
such as public and Congressional expectations,
lawsuits, and General Accounting Office reports.
Examples  cited include the  permit deadlines
established in HSWA and Congressional interest in
the enforcement of the ground-water monitoring

16  Chapter 3
                                             FIGURE 4
                         Perceived and Preferred Priorities Differ

                          BJ Headquarters  gg Region   H State   Q External
                                        Perceived Priorities
                 Closure/ Corrective Action
   Permuting Existing Capacity Including 1992 Deadline
                 Land Disposal Restrictions
             State Authorization' arid Capability
                      :Waste Minimization
                   Permitting New Capacity
                       Subtitle D Issues;
15     20     25   ' ' 30     35
   ; Number of Times Cited (weightecj
                                        Preferred Priorities
                         , Enforcement
                  Closure/ Corrective Action
             State Authorization and Capability
                      Waste Minimization!
   Permitting Existing Capacity Including 1992 Deadline
                  Land Disposal Restrictions
                   Permitting New Capacity
                       Subtitle D Issues
15     20    25   '30    35
   Number of Times Cited (weighted
    EPA did no t take a proactive role with Congress
in setting goals for the program largely because of
the direction Congress took with HSWA in 1984.
HSWA's prescriptive approach changed EPA's
traditional role in proactively setting its priorities.
Through HSWA, Congress imposed specific tasks
for EPA to accomplish and deadlines to meet. Rather
than attempting  to  establish its own plan  for
implementing the new requirements and its own
definition of success, EPAmade a conscious decision
to go forward with the Congressional definition.
To date, EPA has made no strong move to resume
a proactive role in setting RCRA's program goals.


•   Become more proactive in setting the direction
    and schedule  for the  development  and
    implementation of the RCRA program.
  •  Target available resources to specific objectives
     and tasks to  ensure that  national goals are

  •  Actively communicate  EPA's agenda  to
     Congress, environmental groups, and the

  Common Goals and Priorities Are Needed

  FINDING:  Different  entities within EPA do not
  appear to share a common focus regarding the
  RCRA program's goals and priorities.

  DISCUSSION: Several EPA headquarters personnel
  responded   narrowly  to questions concerning
  national goals and priorities, focusing specifically
  on  individual areas  of expertise.   Similarly,
  Congressional staff and environmental groups also
  appear to focus narrowly on specific areas, rather

                                                                       Federal/State Alliance  17
than on the  broader results  of  program
implementation. However, the states and regional
offices responsible for field implementation of the
program seem  to share common priorities to a
greater extent and are more aware of the interaction
between program elements.

    There is evidence that RCRA national goals
and priorities are not well integrated across EPA
offices responsible for joint program support.  In
particular, the operations of the Office of Solid
Waste (OSW),  the  Office  of Waste  Programs
Enforcement (OWPE), the Office of Enforcement
(OE), and the Office of General Counsel (OGC) are
not well integrated. This lack of integration is best
illustrated in the development of the Agency
Operating Guidance,  where each office (except
OGC) provides input on the priorities within its
area. Rarely is one office willing to sacrifice one of
its  priorities for a priority  of another  office.
Consequently, all offices' activities are included,
but no hierarchy is developed. Thus/all activities
appear to be equally important. Since the total list
of activities may exceed available resources, the
regions and states, who must try to implement
everything, pay the price for this lack of integration.

    The problem is exacerbated when the states or
regions attempt to trade off, through "RIP-flex,"
certain activities for other tasks they believe are of
greater environmental significance. The difference
of opinion among the headquarters offices caused
by the proposed trade-off can only be resolved at
the highest levels within EPA.  For this reason,
headquarters is often viewed  as unable to grasp
"the big picture."

    Ultimately, failure to integrate joint goals and
priorities across EPA offices sends mixed messages
to the regions and states and generates conflict and
disagreement.  As discussed later in this chapter,
these problems are further  magnified in the
authorization process.


•   Agree internally on shared goals, and then
    implement them consistently. All appropriate
    EPA  offices should know and understand
    RCRA's program priorities and the interaction
    among program elements.

•   Articulate  the  decision-making  process,
    particularly with regard to competingpriorities,
    and ensure that it is understood by everyone.
 Goals and Priorities Should Allow for
 Specific State Needs

 FINDING:  Program  objectives  and  tasks  are
 developed with little flexibility to address state-
 specific environmental needs.

 DISCUSSION: Although EPA has recently begun to
 examine ways to provide some flexibility for the
 regions and the states to  pursue activities they
 think are environmentally significant, there  are
 rarely enough resources to address all the identified
 national priorities. Thus, important state-specific
 initiatives go unfunded. The states and regions
 frequently mention waste minimization as an area
 needing more attention, but one that is currently
 not afforded resources or specific measures. Many
 comment that while there should be  a defined
 "minimum" program that forms  the basis  for
 determining national consistency, flexibility is also
 needed in the tasks designed to implement that
 basic program.

    As an example of needed task  flexibility,
 respondents cite the need to target inspections
 differently from the Agency Operating Guidance
 in order to address local environmental problems.
 "RIP-flex" is the present mechanism by which a
 state or region may deviate from national priorities.
 Although the regions and states  recognize this
 mechanism as being a step in the right direction,
 those who have attempted  to "Rip-flex" note that
 the process needs to be revamped and expanded. It
 was also noted that the standards for flexing are not
 clear to all parties.

   Some states indicate that their relationship with
 EPA has improved recently because of the region's
 willingness to recognize resource limitations.  In
 some cases, more flexibility has been introduced
 into  the  grant negotiation process.   Detailed
 discussions with one state  and its regional office
 (see the case study in Appendix B) revealed that the
 relationship began to improve significantly after
 the state shared information on its entire program
 (including state-funded activities) with the region.
The region gained a better understanding of the
 state's priorities and constraints, and was willing to
be more supportive and flexible in negotiating the
annual grant.   The state  and the region have
established a process whereby they can agree to
joint priorities. As a result, the relationship now
operates more smoothly.

18  Chapters

•  Identify the "core" program requirements, and
   use  this concept in  making decisions on

•  Clearly define and communicate requirements
   for deviating from national program priorities
   to  pursue  state-specific  environmental

    The unrealistically high level of expectations
placed upon the hazardous waste management
program is a major source of friction between the
states and the regions (see Figure 3).

Unrealistic Expectations Have Undesirable

FINDING:  EPA is fearful of admitting to the full
workload of HSWA.

DISCUSSION: Trust is a critical component of a
good working relationship.  Yet the states and
many regions feel that EPA headquarters is not
honest in stating what can be accomplished in the
Three of the myths that are institutionalized in this
manner are that: (1) EPA and the states can issue
high-quality permits to all facilities within strict
statutory time limits; (2)  the program can meet
strictinspection mandates and can take all necessary
follow-up enforcement actions within rigorously
established time frames; and (3) the scope of the
the quality of the base (pre-HSWA) program. The
result is  that  unrealistically high  levels  of
accomplishments are targeted and  then imposed
upon the states through the authorization process
and the annual grant cycle. Many states commit to
whatthey know to be unachievable levels of activity
in order to receive authorization and/or funding,
and then are unable to complete all of the activities.


•   Use the strategic planning process to develop
    long-term, integrated, and realistic schedules
    for regulatory development.

•   Work with the states to  establish goals and
    objectives that consider, to the extent possible,
    environmental results and available resources.

•   Make clearly identifiable choices  among
   competing priorities, and make these choices
   explicit in the Agency Operating Guidance and
   in the program's strategic plan through a tiered
   priority system.
Measuring Program Progress Is Difficult

FINDING: EPA has failed to define what constitutes
success for the RCRA program.  Consequently,
performance  is judged  against an  unrealistic
standard of perfection, and it is difficult — if not
impossible — to  measure the program's  true

DISCUSSION:  External groups have frequently
defined success for theRCRA program in unrealistic
or unachievable terms. The resulthasbeen increased
pressure on the states to fund and implement the
"perfect program." This imposition of unrealistic
expectations has often caused the states to resent
EPA, and the regional offices to resent headquarters.
Both the states and EPA are judged as failing because
they cannot live up to the expectations. In fact, EPA
has institutionalized a system in which the states
and EPA itself will always fall short.  External
groups tend to focus on these shortcomings and,
rather   than  being  credited  for   their
accomplishments, state and EPA employees are
criticized for not having done the impossible.


•   Jointly define with the states what constitutes
    success in the RCRA program, and fully
    communicate the definition amongeach other,
    the public, and the regulated community.

•   Actively communicate the RCRA program's
    accomplishments, such as  the  significant
    improvements it  has brought about in how
    hazardous waste is managed in the nation.

    The extent to which roles are clearly defined
and  understood significantly affects the
effectiveness of a working relationship. Although
the appropriate roles for EPA and the states appear
to be well understood conceptually, it is evident
that all parties experience much difficulty  in
applying the  concepts  to  actual program
implementation and oversight.  When asked  to
describe  the  current  roles  played by EPA
headquarters,  the  regions, and the states, the
respondents had varying answers that contrasted

                                                                      Federal/State Alliance 19
sharply with the descriptions of the appropriate
roles (see Table 2). In characterizing current roles,
respondents cited difficulties stemming fromEPA's
lack of commitment to  program  delegation,
overinvolvementin state programs, and inadequate
communication among parties.

EPA's Roles As Doer and Overseer Are

FINDING: Many people doubt EPA's professed full
commitment to complete program implementation
by the states, particularly in the area of corrective
action. It is widely held that "EPA's actions belie its

DISCUSSION: At the heart of this issue is EPA's
reluctance to give up its "doer" role once it becomes
appropriate to transition to an overseer role. EPA
day-to-day decision making, and is often accused
of nit-picking and second-guessing state decisions,
even in authorized states.

    Due to the continuous changes that take place
in both the RCRA regulations and the authorization
status of individual states, EPA must be a "doer" in
some situations and an "overseer" in others, and
sometimes both. For example, as regulatory and
authorization status changes, EPA and a state may
both have  responsibility for  permitting  and
enforcement ata single site. This results in confusion
and frustration for the regulated community and
for environmental groups who must work with
two separate entities on the same issue.

    In some cases, where the regions and the states
have been able to agree on each party's role in
advance, implementation has been smoother and
more effective. Several states and regions point to
the Joint Permitting Agreements as an example of
a role well defined from the start.

    EPA's commitment to delegating corrective
action  to the states is particularly unclear.  The
burgeoning corrective action workload requires
fully leveraging both state and EPA resources.
However, EPA is sending mixed signals as to
whether the . states  should  be authorized  for
corrective action.   Some regions are  strongly
encouraging states to develop their capability and
become authorized, while others are taking the
opposite tack. As of May 1990, six states have either
interim or final authorization to operate corrective
action programs (see Figure 5).

•   In general, EPA should:

       Clarify its position on full implementation
       of the RCRA program by the states,
       particularly for corrective action.
       Clarify the RCRA implementation roles
       for headquarters, the regions, and the states
       in the areas of:  permitting, compliance
       monitoring  and  enforcement,  state
       authorization,   training,   technical
       assistance, and oversight.
       Implement the existing EPA Oversight
       Policy, emphasize EPA's transition from a
       doer  to an  overseer,  and establish the
       necessary management infrastructure to
       ensure that the policy is implemented.
       EPA's overseer  role  should  focus on
       building the capability of states to operate
       their  own programs,  and EPA regions
       should be evaluated by how effectively
       they help the states succeed.
•   In the area of corrective action, EPA should:

       Adopt and fully commit itself to achieving
       the goal of authorizing all states for
       corrective action.
       Facilitate authorization for states that are
       willing and able to assume responsibility
       for corrective action activities.
       Actively encourage and help build state
       capability in states that are not now able to
       assume corrective action responsibilities.
       Shift some resources from EPA's oversight
       of individual facilities  to development of
       state corrective action programs.
Perceptions Differ on EPA's Oversight

FINDING: EPA's current exercise of its oversight
role is viewed as  excessive, intrusive, and
characterized  by  unnecessary   reporting

DISCUSSION:  While overseer is seen as EPA's
appropriate role,  current  oversight practices
nonetheless cause significant friction between EPA
headquarters and the regions, and between EPA
regions and the states. The regions feel they are not
subject to appropriate oversight by headquarters,
and the states  feel  the same about EPA regions.

               20  Chapters
                                                          TABLE 2
                        Current Roles Contrast Sharply With Perceived Appropriate Roles
                   Perception of
Develop national
policy/guidance to
ensure national
program consis-

Analyze national

Establish overall
program direction

Develop and help
provide training and
technical assistance

Oversee regional
                        Regional Offices
Oversee state

Provide technical
assistance and

Implement only
when state is not
authorized or
Responsible for
all day-to-day op-

Primary contact
with industry and
the public

When authorized,
work jointly with
                   Perception of
                   Current Roles
often late or inade-

Require excessive,
meaningless report-

regions, especially
regarding authoriza-

Oversight of regions
lacking or limited to
numeric reporting
Conduct intensive

Require excessive

Second-guess state
technical decisions;
frequently duplicate
state work

Roles of regional
office/state unclear
to industry, environ-
mental groups
Make unrealistic
commitments then
fail to meet them

Roles of regions/
states often
unclear to indus-
try, environmental
               Some states feel that EPA staff are rewarded for
               finding deficiencies, rather than for helping states
               to succeed.   States were unanimous  in  their
               regional and headquarters' offices agree with this
               assessment, although some feel that EPA is held to
               the same or even higher standards.
                          The scope of EP A's oversight of state programs
                       is a point of considerable disagreement. As program
                       responsibilities have expanded more rapidly than
                       resources, the states have become more vocal in
                       suggesting that EPA's oversight be limited to the
                       activities it funds.  When conducting a capability
                       assessment of a state, for instance, EPA's current
                       policy requires "... an evaluation of the state's entire

                                                                        Federal/State Alliance 21
          States Authorized for RCRA Base Program and Corrective Action
                        Final or interim authorization for base
                        program and corrective action (6)

                        Authorized for base program (46)

                        Not authorized for base program (10)
       r^ Guam
       '    I Tiusf Territories,
       I    I Puerto Rico.
       *    ' Virgin Islands
       '    ' American Samoa
       i.v.v.'.vj District of Columbia
authorized program, not just the activities funded
by EPA." Coupled with the fact that the states think
they have little impact on establishing priorities
and  expectations, this policy causes substantial

   The regions, on the other hand, express concern
that  pressure  to meet Strategically  Targeted
Activities for ResultsSystem (STARS) commitments
(EPA's management accountability system) and
achieve the time frames outlined in the Enforcement
Response Policy  for taking follow-up action on
violations is causing them to use regional resources
to perform base program activities in authorized
states. They cite inabilities to impose appropriate
sanctions on state programs and to withdraw clearly
inadequate state programs as major problems with
the existing oversight and authorization processes.

   EPA  lacks a mechanism  to  differentiate
treatment of "good" state programs from marginal
ones. Oversight of strong state programs is virtually
indistinguishable from that of states with limited
experience or marginal  programs.   Failure to
differentiate  oversight undermines the  states'
incentive to maintain high performance levels and
diverts  resources  from  states  that need more
oversight, training, and technical assistance.


•   Define exactly what  the  program is buying
    with federal grants to the  states for RCRA
    implementation: Is it the entire state program
    that is functioning "in lieu of" the federal
    program, or only those activities specifically
    paid for with federal dollars?

•   At the same time, clarify the scope of EPA's

•   Redefine current methods of oversight to be
    supportive of states' roles and responsibilities
    and to focus  on  meaningful  measures of

 22  Chapters
    Tailor the degree of oversight to the experience
    and ability ofastate,exercisinggreateroversight
    of states with limited experience or marginal

    Good  communication is important to the
success of any relationship. Poor communication
exacerbates other frictions or weaknesses in the
state/EPA relationship.

Poor Communication Undermines Program

FINDING: As a result of poor communication, staff
in headquarters, the regions, and the states have no
shared understanding to form a sound basis for
interpreting and evaluating the program's rules.

DISCUSSION: Substantial friction in the federal/
state and headquarters/regional  relationships
stems   from   ineffective  or  nonexistent
communication.  Without a common basis for
understandingand interpreting the rules, EPA staff
feel the need to replicate the state's review and
decision-making  processes. This duplication of
review results in inefficient use of resources, leads
to slower processing and decision making, reduces
the feeling  of program ownership, provokes
accusations of second-guessing, and generates
considerable resentment.


•   Encourage  more   staff-to-staff   level
    communication between the states and the
    regions through regularmeetings, workshops,
    joint training exercises,  and  rotational

•   Encourage  attendance  by  headquarters
    personnel atmid-year meetings with the states.

•   Improve communication through use of better
    guidance, model orders/agreements, etc., and
    through workshops attended by headquarters,
    regional, and state personnel.

Frequent, Informal Communication
Reduces Friction

FINDING: Communication within EPA and between
EPA and the states is not adequate to support the
complex, fast-moving RCRA program.
DISCUSSION:  Frequency, timing, and style of
communication are important. Respondents feel
that late, inadequate, or no feedback is responsible
for many misunderstandings. Respondents cited
vague or undefined concepts (e.g., equivalence),
lack of  articulated criteria (e.g.,  capability),
infrequent feedback on  performance, and late
guidance as common examples of communication
problems. Guidance is often slow to reach states,
which begin implementation activitieson their own
initiative. When the states receive late guidance
and are forced to follow it, frustration and friction
result. This is in large part a function of the states'
perceptions that guidance is, as the term implies,
its intent by  calling a document "guidance," but
giving it the weight of a regulation. (This issue and
suggestions for addressing it are discussed in the
Regulations chapter of this report.)

    Frequent, informal communication is viewed
as a sign of a healthy relationship. In the case study
in Appendix B, monthly  meetings between EPA
and the state had a major effect  on improving
relations. EPA made an effort to involve staff from
state district  offices,  which helped increase
communication and involvementamongthe parties.


•   Emphasize the importance of  issuing timely
    guidance documents, and incorporate this
    concept  into  headquarters'  performance

•   Institute  a process to ensure that the states and
    the regions are informed when guidance is
    issued, and provide ready access  to the
    documents.  Review and revise the EPA
    directive system to make it work effectively.

•   Identify program areas where timely feedback
    is essential, and establish appropriate feedback
    mechanisms.  (One  region recently began
    providing on-site oral feedback immediately
    following oversight inspec tions and then issued
    a write-up subsequently.)

•   Increase  state/EPA communication through
    more frequent formal and informal contacts,
    including use of Intergovernmental Personnel
    Assignments (IPAs) and technical assistance.
State Authorization Process

   The process by which EPA authorizes states to
run their own program is the most frequently cited

                                                                      Federal/State Alliance  23
                   FIGURE 6
     Cited Barriers to State Authorization
        D State      El Regional    • Headquarters
           Undaar Resources Changing Altitude;  Profiles Corrective  Gthef
          Standards       Scope  Control       Action
barrier to authorization (see Figure 6). It serves as
a lightning rod, focusing all of the tensions in the
federal/state relationship into a decision-making
process that ultimately defines the ownership and
control of the program. Among other things, the
process  suffers  from  statutorily  imposed
constraints, a lack of clear priorities as well as
nationally designed and accepted goals, unclear
roles between headquarters and the regions, and
unrealistic expectations and standards.  Further,
the ever-changing and prescriptive nature of RCRA
is difficult to accommodate in authorization.

HSWA Greatly Complicated State

FINDING:  RCRA  itself  is the source of many
authorization problems.

DISCUSSION: The authorization criteria established
by RCRA in 1976 assumed a relatively stable
program as the foundation for authorization. Until
1984, authorization was essentially no more difficult
for the states or EPA than delegations experienced
early in other environmental programs.

    In 1984, HSWA fundamentally changed the
nature of authorization in two  ways.   First, it
established a permanent system of dual federal/
state regulation by providing that all requirements
imposed under HSWA  authority  are  effective
immediately  in all  states, regardless  of their
authorization  status.    However,  EPA must
implement and enforce these HSWA requirements
until the states become authorized to operate their
own programs. This dual regulatory system put
EPA in the difficult position of moving back and
forth routinely  between implementation  and
oversight roles, with some individuals having to
assume both roles at once.

    Second, HSWA created a constantly changing
regulatory program. A state  must maintain a
program equivalent to the federal program in order
to retain authorization. The authorization process
was designed for the relatively stable pre-HSWA
program and cannot deal well with HSWA's tidal
wave of change. This difficulty is compounded by
the fact that the changes are often fundamental and
structural in nature (as opposed to merely changes
in numerical standards). Not  only must a state
agency cope with voluminous changes each year, it
must often seekadditionalresourcesandauthorities
from its  legislature.  Many states now  question
whether receiving and maintaining authorization
is worth this extensive use of state resources.

Priority of Authorization Is Unclear

FINDING: Although the regions and thestatesbelieve
authorization should be a high priority for EPA,
EPA is sending them mixed messages. (See Figure

DISCUSSION: EPA says authorization is  one of its
highest priorities, but there are several indications
that authorization's actual priority is much lower
than the priority set for many other programmatic
activities. For example, measures in the Strategically
Targeted Activities for Results System for permit,
enforcement, closure, and corrective action activities
have increased over the past few years, in contrast
to state authorization, which was dropped as a
measure in 1987.  (A state authorization measure
will be added in fiscal 1991.)

    Further,  examining  regional  resource
allocations vs. resource use forauthorizationreveals
that the  regions are  diverting  authorization
resources to support other activities.  For fiscal
1990,43 work years were allocated to the regions
for state program activities (of which authorization
is only one). However, only 31 work years are
being used for all state program activities. This
ambiguity in priority also results in underfunding
of supporting activities for  authorization.  For
example, the Office of General  Counsel  and each
Office of Regional Counsel (ORC), which provide
the necessary legal support for authorization, is
each allocated only half of  a work  year  for
authorization  and state  program  issues.

 24  Chapters
Interviewees suggested that, particularly in ORC,
these resources are frequently shifted from state
enforcement and corrective action."


•   Clarify the priority of authorization activities,
    particularly for corrective action.

•   Ensure thatappropriate resources are available
    and  used  for authorization  activities,
    particularly in ORC.
States Think EPA's Expectations Are

FINDING: States believe that EPA has unrealistic
expectations for authorization.

DISCUSSION: Rather than examining the overall
environmental effectiveness of a program, the states
believe EPA compares every  aspect of a state's
program to some theoretical "ideal."  Since the
ideal program does not exist, most states fall short
in at least some categories,  and  considerable
discussion back and forth with both the regional
offices  and  headquarters ensues  before  a
determination of adequate capability can be made.
States believethattheyareheld to higher standards
than those by which EPA judges itself.

    For example, one state told of its struggle to be
honest about the impact of limited resources when
applying for corrective action authorization. In its
draft application,  the state noted that corrective
action  work would  be undertaken as resources
allowed. The region was reluctant to  accept this
language, insisting that the state needed to
demonstrate from the outset the ability to fully
implement the corrective action program. After
lengthy discussion, the region and the state agreed
on acceptable compromise language stating that
prioritiesand specific activities would be negotiated
between the  two parties on an  annual basis.
However, headquarters theninsisted that the state
remove the language. Several rounds of discussions
ensued between headquarters and the region, and
the region and the state, before the authorization
process could proceed. Although the language was
finally accepted by all parties, failure to recognize
and allowanhonestdiscussionof potential resource
limitations caused  unnecessary delays  in
authorizing a competent, committed state, and
engendered bad feelings among the three parties.

•   Recognize that  resources are limited, and
    support state efforts to plan and set priorities
    for activities when applying for additional

•   Where possible, clarify the activity/support a
    state will need to assume authorization for a
    particular activity.
Actual Roles in the Authorization Process
Differ from Theoretical Roles

FINDING: Dual review of authorization packages
by headquarters and the regions is inefficient and is
the source of considerable  tension in both the
headquarters/regional  and  the  EPA/state

DISCUSSION: At present, the states, the regions,
and headquarters are to play the following roles in
the authorization process:

•   States are to submit complete authorization
    packages to the appropriate EPA region no
    later than the applicable "cluster" deadlines.

•   EPA regional offices are to conduct detailed
    reviews of applications (including assessing
    capability), identify and refer to headquarters
    those issues of national concern, and provide
    technical assistance to the states.

•   EPA headquarters reviews applications and
    provides comments to the regions, develops
    national policy and guidance, and provides
    technical assistance to the regions and the states,
    as appropriate (see Table 2).

    In theory, the dual review within EPA was
designed to minimize the risks  of authorizing
deficient state programs and to  ensure national
consistency. In practice, it has developed into the
major source of friction in the  headquarters/
regional and EPA/state relationships.

    In addition to the regional offices, the Offices of
Solid Waste, Waste Programs  Enforcement, and
General Counsel  each has application review
responsibilities.  Differing and  often  parochial
concerns, plus a lack of shared  understanding
among these three offices as to roles, accountability,
and what is acceptable strain relationships and
send mixed signals on national policy issues to the
regions and the states. Further, there is confusion
over the meaning of "headquarters consultation."

                                                                      Federal/State Alliance  25
In practice, it is not just consultation; it is a de facto
concurrence by all three headquarters offices. The
result is an overly lengthy process.

RECOMMENDATIONS:  The easiest and perhaps
most effective way to improve both the regional/
headquarters and the EPA/state relationships is to
more fully delegate authorization decisions to the
regions.  (A "paper delegation" currently exists,
but is not being implemented.) While there is some
agreement  about  further delegation  being
appropriate, there is disagreement over the scope
and  timing of such delegation.  Three  different
approaches were suggested.

•   Provide for immediate, full delegation to the

•   Increase delegation during a trial period, with
    headquarters consultation on a limited number
    of revision applications per "major" rule per

•   Increase delegation during a trial period, with
    headquarters consultation on a larger number
    of applications and ability to review all Federal
    Register notices before publication.
Authorization Standards Are Unclear

FINDINGS:  The states and EPA believe the lack of
clarity in the standards for several key authorization
criteria are a barrier to the authorization process
(see Figure 6).

DISCUSSION:  Three of the authorization criteria
established by the  statute  are  consistency,
stringency, and equivalence. These three criteria
contain the seeds for controversy and friction
because  neither EPA nor the  statute  provides
guidance as to which criterion must control when
they conflict with each other. This report considers
only equivalence and capability, a non-statutory
butcontentiousstandard. It does not address which
more stringent state requirements are acceptable,
nor does it define "consistency."


    Determining whether a state's program is
equivalent to the federal program is difficult because
of RCRA's broad scope and complexities. States
may impose more stringent requirements if they do
not compromise consistency  with the federal
program.  Although many states have adopted
regulations identical  to the federal requirements,
some states object to EPA's unwritten definition of
"equivalence" as meaning virtually identical. These
states feel that such a definition inappropriately
restricts their flexibility for regulating hazardous

    The dilemma is how (or whether) to allow for
a definition of "equivalence" that truly means
equivalent, and at the same time ensure speedy
authorization. The two goals appear to be at odds.
As learned from early experience with RCRA, it is
very time-consuming to determine equivalence in
effect, and efforts to do so frequently cause friction
between EPA and the states as each defends its own


    Capability assessments involve an in-depth
evaluation by EPA of all aspects of a state's program.
The purpose of the assessment is to determine
whether a state is effectively implementing the
base RCRA program, and how that state may
implement additional RCRA program areas. The
regions, the states, and some  headquarters
respondents feel thatstandardsforwhat constitutes
adequate state capability are unclear and a moving
target. One respondent observed: "It is one of the
great mysteries of life."

    Capability assessment illustrates both the risks
and the tensions inherent in the authorization
process. In RCRA's early days, EPA was accused of
authorizing "paper programs." To minimize this
risk, the regions and headquarters now assess state
capability as part of the authorization review
process. The result may be that EPA's response to
Congress'  "paper program" criticism is now
be delegated to the states. EPA has initiated a work
group that is  developing revised  guidance on
capability assessments and will consider thisstudy's


•   Establish clear standards for determining
    "equivalence" and "capability."

        Equivalence - There are two basic options
        for defining "equivalence": (1) define it as
        "identical to the federal regulations," or (2)
        define it as "equivalent in effect." Defining
        "equivalence" as identical is consistent with
        current practice in many states. It would
        also seta clear, easily understood standard,
        and facilitate and expedite application
        review. However, these advantages must

 26  Chapters
       be carefully weighed againststate concerns
       over restrictions on their flexibility and the
       fact that greater program knowledge and
       commitment often result from developing
       one's own program.
       Capability - The problem  in defining
       "capability" lies in  trying  to  develop
       objective criteria for what is largely a
       subjective  process.   Since all states are
       different, simple reliance on quantitative
       measures will  not do justice to every
       situation.   One possible approach is to
       define "capability" by deciding  what is
       "not capable."   This  approach would
       recognize the wide variability in capability
       that  exists   among  states,  while
       simultaneously establishing a  "floor"
       below which authorization could not be
    Consider other options, such as:

       board of individuals knowledgeable in
       RCRA to evaluate capability, or
       establishing national goals  (e.g., good
       environmental ethics and the ability and
       will to enforce them), to which each state
       must ascribe  as a pre-condition to
Several Issues in the Existing Process Need

FINDING: Although there is considerable support
for adopdnganew authorization process, the states,
the regions, and headquarters cite issues that must
be addressed if the current process is left in place.

DISCUSSION: Figure7depictsmanyoftheproblems
in the authorization process. Further "total quality
management"  should be conducted to target and
examineauthorization process problem areas. The
threeissues that follow are considered highpriorities
because they are particularly contentious between
the states and EPA and within EPA.

   Issue 1: Identical vs. Equivalent

   State adoption of regulations identical to the
federal regulations does not significantly expedite

   RECOMMENDATION:  Devise  an expedited
authorization process. To qualify for the expedited
process, an authorized state mustadoptregulations
identical to the federal regulations. States would
submit more comprehensive certifications of legal
authority. If EPA subsequently determined that the
state's  certification  contained  a  material
misrepresentation or  omission, EPA  would
immediately suspend the state's authorization. If a
state wanted to adopt regulations different from
the federal regulations, those regulations would
undergo the conventional review process.  This
option could be  limited by excluding certain
prespecified regulations, such as corrective action,
from expedited review.

    Issue 2: Revisiting Old Issues

    Many revision packages are often significantly
delayed, while old issues for which states were
previously authorized are revisited. The states and
regions feel strongly that this practice should cease


•   Focus reviews of new revision applications
    only on issues they raise.

•   Resolve old issues on a separate track, unless
    they directly affect the new application.
    Issue 3: Delays from Incomplete Applications

    Incomplete or seriously deficient applications
to revise a state's program are inappropriately
taking time away from complete applications. In
addition to unfairly slowing review of good
applications,  incomplete or seriously deficient
applications increase the number of reviews, the
time for each review, and the potential for friction.

    RECOMMENDATION:   Adopt a dismissal
procedure  to promptly  return  incomplete  or
deficient applications to the states, with a request to
resubmit a complete application.   Dismissed
applications would be accompanied by a listing of
what is needed to make the application acceptable
and an offer of technical assistance.

A New Authorization Process May Be the
Wiser Choice

FINDING: Both EPA and the states feel that the
authorization process must be made easier.

DISCUSSION:   The challenge in  revamping the
authorization review process is to foster greater
efficiency and relieve institutional tensions without
incurring an unacceptable decline in  the quality,
consistency,  or  capability  of state  programs.

Federal/State Alliance  27

 28  Chapters
Although changes to thepresentsystemmayreduce
current tensions, some tension is inherent in the
system simply because of the inequality of the roles
of EPA and the states.

only to states that are already authorized for the
base program, and inmany cases would becoupled
with an easier withdrawal process. The options can
be  used  in combination to provide the most
willingness among states.

    Limited Self-Certification

    In its purest form, self-certification would mean
that a state would be authorized upon certification
of the state Attorney General that the state has all
the necessary statutory and regulatory authority to
implement RCRA.   This  pure form  of self-
certification may be more acceptable if it is coupled
with certain limitations.  Some limitations, which
can be used singly or in combination, include:

•   limiting the duration of authorizationbased on
    self-certification to fiveyears, at which time the
    program would revert to EPA, unless the state
    had demonstrated proper capability and had
    recertified its legal authority;

•   limiting the eligibility to self-certify to those
    states mat, in the Regional Administrator's
    opinion, have been doing  a  good  job,  as
    indicated by the annual program grant reviews;

•   excluding major program elements, such as
    corrective action and the land ban, from self-
    Limited Partial Authorization

    Recognizing that not all states have the needed
resources or the desire to assume all elements of
authorization,  EPA  would  allow  partial
authorization.  EPA would specify a base set of
requirements that all states must adopt, and a set of
optional requirements (e.g., corrective action) from
which the states could choose without risking full
program reversion to EPA. EPA would implement
and enforce those parts of the program that the
states do not adopt.


    All  federal  regulatory and statutory
requirements wouldautomaticallybecomeeffective
in a state, unless a state modified or vetoed the
requirement before its effective date. The state
would then directly implement and enforce the
federal requirements. States could issue their own
requirements, but they would not be part of the
federal program. This option might also require
allowing slightly greater federal  preemption in
cases of dearly inconsistent state requirements.

    Conditional Authorization

    After submitting an application, a state would
be  authorized within a specified  time frame,
contingent oncorrectinglegalauthority or capability
deficiencies. A state would be eligible for conditional
authorization, unless the application contained an
essential omission or inaccuracy ("stoppers"). If
the state met all of these obligations, the conditional
authorization would automatically become a final
authorization at the  end of  the specified time.
Conversely, if EPA were not satisfied that the state
had fulfilled the conditions, EPA would announce
its decision to withhold authorization.

RECOMMENDATION: More fully examine the legal
and implementation aspects of these four options,
with the goal  of  adopting a new  approach to
authorization thatis better tailored to the differences
among states.

Program Withdrawal Should Be Made

FINDING: To deal more fairly and expeditiously
with authorizing "good" state programs, most
interviewees feltthataneasierauthorization process
mustbe coupled with a more efficient and effective
way to deal with deficient state programs.

DISCUSSION: The onlyprogram withdrawal option
currently available (whereby EPA must withdraw
a state's entire RCRA program) is at best a politically
difficult and draconian solution for problems that
are often confined to only part of the authorized
program.  Many interviewees, including those
representing  states, suggested  that  easier
withdrawal would reduce the pressure to au thorize
only "perfect" programs.


•   Use  federal  rulemaking  to withdraw
    authorization in lieu of the currentadjudicatory
    hearing procedure.

•   Consider adopting a process by which an
    independentboard or auditprogram composed

                                                                   Federal/State Alliance 29
of individuals knowledgeable of RCRA would
make the withdrawal decisions.

Formalize a process that clearly defines a series
of sanctions of escalating severity, such as public
airing of deficiencies, compliance schedules,
grant sanctions, suspension of authorization or
aprobationary period during whichEPA would
enforce the  program, and  partial  program
withdrawal. This would provide a range of
more realistic responses to limited problems
and flexibility to allow acceptable portions of
the program to continue to operate. Stepwise
escalation of sanctions may improve both the
likelihood and  the effectiveness of getting
improved performance from an inadequate or
recalcitrant state without withdrawing the


                  CHAPTER 4
                  The Regulations Machine:
                  Too Many, Too Fast

    In the early days of the RCRA program, the
focus was on developing a regulatory framework
to manage hazardous wastes "fromcradle to grave."
Since 1984, the driving force has been meeting the
HSWA regulatory mandates. When the hazardous
waste regulations first appeared in the July 1,1981,
edition of the Code of Federal Regulations, they
covered 209 pages; in the July 1,1989, edition, they
required  509 pages—an increase  of almost 150

    The RCRA program staff and management are
conscientious, hard-working, and environmentally
concerned. They should be commended for their
outstanding success in meeting the many HSWA
mandates, a list of which is found in Appendix A.
They have developed large numbers of complex
regulations faster than any other program office
within EPA (see Figure 8). However, this success
in developing regulations has been achieved at the
expense of other important program objectives,
and has resulted in high staff burnout and turnover
in the RCRA program.

     The  Regulations Subcommittee focused on
three general areas: the goals and philosophy behind
the regulatory program, the regulatory process
itself and how decisions are made, and the actual
regulatory framework. In general, we found that
the program would be well served by lessening the
pressure on development of new  regulations in
favor of: more effort to define an overall program
philosophy,  additional  consideration  of
implementation issues in regulatory development,
and a careful look  at the existing regulations to
determine, and then make, the most important
regulatory corrections.

Findings and Recommendations

   The findings of the Regulations Subcommittee
address the overall program direction, the work
group processes of the Agency and the Office of
Solid Waste and Emergency Response (OSWER),
                 FIGURE 8
Faster Th
Office of Solid Waste
& Emergency
; Office of Pesticides &
; Toxic Subtances
jOffice of Water i
; Office of Air &;
omulgates Regulations
an Other EPA Offices

/„ , 1,073

' 1-472

,V , m, 1,475

0 400 800 1,200 1,600
: Number of Days *
* (Mean time start to final major rules.)
the  OSWER  regulatory  framework,  and
implementation and data management issues.

Program Direction

Program Philosophy and Direction Are

FINDINGS: Because of the press of meeting HSWA
and court-ordered deadlines,EPAhasbeen unable:

•  to develop the program's vision,

•  to  effectively  set  and communicate the
   program's priorities, and

«  to  establish a workable overall program
   framework that establishes expectations and
   defines success.

As a result, many individuals and groups perceive
the program to be unsuccessful and attempt to
force their own priorities on EPA.

32  Chapter 4
DISCUSSION:  The lack of a clear, overarching
philosophy and direction has resulted in decisions
on policy, regulations, and priorities that do not
always consistentlyfitwithinanoverallframework.
This has led to a regulatory system that is difficult
to understand and, more important, to implement.
The lack of a clear philosophy has also resulted in
an apparent overemphasis on legal consistency
and  defensibility, an inability to  correct  past
mistakes (due to legal and/or political vulnerability
and resource constraints), and disincentives for
creativity and risk taking.


•   EPA, the states, and other interested parties
    should develop a clear overall vision for the
    program and a strategy for making decisions.
    The vision should include where the program
    is now  in terms of the regulations, waste
    covered, etc., and where the program should
    be with regard to Subtitles C and D.

•   Focus priorities on regulations that will help
    reach the program's vision.

•   Clearly  communicate the  priorities  and
    expectations to all levels of EPA and  to
    Congress, the states, and others outside EPA.
Role of Cost and Use of RIAs Are Limited

FINDINGS: Regulatory Impact Analyses (RIAs) are
not currently used as an effective decision-making
tool. A major reason for this limited emphasis is the
uncertainty  over EPA's ability  to use cost as a
criterion in decision making under RCRA.

DISCUSSION:  A  number  of reasons  were
consistently cited  for the limited role of RIAs in
decision making: the interpretation that the statute
limits or prohibits using cost as a factor in decision
making, the difficulties associated with accurately
estimating costs and benefits, and the timing and
adequacy of the analyses (e.g., some RIAs were not
completed until after decisions  were made, and
some only fully evaluated the selected option).

    Controversy currently exists both within and
outside EPA about whether costs can explicitly be
used as part of the decision-making process for
RCRA rules. The statutory basis for regulations in
Subtitle C is "protection of human health and the
environment." Other statutes that EPA administers
use unreasonable risk, practicality, etc., as the basis
or counterweight for regulatory development. In
the preamble to the 1980 regulations, EPA stated
that cost cannot be used to compromise "protection
of  human health  and  the  environment" in
developingregulations under RCRA. SomeHSWA
provisions, however, allow cost to be considered to
some extent.  EPA needs to revisit this issue and
better specify how cost  can be  considered in
formulating decisions under RCRA before it can
decide how to best use the RIA process.

    Those familiar with the development of RIAs
in RCRA consistently reported that the costs and
benefits of these rules are difficult to define. The
lack of good data was cited as one of the primary
reasons for this difficulty. However, estimating the
full costs of compliance is more straightforward
than estimating the benefits. While costs can be
estimated in dollars, the dollar values of increased
safety and resource preservation are harder to
derive.   Frequently only a portion of benefits
(reduced risks) is quantifiable because of data,
methodological, and resource constraints.  This
leads to concerns that RIAs underestimate benefits
and disputes over whether costs exceed benefits.

    There have been two general schools of thought
expressed on whether RIAs should be used in the
decision-making process:  (1) do the minimum to
get the regulations out, and (2) use RIAs earlier and
more effectively in the process to evaluate options.
the expense of current RIAs relative to their impact
(and the lack of resources to expand the analysis);
the general  limitations on the quality of RIAs
discussed above; and similarly that the problems
with measuring benefits would make it difficult for
EPA to demonstrate cost-effectiveness.

    Supporters of greater use of RIAs argue that:
EPA has an obligation to society to only propose
rules that maximize benefits (i.e., EPA would make
better overall decisions); better RIAs would speed
reviews by the Office of Management and Budget
(OMB) and the regulatory development process
overall; the cost of quality RIAs is relatively small
compared with the impact of the major rules that
they analyze; and better analysis  would enhance
EPA's ability  to communicate its  decisions
effectively  with  stakeholders (e.g., Congress,
industry, the public, the states, OMB).


•   Work with OGC to revisit and clarify the role of
    cost in decision making in RCRA.

•   Choose the appropriate use of RIAs, to either:
    (1) use minimal resources to  meet primarily

                                                                   The Regulations Machine 33
    administrative needs, or (2) ensure that RIAs
    are effectively used as part of the regulatory
    decision-making process.

    Place moreemphasisonensuringthatlegitimate
    options are considered at the options selection
Agency Work Group Process

    EPA's process  for  developing regulations
involves the participation of many EPA offices in a
group known as a "work group." This process has
not been effectivefordevelopingRCRAregulations.
The issues discussed in this section involve the
overall EPA work group process, and as such are
beyond the RCRA program's ability to remedy
unilaterally.   However, because  many  people
interviewed raised the point that the process has
been ineffective for regulatory development, and
because there are some steps that OSWER can take
to improve the process, the Subcommittee felt it
was important to include this issue.

    In addition to this Subcommittee's work on
this issue, other groups within EPA are also
addressing this problem.  The Agency Steering
Committee has formed a number of smaller work
groups that are addressing different aspects of the
regulatory development process, including work
group operations. The Regulatory Development
Branch within the Office of Policy, Planning, and
Evaluation has also undertaken a variety of pro jects
to improve and expedite the process. The branch is
providing a Regulatory Coordinator to select work
groups to help the work group chair with procedural
matters.  It is also offering work group chairs a
training course designed to develop work group
managerial skills.

Offices Need Better Representation in
Work Groups

FINDING: Regulatory work group participants have
not consistently represented the views of their of-
fice or division.

D IS CUSS ION: A number of factors contribute to the
lack of adequate office representation on work
group committees. First, work group members are
often at a junior level and are not aware that they
are expected  to represent their office's  official
position.  This applies also to regional and state
work group members, who should represent their
larger constituencies as  well as their particular
organizations.   Second,  the  work  group
representatives are not  empowered  by  their
managers to make decisions for their office. Third,
where a higher-level management  decision is
appropriate, work group members generally have
not briefed superiors on the issue(s) at an  early
stage in the process. The resulting lack of adequate,
timelyinvolvementbymanagementinother offices
leads to  wasted effort on tangents, encourages
raising issues at the eleventh hour, and ultimately
slows the process.


•   OSWERshouldactivelyencourageappropriate
    selection of work group members within its
    organization and others.

•   Clearly explain to work group members their
    role and responsibilities, perhaps through a
    short training session. Work group members
    should keep their management informed on
    issues as they arise.

•   Include  work group  participation  in
    performance standards.
OSWER Coordination Is Lacking

FINDING:  All offices in OSWER are not always
involved  adequately in  the  early  stages  of
developing a regulation.  OSWER divisions and
offices, other than the one writing a regulation, are
not always aware of policy decisions being made
that relate to their programs.

DISCUSSION:    The  OSWER  programs  are
interrelated. Actions taken in one office may affect
the actions or decisions in another. For example, a
regulation to control a specific waste may have an
effect on corrective action involving that waste.
Often these overlaps or conflicts can be resolved
early in the process if there is appropriate work
group representation, and if issues are raised early
in the regulation development process.


•   Develop an internal OSWER options selection
    process  to  ensure early internal  OSWER
    agreement on a rule and to aid early  active
    work group participation within OSWER.

•   Create incentives to encourage managers and
    staff to actively communicate and coordinate
    on their projects as well as participate in those
    of other divisions and offices as appropriate.

34  Chapter 4
Work Group Decision-Making Process Is

FINDING: Decisions made during the work group
process are "re-made" at the end of the process,
without penalty to  those  responsible for not
addressing the issue earlier or for not accepting an
earlier decision. In fact, there is often a reward for
such "late hits."

DISCUSSION: TheRegulationsSubcommitteefound
six major areas that led to late resolution of issues:
(1) the lack  of adequate  office representation,
described  previously; (2) how  the regulatory
development reward system works—any work
group member can stall the process because total
consensus is required, and "late hi ts" are frequently
rewarded  by reversal  of earlier decisions; (3)
turnover of key senior managers, which can delay
decisions because of the perceived need to wait for
a permanent replacement or the time it takes for the
new manager to "get up to speed"; (4) having an
agreement "in principle" vs. "in writing," which
can lead to a "false consensus" and delay the process
later on; (5) lack of complete regulatory packages
until  late in the process;  and (6) the need for
consensus, which, whilenotrequired in thedecision-
making  process,  has  become part  of the
organizational culture.
RECOMMENDATIONS:   In  addition  to
recommendations in the previous sections:
    Actively discourage "late hits" by working
    with the upper management of other programs.

    Require the distribution of the full text of the
    regulation and preamble to all work group
    members before work group closure to avoid
    the false consensus problem.

    Promote thedevelopmentof a process to obtain
    early "buy-in" on options or approaches by
    other EPA offices. Once agreement has been
    reached, develop a system for penalties for
    subsequent "late hits."
Work Group Role of OGC Is Unclear

FINDING: Some policy makers feel that there have
been misunderstandings regarding when the Office
of General Counsel's (OGC's) advice is legal advice
and when it is policy advice.

DISCUSSION: The interviewees fairly consistently
described the evolution of OGC's role over time. In
the early years of developing the RCRA regulations,
OGC "sat side by side" with OSW, developing
policy and writing the actual regulations to meet
tight court-imposed deadlines. As the years passed,
OGC in general did less drafting of the regulations.
However,   its   role  in   making  policy
recommendations, as opposed to only defining
legal positions and risks, remains blurred.

    Sometimes policy makers misconstrue policy
advice from OGC as legal advice.  This has led in
part to eliminating options and to the conservative
and complex program currently in place. However,
at times OSW staff members have also used legal
advice   to  avoid options  they  thought  were
unacceptable. Many commenters and OGC agree
that OGC's role should be to evaluate and array the
relative legal risks corresponding to each potential
option  for the program office to consider.  And
while OGC staff can add valuable policy input into
the process in many instances, it is important that
opinions on policy be clearly delineated from those
on legality.

    When OGC members have been part  of the
regulatory development "team" fromstart to finish,
the process has worked more effectively (e.g., the
Land Disposal Restrictions regulations). However,
OGC resource levels constrain its ability to work on
each regulation this way.


•   OSWER and OGC should explore ways to
    improve communications concerning (1) legal
    risks and (2) policy versus legal advice.

•   OGC should request additional legal resources,
    and OGC and OSWER should work together to
    identify regulatory priorities to assist OGC in
    using its existing  legal resources  to  their
    maximum efficiency.
         Ex Parte Interpretation Limits Work Group
         Role of States

         FINDING: Both limited resources and EPA's current
         interpretation ofexparte communications limits the
         states' ability to participate effectively in the EPA
         regulatory development process.

         DISCUSSION: The states currently can participate
         in the EPA work group process up until proposal of
         the regulations. EPA's current position is that after
         proposal, oral communication with the states (as
         well as other interested persons) on the substance
         of the regulations must be summarized in writing
         and placed  in the public docket.  This makes it

                                                                   The Regulations Machine 35
difficult for EPA staff to efficiently include states in
post-proposal work group activities.

    Given the RCRA program's goal of implemen-
tationby the states, it becomes even more important
that the states be actively involved throughout the
entire regulatory development process.


•   Encourage OGC to reevaluate the applicability
    of ex parte communication restrictions to state

•   Work with OGC to determine other methods of
    involving the states in regulatory development
    after proposal.

Resources Constrain Regional and State

FINDING:  The regions  and the  states  do not
consistently participate  in the  regulatory
development process.

DISCUSSION: The regions and the states bring a
"real  world" perspective  to the regulatory
development process. However, certain realities
impede their consistent participation in EPA work
groups.  The regions often cite their shortage of
travel money as  the  critical  constraint to
participation.  Also, they are not allocated work
years to  participate in regulatory development,
and expectations for the  number  of  permits,
enforcement actions, etc., are not typically reduced
to correspond to efforts redirected to supporting
the rulemaking process. When the regions or states
have  participated  actively  in developing a
regulation, OSW staff has  generally been very
responsive to the issues raised. Because of their
concerns with implementability, an added benefit
of active regional and state participation will be the
development of regulatory solutions that are less


•   The OSWER Assistant Administrator should
    commend OSW staff for actively seeking and
    responding to regional and state input on

•   Specifically earmark travel money and work
    years for regional and state participation in the
    regulatory development process in exchange
    for a commitment to be actively involved in the
Implementation and Enforcement

    The Regulations Subcommittee generally found
that the press of HSWA deadlines severely limits
EPA's ability to address implementation issues.

Regulations Should Balance Flexibility and

FINDING: There is a fundamental tension between
regulations that are flexible to respond to variability
in the industrial community and regulations that
are less flexible but more easily enforced.

DISCUSSION: The easiest regulations to understand
and write permits for or enforce are those that are
objective or numeric in nature. These regulations
include:  the marking  and labeling requirements
for containers (40 CFR 262.34(a)(2) and (3); the
generator 90-day accumulation  period (40 CFR
262.34); and the  surface impoundment two-foot
freeboard requirement (40 CFR 265.222(b)).

    On the other hand, regulations that contain
subjective standards of performance are the most
difficult to understand and to enforce. An often-
cited example of a subjective regulation is the waste
analysis plan requirement  (40 CFR Part 264.13/
265.13),  because the  burden  falls  upon the
enforcement or permitting official to determine
whether the plan is "adequate" to meet the particular
needs of the facility.

    The phased-in promulgation of regulations over
a long period of time also creates confusion. The
Congressionally  mandated phasing of the Land
Disposal Restrictions (LDR) regulations is a  good
example.  The statutory requirement to establish
LDR regulations was enacted in November  1984.
The regulations implementing the statute have been
published at  various  times since 1986.  The
numerous time  extensions  granted for  certain
wastes made it difficult to determine which wastes
the LDRs applied to. As a result, state enforcement
personnel have been somewhat reluctant to inspect
facilities to monitor compliance with the restrictions
and to enforce any similar  state regulations until
the entire regulatory program is in place.

    EPA originally believed that RCRA regulations
would be self-implementing (i.e., that the regulated
community would be able to easily understand and
comply with  the regulations with little or  no
involvement with EPA or the states). In some cases,
such as the manifest regulations, they have been

 36 Chapter 4
self-implementing. However, an intense, protracted
permitting or enforcement effort is often necessary
to bring the regulated community into compliance.
The most obvious example of this is the ground-
water monitoring regulations.   The regulated
community's lack of compliance and the EPA/
state enforcement efforts were severely  criticized
following an in-depth Congressional investigation
of the  ground-water monitoring regulations.
Because self-implementation  did not work, the
burden for compliance shifted  to  EPA and the
states to interpret and apply the RCRA regulations
through the enforcement process.

RECOMMENDATIONS:  Consider the appropriate
place on the continuum between flexibility and
objective standards for each regulation. Factors to
be evaluated include environmental impacts, ability
to permit/enforce, and costs to the regions and the

Implementation Issues Need Early

FINDING: Implementation and enforcement issues
raised by regulations are not consistently identified
or addressed as part of the rulemaking process,
although thisoversighthasbeenlessfrequentlately.

DISCUSSION: The current hazardous waste system
is plagued by  a number of rules  that  are both
difficult for industry to comply with and difficult
for EPA and the states to implement—and the
requirements continue to grow.  In RCRA, as in
other programs, a regulated hazardous waste
handler literally must do hundreds of  things
correctly to fully comply with the regulations, yet
doing only one thing wrong makes the handler a

RECOMMENDATIONS: Establish a formal system to
ensure  that the regulations  are  clear  and
implementable. Such a system should include at
least the foliowingelements: (1) a rule enforceability
checklist; (2) a review by an independent editor; (3)
training on permitting and enforcement for the
regulation writers; (4) mandatory discussion and
consideration by upper management of a variety of
implementation issues, including permitting and
enforcement in the options selection process; and
(5) an implementation/enforcement plan  that
addresses the potential problems resulting from
every new rule.
Implementation Costs Should Be Given
Greater Weight

FINDING: The costs to the regions and the states of
implementing  regulations are  not effectively
incorporated into the decision-making process.

DISCUSSION: Thelackof good information on both
permitting and enforcement costs makes it difficult
to make informed decisions on options and to make
effective budget requests.  In recent years  the
program has requested resources from the Office of
Management and Budget to implement some major
rules, but has not always received them.  Also, the
perception  of the regions and  the states  that
headquarters continues to promulgate regulations
without considering or providing the resources
necessary to implement or enforce them strains the
working relationship and sets the program up for


•   Consider state and regional implementation
    and resource requirements systematically in
    the regulatory development decision-making

•   IncludeintheOSWERbudgetstateandregional
    resources for permitting and enforcement of
    new regulations.

•   Develop estimates for implementation costs as
    part of RIAs.

•   If requested resources are not obtained, make
    appropriate adjustments in the expectations of
    regional and state activities.
Lack of Feedback Compromises Program's

FINDING: The apparent lack of a clear feedback loop
from the regions, the states, and industry on how
the regulations are working limits the ability of the
regulation writers to correct and avoid repeating

DISCUSSION: EPA's regulation writers tend to
become insulated from the implementation issues
created by the regulations. Incorporating  some
formal  feedback mechanism into the regulatory
process to identify the strengths and weaknesses of
existing regulations has been proposed in the past.

                                                                   The Regulations Machine  37
However, resources have not been allocated to this
activity because of tight resource constraints and
the mandates for issuing new regulations.


•  Develop  a process  for  revisiting major
   regulations within 12 to 18  months of their
   promulgation.   This process could solicit
   feedback from the regions, the states, and
   industry. This typeofevaluationshould include
   such criteria as enforceability, environmental
   impacts, and clarity.

•  Allocateeithernewresourcesorresourcesfrom
   other  activities  (e.g.,  by  postponing
   development  of  other new regulations)  to
   support this process.
Use of Preambles Is Excessive

FINDING: OSWER has used lengthy preambles to
replace clear regulatory language.

DISCUSSION: Thesubstitutionoflengthypreambles
for   clear   regulatory   language   makes
implementation more resource-intensive, since
more time is required to review and interpret a rule,
and it may add ambiguity to the rule. Also, it can
put state and EPA field staff at a  disadvantage,
since they do not often have access to the Federal
Register preamble. As Table 3 illustrates, the ratio of
preamble language to regulatory language is in
most cases at least 3:1.
                   TABLE 3
Preambles Are Excessively Long
Solid Waste
Used Oil
H.W. Tanks
H.W. Exports



Preambles should, of course, continue to include
responses to major comments received on proposals,
although  these  could appear in  a separate
background document.            \

•   Write regulations simply and clearly, with the
    aim of their  being understood without  a

•   Use graphics, flow charts, and tables to improve
    understanding of the regulations.

«   Use the preamble judiciously to emphasize a
    point,  or  to  give  examples  to  ease
    implementation of performance standards.

•   Give state and EPA field offices access ioFederal
    Register preamble language.
Outreach Is Insufficient

FINDING:  Currently, very limited outreach and
training accompany  the  development and
implementation of new regulations.

DISCUSSION: The need for better training and
outreach materials on the regulations has longbeen
recognized both within and outside EPA. However,
the demands to meet court-ordered deadlines and
HSWA mandates for additional new regulations
have monopolized the resources  necessary for
developing these types of materials with each new

RECOMMENDATIONS: Request and allocate funds
to develop an education and training package for
both regulators and the regulated community to
accompany all new significant regulations. For
example, send a plain-English summary of each
new regulation to the affected regulated community.

Field Exposure for Regulation Writers Is

FINDING: Staff writing EPA regulations often are
not familiar enough with or do not have enough
exposure to  the types of facilities and industrial
groups that they are trying to regulate.

DISCUSSION: Some staff members' lack of field
experience and exposure to industry limits their
ability  to design regulations that both are
understandable and work in the field. Developing
effective regulations requires various skills (written,
technical,  legal, etc.).   A substantial resource
investment in staff training (including site visits
and personal interaction with industry) is necessary

38  Chapter 4
for obtaining high quality and productivity. This is
especially true, given the high turnover rates within
the RCRA program.  In recent years, OSW has
increased its meetings with outside groups before
proposing rules in order to provide some of the
benefits of field experience.


•   Make facility visits and interviews a regular
    part of all regulation development.

•   Actively  promote rotational assignments
    amongheadquarters, the regions, and the states
    for regulatory development staff.

•   Specifically request and set aside travel and/or
    training dollars for this purpose.

•   If more staff time is spent in training, less will
    be available for production, and so expectations
    will need to be revised accordingly.

•   Actively attempt  to meet with the states,
    industry, and other stakeholders  before
    proposing any significant regulations.
Regulatory Framework

    A number of the Subcommittee's findings re-
late to specific regulations. These include issues
with current regulations, needed regulatory cor-
rections, and additional regulatory needs.

Regulations Need Revisiting

FINDING: ThepressoftheHSWAand court-ordered
deadlines has prevented EPA from revisiting and
refining regulations often enough to  effectively
implement the program.

DISCUSSION: Many people involved in developing
the original regulations in 1980 and  1982 were
uniformly concerned about the lack of corrections
made to the regulations. They had foreseen that, as
data were developed about the wastes covered and
the operations of the regulated community, the
regulations wouldbe revisited. Many of the needed
corrections  would alleviate some  of  the
implementation issues the program now faces.

RECOMMENDATIONS: Correct existing regulations
before adding new ones. Explain this  need to
Congress,  and agree on priorities for  regulatory
development. For example, this might include a
temporary  moratorium on  new  regulation
development for a year or two.
Definitions of "Solid Waste" and
"Hazardous Waste" Are Confusing

FINDING:  The definitions of "solid waste" and
"hazardous waste" are difficult to understand and
implement for  EPA, the states,  and industry.
Permitting and enforcement are hampered by the
complexity of these definitions.

DISCUSSION:  EPA receives extensive inquiries
about  the definitions  of "solid waste"  and
"hazardous waste." For example, the RCRA Hotline
received an average of over 1,000 calls a month in
1989 on the definitions.  These calls accounted for
approximately 34% of all Hotline calls received on
the hazardous waste regulations.  The state and
regional personnel interviewed were particularly
frustrated by this problem. Specifically, they cited
the recycling regulations (40 CFR261.2(e) and 261.6)
and the  numerous exclusions  and exemptions
throughout 40 CFR 261 as extremely difficult to
understand and enforce due to their complexity.

    The RCRA program had a very difficult task in
devising definitions and recycling rules that covered
a diversity of industrial situations, and deserves
credit for those past efforts. However, the program
now needs to improve on them. Unfortunately, few
individuals were able to make concrete suggestions
about how to specifically improve the definitions
without some statutory revisions.  In a number of
interviews, individuals also indicated that changing
these definitions would reopen a whole web of
regulations for possible legal challenges  because
they were in some part based on these definitions.


•   Revisit the definitions of "solid waste" and
    "hazardous waste" with the goal of making it
    clear who is in and out of the system, and make
    them internally consistent.

•   Establish a philosophy of regulatory coverage
    as it pertains to recycling, waste by-products,
    and waste mixtures.

•   Centralize the numerous exemptions within
    Part 261, as well as Parts 264, 265, and 270, in
    one common area of the regulations.
Framework for Managing Industrial Solid
Waste Is Lacking

FINDING: There is concern both within and outside
EPA over the management of industrial wastes that

                                                                   The Regulations Machine  39
are not currently controlled under the Subtitle C
system.  In contrast, a significant amount of waste
now within the Subtitle C system could be managed
safely in a less complicated and less restrictive

DISCUSSION: Many commenters believe  that a
protective system should be designed for the
majority of industrial wastes not in the current
Subtitle  C system. However, they also would like
a system  that is less  onerous and more self-
implementing than the current Subtitle C system.

RECOMMENDATION: Make the development of an
industrial solid waste program a priority, with an
accent  on  self-implementation  whenever

De Minimis Rule Is Ineffective

FINDING: EPA's program for designating  which
wastes do not require the controls of the Subtitle C
program has been largely ineffective.

DISCUSSION: HSWAbroughta substantial amount
of new wastes into or potentially into the Subtitle C
system.   Among the large numbers of types of
wastes in the system, there is some subset that can
be managed just as effectively in a less restrictive
fashion  — for example, listed hazardous wastes
that contain a very small (de minimis) concentration
of hazardous constituents after treatment. However,
EPA's system for  "delisting"  (i.e.,  designating
certain listed hazardous wastes as nonhazardous)
is slow,  onerous,  ineffective,  and at  times

RECOMMENDATION: Continue efforts to develop a
"de minimis" rule that exempts from the Subtitle C
regulations listed hazardous wastes with extremely
low levels of hazardous constituents that pose a
negligible environmental risk. Such wastes would
then not be subject to the more complicated, waste-
specific, delisting program.

Self-Testing Should Be Required

FINDING: Lack of a requirement for self-testing and
self-reporting has hindered enforcement efforts at
generators and potential generators.

DISCUSSION: The RCRA regulations (40CFR262.11)
allow potential generators of hazardous waste to
apply knowledge of their process when determining
whether they are generating a hazardous  waste.
This provision has hindered enforcement efforts
aimed  at regulating generators and  potential
generators or  individual waste streams under
RCRA. There is no self-reporting mechanism to
identify  generators  who claim  to eliminate
characteristic hazardous waste from the RCRA
system. To take an enforcement action, EPA or the
state must sample and  analyze the waste to
determine if the waste exhibits any of the hazardous
waste characteristics.

RECOMMENDATIONS:  There are several options
for dealingwith this finding, which arenotmutually

•   Increase or redirect regional and state funds to
    allow for targeted sampling and analysis.

•   Require  potential  generators of hazardous
    waste (identified, for example,  through
    Standard Industrial Codes) to routinely sample
    and analyze their waste to determine if it is

•   Allow EPA (or the states) to require anyone
    generating a solid waste to analyze that waste
    for hazardous characteristics if EPA (or the
    states) has information that indicates the waste
    may be hazardous.
Regulations Should Encourage Waste

FINDING: The increasing stringency of the waste
management regime under Subtitle C provides a
powerful  economic  incentive   for  waste
minimization.  This incentive will be extended to
new wastes as they are brought within the coverage
of Subtitle C.

DISCUSSION: EPA'ssuccess in promulgatingRCRA
regulations, including  the  Land Disposal
Restrictions, has substantially increased the cost of
disposal. These increases have spurred firms to
reevaluate their hazardous waste management
practices and their hazardous waste generation
rates, and  many firms have  instituted  waste
minimization at least in part as a response to these
escalating costs. Thus, regulations  intended to
have the direct effect of improving the management
of hazardous waste have had the indirect effect of
reducing the volume and toxicity of hazardous
waste generated.

    Forthcoming regulations may  provide an
opportunity for targeting specific waste generation
activities,  as well  as maintaining  the general
economic incentive for waste minimization. Some
examples of other regulatory mechanisms thatmay

 40  Chapter 4
promote waste minimization include pollution fees
on the generation of waste, disposal tipping fees,
and deposits on products.

    It may also be possible to design regulations so
that firms that undertake waste minimization stay
out of the hazardous waste regulatory regime. One
idea being considered in a hazardous waste listing
procedure is to list wastes by concentration. If the
firm's waste is above the established concentration
level, it would be deemed a hazardous waste and
thus would be subject to control under Subtitle C.
The more effective technology for this particular
indusby minimizes the volume and  toxicity of
wastes, while the older, more inefficient technology
generates more waste at a higher concentration. In
this setting, a firm that undertakes the investment
in waste minimization stays out of the system.

RECOMMENDATION: Continue emphasizing waste
minimization and pollution prevention alternatives
in development of theRCRAregulatory framework.
Data for Regulatory Development

Data on Hazardous Waste Management
Axe Inadequate

FINDING: Data onthe hazardous waste management
industry have not been collected, analyzed, and
used effectively in the development of regulations
under Subtitle C. In particular, collection of quality
data through the Biennial Report process has not
been a priority for the national program.

DISCUSSION: A lack of data has greatly restricted
EP A's ability to develop effective regulations. Lack
of data on the nature of waste streams has limited
EPA's ability to incorporate risk into the decision-
making process. Historical lack of data has led to
instances of both over- and underregulation. The
establishment of national regulatory priorities is
impaired by insufficient knowledge of the number
and type of facilities handling different  types of
waste streams.

    The Biennial Report process has traditionally
been a relatively low priority for the Subtitle C
program. Funding for it has not been specifically
provided in the RCRA budget. Different regions
and states have assigned varying (usually low)
degrees of resources to the development and quality
assurance/quality control of the data.  What data
we havearenotroutinelyused to support regulation
development.  The limited availability of data has
also hurt EPA's ability to communicate effectively
with the public,  Congress,  and the regulated
community. This restricts EPA's ability to explain
the RCRA program's impact on industry and the


•   Make effective use of the RCRA Biennial Report
    a priority.

•   Reevaluate  the workload  associated  with
    developing the Biennial Report, and fund it as
    a separate item in the budget.

•   Invest resources in the national management
    of  the  Biennial Report,  as  appropriate, to
    minimize the resource impacts on states and
Program Needs Data on Non-Regulated
Industrial Wastes

FINDING:  To develop an effective program for
wastes currently outside the Subtitle C system,
adequate data on the makeup of the potentially
regulated community need to be developed.

DISCUSSION: Many people interviewed believe
that many of the complexities and implementation
problems associated with the Subtitle C system can
be traced back to decisions that were made with
inadequate information  on the nature of  the
regulated community.  A number of the concerns
over  waste escaping the  current  Subtitle  C
framework can be addressed with an effective
Subtitle D industrial waste program.

   Many people believe that to develop effective
requirements, EPA needs to gather information on
facilities potentially regulated under the Subtitle D
regulations. The first step in that effort began with
the general  notification  requirements in the
proposed municipal solid waste landfill rule for
Subtitle D.  A number  of people also noted that
industry may be willing to actively cooperate with
EPA to develop at least some of the necessary
information, since much of the data are likely to be
valuable to both groups.

RECOMMENDATIONS: Evaluate how to effectively
develop information on the universe of potentially
regulated facilities' waste streams not currently
covered by Subtitle C. Include in this evaluation an
analysis of the RCRA program's ability to obtain
useful information in  cooperation  with the
potentially  regulated industries. Based on that
analysis, target priorities for future efforts.

                  CHAPTER 5
                  The  Permit  Dilemma:
                  Deadlines vs. Need

    Before 1980, there was virtually no regulation
of hazardous waste by the federal government and
little by the states. People in the hazardous waste
management business often handled and disposed
of the waste carelessly.  Much of it wound up in
municipal landfills and unlined lagoons, or simply
was dumped on the ground. This situation led to
major public concern over the  problem  and the
development of the RCRA regulatory framework,
with a central feature being the permit program.

    The initial regulations for storage and treatment
facilities  became effective  in  1980,  and  EPA
promulgated standards for incinerators  in 1981.
The program focused on permitting these classes of
facilities  until  1982,  when  EPA published
regulations for the land disposal facilities. In 1984,
the Hazardous and Solid Waste Amendments
reshaped the permit program in several ways. The
law added new standards, which increased the
technical challenge of issuing permits. The added
requirement of corrective  action  expanded the
function of the permit dramatically to include both
strict management of existing waste and cleanup of
contaminationfrompastmismanagement. Perhaps
most significantly for permit applicants, the 1984
amendments imposed statutory deadlines of 1988
for issuing permits at land disposal facilities, 1989
for incinerators, and 1992 for storage and treatment
facilities. With the basic statutory and regulatory
framework fully in place, EPA and the states
proceeded with their effort to issue permits to
change from the more general "interim-status"
provisions that applied to hazardous waste facilities
to the stricter controlsof permits. (Theseprovisions
apply to treatment, storage, and disposal facilities
in existence onNovember 19,1980, or subsequently
brought under regulation.  These facilities are
allowed to operate under certain less stringent
conditions and regulations on an interim basis until
final permit determinations are made.)

    The RCRA  program's  broad statutory
 requirements and its complex regulations and
 guidance all  come into play   when a permit is
issued.  The  permit  writer reviews the RCRA
facility's application material in the context of the
regulations and guidance, considers the specific
conditions present at  the facility, and creates the
document that will control how the facility manages
its hazardous waste.   Because this  task is very
complex  and requires  a  skilled,  experienced
individual, the human element is a very important
factor in permit issuance.

   There is a comprehensive process for making
permit determinations. Along with the  extensive
information exchanges between the facility and the
regulatory agency, the citizens most affected by the
operations often participate in permitting decisions.
The process is open,  with opportunities for both
written comments and  presentations  at public
hearings.  The result of the process is usually the
issuance of a permit, but where circumstances have
warranted, the regulatory  agencies have issued
denials. In addition, many facilities have ceased
their hazardous waste management operations in
the face of the stringent operating requirements.
Parties unhappy with the  results of the process
have administrative  and judicial appeal rights.
Considered as a whole, the process is very thorough
and helps lead to the best result given the specifics
of the facility, be that result a permit issuance,
permit denial, or facility closure.

   The viability of the permit is especially evident
after issuance when it becomes the controlling
document for the facility's operation. Operators
must constantly ensure that they are managing
hazardous waste in conformance with the terms of
the permit. The permit also serves as a guide to the
inspectors who gather facts for determining the
facility's compliance status. If there are violations,
the permit is the central document and reference
point for the enforcement action. As conditions at
the  facility change  or  as EPA develops  new
regulations, the permitting agency processes the
necessary modifications. In all of these ways, the
permit is a living document  that embodies the
 statute and regulations, as they apply to the facility's
 specific conditions.

 42 Chapters
   Now, in 1990, with nearly 1,000 permits issued
 and thereauthorizationofRCRAon the horizon, an
 investigation of the RCRA permit  program's
 successes and  failures will help the program
 determine what adjustments are necessary. The
 Permitting Subcommittee was created to perform
 this study.


     The Permitting Subcommittee used several
 methods to collect information for its study. The
 primary method used a standard questionnaire
 that the subcommittee developed (see Appendix
 C). It covered permit priorities, quality, process,
 timeliness, and waste minimization. Other methods
 included gatheringdatafromOSWER'sinformation
 such as the Keystone Center Report (1989), the
 Hazardous  Waste Implementation Task Force
 Report, the Permit Process Workgroup Report
 (1986), and General Accounting Office reports.

 Findings and Recommendations

    The findings of the Permitting Subcommittee
 fell into five major categories: the success of RCRA
 permits, priority setting, permit quality, the permit
 process, and the timeliness of issuing permits.

 RCRA Permits: A Success Story

 FINDING: RCRA permits have improved hazardous
 waste management practices and have otherwise
 furthered the environmental protection goals of

 DISCUSSION: Beginning with very small staffs
 having limited experience with hazardous waste,
 EPA and the states initiated an effort in 1980 to
bring hazardous waste  management  practices
 throughout  the United States under the strict
requirements of RCRA. The RCRA program had a
minimal historical base to work from, unlike EPA's
air and water programs, which had federal, state,
and local experience before their major permitting
and regulatory efforts.

   The permit writers  began  with the base
regulations in place for incinerators and for land
disposal and storage and treatment facilities and
proceeded to call inapplications from the potentially
regulated community. There Was essentially no
form  or  structure  to work with, and  permit
 applicants were slow to respond to the call for
 applications.  When they responded, they sent
 large volumes of poorly organized material that
 proved difficult to review.  What followed was a
 series of exchanges between the applicant and the
 agencies, consuming time and resources, but not
 leading to much progress in the program.

   Dissatisfied with the lack of progress by 1984,
 Congress passed HSWA, which changed the per mit
 program dramatically.   The new law focused
 attention on the permit program, among other
 things, and included a  number of provisions to
 accelerate the process.  Most important, HSWA
 required all  potential  land disposal facility
 permittees to submit a complete Part B application
 by November 1985 or lose their interim status to
 operate. In addition, the law required EPA and the
 states to issue the different categories of permits by
 specified dates. The corrective action requirements
 for cleanup work were also a part of HSWA. The
 level of activity increased dramatically under the
 new law.

   The universe of facilities facing the regulatory
 agencies was formidable, consisting of nearly 5,000
 facilities.  As EPA and  the states promulgated
 additional regulations and the permitting process
 moved forward, large numbers of facilities decided
 not to continue hazardous waste management
 practices subject to RCRA permits. Figure 9 shows
 that approximately two-thirds of them chose closure
 over seeking a permit. This change in the regulated
 community is considered one of the major positive
 developments  in  improving protection of  the
 environment from hazardous waste. Many smaller
 operators lacking the sophistication and resources
 to manage hazardous  waste  ceased storage,
 treatment, and disposal on their own.

   The facilities  going through closure  were
 subjected to a review process resulting in more
 environmental benefits,  particularly where
 corrective  action requirements  were imposed.
 Larger and more financially  sound commercial
 facilities expanded their businesses dramatically.
 Although these corporations had problems of their
 own, particularly because of their rapid growth,
 the consensus is that the waste was being managed
more effectively.

   For the facilities pursuing permits, there were
also major improvements. The application process
itself required the facilities, for the first time, to take
a comprehensive look at their hazardous waste
management practices to determine how they could
meet the new requirements.  Based on this review,

                                                                       The Permit Dilemma  43
                                           FIGURE 9
        Since HSWA's Passage, Many Facilities Have Chosen to Close
            |~~] Closed and closing facilities    |   | Facilities permitted and applying for permits
        i Land Disposal 1,273
                   !Storage and Treatment;
                        1,559 (34%)
              Storage and Treatment;!
                  1,251 (28%)
                                                                     Land Disposal 194
                                                                  I Incinerators 120 (3%)

                                                                Incinerators 130 (3%)
                                                                 Source: "Summary Report on RCRA
                                                                 Permit Activities for January 1990."
the facilities  proceeded to upgrade the many
management  practices  necessary to qualify for
permits.  Thus, even in advance of receiving a
permit, progress was achieved.

  Making large numbers of permit determinations
before the statutory deadlines is the most significant
success of the program to date. Since the program
began, EPA and the states have issued over 900
permits to the various types of facilities, as shown
in Figure 10. For land disposal, 92% of the permits
and  denials  were issued on time, and for
incinerators, 93%.  All of these existing facilities,
except where permit appeals are pending or where
there was a denial, are now under the strict waste
management terms of RCRA permits. The permits
serve as a continuing reference to plant personnel
responsible for their work, and also can provide the
agency field inspectors and enforcement staff with
a reference for evaluating the performance of the
facility.  They form the basis for any enforcement
action that may be necessary.  They also represent
the application of the many statutory and regulatory
requirements of RCRA to the specific conditions
present at the plant. Permits clearly appear to be
the best mechanism for providing all of these types
of benefits.

  In addition to issuing a large number of permits,
the states and EPA have denied a significant number
as well. As shown in Figure 10, over 10 percent of
the final determinations have been denials. These
denials in the RCRA program are significant. First,
facilities  that should  not have been managing
hazardous waste discontinued these operations.
Second, denials show  that the agencies have the
institutional will to make difficult decisions about
the future operations of a company. And finally,
they provide environmental benefits and generally
support the integrity of the program.

RECOMMENDATION: The states and EPA should
continue their aggressive permit issuance program
and seek ways to improve the efficiency of the
process and the quality of the results, as discussed
in the balance of this chapter.

 44 Chapters
                                            FIGURE 10
          EPA and the States Have Made Oven ,000 Permit Determinations
                                 .Storage and Treatment:;
                                       603 (56%)
                Land Disposal 172
                      || Issued

                      |   | Denied
                                                                        llncinerator 18 (2%)

                                                                        ; Storage and Treatment;
                                                                               27 (2%)
                                                                      Land Disposal 81 (7%)
                                                             Incinerator 90 (8%)j
                                        Post-Closure 93 (9%)
                                                                      Source: "Summary Report on RCRA
                                                                     .  Permit Activities for January 1950.*
Establishing a New Basis for Setting

FINDING: The states and EPA are confronted by a
myriad of conflicting priorities in the permitting
program. Theyneedaclearbasisformakingchoices.

DISCUSSION: From the outset of the permitting
program, the task of making final determinations
for such a large universe has been overwhelming.
The  initial  universe  of  almost 5,000 facilities
represented a major workload that promised to
keep a relatively small and inexperienced  staff
busy for many years. Even though a large number
of facilities chose to close rather than to  seek a
permit, they still required attention in the form of
reviewing closure plans and, in many cases, issuing
post-closure permits for land disposal facilities (see
Figure 11). The operating facilities and the closures
represent a large universe, but they are not the
whole picture. EPA has promulgated or will issue
new regulations that will add a projected 1,820
more facilities to the universe, as shown in Table 4.
If these trends  continue, more expansion in the
future is likely.

  With this very large and growing universe, the
states and EPA  had to make choices about which
actions to take first. There were many possibilities.
First, there were the major categories of land
disposal, incinerator, storage and treatment, and
post-closure permits. Next, both existing facilities
and new facilities were in the system; choices had
to be made between continuing to issue new permits
or maintaining the permits already issued, through
permit modifications, reviews of reports, and other
activities. Finally, it was necessary to consider the
major areas of program emphasis of RCRA as a
preventative program under permits for operating
facilities or  as  a cleanup program  under the
corrective action requirements. Congress made the
decision for the regulatory agencies by imposing
the  statutory deadlines. Clearly, land disposal
facilities came first, and incinerators were to follow.

                                                                        The Permit Dilemma  45
                  FIGURE 11
          Hundreds of Closing
     Facilities Stilf Need Attention
                   Post Closure
                  Permits Issued
                     93 (6%)
             1,342 (79%)
                               "Clean Closed^
     Source:  "Summary  Report on RCRA Permit
            Activities for January 1990."
   Now that nearly all the final operating permit
determinations have been made on these types of
facilities, the states and EPA must again make some
difficult decisions.  There are approximately 850
storage and treatment permits to be issued. Given
current resource levels, it is not possible to take
action on all of themby November 1992, particularly
since the outstanding post-closure permits number
about 1,600. This is principally due to the expanding
workload brought  on by the corrective action

                   TABLE 4
      Hundreds of New Facilities May Be
         Added to the RCRA Universe
  Controlling Facilities
  Toxicity Characteristic
    Leaching Procedure
  Boilers and Furnaces
  Wood Preserving Listing
  Mixed Waste
  Mining Waste
  Research, Development,
    and Demonstration
# of New Facilities

  Given the remaining storage and treatment and
post-closure universes of nearly 2,500 facilities, it
will take close to 4,200 work years of effort to issue
all these permits, not even considering the corrective
action portion of the permits.  Obviously, adding
the corrective action workload would increase that
number significantly. Under the current budget
levels, EPA has approximately 150 work years
dedicated to permits, modifications, and closure.
Under grants, the states have about 300 work years
for these activities. EPA has estimated that it will
take until 2004 to issue all remaining post-closure
permits if existing funding levels remain constant.
Even if all of these staff were devoted full time just
to issuing permits—disregarding such demands as
appeals,modifications,and closures—itwouldtake
over nine years to issue the remaining permits.

   Faced with this situation, the state  and federal
permitting staffs have considered the possible
priorities. There is a relatively even split among the
people interviewed on setting priorities between
post-closure and storage and treatment, new and
existing facilities, new and existing permits, and
prevention versus remediation. In contrast, there
was almost unanimous agreement that there should
be a new basis for deciding how to proceed.

    One basis  for  proceeding could be  the
environmental significance of the action. Merely
issuing the largest number of permits as quickly as
possible before November 1992 will not be in the
best interest of the public, the environment, or the
agencies.  Rather, there should be a  process for
selecting actions on the basis of what will bring the
greatest environmental benefit.   There is no
agreement on exactly what this process should be,
but there is some common understanding on
guiding principles for it.

 •  First, it should be a flexible system that allows
    regions and states to make decisions based on
    the unique circumstances present at  each

 •  Second, it should not require large amounts of
    technical data, which may not be available and
    may be difficult to collect.

 •  Third, there should be national criteria or factors
    the regions and  states should apply, but the
    criteria should be flexible enough to fit the case
    and to consider other factors that may be
    relevant.   A uniform national system  is
    unnecessary and undesirable. This is the case
    for permits and in a program such as HSWA
    corrective action, where federal cleanup funds
    are not an issue and the objective is to authorize

   46 Chapters
      states for the program. The states should have
      the discretion to decide what is most important
      for their citizens. Some of the criteria that
      would be considered are the waste's quantity
      and  degree of hazard, the  facility's past
      performance, and its proximity to populated
      areas, drinking water supplies, ground water,
      surface water, wetlands, and estuaries. Again,
      a flexible approach to ranking and applying
      the criteria is the key to success. A Post-closure
      Permitting Strategy based on the above ideas
      appears in Appendix D.


  •   EPA must recognize that it will not be able to
      issueallpost-closureandstorage and treatment
      permits  and impose  all  corrective action
      requirements by the applicable deadlines.

  •   EPA and the states should form a task force to
      establish a management system that identifies
      the actions  with the  most  environmental
     significance, and should proceed to take as
     many of these actions as possible.

     -   The system should allow the states and the
         regions  the  maximum  flexibility in
         applying national criteria or factors.
     -   EPA and the states should make the criteria
         available to the states and regions within
         six months.
     -   EPA  should explain  to  Congress  that
         statutory deadlines for permits cannot be
         met,  but  that  by developing and
         implementing a management system, the
         most environmentally significant facilities
         will be addressed first.

 Factors Affecting Permit Quality

     Although permit quality is generally good,
 several factors have detracted from it.  In the
 developmental stage, these factors include a high
 or untimely, training and guidance. Other factors
 affecting permit quality are the complexity of the
 regulations and the frequency with which they are
 changed. Enforceability is a measure that can be
 used to evaluate a final permit.

 Permits Need Regular Evaluation

 FINDING: Although EPA and the states have made
over 1,000 permit determinations, the pressure to
meet the deadlines for land disposal facilities and
  incinerators  has  prevented  any thorough
  examination of the permits.

  DISCUSSION:  Judging  the  quality of permits
  necessitates  having  some  concept  of what
  constitutes a quality permit.  The permit should
  establish terms and conditions clearly and concisely
  to ensure that: (1) all waste management practices
  are protective of human health and the environment;
  (2) the facility knows what is expected of it; and (3)
  the inspectors and  enforcement  personnel  can
  determine the compliance status of the facility. It
  should provide a framework to apply the intent of
  theregulationsinasite-specificcontext. Consistent
  with statutory and regulatory requirements, the
  permit should advance the application of best
  available technologies in waste management,
  recognizing the unique characteristics of the wastes
  being managed. For corrective action in particular,
  it should require a thorough assessment of  the
  contamination at the facility, the consideration of
  the human health and environmental impacts, a
  study of  the  corrective measures, and  full
  implementation of  the   appropriate  remedy.
  Industry believes a quality permit strikes a balance
  between  environmental  protection and  the
  the issuance of a permit should elevate the level of
  public confidenceabouttheoperationsofthefacility,
  according to industry.   Overriding factors to
  consider in deciding  on permit quality are how
  well the permittees comply with the permits, how
 enforceable they are, and how effective they are in
 preventing  and cleaning up environmental

    Based on the general observations of permit
 writers and managers, regulated facilities, and the
 public, permit quality generally is good. However,
 this study did not include  a thorough review of
 permit quality. EPA's Office of Solid Waste (OSW)
 is currently conducting an in-depth review of the
 quality ofground-watermonitoringconditions and
 the use of compliance schedules in land disposal
 permits. With the review of six states in two regions
 completed and draft reports prepared, it appears
 that the quality of the conditions in these permits is
 good, with the exception of the permi ts in one state.
 The problems appear  to be state-specific, rather
 than systemic to the program.

  Thorough and regular reviews of permit quality
are very important  and should have a positive
effect on the program. Representatives of EPA's
water program cite  their permit quality review
effort to be a major factor in the success of their
efforts. The RCRA program should learn from this

                                                                       The Permit Dilemma 47
   Another indicator of success is how well the
permits are withstanding the appeal process. With
112 permit appeals filed as of the end of 1989,37%
have been decided or settled. EPA's Chief Judicial
Officer has upheld the regions' final permit decisions
on most or all of the provisions in the permits in 17
of the 18 decided cases. Considering data from
before  1986, the results are success in 24 of 28
decisions.  This suggests  that the permits are
generally consistent with the statute and regulations
and  that permit  writers have   applied  the
requirements properly to the site-specific conditions
present at facilities.


•  Complete the OSW permit quality review, and
   develop and implement recommendations for
   improving permit quality.

•  The  states  and EPA  should  cooperatively
   develop a system for periodic permit review.
High Turnover and Inadequate Training
Impede Progress

FINDING: Extensive turnover among permit writers
and the lack of adequate training have hurt the
quality and timeliness of permits.

DISCUSSION: Turnover among staff and the lack of
a comprehensive training program are the most
significant obstacles to producing quality permits.
The high turnover rate is documented clearly in the
Resources chapter  and was confirmed in the
permitting inquiry.  Industry representatives, in
particular, commented on the problems caused by
the situation. Saf ety-Kleen, Inc., had four reviewers
in 1.5 years, and E.I. duPont in Victoria, Texas, had
five state permit writers in five years. At the Texas
Water Commission, the turnover rate for permit
writers is 30% per  year,  and  the Louisiana
Department of Environmental Quality had 70%
turnover in the 20-person permits group for the 12-
month period ending in June 1989. Also, the permit
quality review group frequently  had difficulty
locating the permit writer. One regional office staff
person stated  it well by saying,  "Assigning six
permit writers and  six hydrologists to a project
between the time the application is submitted and
the permit is drafted is absurd."

   The turnover problem and the training problem
are obviously very closely related.  Permit writers
do not have access to the appropriate  training
courses when and where they need them, and have
difficulty finding time to take advantage of the
courses offered. Even with a low turnover rate, a
complex and constantly changing program like
RCRA. requires a very sound training program.
High turnover clearly exacerbates the situation.
Many permit writers feel they have not been given
the tools to do the job right.


•   Implement the  recommendations  in the
    Resources chapter  that focus  on reducing
    turnover and improving training.

•   Simplify the RCRA regulations to facilitate their
    interpretation and implementation.

•   Improve  the  timeliness,  quality,   and
    accessibility of guidance so staff have the right
    tools available to do a quality job, and so the
    rules are clearly defined up front, not after
    decisions are made.

•   Improve the timeliness of the permit process so
    permit  writers  can  achieve  a  sense of
    accomplishment more often.

•   Standardize the mundane and routine aspects
    of the permit process so  as  to  limit the
    participationof technical staff in administrative

•   Use expedited permitting methods for routine
    permits so that permit writers can perform
    more challenging technical work.

•   Ensure staffing levels are adequate so specialists
    (e.g., hydrologists, chemists, and lexicologists)
    can practice their skills and not be forced to
    become generalists.
 Regulations Are Complex and Change

 FINDING:   RCRA's  complex  and  changing
 regulations make it difficult for the applicants, the
 public, and the permit writers to clearly understand
 permit requirements.

 DISCUSSION:  There are many examples of the
 complexity of the RCRA regulations and their
 changing nature. To begin, the definitions of "solid
 waste"  and "hazardous waste" are exceedingly
 difficult  to  understand for  even  the  most
 experienced staff.  Along with  the fundamental
 definition, the concept of recycling and how those
 types of facilities may avoid the requirements of
 RCRA  have  proven very  difficult for  the
 implementors. The land disposal restrictions and

 48 Chapters
 the ground-watermonitoringrequirementsare also
 examples of difficult regulations with which to

    A regional office section chief described the
 problem well. 'TheRCRAregulationsareconstantly
 changing and growing.  It is difficult to train
 inexperienced employees,  who constitute  the
 majority of RCRA personnel, in the basic program
 and the newly promulgated regulations.  Many
 issues, because of their complexity, must be given
 to senior staff. Senior staff then become overloaded
 and burned out."

 RECOM MEND ATION: Implement the recommenda-
 tions in the Regulations chapter, with particular
 emphasis on simplifying the regulations and using
 people with permitting and  enforcement experi-
 ence in the process.
Useful, Timely Guidance Is Lacking

FINDING: Guidanceisoftennotavailableinatimely
manner. When it is, often it is not in a form that is
helpful, and it is difficult to locate and use.

DISCUSSION: Having good guidance available to
people when they need it is extremely important,
especially  considering the  number  of major,
complex regulations that the RCRA program has
issued over the years.  Unfortunately, there is
frequently a significant gap between promulgation
of the regulations and issuance of the guidance.
With the pressure on regulation writers to issue
new regulations, they apparently cannot publish
guidance in a timely manner.   As soon as they
complete work on one regulation, they must begin
workonthenext,becauseofthedeadlines imposed
on the regulatory process and the limited resources
to prepare regulations.  One situation cited by a
permit writer was the lack of land treatment
guidance, which led  to missing the deadline  for
issuing a permit for a land disposal facility.

   In addition to the timeliness of the guidance,
there is concern about the form of the guidance. In
particular, the guidance is often quite long and
difficult to follow.  More concise guidance, with
two- or three-page summaries, like Superfund is
doing now, would be helpful.

  Another problem has been the availability of the
guidance. Although the guidance is sent out to the
regions and the  states when it is completed, often
the people who need it most, such as the permit
writers, are not able to obtain it. OSWER has a well-
 organized directive system for the guidance; it is
 not being used, or people are unaware of it.

    In a number of situations, the regions and the
 states have had to rely on guidance that comes out
 in advance of regulations. It is not the case that the
 guidance is early; rather, the regulations are late.
 This  has been the  situation with  Subpart  S
 regulations for corrective action, the  incinerator
 regulations,  and  the  Toxicity  Characteristic
 Leaching Procedure rule. Itputs the permit-issuing
 agencies in the difficult position of having to defend
 regulations even before they come out.


 •   Issue more timely guidance in a form  that is
    more useful to the people who use it most, and
    make it more accessible through the existing
    system or some revised, computerized system
    that is always kept up to date.
 •   Develop guidance in the  form of more  model
    permit conditions that could be used by permit
    writers in all regions and states, and that would
    be available through a computerized library
 •   Develop a training manual that would include
    a core curriculum of all guidance documents,
    and institutionalize the training system.
 •   Require that guidance  for regulations  be
    distributed  within  three   months  of
    promulgation and that training be  initiated
    within six months.
 •   Create a  headquarters  clearinghouse for
    guidance and advice on permits.

 Permit Enf orceability Is Still Being Tested

 FINDING:  Enforceability is a key element  in the
 quality of the permits, but there has no t been enough
 experience to reach any conclusions  about this
 aspect of the program.

 DISCUSSION: The experience of compliance and
 enforcement  personnel  in  permit  follow-up
 activities  can  provide valuable  information
 regarding the quality of permits.  An inspector's
 ability  to gather the necessary information to
 determine compliance with permit conditions is an
 indication of permit  quality.  Similarly,  if the
enforcement staff is able to develop an enforcement
order for permit violations and, if necessary, present
a successful case to an Administrative Law Judge,
the permit has accomplished one of its important

                                                                       The Permit Dilemma  49
   Although over 900 permits have been issued,
EPA and the states have had limited experience
enforcing permits. That is partly because many of
the permits have been issued in the last two years,
some permits are still in the appeal process, and so
much emphasis has been placed on continuing to
issue more permits.

    Although   compliance  and  enforcement
experience has been limited, some permit writers
report that inspectors have complained that they
cannot determine if permit conditions are being
met because permits are so long and complex that
the inspectors are not sure what to look for.


•   EPA and the  states should encourage more
    exchange between permit writers, inspectors,
    and enforcement personnel during the permit
    technical and administrative review stage.

•   A communication system should be established
    for inspectors and enforcement staff to provide
    information to permit writers regarding their
    compliance and enforcement experience with

•   Permit writers should develop  checklists for
    inspectors to follow when out in the field to
    make the information collection process more
    effective and easier.
 Streamlining the Permitting  Process

  Even though the permit process is basically sound
 and produces generally good products, it takes too
 long and could use some improvements. The longest
 time, in the issuance of  a permit decision,  is
 consumed between the receipt of the application
 and public  notice of the  draft permit decision.
 Delays occurring after the permit decision involve
 appeals and modifications. The public participation
 and federal/state joint permitting aspects of the
 process were noted as needing improvement. Also,
 for some less complex facilities, a simplified permit
 process may be appropriate.

 Permit Process Takes Too Long

 FINDING:  The process for issuing, appealing, and
 modifying permits is sound, but it is cumbersome
 and takes much too long in most cases.

 DISCUSSION:  The process for issuing permits is
 very comprehensive and allows for participation
by the applicant and the public (see Figure 12). The
process usually begins with a permit application
"call-in" letter, where the issuing agency requires
the  facility to submit an application within a set
period  of time.  Because the  applications  were
required  by statutory deadlines, they came in
clusters, which contributed to delay. After the
initial application, there are a number of exchanges
between the applicant and the agency (EPA or the
state) until the application is complete. The agency
uses something called a notice of deficiency (NOD)
when more material is required to proceed with the
process.  The application may be inadequate or
incomplete, or both. If the applicant fails to provide
the necessary information after a period of time, the
agency may proceed with an enforcement action
against the facility or proceed with denial  of the

    Once the application is complete, the agency
begins preparation of the draft permit. This is
where  the permit writer applies the complex
regulations to the site-specific circumstances present
at the facility. In addition to the draft permit itself,
the agency prepares a fact sheet and a public notice
of the intent to issue or deny the permit. The agency
then publishes the  notice in a newspaper and
announces the proposal over the radio, and also
provides notice of a public hearing, if requested. It
is at this later stage where the public becomes
involved in the process. The public may provide
written comments and may present them  at an
open hearing.

    Upon completion of the comment period, the
permit writer reviews all the materials submitted
and prepares a final determination, reflecting any
changes  considered  appropriate in  light  of the
comments. There is also a responsiveness summary,
which explains how the comments were addressed.
If there are significant changes, the  agency may
prepare a second public notice.  Once the agency
issues a final determination, the applicant or the
public may seek administrative review of specific
portions of the permit that were questioned during
the comment period by filing a notice of appeal
with the EPA Administrator. The appeal is reviewed
and decided upon by the Administrator or EPA's
judicial officer. Once the matter has been decided
upon,  the decision may be appealed to the U.S.
Court  of Appeals.  The states also  have appeal

   As Table 5 shows, the comprehensiveness of the
permit process causes significant delays. The table
does not even include the time for appeals, which

 50 Chapters
RCRA Permitting Process Is Very Comprehensive
**£ •.
'-- -
Facility Submits
Revised Information

New Facflty Issue Nobce of Technical NOD
Submits Parts A and Deficiency (NOD) Issued for
B Application Inadequacies
Bckthj F«anty EPA Requests EPA Receives and Completeness
SubmlUPirtA _+ RCRA Part B from , Logs In Part B/NOD Check
Exlslng Fadlly Response

_ . .
«-«-J.__l.^1._^w^-*»_- 	 , 	 .„.,.,? j
I 	 -J
I Enforcubiily Prepare Draft Prepare Statement of Administrative
•— • Review — • Permit 	 " Basis or Fact Sheet — » Record
i , t T T
{ I i
Public Notice of
Comment Period.

g hdud«Correc«vo Possible NBwStatwiflntolBasis.FaciSheetorCraBPeroilt

1 Public
/HsuanX Administrative _
N^ Deddon J^ i 	 •
^\jf ^— Hearing
' --
Public Nobce of
_ Hearing, Extension
of Comment Period *•— '
frl "*
Exposure Info.
p Report (EIR)

Pubfie Comment;

Close of Comment
hearing to be held)
./Decision onN.
C Request for /
N. Hearing/
has averaged about 11 months for decided cases.
Many undecided cases havebeen pending for longer
than 11 months.
                   TABLE 5
Permit Process
Type of Permit
Land Disposal
Causes Significant Delays
4 1/2 yrs.
4 1/6 yrs.
2 1/2 yrs.
2 3/4 yrs.
4 yrs.
3 1/3 yrs.
2 2/3 yrs.
3 1/2 yrs.
RECOMMENDATION: EPA and the states need to
identify ways to make the permit process more
efficient and timely, as suggested in this section.
Period Between Permit Application and
Completion Is Too Long

FINDING: The permit application and review process
needs to be shortened and improved significantly.

DISCUSSION:   During the initial period of the
permitting process, the permit writer reviews the
application from both administrative and technical
viewpoints. For all types of permits, this stage of
the process takes an average of two to three years to
get to the point of a complete application.  (See
Figure 13.) During this time, the applicant assembles
all the information necessary to convince the permit
writer that the facility will meet the design and
performance requirements of the regulations and
will comply with the conditions of the permit. The
applicants say they have difficulty determining the
type, amount, and format of the material  to be
submitted, resulting  in  incomplete, time-
consuming, and untimely applications.

                                                                         The Permit Dilemma  51
                                           FIGURE 13
                      Permit Review Process, Is Excessively Long
        'Treatment Issued
        iTreatment Denied;;
          Storage Issued
          I Storage Denied:
     ;Land Disposal Issued
     :Land Disposal Denied;
      'Incinerators Issued
      ; Incinerators Denied
                    600   '  800    M.OOO    1,200    1,400    1,600
                       Calendar Days
       Draft to Final
M Complete to Draft      E3 Receipt to Complete
Call-in to Receipt
    In addition, the permit writer may be facing
several applications at the same time, and cannot
deal with all of them simultaneously. Staff turnover
is frequent, and training is limited. One regional
office permit writer stated: "Administrative and
technical review of the application takes the longest
because of (1) staff turnover (each new person
needs to re-review the application)  and (2) the
reluctance  of inexperienced  staff to approve
documents, unless they think they are 100% correct."

   Another problem has been the extensive back
and forth between the agency and the applicant
during the review process. For example, at Peoria
Disposal in  Illinois,  eight or  nine Notices of
Deficiency were used.  It appears that several are
usedin most cases. This maybe becauseanapplicant
may honestly be uncertain as to what the agency
wants. Or, it may be in an applicant's interest to
delay the process and not be fully forthcoming with
the necessary information. Or, a permit writer may
not have a clear idea of what is necessary to make
the final determination.  Whatever the cause, the
situation is creating major delays in the process.

   An additional problem that arises frequently is
a change in the regulations or the guidance during
the application process. This forces the permit writer
and the applicant to go back and review the situation
to determine the effect of the change and to develop
the additional information necessary to revise the
permit. This is particularly aggravating and time
consuming  after the  agency determines the
application to be complete.    :

                         •   Provide more and better guidance to facilities
                            before they file their application to increase the
                            likelihood  of a higher-quality  submission.
                            Develop a new model application, along with
                            a checklist and format for submission.

                         •   Require all permit writers to visit the regulated
                            facility early in the process, preferably before
                            application, and encourage meetings between
                            the applicant and the permit writer. A formal
                            pre-application  meeting is  particularly

                         •   Establish  a strict  limit  of  two  Notices  of
                            Deficiency before denial or enforcement for
                            any given application, and provide  training
                            and guidance to staff on how to prepare better

                         •   Apply regulations to the facility that are in
                            effect at the time an application is submitted,
                            and allow for the application of regulations
                            promulgated later on a discretionary basis.
                            This  would require a  regulatory  change.
                            Conditions necessary to protect human health
                            and the environment should be imposed under
                            the  "omnibus"  authority of RCRA Section

                         •  Respond  to  late and incomplete  Part  B
                            applications by moving quickly to enforcement
                            or permit denial ata certain point in the process
                            if it appears that the applicant is not proceeding

 52 Chapters
    in good faith, particularly in a post-closure

    Update, reissue, and emphasize the September
    9,1983, enforcement guidance on responding
    to late and incomplete permit applications.
Public Participation Is Too Late in the

FINDING: The opportunity for public participation
comes too late in the process and drags it out.

DISCUSSION:  The formal opportunity for public
participation occurs after the lengthy application
process, when the draft permit and fact sheet are
prepared  and made available.  The time from
publication of the draft permit to issuance of the
final determination is generally between four and
five months, but tends to be longer where there are
permit denials.  In these situations, the average
ranges from four to twelve months, reflecting the
controversial nature of these proceedings.

   Members of the public think they are brought
into the process too late. Sometimes the permitting
agency first finds out at this time that the public is
sincerely interested. They point to the extensive
time that passes between the initial call for the
application and the public notice, and conclude
that much has gone on between the agency and the

    In  addition  to  the  timing  problem,
representatives of the public said the application
material and the permit itself are often too general.
The fact sheets and the public hearings themselves
appear to be acceptable, as there were no significant
complaints raised.

    In several situations, there has been extensive
public participation in the process.  Examples of
significant public participation in two permits are
shown in Appendix E.


•   EPA and the states should require applicants to
    give notice to the public at the time of initial
    application, to hold a public meeting shortly
    thereafter, and to allow the public to meet with
    the  agency and  the applicant  during  the
    application process. This would require a rule
    change, but should besought voluntarily in the
    The agencies should provide assistance to the
    public to help make sure the participation is as
    constructive as possible.
 Permit Appeal Process Takes Too Long

 FINDING: The appeal process takes too longand has
 an adverse environmental  effect because the
 challenged provisions of the permits are stayed
 pending the outcome.

 DISCUSSION: The appeal process provides a viable
 option to contest the outcome of the permitting
 process.   Of the  over 1,000  final  permit
 determinations, the applicants and the public have
 challenged over 100 in the appeal process, or about
 10 percent. The process itself seems to be sound, as
 no significant objections  were raised  about the
 procedures to be followed.

    The problem with appeals is the length of time
 it takes from initial filing to resolution of the matter.
 For the cases decided to date, the average time from
 appeal to final order is about 11  months.  The
 shortest case took four months, but a number of
 pending appeals have been on the docket for 18 to
 24 months. Less than one-half of the permit appeals
 filed to date have been decided or settled.

    There appear to  be a number of sources of
 delay. First, the applicant generally has no incentive
 to move the process forward, as all  appealed
 portions of the permit are stayed. Next, the permit
 writer and assigned attorney have their hands full
 dealing  with  additional  permits  to be  issued.
 Consequently, it is not unusual for both sides to ask
 for extensions of time during the process.  In
 addition, for the entire country, there is only one
 person assigned to deal withRCRA permit appeals
 on the  Chief  Judicial Officer's staff.   Limited
 resources, and in particular legal resources, are
 clearly at the  heart of the appeal process time

    The number  of  federal  appeals  increased
 dramatically from 1986 to 1989, with an eight-fold
 increase from 6 in 1986 to 48 in 1988, alone. There
 is a consistent pattern in the types of issues raised
 on appeal. The most common condition challenged,
not surprisingly, is corrective action.   This is a
particularly difficult situation, because the Subpart
 S corrective action regulations are not promulgated.
In 85%  of the appeals, the challengers  raised
additional issues,  such  as general incinerator
requirements, land disposal/minimum technology
requirements,  permit  denials,  ground-water

                                                                       The Permit Dilemma  53
monitoring, and other provisions. Thus, the appeals
contribute to the delay.


•   Make more resources available to the Chief
    Judicial Officer so that decisions canbe rendered
    in a more timely manner.

•   Establish regional legal positions in the Offices
    of Regional Counsel, and increase permit staff.

•   Promulgate the Subpart S rule promptly.

Revised Permit Modification Process
Appears Successful

FINDING: The revised permit modification process
has  enhanced the permitting program and  is
generally working well. However, it may still be
too early to tell how effective it will be.

DISCUSSION:   EPA  established  new  permit
modification regulations in 1988 in response  to
concerns raised that the process for changing the
permits to reflect new information or regulations
was far too cumbersome, particularly for the less
significantchanges.ThePermitProcess Workgroup
recommended this change in its 1986 report on the
RCRA program.

     There is continuing concern about the large
number of modifications expected in the coming
years.  However, the general feeling is that the new
rules should improve the situation. The primary
advantage is the ability to categorize the different
types  of modifications by their magnitude and
complexity, and to use moreabbreviated procedures
for the less complex changes. The rule also puts
more of a burden on the permittee.

   Despite these advantages, most states have not
yet adopted the new rules. Some are concerned
with the provision that certain modifications will
be approved if the state fails to take action within a
stated time frame. States are not required to adopt
the new rule because it is viewed as less stringent
than the old rule. There is some concern that the
new rule will  increase  the  workload for  the
regulatory agencies.

RECOMMENDATION: Encourage the states to adopt
the revised permit modification rules by stressing
the advantages for both the states and the regulated
Joint Permitting Process Has Some Snags

FINDING: The joint permitting process has led to
closer cooperation between EPA and the states on
specific permits, but it has also contributed to some
delays, created some coordination problems, and
caused some duplication of effort.
                      , i
DISCUSSION: Most of the permits issued now are
joint permits, because most of the  states have
authorization for the base RCRA program, but very
few have HSWA authority. As a result, the states
develop the base permits, and EPA develops the
HSWA portions, including corrective action, land
disposal  restrictions, and waste  minimization.
Problems arise because of the need to have very
close coordination between the two agencies. The
permits are likely to proceed at a different pace,
thereby having one part ready to issue before the
other. One regional office permit writer explained
that the states set the pace for permit issuance, and,
at times, EPA gets "caught short" when the state is
just about  ready to issue a base permit without
giving adequate notice to EPA. At that point, EPA
must accelerate its process to get the permit out.
The opposite happens, as well, when EPA may be
ready to issue its part first. Then, EPA must wait for
the state to issue the other part.


•   Accelerate the HSWA authorization process so
    that states are in a position to issue the full

•   In advance of formal authorization, encourage
    states to draft the HSWA portions of the permits
    for EPA to issue.

•   Seek a statutory revision to allow  for a
    separation of the corrective action portion of
    the permit from the base permit, in situations
    where  such   decoupling   would  be
 Certain Facilities Need Only Simple

 FINDING: Permitting certain types of facilities could
 be accomplished effectively, and without sacrificing
 human health or the environment, through a
 simplified and much less resource-intensive permit.

 DISCUSSION: The very comprehensive process for
 issuing permits to complex  land disposal and

 54 Chapters
 incinerator facilities is dearly warranted. However,
 many of the storage facilities, in particular, do not
 justify the degree of review given to the others.
 Many storage facilities are relatively simple, and
 the conditions at one are quite similar to those at
 another. Thus, they could probably be regulated
 effectively without a site-specific permit, as long as
 EPA determines that human health and the
 environment would be protected.

    Another category of facilities that could  be
 addressed in a more abbreviated fashion is mobile
 treatment units. Their basic technology does not
 change as they move from one part of a state or
 country to another. What does change is the type of
 waste that is to be treated or disposed of, and the
 conditions around the facility where the unit will
 operate. Site-specific considerations obviously need
 to be taken into account, and the opportunity for
 public input to the process needs to be provided.
 However, it is not necessary to begin at the first step
 each time the unit is moved to a new location.

   It is interesting to note that EPA has advanced
 similar concepts in the past. These proposals may
 be worth revisiting.

 RECOMMENDATIONS: Thefollowingoptions could
 require statutory, regulatory, or policy changes:

 •   Allow permit-by-rule or class permits for on-
    site storage facilities. Handle corrective action
    through an order or some other mechanism.

 •   Allow national, regional, or statewide permits
    for mobile treatment units, with the necessary
    opportunity for local community input and
    site-specific considerations.

 •   Allow post-closure requirements (including
    monitoring, maintenance, financial assurance,
    and corrective action) to be imposed through a
    post-closure permit or an enforcement order or
    agreement. It is possible that a hybrid of the
    permitting/enforcement mechanism could be
    used. In addition, if post-closure requirements
    had been imposed through an enforcement
    action at the facility,  a post-closure permit
    would not be necessary.
Incorporating Waste Minimization into

FINDING:  Although permits indirectly may lead
some facilities to minimize waste for the sake of
convenienceand economic reasons, the very general
 statutory requirements and the fact  that large
 quantities  of  waste come from generators  not
 required to have permits make permitsaless suitable
 mechanism to bring about a significant amount of
 waste minimization.

 DISCUSSION: In 1984, Congress added provisions
 in HSWA requiring generators to have waste
 minimization  plans and treatment, storage, and
 disposal facilities that also generate waste to have
 permit conditions requiring such plans. Since those
 provisions were added to the law and included in
 the appropriate  permits, little  has  been done to
 implement them. EPA published guidance in the
 Federal Register as to what should be included in a
 waste minimization plan.  However, the permit
 conditions and the guidance are so general that it
 would  be  difficult to  distinguish between an
 acceptable  and an unacceptable plan.  Likewise,
 there is no formal requirement to implement the

   As a result, EPA has been reluctant to proceed
 with any kind of enforcement action to deal with
 possible shortcomings  in waste  minimization
 programs. Some regions have provided literature
 on waste minimization during inspections, and
 others have asked permittees what they are doing
 under  their  plans.   However,  there is  no
 comprehensive program as part of the permitting
 effort to implement waste minimization.

    Much of the difficulty is that  many of  the
 generators of waste are not required to have permits
 because they are not treatment, storage, and disposal
 facilities. Thus, a large portion of the universe of
 generators is outside the scope of permits, making
 the permit an inappropriate vehicle for this purpose.

    Another factor to consider is whether permits,
 in general, are a good vehicle for this purpose. The
 permits are designed generally for the hazardous
 waste handling procedures followed during the
 storage, treatment,and disposal partsoftheprocess.
 This is quite different from regulating the actual
 manufacturing process when the waste is initially
 generated.  If Congress or EPA determines that
 permits, or some other vehicle, should be used to
 require  waste minimization, then  it would be
 appropriate to include more restrictive provisions.
Nevertheless, it still would be necessary to develop
 some other mechanism to cover the generators that
do not have permits.

   There are some advantages to expanding the
waste minimization elements in permits. First,
with the permit, the regulatory agency has some

                                                                      The Permit Dilemma 55
leverage  to  require the facility to take waste
minimization more seriously.  Second, there are
good reasons to deal with all elements of waste
management within the permit, as they are all
related in one way or another. And third, waste
minimization is considered so important, that all
available tools should be used to implement the
concept. These and other reasons would form the
basis for expanding waste minimization in the
regulated community.

•  Strengthen  and  make  more specific the
   regulatory  provisions  concerning  waste

•  Explore other  concepts in  addition to
   permitting,  such  as technical  assistance,
   economic incentives, inspection of generators,
   and recognition programs, to expand waste


                 CHAPTER 6
Compliance and  Enforcement:
Better Targeting for  Better Results

   An effective enforcement program must detect
violations, compel their correction, ensure that
compliance is achieved in a timely manner, and
deter other violations. The RCRA enforcement
program will  obtain  substantial  voluntary
compliance  only if the  regulated community
perceives that there is a greater risk and cost in
violating a requirement than in complying with it.

   In  addition to extensive interviews,  the
Compliance and Enforcement (C&E) Subcommittee
relied  mainly  on the following sources  of

«  Three analyses: (1) C&E activity data for the
   RCRA, the air, and the water programs; (2)
   Inspector General  and General Accounting
   Office  audits;  and (3)  Agency Operating
   Guidances (AOGs) for fiscal 1985-91, regional
   reviews, and state grant work plans.

•  Various documents and studies concerning the
   RCRA  C&E  program specifically  or
   environmental C&E in general, including: (1)
   EPA policy and guidance; (2) EPA strategic
   plans; and (3) EPA, industry, and environmental
   group issue/position papers.
 Findings and Recommendations

   The findings of the C&E Subcommittee address
 pollution prevention,  clarifying  objectives,
 maximizing deterrence, innovative enforcement
 tools, Administrative Law Judges'decisions, the
                            federal/state roles,  regulations,  personnel,
                            resources, accountability systems, and measuring
                            and communicating success.
                             Emphasizing Pollution Prevention

                             FINDING:   Although  the  C&E  program has
                             enhanced pollution prevention, it needs to be more
                             actively involved in promoting and requiring this
                             activity and needs a strategy to do so.

                             DISCUSSION:   Stringent regulatory  standards
                             coupled with a strong enforcement program are
                             perhaps the greatest incentives to reduce waste.
                             However,  these incentives are not effective for
                             dealing with undiscovered generators, since these
                             generators are escaping the high cost of legal
                             disposal under RCRA. Moreover, there is a need
                             for C&E to playagreater roleinpromotingpollution
                             prevention beyond that which is achieved through
                             economic market forces.

                                For example, in fiscal 1991 EPA will begin a
                             project to examine the role RCRA inspectors can
                             play in promoting  pollution prevention.  The
                             challenge is to make use of inspectors' frequent
                             contact with the regulated communities (e.g., to
                             disseminate information) without jeopardizingtheir
                             role as enforcement officials charged with making
                             compliance determinations.


                             •  Enforce the Biennial Report Requirement of
                                Certification of Waste Reduction and the waste
                                reduction requirements in permits (HSWA
                                Sections 3002 and 3005) by placing more
                                emphasis on verifying  the receipt and the
                                quality of the waste minimization reports. Take
                                enforcement action against those Who do not
                                file or who file clearly erroneous reports.

 58  Chapter 6
 •   Incorporatepollutionpreventionstrategiesinto
    the terms of enforcement case settlements. For
    example, require the company:

       to install equipment over and above the
       statutory requirements to reduce waste;
       to agree to conduct periodic waste audits;
       to sponsor pollution prevention workshops
       for similar businesses; and
       to conduct  and submit a comprehensive
       analysis of the effect of pollution prevention
       on its operation, after which the company
       would decide on further steps.
 •   Encourage the  incorporation of  pollution
    prevention into the terms of enforcement case
    settlements through the Enforcement Response
    Policy, state  grant work plans,  and the
    Strategically Targeted Activities for Results
    System  (STARS).   (Settlements containing
    pollution prevention terms need to be fully
    consistent with the RCRA Civil Penalty Policy.)

 •   Continue to explore the  appropriate role of
    inspectors in pollution prevention.

 •   Increase the RCRA C&E program's focus on
    undiscovered generators (i.e., non-notifiers).
Clarifying Objectives and Priorities

FINDING: The RCRA C&E program is spread too
thin, given current resources and priorities. This
substantially dilutes the program's effectiveness.

DISCUSSION:  The objective of the RCRA C&E
program  is  to  ensure  compliance with the
regulations.  However, many people interviewed
see the RCRA C&E program as overextended, too
broadly spread out, and without a common thread
running throughout it. They feel that the program
has had few special initiatives since the loss of
interimstatus (LOIS) in 1985, in which EPA enforced
theSection3005(e) requirement thatallland disposal
facilities certify compliance with ground-water
monitoring and other key regulations.

   In fact, several  additional  areas have been
targeted for special enforcement initiatives since
LOIS. For example, before November 8,1988 (the
effective date of the RCRA Section 3005(j)(l) surface
impoundment retrofitting requirement), EPA had
in place a comprehensive and focused enforcement
strategy that identified, targeted, and inspected
facilities subject to  RCRA requirements.  The
strategy  was also  designed  to explain  the
requirements to the regulated community before
their effective date. Supported by this strategy, the
statutory requirement resulted in the discontinued
operation of more than 99 percent of the hazardous
waste surface impoundments.

    Another example of  focused  enforcement
activity relates to implementation of the Land
Disposal Restrictions  (LDR) rules.  Upon  the
effective date of each Congressionally mandated
LDR rule, EPA had developed and was ready to
implement an  enforcement strategy that focused
specifically upon the affected industries. These
focused efforts have helped the regions and the
states  successfully identify  and address LDR
violations. In fact, approximately half of all newly
commenced RCRA enforcement actions contain
LDR claims.

    In  contrast to these focused initiatives, an
example of overextension of the program is the
implementation of the Enforcement Response Policy
(ERP).   The ERP, and  EPA in general, have
emphasized the initiation of formal enforcement
actions (i.e., Administrative Orders and Judicial
Actions) over the last several years. Issuing these
actions has consumed considerable resources.  In
RCRA, virtually all  "significant non-compliers"
either have returned to compliance or have been
issued a formal enforcement action. (See the flow
chart on the C&E process in Figure 14.) However,
recent  program evaluation efforts indicate that
follow-up to these formal actions may be suffering
due to lack of focus and resources.

    The tendency to overextend the program is due
in part to the considerable external oversight of the
RCRA program. While General Accounting Office
(GAO)  audits, Inspector  General  audits,  and
Congressional  oversight have been beneficial in
identifying areas that need attention, they also tend
to place additional  demands on  the program
without setting  priorities for  those demands.
Overextension  has increased with time, due to the
rapid growth of wastes regulated under RCRA,
while resources have remained relatively constant
and priorities  have increased. Furthermore,  the
RCRA  planning process has not always given
adequate consideration to available resources when
setting priorities.


•   Target  strategic  initiatives to provide  the
    significant  handlers into compliance with the
    RCRA laws and regulations and/or deterring
    RCRA   handlers  from  violating  the
    requirements. Consider waste volume  and

                   Compliance and Enforcement  59
Flow Char

i '
Issue Warning
Letter/ NOV
Develop Administrative
Complaint, Draft relief,
Calculate penalty
Negotiate _

—— • — .,g.~v...~... , ...» v.vv>,
Establish Compliance Schedule **

Oversee Compliance
^ f

t of the Federal RCRA C&E Process
Conduct Ir


Lab Analysis of Sample

Inspection Report
take enf
. action
i '
Offer State
enforcement lead



y Proceeding
Final Order
***** Appeal to

Respondent Files
Civil Suit
, ,
State Enforcement
1 1
Administrative '• •* Refer to AG
•• f
% i •
Develop Civil
* Judicial Referral
Refer to DOJ, Direct,
Through OECM
Provide legal
and technical assistance
I ' '.
Judicial Decree
( ^

60  Chapter 6
    toxicity, specific segments of the regulated
    community (e.g., industry type, geographic
    area, company size), and  specific types of
    regulatory requirements (e.g., LDR, Toxicity
    Characteristic Leaching Procedure, Biennial
    Report).  Such  initiatives may target any
    handler—from a  large,  commercial land
    disposal facility to a small-quantity generator.

    Change priorities in a measured way, so that
    major shifts are accompanied by adequate
    planning and availability of resources.
Increasing Focus on Generators and

FINDING: Substantially increased C&E presence is
needed for generators and non-notifiers.

DISCUSSION: As a result of a number of factors, the
C&E program has consistently made compliance
monitoringand enforcement activities at treatment,
storage, and disposal facilities (TSDs) a high priority.
(See Appendix F.)  Among these factors are the
statutory requirements to inspect TSDs on a fixed
schedule, the commitment to meet permit issuance
and other deadlines, a strong Congressional and
EPA emphasis on protection of ground water, a
recognition that compliance by TSDs is essential to
ensuring proper cradle-to-grave management of
hazardous waste, and the influence of a number of
GAO reports. For example, from 1981 to 1989, the
General Accounting Office conducted at least 12
audits of the C&E program, which focused on
activities relating to TSDs, and especially to land
disposal facilities. Only one audit, in 1985,addressed
have failed to notify EPA that they are managing a
regulated hazardous waste), and illegal hazardous
waste disposal. This level of attention to TSDs been
appropriate, because TSDs  are frequently
environmentallysignificantandbecause,even after
years of focus, their compliance rates are relatively
low. Low compliance rates (i.e., the percent of
facilities in actual physical compliance as of their
most recent inspection) have been a particular
problem at land disposal facilities at least in part
because many of their violations may take years to
bring into compliance.

    Because generators and  non-notifiers have
consistently been a low priority, only about one-
third of all generators have had even one RCRA
inspection, and proactive  efforts to deter non-
notifier activity have been limited. The consistent
emphasis placed on TSDs, even those with good
compliance  histories,  has  resulted  in  a
comprehensive assessment of hazardous waste
management activities of TSDs, without a similar
understanding for generators and non-notifiers.

RECOMMENDATIONS:  Significantly increase the
program's  emphasis on generators and non-
notifiers, and maintain the current emphasis on
TSDs.   If  resources cannot  be augmented  to
accommodate this increased effort, scale back the
TSD  effort  (e.g.,  to  TSDs  that are  most
"environmentally significant,"  that are out  of
compliance, or  that  have  histories  of non-
compliance), and shift freed-up resources to focus
on generators and non-notifiers. Since statutorily
mandated inspections significantly limit EPA's
ability to scale back on TSDs, EPA would need to
ask Congress for relief.
Maximizing Deterrence Efforts

Penalties and Economic Sanctions Should
Be Stepped Up

FINDING: The sanctions of the RCRA C&E program
have not created a sufficiently strong deterrent

DISCUSSION:  The size of the regulated universe,
the large number of regulatory requirements, and
the relatively small amount of state and federal
resources available for C&E activities require the
states and EPA to obtain the maximum deterrent
impact through their enforcement actions. While
informal enforcement actions can be effective in
bringing facilities into compliance (especially in
cases where violations are simple or inexpensive to
correct), such actions do not materially contribute
to general, long-term deterrence. An enforcement
program aimed only at bringing facilities into
compliance and not at deterring future violations
and encouraging voluntary compliance will be
unsuccessfulinthelongrun. (Ofcourse,deterrence
is only  effective  if  the  regulated community
understands the requirements.  The Regulations
chapter of this report discusses options to simplify
the very complex regulations and  educate  the
regulated community.)

     According to the  interviews, the primary
incentives to comply withRCRAare fear of criminal
liability, fear of Superfund liability, and fear of
damage to a company's reputation. Notably absent
from this list is the fear of permit denial or of
economic sanctions, such as penalties or contractor

                                                               Compliance and Enforcement  61
debarment (whereby an owner/operator  of  a
violating  facility is not  allowed to be  U.S.
government contractor).   Large  penalties are
certainly important to creating a strong deterrent.
A common perception is that the RCRA program
often does not seek penalties in appropriate cases,
or that the penalties proposed and assessed in the
RCRA program are low, both when compared to
the other  major EPA media programs (air and
water) and in terms of creating an effective deterrent.
Historically, very few RCRA penalties of $100,000
or more have been collected, and permit revocation
or contractor debarment measures have been used
infrequently. Although analysis indicates that, in
fact, RCRA penalties compare quite favorably with
those of other EPA programs (see Appendix G), the
C&E Subcommittee agrees that, in general, larger
penalties are needed.

  While the exact size of the penalties necessary to
achieve this deterrent effect cannot be established
in a vacuum, the penalty must be large enough so
as to negatetheeconomicbenefitof non-compliance.


•   Seek higher penalties in both administrative
    and judicial enforcement  actions.   These
    penalties must be appropriate for the violation,
    since the theoretical maximum penalty under
    RCRA may not be upheld by an Administrative
    Law Judge.

•   Make greater use of economic sanctions other
    than monetary penalties,  such  as permit
    suspension/revocation, contractor suspension,
    and contractor debarment.
Enforcement Actions Must Be Targeted

FINDING: RCRA enforcementactionshavenotbeen
targeted to maximize the deterrent impact.

DISCUSSION: Deterrence is maximized only when
EPA or state enforcement actions reach into all
areas of the regulated community. These areas can
be divided in a number of ways,  e.g., generator,
treater, disposer; geographic location; company
size; industry type; facility type; and the seriousness
or frequency of violation. While EPA and the states
have taken many types of  enforcement actions
against many types of facilities, they generally have
not targeted  these actions  to specific  areas or
segments in order to maximize the impact of those
actions. Instead, they have been largely ad hoc.
Better targeting will increase the deterrent effect.
RECOMMENDATION:    Strategically  target
enforcement efforts at specific segments of the
regulated community or specific types of regulatory
requirements.  Generators and non-notifiers are
especially good possibilities. Headquarters needs
to orchestrate these initiatives with the regions,
which, in turn, must work with the states.

Enforcement Actions Need Effective

FINDING: RCRA C&E publicity has not maximized

DISCUSSION:   Deterrence can be achieved  only
when EPA's and the states' enforcement activities
are effectively publicized. Publicity about many
EPA and state enforcement actions has not  been
targeted at the appropriate audience, or has not
adequately explained the significance of the action.

RECOMMENDATION:    Effectively publicize
enforcement actions, ensuring that the  proper
audiences  are made aware of the nature and
environmental significance of the action.  A closer
working relationship with  the media may be
warranted.  This may be achieved by  simply
encouraging more of an "open-door policy"  with
the media or by  scheduling regular information
exchange sessions (e.g., brown bag lunches or press
conferences) with the media. More use of television
and/or teleconferences has potential for better
communications of C&E successes which, in  turn,
will increase deterrence.
Judicial Enforcement Has Several Benefits

FINDING: Judicial enforcement (both criminal and
civil) contributes significantly to deterrence, but
the  judicial  enforcement  process  needs

DISCUSSION: Criminal enforcement, civil judicial
enforcement, and administrative enforcement are
all important components of a strong enforcement
program, and  each has a role to play  in the
enforcement process.

    Criminal enforcement is viewed as the most
effective tool for achieving deterrence. Most of the
people interviewed think that the RCRA criminal
enforcement program is more effective than EPA's
criminal enforcement programs for other  media.
This high  regard for the.criminal enforcement
program was  a  common perception  among
industry, environmental groups, and government

 62  Chapter 6
                FIGURE 15
          Number of Defendants
        Convicted During FY1989

                  By Region

                     D Other
                     B CERCLA
                     D TSCA
                     13 FIFRA
                       Clean Water
                       Clean Air
            II  II!  IV  V  VI  VII VIII  IX  X NEIC

                 By Program

          Clean Clean
Rogkm RCRA   Air Water FIFRA  TSCA CERCLA Other Totat
Total   24
    1S   30

 agencies. An examination of the accomplishments
 of thecriminalenforcementprogramsupports these
 widely held perceptions. (See Figure 15.)

    While most RCRA cases are and will continue
 to bebroughtadministratively, judicial enforcement
 For example, judicial penalties tend to be higher
 than administrative penalties. (See Appendix G.)
 Judicial  cases can  also lend  credibility  to
 administrative enforcement when used to enforce
 compliance with administrative orders.
    In addition, judicial enforcement is important
because the contempt power of the court serves as
a significant deterrent to violating the terms of an
order. Such power may be particularly important
in cases of recalcitrant facilities or facilities that may
only come into compliance under threat of a court
order (e.g., certain political subdivisions). Also,
judicial actions are especially appropriate where
court-ordered injunctive relief is needed.

    Finally, judicial enforcement can help establish
key legal  precedents  interpreting important
provisions of the statute and regulations. Often,
such  interpretive  matters cannot  be resolved
definitively by rulemaking.  Judicial decisions,
which carry greater weight and precedential value
than administrative decisions, can help resolve these
matters in a manner favorable to EPA.

    Judicial enforcement cases should be handled
in a timely fashion in order to maximize their
deterrent impact. In some cases, the time between
initial referral of cases to the Department of Justice
(DOJ) and the filing of the cases is longer than
desired. These and other delays in the enforcement
process may detract from the impact of a potential
enforcement case. Delays may occur due to lack of
sufficient resources and resulting prioritization,
the complex and subjective nature of RCRA, cases
that are not fully documented at the time of referral,
and sometimes insufficientconrununicationbetween
EPA and DOJ.

   Administrative enforcement is also an integral
part of the enforcement process and is particularly
important in the RCRA program, given the strong
administrative authorities granted EPA under the
statute.  It allows a larger volume of cases to be
undertaken, since administrative actions often are
less resource-intensive than judicial actions. Many,
if not most, violators can be addressed efficiently
via the issuance of an administrative order.  In
addition, the statute authorizes EPA to impose
large administrative penalties.

    In addition to bringing administrative cases, it
is important that the  RCRA program bring a
significant number of judicial cases, both criminal
and civil. We expect that decisions as to whether a
particular case is appropriate for administrative,
civil judicial, or criminal referral will continue to be
based on the facts and requirements of an individual


•  Aggressively pursue  judicial  enforcement
    actions (both civil and criminal) in appropriate

                                                                Compliance and Enforcement 63
   cases.  Such cases may include cases selected
   for  targeted  initiatives, cases  against
   particularly egregious or repeat violators or
   violators of administrative agreements, cases
   that seek particularly large penalties, cases
   where court-supervised injunctive relief  is
   needed, cases that may establish useful legal
   precedents interpreting key aspects  of the
   regulations or statute, and cases with a multi-
   media enforcement approach. The regions have
   found such judicial actions to be resource-
   intensive.  At the same time, EPA recognizes
   the benefits such cases may have both for the
   individual case and for the program as a whole.

   Improve coordinationand communication with

     -  Meet regularly with  DOJ to  discuss
       priorities and workload.
     - Encourage DOJ attorneys to take RCRA
     - Make sure that only appropriate cases are
       referred, and coordinate with DOJ before
       referral where practicable.
Inconsistent Interpretation of "High-
Priority Violator" Has Hurt Deterrence

FINDING:   Inconsistent  classification  of  "high-
priority violators"1 undermines deterrence.

DISCUSSION: There is a concern that the current
definition of "high-priority violator"  has been
inconsistently interpreted and applied by  the
regions and the states.  Such inconsistency has a
substantial effect on the program's credibility and,
therefore, has undermined deterrence. Theprevious
trigger for formal enforcement against significant
non-compliers was a land disposal facility with a
Class I (i.e., most serious) violation of the ground-
water  monitoring,  financial responsibility,  or
closure/post-closure requirements. The definition
was later amended to add a significant violation of
a schedule or corrective action requirement in an
order or permit. This structured system allowed
ready identification and assignment of significant
non-complier status. However, this prescriptive
definition lead both to some enforcement actions
for which priorities were improperly set and to
increased friction between some regions and states.
The definition provided in the revised Enforcement
Response Policy (effective October 1,1988) is more
flexible to cover a wider range of facilities and
violation types.

RECOMMENDATIONS: Since the revised definition
of a "high-priority violator" is  relatively new,
continue  to  observe  implementation of  the
to determine whether RCRA violators are being
classified  consistently. If  the inconsistency  in
classifying significant violators continues, possible
options include:

•  redefining the term "high-priority violator" to
   make it more objective, or

•  increasing oversight and evaluation until
   greater consistency is achieved.
Using Innovative C&E Tools

FINDING: The RCRA program has not explored and
used  innovative compliance monitoring  and
enforcement tools and techniques as much  as it

DISCUSSION:  To date, the RCRA program has
relied  primarily  on  traditional  compliance
monitoring and enforcement tools and techniques,
which  may not be the  most efficient  way of
evaluating the compliance status of facilities. The
programrelies almost exclusively onsiteinspections
and quite infrequently on self-reporting or
certifications (one exception was the "loss of interim
status" requirement).    Because of resource
limitations, this approach results in the inspection
of only a small percentage of the regulated universe
in a given year. (See the Resources chapter of this
report.) This, in turn, limits the number of facilities
that might be subject to enforcement action, thus
providing little incentive for facilities to maintain

    Another example is that the RCRA program
focuses primarily  on the  negative or  "stick"
approach to ensuring compliance. That is, in most
situations there  is  neither an up-front effort to
ensure that the regulated community understands
RCRA nor rewards for good compliance  records.
Rather, the approach is  simply to  monitor the
1 These are violators who, under the Enforcement Response Policy, must be addressed through formal
enforcement actions that carry economic sanctions.

64  Chapter6
situation and impose sanctions (usually monetary)
when violations are found.


•   Institute a program of self-certification and
    self-reporting to supplement the inspection
    program. Expand 40 CFR Part 270.30 (which
    requires reporting of permit non-compliance)
    to include routine (say annual) certification for
    interim status as well as permitted facilities.
    One option is to allow  certification  for
    administrative requirements to be made by the
    facility owner/operator and  for  technical
    requirements to be made by  a  registered
    professional engineer. Failure to certify would
    be a violation.

•   Use economic sanctions,  such as permit
    suspension  or revocation  and contractor
    suspension or debarment, more frequently in
    the proper circumstances.

•   Develop model orders to  streamline EPA-
    iratiated and even some state-initiated actions.
    This would be useful for the person drafting
    the  action, and would speed up the review
    process, since reviewers would already be
    familiar with the models.

•   Encourage the use of field citations at both the
    state and the federal levels to enable inspectors
    to issue small fines and orders immediately
    when they identify relatively minor violations.
    Field citations would be especially effective in
    establishing a greatly expanded enforcement
    presence at generator facilities.

        Help more states implement field citations
        by investigating and documenting the
        details of existing state programs using
        field citations and by working with other
        states to develop similar abilities.

        Minimize appeals in the citation program,
        and/orprovideasimple,expedited appeal
        procedure.  Without this,  the  resource
        savings of a field citation program may be

 •   Explore and implement positive approaches to
    encouraging  compliance by the  regulated
    community, including simplifying  the
    regulations, providing technical assistance and
    educational outreach, and using the media to
    provide positive publicity for environmentally
    good corporate citizens.
Streamlining the ALJ Decision

FINDING: Strains on the administrative hearing
process are causing long delays in some cases.

DISCUSSION:  The complexity of RCRA cases, the
significant case load carried by Administrative Law
Judges (ALJs), and delays inherent in affording due
process to parties to an adjudicatory process are
some of the factors that can contribute to delays in
obtaining timely administrative hearing decisions.
These delays were .cited by many regions as a
significant source of frustration in achieving timely
enforcement  and compliance.  As the RCRA
program seeks higher administrative penalties (as
recommended earlier in this chapter), it can be
expected that fewer  cases  will be able to be
satisfactorily negotiated, resulting in an even higher
percentage of cases going to hearing and further
strains on the system. A small number of ALJs and
the Chief Judicial Officer must handle all of EPA's
hearings, and RCRA must compete with other cases
in the docket, some of which are subject to statutory
or regulatory deadlines.

RECOMMENDATIONS:      Recognize   that
administrative hearings are part of the critical path
for some enforcement actions. Match ALJ resources
to the case load being generated.
 Reducing the Subjectivity and
 Complexity of the RCRA Regulations

 FINDING: The large number and complexity of the
 RCRA regulations make  the compliance  and
 enforcement process  very  difficult for both the
 regulators and the regulated community.

 DISCUSSION:  EPA and the states often run into
 unexpected problems with the regulations that
 undermine and delay the enforcement process. As
 shown by the case, studies on the definition of
 "tank" highlighted in this chapter, the excessive
 ambiguity of some regulations becomes apparent
 when efforts are made to enforce them.

    The 40 CFR Part 261 definition of "solid waste"
 and "hazardous waste" has caused enforcement
 problems due to its complexity. The Land Disposal
 Restrictions (LDRs) and the numerous exclusions
 and exemptions throughout 40 CFR Part 261 were
 also cited in interviews as extremely  difficult to
 understand and enforce due to their complexity.

                                                              Compliance and Enforcement  65
                                DEFINITION OF "TANK"

       The 40 CFR 260.10 definition of a ""tank" is as follows: "Tank means a stationary device, designed
   to contain an accumulation of hazardous waste, which is constructed primarily of non-earthen
   materials (e.g., wood, concrete, steel, plastic) which provide structural support.""

       On the surf ace, the definition of a tank would appear to be quite straightforward and objective.
   However, the 40 CFR 2$).IO definition has caused numerous problems for the RCRA enforcement
   program becauseitusessubjective terms, jsuch as "primarily" and "provide structural support" It
   is usually to a facility's advantage to try to classify a waste pile or a surface impoundment as a tank.
   This is because: (1) tanks were not included in the November 8, 1985, loss of interim status
   certification requirements; and (2) the 40 CFR 265.1 (c)(10) and 27Q,l(c)(2)(v) wastewater treatment
   unit exemption requires that treatment take place in a tank Two of the most notable enforcement
   cases are described below.
  Brown Wood Preserving Company
            Brownville, Alabama

    An EPA RCRA administrative enforcement
action was filed on Match 31,1984, charging that
Brown Wood failed to meet the ground-water
monitoring, closure, and financial responsibility
interim-status standards for several units at its
facility, including a sand filter bed,  EPA claimed
that the sand filter bed was a surface impoundment
Brown Wood argued that the bed, which had four
wood sides and a day bottom, met the regulatory
definition of a "tank" and, thus, was exempt from
the interim-status standards as  a wastewater
treatment unit.   An administrative hearing was
subsequently held, and the ALJ issued bis initial
decision  on May 30, 1986.  In his decision, he
dismissed EPA'scomplaintand,amongotheritemS;
found that the sand filter bed met the definition of
a  "tank/'   EPA filed an appeal  with the
Administrator on July 9,1986. EPA's chief judicial
officer issued a decision on May 3,1989, which
reversed  the ALJ's initial decision on the tank
question. The decision stated that because the sand
filter bed lacked non-earthen structural support for
ii:s floor,  this fact precluded it from meeting the
definition of "tank," However, since Brown Wood
stopped using the sand filter bed in 1984 (andbased
on other factors), the Chief Judicial Officer did not
order any penalty or injunctive relief.
 Reilly Tar and Chemical Corporation
              Cleveland, Ohio

    An EPA civil enforcement action was filed on
April 21,1987, charging that Reilly Tar violated
RCRA  by continuing to use a waste pile after
November 8,1985, which EPA alleged had lost its
interim status. Reilly Tar filed amotion forsummary
judgment, requesting the complaint be dismissed
because the alleged waste pile was really a tank.
The waste pile was located on a box-like structure
of welded steel plates supported three feet above
grade by concrete piers.  There was a loose-fitting
steel gate, A roof and wooden walls surrounded
the structure.  The height of the waste pile usually
exceeded the height of the steel plates forming the
sides. On October 14,1988, the Court dismissed the
EPA complaint with prejudice, Because the bottom
and lower sides of the structure were made of non-
earthen materials and because it was a stationary
device, the Court found that the structure met the
definitionof "tank/'TheCourtwas not sympathetic
exceeded the height of the steel walls.  Because
Reilly Tar agreed to close the unit as a tank, EPA did
not appeal the Court's  ruling; however, EPA
obtained no penalties.

 66 Chapter 6
The numerous capacity-based time extensions of
LDRs applied to a certain hazardous waste.  The
number and size of RCRA regulations have grown
rapidly. The RCRA regulations first appeared in
the July 1, 1981, edition of the Code of Federal
Regulations. Atthattime,40CFRParts 260 through
268 covered 209 pages. In the July 1,1989, edition,
these same parts required 509 pages—an increase
of almost 150%.

  There is a definite reluctance to enforce some of
the hazardous waste regulations when no feasible
remedy may be available  to  the  regulated
community.  One example is where  a waste is
restricted  from land disposal  unless it has been
treated, yet there is insufficient treatment capacity,
even after the expiration of all available capacity
extensions.   (See the  Regulations chapter for
additional  discussion  on enforcement  of the


•  Write  regulations with objective standards to
   the maximum extent possible.

•  Review regulations for internal consistency,
   starting with the regulations that will have the
   most important environmental effects.

•  Spend less time  and attention trying  to
   implement requirements that are beyond our
   control or impossible to implement.

•  Incorporate fewer variances, extensions, and
   exclusions into the rules.
Clarifying Federal and State Roles and

FINDING: The roles and responsibilities of EPA and
the states in the RCRA enforcement process are not

DISCUSSION: As discussed more thoroughly in the
State/Federal Alliance chapter of this  report,
significant frustration was expressed over the lack
of clear  definition of the respective roles and
responsibilities of EPA and the states in the RCRA
program.  While no enforcement or  compliance
task should be exclusively reserved for either EPA
or the states (except as may be dictated by law—
e.g., HSWA enforcement), many people felt that
the roles are  poorly  defined  with respect to
compliance monitoring, enforcement responsi-
bilities, and EPA's oversight activities.

  Although administrative penalties can be a very
effective enforcement tool, a number of states do
not have such authority. These states can seek
penalties only through the judicial process involving
the Attorney General's office, and they tend to
either backlog cases awaiting action or decide to
handle them through informal, non-penalty actions.
In either case, a significant deterrent impact is lost.


•   Recognize  the necessity  of some EPA
    enforcement in authorized states,  without
    usurping state authorities or pretending that
    EPA can replace the authorized state as the
    primary enforcer. A number of situations are
    appropriate for federal enforcement. These
    include enforcementof requirements forwhich
    the state is not authorized; enforcement in
    situations  necessary  to  maintain national
    consistency, such as when an individual state is
    imposing  less stringent  requirements  or
    enforcing significantly less stringently than
    required bystate-EPAagreements;enforcement
    in  situations  that  complement  state
    enforcement; and  enforcement in situations
    that involve uniquely federal interests or in
    cases  that  might  set  important national
•   Bring state Attorney General (AG) offices fully
    into the goal-setting and grant work-planning
    process. This is particularly important in states
    that do not  have administrative  penalty
    authority, where the AG's participation will be
    required in all cases appropriate for penalty
•   Avoid duplication of state and federal efforts
    by sharing work plans and strategies.
•   Propose a requirement that authorized states
    adopt administrative penalty authority in order
    to obtain formal comment on the issue.
Expanding Training Opportunities and
Support Services

C&E Staff Need Extensive Training

FINDING:  C&E suffers from the same resource
problems as does the rest of the RCRA program.
These problems include inadequate training, high
staff turnover, and salary and benefits that are not

                                                               Compliance and Enforcement  67
competitive with private industry or Superfund.
(See the Resources chapter of this report.)

DISCUSSION:  The ultimate success of the RCRA
C&E program will bedetermined by the capabilities
and skills of its work force.  Inspector training is
critical to the C&E program.  In November 1987, a
GAO audit of the RCRA inspection program cited
lack of training as a major factor contributing to
poor inspector performance.Trainingis particularly
critical, given the high rates of turnover among
RCRA inspectors. (See Table 6.)

                   TABLE 6
                                               FIGURE 16
  RCRA Inspector Turnover Rates Are High

                   FY85  FY87

           State    17%   19%
35%   26%
In addition, an internal EPA survey found that the
average RCRA inspector had only two years of
experience. Other results of this survey are shown
in Figure 16. Since then, the RCRA C&E training
program has been considerably strengthened. All
staff responsible for conducting inspections must
now meet the training requirements of EPA Order
3500.1, which was issued in June 1988. Also in June
1988, EPA published the Inspector Enhancement
Strategy.  This  strategy established minimum
requirements for RCRA-specific inspector training,
listed  available  and upcoming C&E guidance
documents, and outlined a policy for inspection
oversight. In addition, many new training courses
have been developed.

    Staff in  the RCRA C&E program spend an
average of one month a year in formal training
courses, in addition to individual reading and on-
the-job training.  Below is  a list of other types of
traininga typical compliance and enforcement staff
person needs to do his or her job effectively:

    •  RCRA orientation;

    •  regulations training (e.g., land ban, ground-
       water monitoring);

    •  case development;

    •  criminal investigations;

    •  negotiation skills;
                                  A Nationwide RCRA Inspector Prof tie
                                      Percentage of Inspectors Having
                                    Performed "X" Number of Inspections
                                                             ID 0.-10.
                                                             n 11. -so.
                                                             • 31. -50.
                                                             Bi 51.-100.
                                                             m 100. +
                                 Educational Background of RCRA inspectors
                                                              D No Degree
                                                              O B.S.
                                                              m M.S.
                                                              m PH.D.
                                       Inspectors Currently Performing
                                      Inspections Under other Programs
                                  JGround Water;


                                iiToxic Substances;

                                  Spill Response


                                            0%  5%  10% 15% 20% 25% 30%

 68 Chapter 6
    •  penalty calculation and mitigation,
       including using BEN  (economic benefit
       model) and ABEL (ability-to-pay model);

    •  contract management;

    •  samplingandchain-of-custodyprocedures;

    •  technical skills (ground water, chemistry);

    •  wordprocessingandothercomputerskills.

Inspector Turnover Rate Is High

    In organizations where the inspection and
enforcement functions are conducted by the same
person, there  is often higher job satisfaction,
resulting in lower turnover.  This combination of
functions has also allowed some organizations to
develop higher grade levels for non-supervisory
staff. The RCRA Inspector Enhancement Strategy
discusses initiatives to encourage RCRA inspectors
to remain in the enforcement program.   These
include:  technical career ladders that recognize
exceptional abilities and   performance, and
provision of opportunities for advancement outside
the supervisory role.


•  To the maximum extent possible, plan and
   budget training at the beginning of each year.
   The Office of Solid Waste and the Office of
   Waste Programs Enforcement (OWPE) should
   initiate  the planning  process  by  jointly
   disseminating the schedule and location of
   training that headquarters will provide. The
   regions and the states should then develop
   their specific training plans.

•  In addition to continuing its ongoing efforts,
   OWPE should evaluate the expansion of the
   EPA Inspector Institute.

•  Pursue  other  ways  to recognize the
   accomplishments of the  C&E staff,  such as
   awards (monetary and symbolic) or a national
   certification program.

•  Be realistic with expectations, and discuss them
   frequently with staff to combat "burnout."

•  Encourage (and allow time for) C&E staff to
   participate  in the regulatory development
   process to foster increased staff commitment
   and a more practical regulatory scheme.
 Current Resources Are Insufficient to Meet
 Program Expectations

 FINDING: Given the current expectations for the
 program, the collective resources (including legal
 support) of EPA and the states are not sufficient.

 DISCUSSION:  As shown in Figure 17, the RCRA
 C&E program can only inspect a fraction of the total
 regulated community (particularly generators and
 transporters) each year.  For this reason, EPA and
 the states spend considerable time setting priori-
 ties.  EPA defines the program's priorities in the
. Agency Operating  Guidance and in numerous
 policies and  strategies, such as  the Enforcement
 Response Policy and strategic plans. Typically,
 EPA's priorities, policies,  and strategies do  not
 fully consider available resources. Consequently,
 accomplishments often fall short of expectations.

     Legal support comes  from state Offices of
 Attorney General (AGs), local district attorneys,
 EPA's Office of Enforcement (OE), EPA Offices of
 Regional Counsel (ORC), and the Department of
 Justice (DOJ).  Among the state AGs, there  are
 significant differences  in  available resources,
                   FIGURE 17
          Only a Small Percentage of
    RCRA Handlers Get inspected Each Year
                       Handlers Inspected in FY 89;
              Uninspected Handlers
               205,333 (94.7%)

                                                               Compliance and Enforcement 69
working relationships, and the priority RCRA cases
are given. Among the EPA regional offices, the
study found differences in the number of judicial
enforcement cases. All regional program offices
interviewed expressed dissatisfaction with thelevel
of resources available in ORC. Resources for RCRA
enforcement are  distributed to ORC and  the
program  offices according to different priorities.
For example, judicial referrals are weighted heavily
in ORC resource distribution,butmost enforcement
is done administratively.

     Because many states are only able to seek
penalties through a judicial process (i.e., they lack
administrative penalty authority), AGs  are an
important "player" in the  RCRA enforcement
program.  However, these offices have not been
adequately factored  into  program planning
activities.  Among the results of this lack of
integration is  that AG resources often are  not
available to pursue judicial penalty cases, and that
the  overall quality of enforcement  suffers.
Furthermore, other environmental programs (i.e.,
Superfund, water) force RCRA to compete for
limited attorney resources. The latter problem is
accentuated at DOJ and AG offices, where non-
environmental programs compete for resources as


•  The  Agency  Operating Guidance and  the
    Strategic Plan should set expectatior . within a
    reasonable range of the available resources.

•  EPA and the states should investigate ways to
    facilitate local government involvement in the
    compliance and enforcement program.

•  The AGs and DOJ should be brought into the
    goal-settingprocess to ensure their later support
    for the referred cases. Ensure that enforcement
    cases referred to  state AGs and DOJ are
    consistent with the jointly developed goals of
    the  RCRA  compliance and enforcement

•  Budgets    and   resource   distribution
    methodologies for ORC /OE and RCRA should
    be developed in concert.

•  EPA should encourage states to involve AGs in
    the grant work planning process.

•  DOJ  should participate in training or provide
    guidance to regional staff on judicial case
Measuring and Communicating

Accountability System Is Too Narrow

FINDING:  The RCRA C&E program is widely
perceived as being driven by an inadequate "bean
counting" system that fails to provide appropriate
incentives for pursuing high-quality enforcement
actions. In addition, EPA has relied too heavily on
its accountability systems, which are necessarily
narrow in scope, as the sole measure of program

DISCUSSION: It is critical to establish accountabil-
ity and feedback mechanisms to gauge program
performance and relative success.  The national
accountability system is the Strategically Targeted
Activities for Results System  (STARS), which re-
placed the  Strategic Planning and Management
Systems (SPMS). STARS compares regional out-
puts to objectives and activity goals identified in
the Agency Operating Guidance. (State activity is
accounted for  in STARS as a subset of  overall
regional accomplishments.)

    For enforcement, EPA and the states have
identified a core group of management indicators
to track progress.  These include inspections, the
identification and resolution of significant non-
compliance, numbers of civil and criminal case
referrals, and  administrative orders.   At  the
beginning of each fiscal year, the regions and states
review the known universe  of significant non-
compliers and establish joint commitments to
address them during the year. Joint commitments
for other activities are also established at this time.
(See Appendix H for a summary of EPA and state
progress in resolving problems with  significant
non-compliers over the past several years in the air,
water, and RCRA programs.) The regions measure
state performance against commitments in the grant
work plan.  Quality considerations are established
in the National Criteria for a Quality Hazardous
Waste Management Program and are reflected in
state and regional program reviews, but are not
major factors in measuring success nationally.

    STARS has historically-been used as theprimary
measure of the success of  regional and state
performance.  This leads to the perception most
commonly espoused in the interviews that RCRA
is a "bean count" program that does not adequately
measure broad program success. Even the SPMS

 70  Chapter 6
 measures designed to address quality2, such as
 timeliness and appropriateness of enforcement
 actions, are viewed as "beans" in a numbers game.
 For example, an enforcement action regarding a
 simple  paperwork   violation  where  no
 environmental harm has occurred (e.g., a deficient
 40 C.F.R. Section 268.7 land disposal restrictions
 notice) may be as significant in terms of "beans
 earned" as a more environmentally protective and
 resource-intensive enforcement action involving
 ground-water monitoring violations.   Such
 accountability systems,  which  are  primarily
 perceived  as numbers  games,  can  create
 unnecessary friction between EPA and the states.

    Table 7 shows enforcement activity for all
 handlers and for selected years. The table indicates
 thatabout70%ofenforcementactionsare informal.
                   TABLE 7
                   FIGURE 18
Most Enforcement Actions Are Informal
4,029 (73%)
3,863 (68%)
4,498 (74%)
1,473 (27%)
1,840 (32%)
1,589 (26%)
6,087 ,
Although not an appropriate response to high-
priority violators, informal enforcement actions,
such as warning letters and notices of violations,
can be a very efficient means of returning facilities
to compliance. No tonly have the national reporting
measures focused only on formal enforcement
actions, until recentlytheir focus has beennarrowed
further to suchactionsonly atland disposal facilities
(e.g., STARS).  As Figure 18 illustrates, STARS
measures only 11% of RCRA enforcement activity.

    Table 8 shows that the RCRA enforcement
program follows up on violations that are found.
While the results for fiscal 1989 are noticeably
higher, we do not feel they are unacceptably so; this
is because enforcement actions taken for violations
found toward the end of the fiscal year may not be
accounted for yet Again current STARS measures
do not show this positive result.
           STARS Measures Only a
      Small Percentage of enforcements
            FY85, FY67,  andFY89
                      STARS Focus - Formal Actions
                      at Land Disposal Facilities
           ^Informal Actions'and Format?
           iActions at Non-Land Disposal'
           Treatment and Storage Facilities
           iGenerators, and Transporters
                     "        •

Percent of Violations for
Which No Action Was Taken Is
Generators/ and Storage
Transporters Facilities
8 8
9 8
14 15

    The number of enforcement actions taken in a
given year is also not an effective measure  of
program success. As Table 9 shows, while the
number of enforcement actions at land disposal
facilities for fiscal 1985,1987, and 1989 was fairly
constant, return to  compliance rates3 for these
facilities have decreased. This is expected, since
such facilities' RCRA obligations are often very
complex and expensive. Thus, while the number of
actions is a valid measure of the resources being
devoted to RCRA enforcement, it is not a good way
to measure the program's success.
2 EPA has formed a work group that is charged with developing better environment indicators for the RCRA
accountability system.
3 "Return to compliance rate" is that percent of violations discovered in the indicated fiscal year and corrected
as of February 1990.

                                                               Compliance and Enforcement  71
                  TABLE 9
Percent Returned to Compliance Is Decreasing
/ Percent


of Land

Storage, and


•  Make  better use of information currently
   reported and available in order to obtain a
   more comprehensive picture of activities and
   accomplishments.  While a priority activity
   reporting system such as STARS is necessary,
   its limitations should be understood, and it
   should not become an end unto itself.

•  Maintain a strong formal enforcement program,
   with emphasis on imposing penalties that are
   appropriate for the violations, but also recognize
   that the objective of compliance maybe obtained
   through less formal mechanisms.

•  For perspective, compare overall compliance
   rates vs. high-priority violator enforcement

•  Continue work group efforts to improve STARS
   to provide better incentives for quality actions
   and environmental results.
Better Measurement Tools Are Available

FINDING: Compliance monitoringand enforcement
have caused a fundamental change in behavior in
major industries' handling of hazardous waste,
resulting in substantially better environmental
management. However, many questions remain
regarding the  degree to which C&E has been

DISCUSSION: Compliance and enforcement are the
backbone of any regulatory program.  Thus, their
success or failure is critical to the fate of the program
as a whole.

   Data collection and assimilation are central to
measuring the effectiveness of the RCRA program.
The current automated system, the  Hazardous
Waste Data Management System (HWDMS), has
oftenbeen criticized for its poor quality.  The reasons
for this perception include problems with hardware
and software, difficulties with data entry and
retrieval, "ownership" of data,4 and data quality.
The poor quality of the system has often resulted in
a more negative picture of RCRA success than has
been warranted.

   To effectively manage the full range of RCRA
activities, EPA has developed a new data system,
the Resource Conservation and  Recovery
Information System (RCRIS). The new system is
management-oriented, with the states as the owners
and primary users of the data.  However, EPA
information for oversight purposes can be extracted.
RCRIS is being phased in and is scheduled for full
implementation during fiscal 1992.  Until then,
both HWDMS and RCRIS must be maintained,
which is likely to lead to additional problems with
resources and data quality.

    The Biennial  Report has the  capability to
demonstrate trends and reductions in hazardous
waste.   However, this tool has never received
sufficient emphasis to be used effectively.  The
effects of waste minimization to avoid regulation
and save costs could be demonstrated. The effects
of the land disposal restrictions and other initiatives
could be documented, and new initiatives could be
developed based on the report. Instead, the last
available published compilation summary is for
1985 submissions.  EPA cannot identify trends and
measure success with old information.

    Because RCRA is essentially a preventative
program, many of its environmental benefits (such
as prevention of future ground-water contamination)
are not tangible and may not be recognized until
many years from now.   Thus, it  is difficult to
demonstrate    immediate,    quantifiable
environmental results from RCRA.  In this way,
RCRA  is fundamentally different  from other
programs administered by  EPA.  For example,
under theNationalPollutant Discharge Elimination
System  (NPDES) of the Clean Water  Act, end-of-
 4 "Ownership " of data is important because if the generator of, the data will be using the data, then that
 generator is much more likely to accurately report the data.

 72  Chapter 6
pipe controls can  demonstrate immediate,
quantifiable reductions of pollutants entering the
environment. In contrast, the RCRA requirements
areintended to preventfuturereleasesof hazardous
waste or hazardous  waste constituents.  Thus,
measuring and demonstrating  environmental
success is difficult, unless we look to potential
releases prevented through C&E activities.  For
example, the loss of interim status provision and
the surface impoundment retrofit enforcement
initiatives havereduced the number of land disposal
facilities, and particularly surface impoundments
seeking an operating permit to manage hazardous
waste, by 98%.  This significant environmental
benefit has never been  successfully publicized.
Additional measures  include the enforcement of
closure plans and ground-water monitoring that
can  demonstrate  that contamination has  been

   The corrective action authorities under HSWA
provide additional areas  to  demonstrate
environmental successes and program progress.
All RCRA treatment, storage,and disposal facilities
with releases are subject to corrective action—at a
minimum, to investigate the releases for potential
further action.  In this regard, the number of sites
eventually addressed by RCRA will far outnumber
those addressed through Superfund.  (See the
Corrective Action chapter of this report.)  With
time, the RCRA program will be able to provide
analytical results  demonstrating cleanup  of
contaminated ground water and eventually ground
water restored to the required levels.


•  De-bug the RCRIS system, and put it on line to
   better serve the  states  in  managing  and
   implementing the C&E program thanHWDMS
   currently is serving them.  Focus oversight
   analysis of RCRIS data on establishing program
   trends and on reportinga more comprehensive
   view of success.  Quickly identify program
   areas needing improvements, and implement
   appropriate special initiatives as proactively as

•  Upgrade the Biennial Report to record changes
   in the way the regulated community manages
   wastesinresponseto RCRArequirements. This
   requires a commitment of resources at both the
   EPA and the state levels.

•  Develop techniques and explore opportunities
   to measure environmental results.   Better
   quantify and communicate the environmental
    results of C&E in obtaining adequate land
    disposal  facility closures and ground-water
    monitoring systems that have reduced threats
    to ground water.

 Poor Communication Breeds

 FINDING: Because communication of RCRA C&E's
 success has been ineffective, three commonly held
 (mis)perceptions hurt EPA's ability to do our job:

 1.  RCRA is overshadowed by Superfund in terms
    of both publicity and resources.  Superfund
    gets  a disproportionately larger  share  of
    resources, particularly given the important
    preventative nature of RCRA.

 2.  RCRA regulations are largely  paperwork
    nuisances that have little relevance to protection
    of human health and the environment.

 3.  The RCRA civil enforcement program is less
    effective than other media programs like the
    air and water programs.

 DISCUSSION:  The interviews provided very useful
 information regarding perceptions of the RCRA
 program. However, many of the perceptions related
 to the RCRA program generally, rather than
 specifically to RCRA C&E.  For example, many
 people perceive RCRA regulations, such as the
 definition of "solid waste," to be overly complex
 and unworkable.  While such perceptions may
 indirectly affect the C&E program (especially when
 held by regional or state enforcement personnel),
 the primary  focus of this  section is on those
 perceptions that directly relate to C&E.

    In the eyes of the general public, RCRA and
 Superfund are not separate programs. Both appear
 to be viewed  as "the nation's toxic waste laws."
 When a distinction is made, Superfund tends  to
 receive far more concern, because it is perceived to
 be addressing leaking sites,  which are  more
 newsworthy than RCRA enforcement issues. The
 public is  much  better educated  today about
 environmental issues than it was 10 years ago.
With   the right   information,  effectively
communicated, people should be able to get a good
grasp of the importance of RCRA.

   Many people correctly perceive that the
Superfund program overshadows RCRA in terms
of the resources allocated to it. However, this fact is
perhaps less significant than the fairly widely held
perception that  the   resource  allocation  is

                                                               Compliance and Enforcement  73
disproportionate to the relative importance of the
two programs, particularly given the preventive
nature of RCRA. Thus, a shift in this allocation may
be needed.

   The perception about "paperwork nuisances"
is at variance with EPA's strong belief that RCRA's
recordkeeping and reporting requirements are
essential to an adequate C&E program: they are
integral to protecting  human health and  the
environment  and preventing pollution.  Better
communication of the critical nature of these
requirements  would enhance  the program's
perceived credibility.

    Finally, throughout the interviews many people
expressed  their  belief that the  RCRA  civil
enforcement program is less effective than other
media programs like air and water. Although some
of the perceptions abouttheeffectivenessof RCRA's
civil  enforcement  program  are  founded  on
perceived flaws, others were based on a more
sympathetic view of the C&E program, both as a
newer program that still has "growing pains" and
as a  smaller  program in  terms of  resources.
However, in reality, the RCRA civil enforcement
program has performed very well in numerous
areas when compared to other media programs
(See Appendices G and H).  In particular, the
administrative enforcement program, which has
been the primary focus of RCRA C&E efforts, has
performed  as well as or better than most other
media  C&E  programs in terms  of addressing
significant non-compliers, total penalties, number
of cases with penalties, median penalties, and
highest penalties. Although the number of judicial
cases and new civil judicial referrals is relatively
small in comparison with that of other programs,
the RCRA C&E program has recorded the highest
judicial penalty by a substantial margin.  These
accomplishments in both the administrative and
judicial enforcement programs are also significant
in light of the relatively small size of the RCRA C&E
program, when  compared with  other media

    Regardless  of the actual  measures, the
perception that the RCRA C&E program is vigorous
and tough is critical to a successful effort. While
EPA recognizes that there is room for improvement,
it must also recognize that it needs to do a better job
of communicating the many successes of the C&E


•   Rather than focusing on distinguishing RCRA
    from Superfund, focus more on enhancing the
    public's understanding of EPA's successes in
    implementing and managing hazardous waste
    programs. This option is  premised on the
    notion that the public is less concerned with the
    nuances and peculiarities of federal law, and
    that an effort to distinguish RCRA from
    Superf und  may  be difficult  and/or

•   Issue specific guidance to headquarters and
    the regions on how to better relate RCRA's
    C&E accomplishments to real-world problems.
    InitiatenewtrainingofexistingC&E employees,
    to help them better characterize recordkeeping
    and reporting violations as highly significant,
    rather than simply as violations of obscure and
    irrelevant regulatory  provisions.  The same
    goals may also be accomplished by training
    only a few selected representatives in each
    C&E office, or creating a part-time position in
    each C&E office.

•   Improve  RCRA's image by better use of the
    print and broadcast media to publicize EPA's
    successes. As discussed previously, specifically
    integrating such efforts into  targeted
    enforcement initiatives is one  method of
    implementing this approach.

•   Use the media proactively, particularly when
    an Inspector General, General  Accounting
    Office, or other critical report will be released
    imminently. Currently, such critical reports
    tend to generate far more media interest than
    press  reports  outlining  RCRA  C&E
    accomplishments.  In such cases, EPA may
    choose to conduct a parallel (albeit abbreviated)
    study aimed at diffusing and resolving some of
    the concerns likely to be raised in such reports.
    By addressing such critical reports  early, or
    even before their publication, EPA may be able
    to contribute to a more balanced and favorable
    perception of the RCRA C&E program.


                  CHAPTER 7
                  Corrective Action:
                  A  Strategy for Protection

   Under HSWA, all facilities issued a RCRA
permitafterNovember8,1984,musttake "corrective
action" for (i.e., must investigate and clean up)
contamination at or from the facility, including
releases from past disposal. Corrective action can
be initiated through the permit process or through
enforcement orders.  The processes for both are
similar, except that orders do not require a public
comment process. The intent of this provision, and
similar enforcement authorities under HSWA, is to
ensure that RCRA hazardous waste facilities are
not harming human health or the environment.

Steps in the Corrective Action

    Several basic steps are common to the corrective
action process:

RCRA Facility Assessment (RFA) - Systematic
identification of actual or potential releases through
examinationof every solid waste management unit.

RCRA  Facility   Investigation   (RFI)   -
Characterization of the nature, extent, and rate of
migration of each release.

Corrective Measures Study (CMS) - Identification
of appropriate corrective measures, and study of
their likely effectiveness and feasibility.

Corrective Measures  Implementation (CMI)  -
Design, construction, and implementation of
corrective measures.

Interim Measures  (IM)  -  Corrective actions to
stabilize, control, or limit further releases can be
taken at any point in the process where there is an
immediate threat or an opportunity to get action
under way.

     All steps except the RFA are conducted by the
owner/operator of the facility, with oversight by
EPA or a  state; the RFA is conducted directly by
EPA or a state. The steps, which are discussed in
detail in guidance,  do not need to be followed
rigidly by the regions. For example, the CMS can be
truncated  or  eliminated  if a  single remedial
alternative is obvious.

    Implementation of the options described in
this chapter will require  shifting many of the
resources now being used to impose RCRA Facility
Investigations (RFIs) and oversee corrective action,
to  completing upgraded  RCRA  Facility
Assessments (RFAs) for all facilities and stabilizing
releases at the most environmentally significant
facilities. The idea is to obtain better, more focused
information early in the process, to set priorities for
cleanup, to impose interim measures to control
releases, and to vary oversight based on the record
of the owner or operator and the magnitude of the
task. The regions and the states have the flexibility
to decide which priority sites require action first,
the scope of the interim measures, and the level of
oversight. Additionally, some projects will require
immediately imposing corrective action activities
beyond interim measures.

    This proposed shifting of resources represents
a dramatic change in the near-term activities of the
program and will take time to implement. However,
once  properly implemented, it should produce
environmental improvements at more facilities over
the next decade than the present program will. The
most important near-term action is to evaluate the
currently imposed RFIs using regional priority-
setting  mechanisms to  determine each facility's
priority.  This should then  be used to justify
modifications to the level of oversight and the
compliance schedule. This facility-by-facility plan,
which incorporates, to the extent possible, the
approach described in this chapter, will ensure that
resources are spent on the highest-priority facilities.

 Findings and Options

 Magnitude and Severity of the

    Unlike the other sections of this chapter, this
 section does  not follow  up  its  findings and
 discussion with recommendations. Rather, it sets

 76  Chapter?
 the stage for the other sections, especially by
 highlighting the need for setting achievable goals
 and priorities within the corrective action program.

 Thousands of Facilities Require Corrective

 FINDING:  The  number of facilities that need
 corrective action may be three times greater than
 the current number of Superfund sites.

 DISCUSSION: Despite the straightforward nature
 of the corrective action process and the simplicity
 facilities—the task is enormous.

    The  current RCRA universe is composed of
 approximately 4,700 land disposal, incinerator, and
 treatment and storage facilities (see Figure 19). Of
 these, about3,700 facilities that house about 64,000
 solid waste managementunitsmayneed corrective
 action.  These data suggest that the  number of
 RCRAfacilitiesthatmayultimatelyneed corrective
 action could be three times the number currently on
 the Superfund National Priorities List (NPL).

    Table 10 gives a breakdown of the number of
 facilities  in the early steps of the corrective action
 process.  The low number of facilities that are past
 the initial assessment stages reflects the enormity
 of the task and the short time the program has been
 in progress. Of the approximately 4,700  RCRA

 •   about 3,000  (mostly  treatment and storage
    facilities) still  need  an RFA  to  determine
    whether there are releases, and

 •   about 2,400 of these will probably need an RFI.

 Note that of the facilities that have had RFAs, about
 1,300 (or about 80 percent) require RFIs to  assess
 releases.  Despite the persistent efforts of staff, only
 21 RFIs have been completed to date.

    On the bright side, more work has been done
 toward cleanups than these figures indicate. For
 some facilities with straightforward contamination
 problems and solutions, remedial measures have
 been studied and selected without completing an
RFI. Moreover,  interim  cleanup measures have
been taken  at over 40 facilities.  Final, complete
cleanup of facilities clearly requires much work
conducted in a number of steps. Given the number
of facilities, the task ahead is monumental.
                  FIGURE 19
   Hazardous Waste Universe Is Huge

             Number of Facilities
            by Region, In HWDMS
                                                                          Corrective Action  77
have known owners and operators  and more
information on their waste and compliance history.

    Nevertheless, at a number of RCRA facilities,
the corrective action problems may equal or exceed
those of a typical Superfund site. For example, a
group of manufacturing and disposal facilities on
the Niagara Frontier in New York, which includes
eight RCRA facilities and several Superfund sites,
has created a very complex contamination problem
with toxic releases to the Niagara River.  Corrective
action at federal facilities (which this study did not
specifically address) may also present very difficult

    Furthermore, about 60 percent of the 4,700
RCRA facilities are closed, closing, or likely to
close. This percentage includes facilities that have
not submitted a permit application or that have
been denied a permit, and storage and treatment
facilities that have not clearly stated whether they
intend to continue operating.  An even  larger
percentage (nearly 90 percent) of the land disposal
facilities,  which have  some  of the worst
environmental problems, is closing.
    Although available  data are limited,  the
environmental problems at closing facilities may
be greater than problems at facilities that continue
to operate. Many facilities choose to close because
the severity of their problems makes it too difficult
or costly for them to come into compliance. Further,
many closing facilities may be less financially able
to pay for corrective action, and some of them may
become candidates for the Superfund program.
Setting National Program Goals and

    Given the magnitude and severity of the
corrective action problem, a good set of national
goals and priorities is critical to the success of-the
program.  This section examines some of the
obstacles to such goals and priorities.

    This evaluation benefits from several previous
program strategies and studies.   In  1986 EPA
formulated a National RCRA Corrective Action
Strategy, which addressed, among other things,
establishmentof priorities. In 1989 EPAformulated
                                        TABLE 10
The Corrective Action Workload Is Enormous
Facilites where
Facilities with
Facilities with RFAs where

Region I
Region II
Region III
Region IV
Region V
Region VI
Region VII
Region VIII
Region IX
Region X
* Numbers in
4,679 *
Hazardous Waste
** Numbers in Corrective Action
1,635 **
Data Management
Reporting System
RFIs are
" 74
1,331 **
RFIs have
been required
through permit
or order
601 **
with RFI
Work Plan
174 **

with RFI
21 **
System as of 3/1/90.
as of 3/1 7/90.

 78  Chapter 7
a Corrective Action Outyear  Strategy (CAOS),
which pointed out the need to control the flow of
facilities in the corrective action "pipeline" by setting
priorities at each step. CAOS explored innovative
ways to expedite the cleanup process, including
using interim measures before or concurrent with
the site study.  It also presented a continuum of
approaches to EPA or state oversight—ranging
from "quasi-voluntary"  for low-priority sites to
full oversight for high-priority sites—to ensure that
government resources are allocated in proportion
to the environmental benefit achieved.

    EPA's Agency Operating Guidance for fiscal
1991 reiterates several of the points in CAOS. It
notes that  feeding of the pipeline  should be
controlled carefully by setting priorities based on
the environmental severity of sites. It identifies as
theprimary focusof activities movingsites to actual
deanup,and encourages the use of interimmeasures
wherever feasible.

Program Needs Clear National Priorities

FINDING: Whilemostregionsappear to beoperating
under the broad program goal of cleaning up all
facilities that have  environmentally significant
releases, they are operating individually in  the
absence of  clearly articulated  national program

DISCUSSION: Oneofthemostfrequentlymentioned
reasons for the slowness of the corrective action
program is the lack of a clearly articulated national
program goal. As one person stated, "Since no one
really knows what the goal is, it is difficult to
achieve success."  Without such a goal or strategy
for program accomplishment, the corrective action
program cannotensurethatitisachievingimportant
environmental results.

    The majority of regions view the primary long-
term goal of the corrective action program as  the
cleanup of all facilities that have environmentally
significant releases, in the order of worst sites first.
Other regional  views of program goals  include
cleaning up all  releases, avoiding  Superfund
emphasis on process over results,  and creating a
smooth-running cleanup program.

    Industry views the program goal as the cleanup
of sites in a manner appropriate to the risk and
reasonably foreseeable land use, focusing on results
rather than on process. An environmental group
views thegoal as thepreventionoffutureSuperfund
    Although EPA has issued significant guidance
in the past five years on various aspects of the
corrective action process, the regulation EPA has
drafted to codify both procedures and standards
for corrective action (Part 264, Subpart S) has yet to
be proposed.  All groups agreed that EPA must
promulgate the final Subpart S rule in order to
establish the basic direction and goals for the

    Given the magnitude of the corrective action
program and the need for greater national direction,
a review of the current resources and organization
for the program in headquarters raises a number of
concerns. For example, in EPA headquarters, which
is responsible for national program management
and for developing regulations and guidance, only
17 work years are budgeted for the corrective action
program,  compared  to 275  work years  for
Superfund. Most of EPA's support for cleanup is
devoted to Superfund, but this support is  also
essential for the corrective action program. This
study did not develop any recommendations to
resolve these issues, but does recommend carrying
out some actions with Superfund to take advantage
of its experience and expertise. Additional review
                         ^     ^      view.


•   Develop and implement  an  overall program
    strategy that achieves environmental results at
    facilities with the most serious problems.

•   Promulgate the Subpart S rule for corrective
    action as soon as possible.

•   Examine  the  effectiveness  of the  current
    organizational and support structure in
    headquarters for managing the corrective action
Key Priority-Setting Process Is Not

FINDINGS: The Environmental Priorities Initiative
(EPI) has been slow to start up  and has had a
minimal impact so far in determining corrective
action priorities.  Some regions feel that the EPI
does not provide the information they need for
setting corrective action priorities.

DISCUSSION: The EPI is an integrated RCRA/
Superfund effort to identify and evaluate sites that
present the greatest risk to human health and the

                                                                          Corrective Action 79
environment.  It is supposed to be the primary
means for setting priorities for corrective actioh
among the large number of facilities that have not
yet been assessed.  The  initiative  involves  a
streamlined priority-setting mechanism for closing
RCRAland disposal, storage, and treatment facilities
to determine for which facilities a more detailed
assessment  should  next be performed, using
Superfund  Preliminary Assessments (PAs) to
estimate the significance of a problem at a facility.

    The EPI has not yet made a significant impact
on setting initial priorities. Of the 3,000 PAs to be
done under EPI, fewer than 600 were done in fiscal
1989,  the first year of the EPI process. While an
evaluation of this delay is beyond the scope of this
report, the regions did identify some problems they
perceive in making the initiative work for corrective

    A number of regions said that the EPI is not
helpful becauseaPAdoesnotlookateach individual
solid  waste management unit or  necessarily
determine whether there is a release or potential for
release. Also, despite fiscal 1989 guidance, in some
regions the EPI continues to provide information
that is formatted for Superfund and is less relevant
to RCRA.   Several  regions have worked  with
Superfund staff and  contractors to make the PA
more suitable to RCRA program needs.  Other
regions, however, believe that such modifications
take a lot of time and effort.

    Additionally, the EPI process does not provide
sufficient sampling information for early actions at
solid  waste management units. In most cases, the
current process includes a file review and a visual
site investigation, but does not include site sampling.

    Finally, regions believe they are getting mixed
messages about EPI from headquarters.  It is not
clear  to them whether the EPI will continue to be
promoted  as  a priority-setting mechanism.
However,  several regions do use the EPI as the
basis for their priority-setting system.


 •  Accelerate the EPI process.

 •  Modify the products of the EPI process to
    include more  sampling during the site
    investigation phase to allow development of
    specific corrective action provisions in permits
    and orders, particularly for interim measures.
    The additional field  data could be obtained
   through EPA actions or through enforcement
   orders issued under RCRA Section 3013.

•  Have  the Superfund program continue to
   support the implementation of the EPI.

National Guidance Is Needed for Setting
Consistent Priorities

FINDING: National criteria and guidance — not a
national ranking system — are needed to ensure
consistency among regions in setting priorities.

DISCUSSION: Permitsarelargelydrivenbystatutpiy
deadlines. Many regional enforcement managers,
however, are basing their priorities predominantly
on risk factors. These factors include the number
and type of violations at a facility, evidence of
release from the facility, the facility's proximity to
a water supply, the environmental sensitivity of the
area around the facility, the toxicity and quantity of
waste at the facility, and the type of solid waste
management unit involved.

    Most regions use a modified version of the
Superfund HazardRankingSystem(HRS) to obtain
an objective, quantitative measure of risk. One
region has adapted the HRS to RCRA and has made
it computer-based.   Designed to be less data-
intensive than the HRS, this system can be used for
scoring individual solid waste management units
at a facility. The region has ranked a total of 183
facilities using the system, and finds it very cost-
effective for scoring facilities.

    Another region has developed a multi-media
priority-setting system for one of its states, using a
Geographic Information System (GIS). The system
produces a preliminary ranking of facilities based
solely on their potential to contaminate community
ground-water supplies. It then uses an automated
source-pathway-receptor model based on the HRS
to target facilities in critical areas.  Other regions are
in various stages of developing GIS capabilities,
and in the long termthis approach could be valuable
in setting environmental priorities.

    When asked whether there should be a national
ranking system for corrective action sites, eight
regions responded negatively. These regions were
strongly opposed to a national ranking system for
several reasons. Some think that EPA is too far into
the program to begin a major shift in  setting
priorities:  too many facilities are already in the
"pipeline," resources have been set for oversight,

 80  Chapter 7
 and priorities are already being set using the EPI
 and other region-specific ranking schemes.  And
 some regional managers think thatanational system
 would unavoidably slow down the program due to
 necessary start-up procedures, reallocation of
 resources, and guidance development.

    Some regions believe the program does not
 have the resources needed for creating a national
 ranking system, and they  do not want to take
 resources from overseeing activities at facilities
 (especially land disposal facilities) in the pipeline
 in  order to rank  new  and possibly  less
 environmentally significant sites, such as storage
 facilities.  Also, although most regions are moving
 they emphasized the  need for  flexibility  in
 considering non-risk-based regional  and state
 considerations when assessing priorities.

    However, when asked if there should be a
 uniform scheme for establishing corrective action
 priorities among the regions and the states, many
 regions thought that national criteria and guidance
 should  be developed  to help them set priorities
 consistently.  They emphasized that such criteria
 should notbe viewed as arigid, nationally imposed
 scheme that would supplant present regional and
 state priority systems.

 RECOMMENDATIONS:  Provide national guidance
 consisting of uniform criteria for each region to
 apply to determine its own priorities.  Regions
 would rank their facilities on a worst-site-first basis,
 using  a  combination  of  region-specific  and
 nationally uniform criteria.
Streamlining the Corrective Action

Work Plans Can Be Addressed by Their

FINDING: There is a large backlog of RFI work plans
requiring review.

DISCUSSION: Approximately 430 RFI work plans
are awaiting approval. In general, the regions with
largenumbersoffacilities,particularlyland disposal
facilities, seem to take longer to review and approve
RFI work plans, and have backlogs of two to nine
months. Other regions withno appreciable backlog
as yet anticipate developing one.

    The average time to approve an RFI work plan
after the imposition of the RFI is 309 days. This
 represents both the actual time to review the work
 plan and the time the plan waits on a shelf because
 no one is available to review it. Such long delays in
 reviewing RFI work plans may make it difficult to
 insist that owners and operators take prompt action.

    Most regions review RFI work plans in the
 order in which they receive them.  Based on RFA
 data and regional criteria for setting priorities, each
 RFI work plan could be classified, and high-priority
 work plans could be addressed quickly.


 •  Review  all permits that  have imposed RFIs
    and, based on the risk presented by each facility,
    establish high, medium, and low priorities for
    reviewing the RFI work plans.  For lower-
    ranked facilities, permit modifications may be
    advisable to reduce the scope or oversight level,
    or to prolong the schedule, of the RFI.

 •  Officially  notify owners and  operators of
    expected delays, and give them an estimate of
    when the review will begin.
Corrective Action Can Be Phased

FINDING: In many cases, corrective action activities
arebeingimposed for the entire facility, and phasing
of actions to address significant releases first is only
being used in limited situations.

DISCUSSION:  Most permits address corrective
action requirements for the entire facility and
cleanup process. While  some regions expressed
the view that an RFI should address all solid waste
management units at a facility, others favor phased
RFI activities to address the worst ones first. Some
regions have phased RFIs to spread the workload
over a number of years.

   Some states have shown an active interest in a
substantially different approach to managing their
corrective action program. For example, instead of
moving each facility through final cleanup on a
facility-by-facility basis, one state is focusing its
resources first on requiring short-term stabiliza tion
before site investigations. The state will then focus
on long-term stabilization at all sites as appropriate
to prevent  the further spread of contamination.
After completing long-term stabilization, the state
will focus on final cleanups.  This state is also
implementing a "non-oversight" option that would
allow cooperative owners and operators (after long-
term stabilization has been completed) to proceed
with final cleanup without extensive oversight. A

                                                                          Corrective Action  81
major  component of  this  approach  is the
development of performance standards.

    Several regions were enthusiastic  about the
value of interimmeasuresinachievingrapid source
control, stabilization, containment, or other results
that significantly reduce the severity of the problem
at a site. Some regions thought the key to making
demonstrable short-term progress in the corrective
action  program was the routine use of interim
measures before or concurrent with the RFI and/or
CMS phases.

    Other regions expressed concern with such an
approach because of the limited data available at
the completion of the RFA. Since many regions do
not sample during the RFA, interim action would
require upgrading the RFA or doing a focused RFI.
One region thought the phased  approach  could
work if the RFA were followed by an investigation
with sampling to determine the sources and extent
of contamination. This approach is similar to that
of Superfund, which does more intensive  initial
investigation of a site with potential for listing on
the NPL to allow early action to correct or stabilize


•  Adopt a three-phase approach to corrective
    action, giving emergency actions and control
    of releases at all facilities higher program
    priority in the near term than final cleanup
    actions at most facilities. The great majority of
    near-term work would be in the second phase,
    which focuses oncontrolling releases at facilities
    by using interim measures. The objective of the
    first and second phases is to make facilities safe
    and stable  before  undertaking  long-term
    cleanups.  The third phase consists of the final
    cleanup of the stabilized facility. To the extent
    practicable,  interim measures  should  be
     specified after completion of RFAs and before
     completion of RFIs.

 •   For all future permits, schedule immediate or
     short-term corrective action only on the highest-
     risk facilities, and focus  on emergency and
     interim measures to control releases at these
     facilities.  If RFIs are imposed, phase them to
     study the most critical solid waste management
     units first.

 •   For the final, longer-term cleanup of facilities,
     develop performance standards for cleanup.
     Such standards should  encourage owner/
     operator-initiated actions and should extend
     oversight resources by eliminating detailed
     project reviews. They should initially focus on
   field activities and on cleanup levels for ground
   water and for soil for direct contact, and thenbe
   expanded to other media or pathways and to
   standards for specific technologies and industry

Permits Can Be Issued According to

FINDING: Almosteveryregionidentified theHSWA
permit deadlines as a barrier to setting priorities
based on the  most environmentally significant

DISCUSSION:   Even  though  the regions  are
attempting to set priorities, statutory deadlines for
permitting have not allowed EPA the flexibility to
target corrective action to the highest-risk facilities
or portions of facilities. For example, treatment and
storage permits are being issued at the expense of
writing permits for or enforcing against higher-risk
closed  and  closing  land  disposal  facilities.
Approximately 850 treatment and storage facilities
still need permits, while over 1,300 post-closure
permits need to be writtenfor land disposal facilities.

    In addition, most permits  must  include
corrective action provisions for all solid waste
management  units, regardless of their  threat;
however, the timing for imposing these provisions
is flexible. In contrast, corrective action orders tend
to be targeted to high-risk facilities, for which action
is immediately warranted, and to releases from
specific solid waste management units.


 •  Through  appropriate   legislative change,
    eliminate the requirement to impose corrective
    action in all permits at the time of issuance
    when those permits are driven by statutory
    deadlines, and instead impose corrective action
    first at the most environmentally significant
    facilities and solid waste management units.

 •  In the interim, establish permit schedules for
    complying with corrective action requirements
    and, in particular, for submitting RFI work
    plans.    Base those   schedules  on  the
    environmental significance of the release.

 Consent Orders Are Faster Than Permits

 FINDING: Many regions are issuing consent orders
 rather than permits, or are taking steps to minimize
 permit appeals.

 82  Chapter 7
 DISCUSSION: Overall, the time range for issuing
 consent orders and permits is similar—about 2 to
 25 months total elapsed time (including shelf time).
 However, permit appeals cause long delays in the
 implementation of corrective action and can drain
 EPAresources. Themajorityofappealsapparently
 concern identification of solid waste management
 unitsand the scope of the RFI. Industry alleges that
 the risk presented by a particular unit is often
 unknown or highly questionable, but that the
 regions, when in doubt, impose RFI requirements,
 rather  than  give  the owner or operator  the
 opportunity to  provide  more  conclusive

    Mostregions believe thattheycanissueconsent
 (as well as unilateral) orders much faster than
 permits,andthatavoidingthepermitappeal process
 more than compensates for any extra time spent on
 order negotiations. Regions that have adopted
 rigorous order negotiation deadlines and that have
 occasionally used  unilateral orders  (which  take
 two to four months) have substantially expedited
 their order issuance.  Moreover, consent orders
 include stipulated penalties, which can be assessed
 andcollected administratively; violations of permit
 conditions require  initiation  of  a  separate
 enforcement action.

    Many regions  are turning to consent orders
 rather than permits, or are taking steps to minimize
 permit appeals. One region does more work up
 front to develop a detailed work plan in the permit
 to reduce the uncertainty and to cut  down on
 appeals. Several regions are holding  meetings or
 negotiating with  permit applicants over  RFA
 findings, the scope of the proposed RFI, and other
 permit conditions.  Representatives of an industry
 group  specifically  recommended that, to avoid
 appeals and litigation,  EPA should share the RFA
 with the permittee before issuing the  permit to
 resolve factual inaccuracies and issues.

    One reason for the potentially shorter time to
 issue an order is that orders do not currently require
 a public comment process, whereas permits require
 opportunity for public comment before they are
issued. The enforcement program has recognized
 that in many cases the public is not interested in the
RFI or interim-measure phases of the program. The
level of interest may change when the corrective
action program moves to later phases. One region
is developing guidance under which an owner or
operator develops a public relations  program to
ensure  that local residents are aware  of activities
 conducted in accordance with the consent order. It
 is likely that EPA will have to establish a parallel
 public participation or relations process for orders
 to ensure that there  is no lesser opportunity for
 public input under orders than under permits.

 RECOMMENDATION: To reduce the number of solid
 waste management units  that unnecessarily enter
 the corrective action system, allow owners and
 operators to review draft RFA reports and to
 undertake supplemental investigation to address
 specified, questionable units or releases before
 imposing the formal RFI phase of corrective action.
 These investigations  could also  serve to provide
 the necessary data for imposing interim actions.

 Post-Closure Permits Are Especially

 FINDING:   Permitting  closed facilities may be
 lengthier and more difficult than permitting active
 facilities because of  the  lack of incentives for
 obtaining a post-closure permit.

 DISCUSSION: Some closing facilities are owned or
 operated by companies who want to comply with
 RCRA requirements because they want to continue
 their  manufacturing or process  operations.  For
 facilities in these categories, post-closure permitting
 may not be difficult and could be completed in a
 reasonable period of time. Others, however, may
 be dosing all operations and may not be financially
 In these cases, enforcement orders under RCRA or
 Superfund may  be necessary to ensure proper

    EPA's primary recourse for an inadequate
 permit application is denial of the permit or initiation
 of an enforcement action. Some  regions have
 expressed concern that as the  1992 permitting
 deadline nears for storage  and treatment facilities,
 many are expected to close in increasing numbers.
 Since these closing storage and treatment facilities
 (an estimated 1,800 today) will have no units subject
 to post-closure permitting, any corrective action
 will have to be  imposed through  enforcement.
 Before issuing orders, however, EPA will need to
 conduct RFAs at these facilities or obtain equivalent

 RECOMMENDATION:   Develop  facility-specific
compliance plans that determine the most effective
compliance mechanism to ensure  final facility

                                                                          Corrective Action  83
Oversight Can Be Tiered and Voluntary

FINDING:  While there appears to be a growing
acceptanceof the need to vary theleyelsof oversight
to better allocate resources, there are no nationally
consistent criteria forvaryingoversight. Noeffective
mechanism exists to allow collection of oversight

DISCUSSION: To better allocate limited resources,
half of the regions use a tiered approach to oversight,
varying the level of oversight at different facilities.
Among the factors they consider in deciding what
level to apply are availability of resources, the
severity of environmental problems at the site, the
site's complexity and compliance history, and the
level of public involvement.  Of the regions that do
not vary oversight, some indicated that they believe
all of their facilities pose high risks and require full
oversight. The regions also differ with respect to
the level of oversight they consider necessary for a
given situation. Several regions noted that a high
level of oversight would be necessary if they are
responsible for  selecting a protective remedy,  as
required in the current draft of the Subpart S rule.
Clearly,  the program has yet  to define the
appropriate level of oversight for different facilities.

    The  regions  generally  do  not encourage
voluntary or owner/operator-initiated corrective
action. When approached by owners or operators
who are interested in initiating the corrective action
process, but whose facilities are low in priority or
far down in a queue, some regions advise that they
may proceed on their own, but their actions would
not relieve them from future EPA requirements.

    Environmental groups generally favor strong
oversight, but expressed concern that it  would
discourage "voluntary" cleanups. Industry favors
lower levels of oversight for responsible owners
and operators.

    One approach for reducing the level of oversight
and placing more accountability on the owners and
operators is to develop performance standards for
site cleanup (e.g.,  soil levels for direct contact).
Performance  standards  could  encourage
"voluntary" corrective action and reduce oversight
of remedy selection. In general, industry groups
agreed that this approach  would speed  up the
process, but expressed concern that flexibility would
be restricted. They would prefer participation in a
rulemaking, but they recognized this would take a
very long time.
    One way to assist EPA in undertaking more
oversight is by reimbursing EPA for its oversight
costs.  RCRA Section  3013,  which allows  for
reimbursement if the owner/operator does not
properly investigate releases from a facility, has not
been used  frequently but could  provide
reimbursement on a limited basis. In addition, EPA
may recoyer costs or be reimbursed if Section 104 or
106 of the Superfund legislation (CERCLA) is used
to order corrective actions. Each of these options
has drawbacks or limitations. The establishment of
a RCRA trust fund or fee system, analogous to that
of some states, through an amendment to RCRA
would ultimately be more appropriate  for full
funding of oversight costs. It is important that the
funds from such a system go directly to EPA, as in
CERCLA Section 122(b).

    One industry group objected to the use of such
funds  for  contractor-supported  oversight.
However, the group indicated it may support fixed
user fees for RCRA permit processing and report
review if the fees were coupled with deadlines for
EPA to process permit applications and to review


•   Implement a tiered  oversight approach based
    on the type of corrective action activity, site
    priority, compliance history, and facility status.

•   Carefully review current permits and orders to
    determine the  most effective use of EPA or
    state resources for oversight.

•   Meet with owners and operators early in the
    corrective action process to determine oversight
    levels, and encourage more owner/operator-
    initiated actions with minimal oversight.

•   Recover EPA oversight costs by:

    -  using RCRA Section 3013 enforcement
       orders for  doing RFIs when the owner/
    -  using CERCLA Section 104 and  106
       authorities for corrective action, and
        establishing a RCRA trust fund or user fee
        system, through appropriate  legislative
        change, ensuring that the proceeds return
        to EPA.

•  Carefully review the requirement for EPA to
    select cleanup remedies before issuing the final
    Subpart S rule.     .,   ,

 84  Chapter?
State Involvement Can Be Increased

FINDING:   Despite  the mandate for  state
authorization, the corrective action program is
primarily federally run, principally because the
states are concerned about the program's future
resource burdens.

DISCUSSION: Officially, corrective action is almost
entirely a federally implemented program, as only
five states are authorized to run their own RCRA
corrective action programs. In practice, some other
states arequiteactiveinsupportingorimplementing
the federal program, and some more than match
federally granted resources with their own. For
example, New York and New Jersey, though not
authorized,  support EPA's  regional office  by
overseeing many site studies  under their own
authorities. Nevertheless, in most cases, the final
responsibility for RCRA corrective action rests with
ill xV*

    The states are generally not encouraged to
exercise their non-RCRA authorities to achieve
cleanup, although several have the capability right
now to bring more resources to bear through such
mechanisms as user fees. In addition, some states
and regions believe that resources are wasted and
the timeliness of products suffers because EPA
duplicates the state oversight and review process.
Some regions have developed joint EPA/state
programs for corrective action, in which the states
undertake most of the oversight work.
    States are most concerned about the resources
required to carry out the corrective action program.
They feel that the redistribution of fiscal 1990 grant
resources does not help the program and will result
in a smaller base RCRA program. They urge that
corrective action not be undertaken at the expense
of the existing prevention program. While some
states believe that the most expedient way to
maximize state participation is to transfer the
responsibility for corrective action to themasquickly
as possible, many states are reluctant to take on
authorization because of concerns about resources
or capability.


•  Promote states  to become authorized for
   corrective action.

•  Explore further the possibility of converting to
   state grants  the money that EPA  would
   otherwise  put into extramural  contracts,
   allowing states  to build capability,  while
   performing at lower cost than contractors.

•  Acknowledge the work states do under their
   own corrective action authorities, and promote
   joint EPA/state cleanup activities with the goal
   of getting more cleanup done. Cut back on
   oversight forbothauthorized and unauthorized
   states to prevent duplication of oversight.

                  CHAPTER 8
                  Maximizing Program Resources:
                  Human and Fiscal Factors

   The ultimate success of the RCRA Subtitle C
program will be determined by the capabilities,
skills, and initiative of its work force and by the
effective management and use of the program's
resources.  Upon analyzing EPA's allocation of
resources since fiscal 1985 (the first year since the
passage of HSWA), the Resources Subcommittee
identified some basic trends in resource funding

•  modestincreases—or little real increase, taking
   inflation into account—in work years and state
   grants over the past three or four years;

•  a steady and dramatic increase in reliance on
   contractors in the regional offices; and

•  significant increases across the board proposed
   for fiscal 1991.
   The Subcommittee further analyzed these
trends in resource funding levels, in view of the
dynamic shifts in program responsibilities. Those
shifts have occurred in response to both a maturing
of the program and changing priorities resulting
from  statutory mandates,  new  regulations,
Congressional oversight,  and increasing public
awareness and concern regarding municipal solid
waste, medical wastes, and other special wastes not
regulated under RCRA'shazardous wasteprogram.

   Within EPA headquarters, work years have
increased about 18% since 1985, with most of the
increase occurring between 1985 and 1986 (see
Figure 20). This increase was dedicated to Subtitle
D(solid,primarilynon-hazardous)wastesand other
special waste categories, with a slight decrease in
work year resources for Subtitle C (hazardous)
wastes. Work year resources for hazardous wastes
are  also  shifting from support for regulatory
development   to  support   for  program
                                         FIGURE 20
                 Headquarters Resources Have Remained Constant

                                    F  1 Adoal    I   I Proposed
           200 -*i
        •g  150 -H
                     Work Years
                     297  295  294
                                                    $600 T
                                                    $500 .-
  £  $30 0- -f

  §  $200-1-
                                                    $100 -•
                Contractor Dollars
                                                                   $41 4 $41.7 $41 2
              1985 1986 198? 1986 1989 1990 1991
                                                        1985 1986 198? 1988 1989 1990 1991

 86  Chapter 8
    During fiscal years 1987 through 1990, EPA
regional work years and state grant funds have
remained  relatively  constant  (see  Figure 21).
Conversely, increasing resource demands  have
resulted,inpart,fromHSWArequirements to write
permits for all land  disposal, incineration, and
storage and treatment facilities by November 1988,
1989, and  1992, respectively,  and  to  address
environmental releases through corrective action
(cleanup) at both operatingand dosed facilities. As
the states and regions have been largely successful
in meeting the permit deadlines for operating land
disposal facilities and incinerators, resources are
being shifte'd in the budget from permitting to
compliance monitoring and enforcement activities,
and on a larger scale to corrective action to respond
to the  growing list of facilities that will require

    This chapter examines  whether the overall
resources devoted to RCRAare commensurate with
EPA's major program requirements (both current
and projected) and whether these resources could
bemanaged more effectively. If Congress approves
the  President's proposed budget, resources
allocated to RCRA could increase considerably in
fiscal 1991.  However, when examining resources
in the context of the growing and diverse universe
of facilities that EPA and the states must address,
policymakers must  still make difficult choices
between a growing prevention (permitting and
inspections)  program and  a rapidly growing
corrective action program, between a hazardous
waste program and an emerging municipal solid
waste program, and between shifting resources to
address waste minimization at a large number of
facilities that generate waste versus maintaining a
strong emphasis and presence at facilities that treat,
store, and dispose of waste. We will look at these
choices under the broad categories of resources
management and human resources.

    The Resources Subcommittee developed a
survey questionnaire and distributed about 650
copies to RCRA technical and legal staff in all ten
regions and to a portion of the headquarters staff.
Over 550 people answered the survey, resulting in
a response rate in excess of 80 percent. In addition,
the Subcommittee  conducted  focus group
interviews,  involving supervisors and program
managers, in five regions and eleven states. Budget
and work year estimates were obtained from EPA
headquarters  and the regional offices, and staff
turnover data were obtained from the EPA payroll
system and from the regional offices.  Budget
numbers used in this chapter through fiscal 1989
                                          FIGURE 21
Regional and State Resources Have Remained Generally Constant
1...J Apfustf 1 I Proposed
State Grants Regional Work Years
$90.0 i

$80.0 •
— . $70.0 -
£ $60.0 -
^T $50.0 -
5 $40.0 -
"as $30.0 •

$20.0 •
$10.0 -

$0.0 *
$88.0 . . ~

$66.5 $66.8 '•




^ X *•
^ "* :

'• ,

• '<•



^ ""


•• v..
••^ ;

TO :

•• \

f'~ t

^ £








.tAJj^J.^..—.^^^^..... ,,........,, i.,,.,,..,.f..,.,,^,.n.. 	 ,
1985 1986 1987 1988 1989 1990 1991
1000 -

900 •

J2 700.
> 600 ;
^ 506,
•• _ g 400 -
S5 300-
_; 260 .
-_ -i ioo -

.I :=s:to •



: f f
I _,

; f

; s f






" •*;
; <•

I '

; ^
: ^


\ '




- i


: •"

f ^

• •"

!' ""


J ;


1986 1987 1988 1989 1990 1991

                                                             Maximizing Program Resources  87
arebased on "Congressional actuals" obtained from
the Budget Analysis Resource System. Some of the
historical figures have been adjusted to reflect
organizational  shifts  (e.g., resources for
underground storage tanks are removed from early

   The numbers for fiscal 1990 and 1991 resources
represent estimates, and arebased on the proposed
resources in the fiscal 1991 President's Budget. As
such, fiscal  1991  projections are  subject to
Congressional change or approval.  They are
presented to show the potential increase in federal
and state resources for the upcoming fiscal year.
Findings and Recommendations

    A number of the findings of the Resources
Subcommittee are directly related to findings and
recommendationsof other subcommittees. Because
some of these findings are considered critical to
addressing the central resource management issues
identified earlier in this chapter, they are briefly
discussed below; however, an attempt has been
made no t to repeat discussions or recommendations
appearing in previous chapters. Where additional
recommendations  were  identified, they  are

Resources Management

   The findings related to resources management
concern the needs for matching the program's
priorities  with available  resources, balancing
prevention and cleanup activities, reducing reliance
on contractors, making more effective  use of
combined federal and state resources, and balancing
resources among headquarters, the regions, and
the states.

Priorities Should Be Matched with
Available Resources

FINDING: The RCRA program has both multiple
and competing priorities that in the aggregate lead
to unreasonable expectations. Also, new program
requirements, created by statutory and regulatory
actions, often displace existing RCRA activities
shift in resources produces optimal environmental

DISCUSSION: Every year, the Office of Solid Waste
and Emergency Response issues RCRA program
guidance. Called the Agency Operating Guidance
(AOG), this document identifies national priorities
and all the activities that support a comprehensive
RCRA program. In many cases, the AOG fails to
adequately  consider  available  or  projected
resources, as evidenced by a number of activities
identified in the guidance that are not reflected in
thebudget. Asaresult,theAOGcreatesexpectations
that cannot be achieved.

   This problem is compounded by the fact that
resources required to  implement new program
requirements are not adequately included in EPA's
budget or, if included, are not ultimately approved.
Where resources are not  approved to implement
new requirements, EPA has not made conscious
decisions regarding the competing demands of the
new and existing programs. This has resulted in
pressure on the regions and states to "do it all."

  Many commenters attributed these problems to
the lack of a long-term plan that effectively makes
choices between conflicting priorities of major
program elements (such  as waste minimization,
permitting, enforcement, corrective action, and state
authorization). Such a plan is needed as a consistent
and uniform guide  for developing budget and
guidance documents, for  writing regulations, and
for implementing the program at all levels.


•   Develop a long-term strategic plan for RCRA's
    hazardous waste  program  that links
    environmental  priorities, environmental
    results, and available resources and that makes
    clearly identifiable choices between competing

•   Improve EPA's  analyses for estimating the
    resource impactsof new regulations brprogram

•   If adequate resources are not approved in the
   budget for implementing new requirements,
    make  conscious decisions regarding new
    program implementation and displacement of
    existing program activities. Base these choices
    on a comparative risk analysis, clearly convey
    them to the  regions  and the states,  and
    incorporate themintogoverningstrategicplans,
   budget requests, and  operating guidance.
Prevention and Cleanup Activities Need

FINDING: As currently operated, the RCRA cleanup
program could overwhelm the prevention (waste

88 Chapter 8
minimization and regulatory)  program if  not
carefully managed and controlled.

DISCUSSION: If total resources remain constant
and current trends continue, EPA and the states
will soon face a critical choice: fall behind in the
ability  to  prevent  pollution  through waste
minimization, enforcement, inspections, and/or
permit activities, or  find a way to control and
manage the burgeoning workload to clean up sites
already contaminated with hazardous waste.

   The increases in corrective action, relative to
prevention activities, clearly show the challenges
andcompetingdemandsconfrontingEPA. Inl985,
hardly any resources were devoted to corrective
action. However, as Figure 22 shows, incomparison
with the regional workyears allocated to permitting
and enforcement activities, corrective action is
becoming an increasingly large component of the
regional work year budget.

    The potential demand for higher levels of
corrective action resources looms even greater in
the outyears. As seen in Figure 23, the number of
facilities initiating  corrective action, and  the
resulting demand for corrective action oversight
resources, are expected to increase significantly
over the next several years if EPA attempts to
address all operating and dosed facilities that have
environmental  releases  without regard to  the
varying degrees and immediacy of risk posed by
the individual sites.  This demand is driven by
several factors:  the  approximately 1,000 closed
land disposal facilities, which will require post-
closure permits or corrective action orders; the 1992
permittingdeadline for approximately 1,600 storage
and treatment facilities; new facilities entering the
RCRA regulatory system from the promulgation of
new regulations, such as the Toxicity Characteristic
Leaching Procedure rule;   and oversight cost
estimates comparable to Superfund's.

   Maintaining  the appropriate balance  between
corrective action and prevention is perhaps the central
challenge in the .RCRA program today. The primary
issue is how to manage the corrective actionprogram
so that sufficient resources are preserved to maintain
an effective prevention program.  The principal
recommendations for addressing this issue are set
out in the Corrective Action chapter of this report.
An additional recommendation is to consider using
economic or market-based incentives to promote
waste minimization and/or pollution prevention.
Program Relies Too Heavily on Contractors

FINDING: EPA's increasing reliance on contractors
is undermining the hazardous waste program's
effectiveness and efficiency.

DISCUSSION: As EPA's corrective action program
has grown, so has the extramural budget for
contractors in  the regions.   Considering  the
proposed budget for fiscal 1991, the extramural
budget (contractor dollars) will have grown eight-
fold since 1985, yet the intramural budget (work
                  FIGURE 22
    Corrective Action Is Gaining on Prevention
           I  |  Corrective Action

           {""3  Prevention (Permitting & Enforcement)
        100% t
    O    25%

             1985  1986 1987  1988  1989  1990
•:-:- •:-:-" •-:-:-,->.- .-.•.-.•:-:•, : :-:-:-:-:- -.---.-.-:•:-:-:-:-.-,-:-:•.-.-:•. .•:-:-:-;-: . .-:- -:-:-:-.-:-:- •" ,-.-"•• .":-:-:-"-:•:-•-;•;-.-:-:': "•:•:".••:• »:-:•>:•;• .•:•:-: :-:-:-:-;-:• • :
Annual Corrective Action Needs
Dj'ected Corrective
Needs Are It

• : •*
fff '• •

"•— ' 	 Ava
II 1
Action Reso
1 1

* ' '*'

V ff

ffff <•
,, /'
3st-91 Increase)
92 6 W
PRE- 1989 1990 J991 ' 1992' 1993' 1994 199S'
1989 " " "

                                                               Maximizing Program Resources  89
                                            FIGURE 24
                        Regional Contractor Dollars Have Increased,
                         While Work Years Have, Remained Constant





f~l Proposed


   900 i

   soo •-

   700 . - 676
    600 -r

    500 '•

    400 +



    100 -

                                                               794  793  798
            1985 ,1986 :1987, 1988 1989 1990 _1991
                                                          1985 1986 1987 1988 1989 1990  1991
years) necessary to manage those dollars has not
adequately kept pace. (See Figure 24.)

    Both the regions and the states have misgivings
about EPA's greater reliance on contractors. RCRA
contractors have experienced high turnover rates.
As a result, EPA and state staff are often frustrated
by the time required to train and oversee contractor
employees, many of whom  are receiving higher
pay.  The staff see this as an  extremely inefficient
use of their time and of scarce program resources.
These extramural dollars could be leveraged by a
factor of two or three if they could be converted to
state grant dollars, or to cover salaries and expenses
to hire additional staff or support existing staff in
the regions.

    Equally important,  as  extramural dollars
increase, functions, skills, and abilities must change.
Instead  of regional technical/professional  staff
performingthe work themselves, theymustmanage
someone  else's work.   This  effort requires
considerable training and experience, as well as a
change in focus on the part of staff.

   While  this blending  of  technical  and
administrative functions is not unhealthy, a careful
balance must be maintained. Regional RCRA staff
are expected to maintain a high degree of technical
skill in order to provide effective oversight of state
programs and to carry out complex permitting,
                                         compliance,  and  enforcement  functions.   A
                                         significant  decline  in  regional  technical
                                         sophistication, as a  result of overemphasis on
                                         administrative  project  management, could
                                         undermine the effectiveness of the overall state/
                                         EPA hazardous waste program.

                                         RECOMMENDATIONS: Move extramural resources
                                         to the salaries and expenses appropriation, for better
                                         useofoverallresources. Convert existingextramural
                                         contract  resources  into  state grants  and/or
                                         personnel salaries to hire more staff.
                                         Federal and State Resources Can Be Better

                                         FINDINGS:  The RCRA program currently lacks
                                         sufficientflexibilityforstatesand regions toconsider
                                         local priorities and environmental results.  Also,
                                         EPA and the states can achieve better resource
                                         efficiencies bymoreclearlydefiningtheirrespective
                                         roles and responsibilities and by improving the
                                         state authorization process.

                                         DISCUSSION:  Both of these findings are fully
                                         discussed  and recommendations for them  are
                                         presented in the Federal/State Alliance chapter of
                                         this report. They are briefly mentioned again in this
                                         chapter to underline their importance in terms of
                                         achieving a more efficient use of combined federal

90  Chapter 8
and state resources.  The following recommenda-
tionsarehighlightedbasedoninterviewsof regional
and state program managers.


•  EPA should decrease emphasis on meeting
   numerical targets driven by national priorities,
   if such targets fail to take into account unique
   regional  and  local  priorities;  otherwise,
   environmental results could be sacrificed.

•  The  regions  and  the  states must  avoid
   duplicating efforts in implementing program

•  Balance the responsibility for overseeing state
   programs with the responsibility for assisting
   with  state  program  development and

•  The regions should retain overall responsibility
   for corrective action in states that lack the desire
   or ability to take on corrective action program
Resources Need to Be Balanced with

    Headquarters/Regional Balance

FINDING: The current balance in resources between
headquarters and the regions appears appropriate.

DISCUSSION:  In fiscal 1985, headquarters work
years represented  28% of the total EPA RCRA
federal work force. In the proposed budget for
fiscal 1991, this picture would change somewhat,
with a 3% shift away from headquarters toward the
regions.   Clearly,  the demands placed on  the
implementors of the RCRA program are growing,
with theimpositionofnewregulatory requirements
and corrective action at more and more facilities.
Conversely, considering the maturity of the RCRA
hazardouswasteregulatoryprogram, the workload
at headquarters could be viewed as level or even
declining. However, when other factors, such as
RCRAreauthorization,municipal solid waste,large-
quantity wastes, and pollution prevention  are
considered, the  current allocations  appear

RECOMMENDATION: In future budget years, take
into account the  evolution of the program in
determining the appropriate allocation of resources
between headquarters and the regions.
    EPA/State Balance

FINDING: The actual balance between EPA and
state resources is possibly in conflict with planning

DISCUSSION:  EPA does not generate national
information on what is purchased at the state level
with the grant funds. Although annual state-by-
state work plans are negotiated between the regions
and the states, these documents have not been
analyzed by EPA to produce national summary
data on, for example, the number of state staff at
work in the RCRA program, or the cost at the state
level of managing the RCRA information system.

what is purchased with the grant funds are two
more variables. First, the cost per work year varies
greatly from state to state, ranging as low as $35,000
to over $90,000. Second, the state contribution to
the program in many cases exceeds the 25%
minimum and in some cases may be as high as 75 %-
85%. Survey data from the Association of State and
Territorial  Solid  Waste Management Officials
suggest that the average state contribution may be
in the range of 40%. Given these two variables, it is
currently impossible for headquarters to determine
with accuracy how many staff are at work in the
states on the hazardous waste program. As a result,
it is very difficult for EPA to develop good budget


•  Refinetheplanning/budgetingprocesstomore
    accurately estimate regional and state grant
    resources, and salaries and expenses for regional

•  Evaluate how grant resources are spent, with
    headquarters developing a national report for
    use in making future projections and budget

    State Roles/Budget Disconnect

FINDING: The budget and guidance processes fail
to adequately recognize that the states are more
than implementation organizations like the regions.

DISCUSSION:   States  also  operate as  both
headquarters and regional organizations, with
sizable rulemaking, policy development,  and
legislative interface responsibilities and other non-
output oriented work. Figure 25 shows the total
resources (headquarters, the regions, and the states)
for fiscal 1990.  For purposes of this illustration,

                                                              Maximizing Program Resources 91
                  FIGURE 25
    Total RCRA Implementation Resources
         Slate*   f"l Headquarters
EPA. Regions
headquarters and regional work years have been
converted to dollars, and a state match of 25% has
been assumed.

    EPAcontractdollars(headquartersand regions)
total over $71 million, slightly exceeding the level
of state grant funding. When added to the funding
available for work years, the resources at EPA
(headquarters and the regions) comprise over half
of the total resources available to EPA and the states
for RCRA implementation.   Yet  EPA's basic
assumptions about RCRA implementation is that
the states implement 85% of the base program and
50% of the corrective action program.

RECOMMENDATION: Shift the allocation of resources
and program responsibilities between EPA and the
states to more accurately reflect the full scope of
state program responsibilities and activities.

    Legal Imbalance

FINDING:  Legal resources lag behind program

DISCUSSION: Because the headquarters budget
process does not directly link Office of Regional
Counsel  (ORC)  workload estimates  with  the
program's (OSWER) enforcement workload, the
increases in program compliance and enforcement
resources have outpaced ORC increases. The result
has been a growing gap between the two activities,
 thus slowing down the  development  and
 completion of enforcement cases in some regions.
 Regional Counsel resources are also insufficient in
 manyregions to sufficientlyreview corrective action
 permits for enforceability or formitigationof permit

 RECOMMENDATION:  Develop Office of Regional
 Counsel/Office of Enforcement  staff  workload
 projections and budget requests more closely with
 the OSWER budget process.

 Human Resources

    The findings related to humanresources include
 the need for reversing high staff turnover and
 internal loss rates, restructuring the EPA training
 program, boosting  funding for salaries  and
 expenses, and streamlining the process for recruiting
 and hiring EPA employees.

 Staff Losses to Other EPA Programs Are

 FINDING: While RCRA staff "turnover" from EPA
 to outside organizations is within an acceptable
 range, staff "losses" to other EPA programs are
 relatively high and may get worse absent additional
 incentives for RCRA staff to  remain  with the

 DISCUSSION: The survey found that 70.5% of the
 RCRA professional  staff and supervisors  were
 generally to very satisfied with their jobs in the
 RCRA program. It was also revealed that 43.4% of
 the staff described their current morale as high to
 very high, 15.5% as low, and 3.8% as very low.
 However, the overall tenor of job satisfaction and
 high morale is not translating into a strong desire
 among the staff to stay with the RCRA program.

    Losses among scientific and technical staff (i.e.,
 permit writers and compliance officers) have been
 disproportionately high. Whilethe turnover rateof
 scientific and technical RCRA employees leaving
 EPA was 9.6%, the fiscal 1989 overall loss rate for
 thescientificand technical staff (includingtransfers
 within EPA) in the RCRA program was 20.3%, with
 six regions having loss rates above 20% (see Figure
26). A significant share of these losses was due to a
migration of RCRA staff to the Superfund program.
Internal losses  to  Superfund  and  other  EPA
programs approached 50% of total losses in seven
of the ten regions.

    Of the RCRA professional staff surveyed, 52.3 %
have actively sought other employment, and 85.7%

92  Chapter 8
                  FIGURE 26
         Scientific and Technical Staff
   Turnover Rate Exceeds 20% In Six Regions

      D Turnover (losses  H Losses (within
         outside EPA)        EPA)

HO 1  2  3  4  S  6  f   8
                                    10, Tot.
                                      ' Avg.
of these individuals have done so within the last 12
months.   In terms  of looking  for  non-RCRA
employment, the survey found that 81.4% of the
RCRA staff cited an immediate increase in salary as
a reason, with 59.1% seeing it as a major reason;
945% feel that they have more opportunity for
future advancement outside of RCRA, with 77.7%
seeing it as a major reason; and 92.8% believe that
they  can receive  more career development
elsewhere, with 75.8% feelingittobeamajorreason.
In addition, 72% of the professional staff surveyed
believe their positions do  not have a well-defined
career path. In the focus group interviews, the
RCRA supervisors commented that the high loss
rate that exists is due in large part to a topping out
of their scientific and technical  nonsupervisory
staff at GS-12.  •

    In the focus group interviews, all the regions
identified the migration from RCRA to Superfund
to be a growing concern, chiefly because of the
recently approved Superfund salary structure, and
the initiative in Superfund to increase staff level by
500 work years. This concern is substantiated by
the statistics, which show not only that eight of the
ten regions have suffered substantial losses to
Superfund, but that 48.8% of RCRA staff seeking
other  employment are looking toward  the
Superfund program, while only 45.7% are looking
at other EPA positions.
    Of the states interviewed in the focus groups,
many (but not  all) indicated that turnover is a
severe problem for their programs. In many cases,
the problem of salary structure contributes  to an
even higher turnover than exists in the EPA RCRA
program.   With the exception of state RCRA
programs with salary structures higher than EPA,
all  states indicated that keeping employees  for
more  than  a  couple of years was becoming
increasingly more difficult. The states believe that
this is hurting their ability to fulfill their RCRA
mandate, and is not being taken into account by the
EPA regions.

    The Subcommittee found it very difficult to
obtain reliable data on total staff losses in the RCRA
program, particularly losses toother EPA programs.
While EPA's systems have the capability to profile
On-Scene Coordinators and Remedial Project
Managers), they cannot currently do this for RCRA
job functions because a process does not exist to
gather the necessary data for entry into the data


•   Create  additional incentives  to persuade
    qualified professional RCRA staff to remain
    with the RCRA program.

•   Establish grade structures and levels for RCRA
    Corrective Action Officers that are equivalent
    to those for Superfund  professional and
    technical staff. Also, raise the grade level of
    select compliance, enforcement, permit writer,
    and other professional staff positions to GS-13
    where warranted by complexity of site or other
    program responsibilities.

 •   Improve "support" for RCRA staff in the areas
    of travel, training, and personal computers.

 •   Enhance the use of EPA's award systems to
    recognize  outstanding job performance or
    special initiatives.

 •   Recognize high staff turnover rates in many
    state programs  by  making appropriate
    allowances in terms of trainingneeds, technical
    assistance, and oversight.

 •   Consider establishingabetterinformationbase
    for  managing  RCRA  resources  (e.g.,
    determining  trends in  staff retention  and
    experience levels by job function).

                                                              Maximizing Program Resources  93
Training Opportunities Need to Be

FINDING:   Although  EPA-sponsored or  EPA-
conducted training is highly regarded, it is not
readily available to all the staff who need it.

DISCUSSION: Over 60% of the respondents to the
survey have been satisfied or highly satisfied with
EPA-sponsored courses. However, the survey also
revealed strong negative perceptions concerning
training: 59.8% of the RCRA staff believe training
funds are insufficient; 70.1 % believe that budgetary
restrictions prevent them from taking needed
training; 52.5% think that relevant courses are not
well publicized; and 73.7% feel that EPA does not
sponsor enough relevant training.

    As Figure 27 shows, in each of nine separate
training categories, over 65% of the RCRA staff
think that a need exists,but in all except one category,
less than 35% have received such training. Relative
to the one exception noted, 93.4% of the RCRA
technical staff believe that a need exists for basic
RCRA training within the first several months of
employment. However, only 48.0% have received
such training.

    States rely heavily on EPA for their training
needs, but have found it to be rarely given in a
timely manner, poorly scheduled, too dependent
oncontractorsandoftendosed to state staff because
of the lack of slots. Also, the unavailability of travel
funds has consistently prevented  them  from
participating in available training.  Many of the
EPA regional supervisors also believe  this is a
problem, while 60.4% of the RCRA staff think the
lack of travel funds for training has impaired their
ability to do their jobs. Finally, both the regions and
the states think that RCRA has not adequately used
relevant Superfund training opportunities.

RECOMMENDATIONS: Create a more focused and
centrally coordinated approach to traininginRCRA:

•   Establish a centralized RCRA training office in
    headquarters responsible for planning, man-
    agement, development, and implementation
    of a coordinated national training curriculum
    designed to meet the needs of headquarters,
    regional, and state programs.  To support a
    centralized RCRA training program:

       into a RCRA training budget, for needed
       staffing and short-term contract support.

       Incorporate the funds into the fiscal 1992
       budget workyear and other resource needs.
                                           FIGURE 27
Current Training Program Is Not Meeting Staff Needs
1 1 Would be Hefpful PI Was Received
intermediate Training
Basic Training
Permit Writing
Corrective Action
Project Management "
IRisk Communication T
lEnforcement Strategy
; Innovative Technology
	 ---•-' 	 i 	 — s 	 , 	 '-*

•!.V... ' 1 	 \
	 ,-t ]

' 	 1

20 40 ,60 , 80 100
Advanced Training
	 , •> >, 	 •••.-.? |
	 1 | |
	 1 |
	 	 1 	 1 	


) 20 40 60' 80 100

94  Chapters
   Provide  for a more structured  curriculum
   tailored to specific job functionsand experience
   levels of program personnel.

   Establish minimum training standards for new
   and existing EPA and state staff, and seek
   funding to support these standards.

   states, and headquarters, as opposed to generic
   contractor-training support.

   Make Superfund training available to RCRA
   staff,in conjunction with jointfunding, in areas
   that overlap the two programs.

   Ensure  timely  training  on new  RCRA
   regulations, using existing communications
   systems and expert operating systems (such as
   video technology/satellite teleconferences).

   Expand the use of RCRA training centers,
   including the EPA Inspector Institute, while
   also  considering the  needs of those states
   constrained by out-of-state travel.
Funding for Salaries and Expenses Needs

FINDING:  In the past several years, EPA has
experienced shortfalls in its funding for salaries
and expenses (S&E).

DISCUSSION: One concern frequently raised in the
focus groupinterviews was thatinsufficientfunding
isprovided to theregionsinsupportof RCRA work
years. However, this comment is often made in the
context of comparisons to Superfund, which is
funded froma specialaccountandnot S&E program

    A primary reason for the shortfall in fiscal 1989
was Congressional approval of a 4.1% federal pay
raise, with no provision for additional funding to
cover the added costs. Consequently, for nearly all
of fiscal 1989, the regions were compelled to meet
their S&E shortfalls by cutting back on hiring of
full-time and temporary personnel,  travel  and
training, equipment(i.e.,computers),and furniture.
In fiscal 1989, one region could hire to only 91.5% of
its authorized position ceiling, another region to
only 92%, and a third region was subject to a hiring
freeze as a result of these funding constraints.

    In fiscall990, the regional deficithas continued,
based on a number of factors, especially the budget
reductions  resulting  from the Gramm-Rudman-
Hollings and Section 516 Congressional cuts. As in
fiscal 1989, the reductions cut more deeply in the
S&E programs,  rather than Superfund, because
Superfund has the option to take the cuts from its
large extramural/contract funding categories. To
address these shortfalls, eight regions have imposed
S&E hiring freezes, ranging from 2% to 10% of their
authorized position ceilings, and most have delayed
purchases of personal computers  (PCs), have
restricted travel and training, and have cut back on
other types of expenses.

    Survey data substantiated these findings: 51.6%
of the RCRA professional staff felt that they didnot
have adequate PC resources; 60% of them saw it as
a major problem; 60.4% of the staff felt that travel
funds were inadequate, 55.4% of whom saw it as a
major problem; and 62.4% of the  staff felt that
training funds were inadequate, 54.2% of whom
saw it to be a major problem in their ability to do
their job.
       us group interviews also substantiated these
       s. Supervisors felt that their S&E budgets
findings. Supervisors
were not adequate to support promotions and
hiring, training and travel needs, and field work
and outreach.
    Most regional staff also felt that they did not
have adequate support for managing their records
and files. Many felt that too much of their time was
spent doing clerical work, detracting from their
ability to do essential RCRA work. RCRA staff also
felt that they lacked the PCs necessary to maintain
the  system's consistency  or uniformity  of
compliance monitoring, and data management.

    In addition, managing the files for Freedom of
Information Act (FOIA) requests is seen as being
incredibly labor intensive and demoralizing in terms
of the time they take away  from staffs respective

    In the President's budget proposed for fiscal
1991, S&E funding is increased by approximately
$5,000 per work year.  If funded, this should help
mitigate some of these problems occurring during
the current S&E shortfall.


•   Ensure that future budget requests include
    S&E funding levels adequate to meet salary
    and expenses, training, travel, equipment, and
    other support needs for RCRA staff. Develop
    strategies to ensure that any increase in S&E
    funding approved in fiscal 1991 for RCRA is
    used in support of RCRA program needs.

                                                              Maximizing Program Resources  95
    Consider all available means of converting
    extramural contract dollars to S&E for travel,
    equipment, and personnel compensation and

    Use extramural dollars directly for managing
    files and records, FOIA requests, and the Senior
    Environmental Employee program.

    Charge realistic (i.e., higher) costs for processing
    FOIA responses.
Process for Hiring and Recruiting Needs

FIN DING: Federal administrative hiring procedures
impede regional programs in achieving the desired
skill mix in some areas.

DISCUSSION:  The federal hiring process has
historically required EPA to work through an
elaborate and time-consuming competitive process
in order to fill most jobs. Direct-hire authority has
existed for engineers, but generally not for other
disciplines. Delays and the inability to reach the
right candidates through the competitive process
have   motivated  supervisors  to  hire  a
disproportionate number of engineers, instead of
seeking a  more balanced skill mix among their
professional positions.

    The regions indicated that they are otherwise
able to find the people with the necessary technical
skills. Some exceptions are that lexicologists and
hydrogeologists are harder  to find in  some
geographic areas, and it has been more difficult to
find candidates with experience in the hazardous
waste field,  or with  skills  in  enforcement
negotiations, project management, community
relations, and technical writing.

    The salary structure is not high enough to
attract most  of the experienced candidates.
However, in certain geographic areas, a regional
economic downturn (e.g., the oil bust) has brought
some very experienced people into the hazardous
waste field.  This is true especially for engineers.

    The regions and the states have not found
identifying  and hiring female candidates  for
professional positions to be a problem. However,
the identification and employment of minority
candidates has been much more difficult. Recently,
the Office of Personnel Management (OPM) has
instituted  regional direct-hire job fairs, in which
qualified candidates, in a variety of scientific and
technical fields may be hired directly if they have
had contact with the hiring agency. These direct-
hire job fairs have proven to be useful in many
regions and states in finding minority candidates
and could significantly alleviate problems with the
competitive process for hiring  non-engineering

RECOMMENDATION: Seek direct-hire authority for
as many occupations as possible, and/or encourage
OPM to increase the frequency and coverage of
direct-hire job fairs.


                  CHAPTER 9
                  Information  Management:
                  Data to Measure Progress

   In a program as large and as complex as RCRA,
effective management of its information is critical
to its success. Congress and the General Accounting
Office have frequently criticized theRCRA program
for not understanding the universe of facilities it is
charged with regulating, for not knowing the types
and amounts of wastes being generated and
managed, and for  not being current  on the
compliance status of regulated facilities. The RCRA
program must ensure  that timely and  reliable
information is available to define environmental
problems and to develop goals, objectives, and
priorities for managing these problems.

   Information required for the RCRA program
can be divided into four general categories:

•  Environmental:   information describing the
   environmental problems that RCRA is intended
   to address, and  the effect of the program in
   mitigating these problems.  We use the term
   "environmental  information" broadly in the
   context of the RCRA program to encompass
   both genuine environmental information (e.g.,
   environmental releases and site cleanup results)
   as well as proxy environmental information
   (e.g., waste characteristics and management

•  Activity tracking: information describing state
   and EPA activities in carrying out functions
   associated with developing and implementing
   the program (e.g., writing regulations, issuing
   permits,  conducting  inspections  and
   enforcement actions, delegating  program
   authorities to states, and providing technical
   assistance), and describing the regulatory and
   compliance status  of the  RCRA-regulated

•  Technical:   information   describing  and
   supporting models and technologies,  such as
   ground-water  models  and  treatment
    Administrative:  information describing the
    personnel, financial, and property resources
    associated with the program.
Findings and  Recommendations

Insufficient Environmental
FINDING: The RCRA program  does  not  have
adequate information to set environmentally based
goals and objectives and to measure or report
progress toward their attainment.

DISCUSSION: The RCRA  program  lacks  a
comprehensive baseline of information on the
processes  that generate hazardous waste, the
amounts generated, waste minimization methods,
and the processes used to manage the waste. There
is no regular information collection effort to provide
data  to set goals and objectives  and to measure
progress.  The program is unable to define the
nature of risks associated with particular wastes or
industries. Data on unregulated wastes that are of
concern are not readily available.

   This absence of data is most evident in the
OSWER Strategic Plan for FY 1992-1995. Most of
the objectives in the plan are related to program
development, and success is measured in terms of
completion of program activities, such as writing
and promulgating new regulations. Measures that
the RCRA program tracks in EPA's Strategically
Targeted Activities for Results System are also
based on completion of program activities, rather
than on improvements in the program's efficiency
and effectiveness.

   The  RCRA program relies  on a  group of
fragmented and largely unrelated information
systems and data bases. Until 1987, the major data
base  to support regulatory development was  a
survey of hazardous waste treatment, storage, and
disposal facilities conducted in 1981. In 1987, the

98   Chapter 9
program first had access to data from the 1986
surveys of generators and of treatment, storage,
disposal, and recycling facilities. These surveys
have no tbeen used to their full potential because of
lack of quality assurance and lack of accessibility.

    The program has also not successfully used
another reporting mechanism, the RCRA Biennial
Report, to track progress in waste generation and
management. The Biennial Report data for 1981
and 1983 contained too many problems to be used
to produce national reports.  Thus, in  1986, the
RCRA  program  decided  to  make  major
improvementsbasedonthe "two-domain" concept
of the states and EPA sharing data. One goal of the
effort was to produce a detailed national data base
to trackwastegeneration,minimization, treatment,
disposal, and capacity at each facility.

    Despite those  improvements, the Biennial
Report lacks a dear role in the RCRA program
because of the lack of environmentally based goals
and objectives. Nevertheless, states have already
used Biennial Report data to support their capacity
certifications required by the  Superfund
Amendments and Reauthorization Act (SARA),
and the RCRA program has made the support of
these certifications a high priority.

    Our interviews identified a high degree of
support for the RCRA program to collect and
maintain the kinds of data that are being collected
by the Biennial Report. Most people interviewed
identified specificdatathatwouldbeof use to them
in managing their portions of the RCRA program.

    The Biennial Report has the potential to provide
the regular, ongoing  data needed to  track the
environmental progress of the RCRA program and
to measure the success of multiple program goals.
It can provide data to support the development of
regulations and to  evaluate their environmental
impact after  their  implementation.   It can also
provide thebasisforsettingenvironmentallybased
permitting  and  compliance priorities and for
evaluating waste minimization efforts.

    Finally, the RCRA program has demonstrated
that it can develop  adequate information when it
has set clear  goals and objectives.   The most
prominent example of this is the program's success
in tracking permitting and compliance activities.

»  Define  environmentally based  goals  and
    objectives, and incorporate them into the
    OSWER Strategic Plan.
   Establish a system for measuring success.

   Develop an information management strategy
   that will provide the blueprint for collection
   and management of environmental information
   to measure success.  As part of this strategy,

       which  program  functions  are  best
       supported by regular data collection, and
       which are  best supported by  special
       theinformationmanagementrolesof head-
       quarters, the regions, and the states; and
       which data collection efforts are best
       administered directly by EPA, and which
       are best administered by the states.
   Revise the reward system to encourage staff
   and managers to meet environmental targets
   as well as to complete program activities. RCRA
   staff and managers need to be able to explain
   the environmental impact of regulations and
   other actions.

   Continue to developtheBiennialReport. Target
   it to support the SARA capacity certification
   process until  its role in supporting multiple
   program goals can be clearly defined.
Advances in Activity Tracking

FINDING:  Since  1985, the  RCRA program has
substantially improved its ability to track program
activities. Nevertheless, shortcomings continue to
impede progress in this area.

DISCUSSION: Since 1985, the RCRA program has
used the Hazardous Waste Data Management
System (HWDMS) to track its activities. The system
provides reliable data about the status of permitting
and compliance. However, HWDMS is difficult to
As a result, there is a general lack of confidence in
HWDMS data. Thus, data retrieved from it must be
subjected to careful quality assurance checks.

    To solve the problems of HWDMS, the RCRA
program is developing the Resource Conservation
and Recovery Information System (RCRIS). Based
on the concept of state and EPA data sharing, this
new system will enable the RCRA program to
support state, regional, and headquarters
information management needs.

                                                                Information Management   99
   RCRA managers have a high level of confidence
that RCRIS will be successful. The RCRA program
has already invested  almost  $15  million  in
developing the system. National implementation
of RCRIS started during fiscal 1991 and is. expected
to be complete in fiscal 1993.

   There are currently no major information gaps
that limit the RCRA program's ability to track
permitting and compliance status and set priorities
for  accomplishing these  activities. Currently,
priorities are set by statute.  However, there is a
clear trend toward setting future priorities based
on environmental significance. This will require
the ability to relate data in activity tracking systems
to environmental data.

RECOMMENDATION: Continue to implementRCRIS
and to provide adequate resources (about$3 million
per year) and  management  attention  in
headquarters, the regions, and the states to ensure
its success.
Inconsistent Technical Information

FINDING: The RCRA program does not provide
consistent technical support to the regions and the

DISCUSSION: An OSWER study has identified 311
models used by headquarters and regional staff for
RCRA and Superfund.  Of these models, 245 deal
with ground water. The study found that there is
no  consistent  system to support  RCRA  and
Superfund staff in selecting and applying models,
and in reviewing their use by industry. Because of
the common use of some of these models by RCRA
and Superfund, there is the potential to integrate
their support and to provide common information
clearinghouses, particularly for corrective action.
The Alternative Treatment Technology Information
Clearinghouse (ATTIC) is  an example  of  a
clearinghouse that could be used jointly by RCRA
and Superfund.

    The use of expert systems technology is still in
its infancy within EPA, and the development costs
are high.   However, expert systems have the
potential to improve technical support and help
resolve the problem of high turnover of senior staff
and loss of institutional knowledge and expertise.
OSWER and  the  Office  of Research  and
Development have begun developing a number of
expert systems applications, eight of which can be
used to review permit applications. Expert systems
that are implemented should be carefully evaluated.
   The regions and the states also need better tools
to help them set priorities based on environmental
significance.   For  example,  Geographical
Information Systems (GIS) have the potential to
improve the ability to evaluate environmental data
and to display multi-media relationships. Despite
the large initial investment these systems require in
hardware, software, and training, several regions
have already implemented them and are strong
supporters of their use, especially for corrective


•  Continue to develop expert systems to support
   regional and state permit writers.

•  Develop GIS capability to support  priority-

•  Improve modeling support, and  provide
   with Superfund.
Work Force Information

FINDING:   The RCRA program needs  better
information to manage its human resources.

DISCUSSION:  The RCRA program does not have
information on the experience levels of its work
force, the reasons for the program's high turnover
rate, and the real allocation of personnel and other
resources in headquarters and the regional offices.
Agency-wide systems are best suited to maintain
this information. However, none of EPA's systems
currently maintains this information, and setting
up a complete information system thatincludes the
program's human resources both at headquarters
and in the regions will take a long time.


•   Identify the RCRA program's administrative
    information needs to the offices responsible for
    EPA's information systems.

•   To meet the program's immediate needs in the
    interim, begin to collect and maintain data
    necessary to better manage human resources.
Building on Existing Resources
    integrating with existing processes and by

100  Chapter 9
finding lower-cost solutions to information
management problems.


•  Build information management accountability
   into existing activities. One example requires
   each regulatory development effort to have an
   information management plan that describes
   how data will be collected, quality assured,
   maintained, and made accessible after the effort
   is complete.
•  Develop small microcomputer-based systems
   when more costly, larger national systems are
   not warranted.  For example, maintaining
   ground-water data in a standard format on
   microcomputers by regions would facilitate
   the transfer of the data for other uses (such as
   ground-water modeling) and would reduce
   the cost of central maintenance and support.
•  Require the regulated community (possibly by
   regulatory changes) to report data to EPA and
the states in a standard electronic reporting
format.   Provide automated tools  to  the
regulated community when possible, allowing
them access to EPA systems (with appropriate
security) to directly enter data. Continue the
pilot  effort  of  providing  industry with
microcomputer software  to  enter Biennial
Report data, and expand this effort to other
data collection activities.

Use Superfund's  experience in records
management to  improve RCRA records

Use the Toxic  Release Inventory  (TRI)
mechanism to collect data for RCRA facilities.
Although TRI data are fundamentally different
from RCRA data, there is an opportunity to
integrate RCRA data collection  for some
facilities with the TRI mechanism, if senior
managers  in  both  the  RCRA and toxic
substances programs agree it is a high priority.

                  CHAPTER 10
                  Science  and Technology:
                  Breaking  Barriers

the  technical  needs of the RCRA program.
Comprehensive  requirements  have  been
established for the design of landfills, including
covers, liners,  and leachate collection systems.
Ground-water monitoringrequirements have been
developed, and an intensive methods development
program was initiated by the Office of Research
and Development (ORD) to fill a large void in our
analytical capabilities. Soil and ground-water fate
and transport models have been developed, and
"best demonstrated available technology" has been
defined for a large number of hazardous wastes.

    While much has been accomplished, several
science and technology issues in the above areas
must be addressed.  For example,  cleaning up
contaminated subsurface and ground water has
proven to beoneof the mostcomplex environmental
undertakings facing  EPA.  The subsurface  is
complicated, difficult, and expensive to understand
and remediate. Careful study of the transport
processes in the subsurface by public, private, and
federal research institutions has indicated that the
soil and aquifer matrices are outstandingly effective
at retaining many chemical constituents, and then
releasing pollutants into the passing ground water
over extended periods of time at concentrations
that can exceed levels of concern for public health.

    The scientific basis for subsurface monitoring,
modeling, and remediation is relatively new and
consequently subject to substantial uncertainty. The
movement and persistence of pollutants in the
subsurface are controlled by physical, biological,
and chemical processes, that may vary significantly
from site to site and from chemical to chemical.

    While progress has been made in these areas,
our basic understanding must be expanded. There
also remains a significant gap between what we
know and our ability to apply such knowledge at
an individual site or on a national level. This is due
in part to the lack of extensive data bases that fully
incorporate the physical, biological, and chemical
processes that we know operate in the subsurface
into  our assessment, predictive, and decision-
making activities.

   In the majority of ground-water remediation
situations, we require information on the pollutants
that are present at a site and their amounts. Unlike
other situations, there is no smokestack, tailpipe, or
outfall to monitor. This, when combined with the
complexities of the subsurface and the significant
variability among sites, presents a challenge to
devise ways to detect potential problems, devise
remediation approaches, and predict the impacts
of possible protection programs.

   EPA's statement of ground-water protection
principles articulates a preference for preventing
contamination of ground water, rather than relying
on remediation. Pollution prevention must become
a focus of future efforts in  hazardous  waste
management. The substantial uncertainty that exists
concerning how to characterize and remediate the
problem of ground-water contamination at RCRA
facilities clearly supports a preventive approach.

   This chapter provides an overview of many of
the important issues in science and  technology
related to EPA's ability to implement the RCRA
program. It focuses on our current capabilities and
areas where advances or improvements in the state
of the science, as it is practiced in the field, are
needed. In some cases, significant progress can be
made by  improving  technology transfer and
technical assistance; in others, advances in the basic
science or technology are needed.  Many of the
areas discussed (e.g., modeling, risk assessment,
technology transfer) are undergoing more in-depth
consideration. Consequently, further refinements
of the findings in this chapter are expected.

 102  Chapter 10
Findings and Recommendations

Technology Transfer and Technical
Assistance Programs

    The technology transfer and technical assistance
needs of the RCRA program are in the following
areas:  site characterization, fate and transport
modeling, risk and exposure assessment for both
human and environmental health, and evaluation
of corrective measures.

    ORD currently provides direct RCRA technical
assistance to regional offices and states on an ad hoc
basis; no comprehensive or structured program
exists.   Although ORD labs have occasionally
provided long-term technical support for specific
sites or problems, most responses to regional and
state requests are quite limited in scope. Some of
the most frequent requests  require expertise in
ground-water monitoring, modeling, and cleanup;
waste combustor stack emissions methods; landfill
construction and monitoring; detection of leaks
fromunderground storage tanks; control of organic
emissions; and bioremediation.

    Current RCRA corrective action technology
transfer projects include handbooks and seminars
covering such subjects as toxic emissions from
incinerators, subsurface remediation techniques,
soil vacuum extraction, remedial action costing
procedures, and selection of PC-based ground-
water models. Several RCRA technology transfer
projects underway are designed to assist owners
and operators of treatment, storage, and disposal
facilities in complying with corrective action orders
(Section3008(h)) and corrective action requirements
for permit compliance (Section 3004).

Superfund Programs Can Be Adapted for
RCRA Needs

FINDING: Several of the technology transfer and
technical assistance programs established to serve
because of the statutory limitations on the use of
Superfund  resources,  the availability of  these
capabilities to the RCRA program is limited.

DISCUSSION: The audience for RCRA information
includes regional personnel, state agency staff, and
the regulated community. The overall size  of the
RCRA end-user population is difficult to assess.
Estimates range from 1,500-2,000 for state agency
staff to several hundred thousand for the regulated
communities.  There are an estimated 500-1,000
regional and state permit writers, 5,700 owners and
operators of hazardous waste landfills, and 50,000
generators of hazardous waste.

    ORD and OSWER have established technical
support centers for the Superfund program at four
ORD laboratories and the Superfund Technical
Assistance Response Team (START). The centers
provide direct technical assistance in all technical
areas, and the START  provides  assistance in
selecting remedies and in conducting treatability
studies.   The  needs of the  RCRA  program,
particularly in corrective action, are in many cases
essentially identical to those of Superfund. These
activities  can easily be  adapted to the RCRA
program, providing immediate technical assistance
capability to regional and state RCRA programs.

    The  Superfund Innovative  Technology
Evaluation (SITE) program will continue to conduct
field demonstrations of innovative hazardous waste
cleanup technologies. Results of these performance
evaluations are available to RCRA staff as well as to
owners and operators of treatment, storage, and
disposal facilities, and to the design engineering

    Finally, ORD is  working with EPA's Office of
Emergency and Remedial Response (OERR) to test
and complete a number of expert systems. There is
no structured activity to ensure the comprehensive
availability of the expert systems developed under
either RCRA or Superfund to regional and state
staff who  will  be reviewing RCRA permits and
corrective action plans. Expert systems could be
marketed widely, with training provided, and the
experience gained from using these systems in the
field could be fed back to the systems' developers.
EPA could also initiate an active outreach program
to the private sector.


•   Provide RCRA  funding for a portion of each
    technical support center's activities and START.

•   Establish a technology transfer strategy for
    making  SITE  and other  appropriate
    technologies known to the  large RCRA

                                                                  Science and Technology  103
Guidance on Geological and Hydrological
Site Characterization Should Be Integrated

FINDING: Guidance for conducting geological and
hydrological site characterizations is scattered in
many different  documents,  regulations,  and
methods manuals.

DISCUSSION: Different facets of geological and
hydrological environments are addressed by many
documents, each of which was developed with a
single purpose.   Some  offer overlapping and
conflicting approaches to site assessment.  Recent
research  and  methods  development  and
demonstration have filled in many gaps. This offers
EPA the opportunity to develop one unified
approach to site characterization. This would result
in reduced training for  EPA  staff and  simpler
guidance for the public and regulated industries,
and would lend itself to incorporation in university
degree programs.

RECOMMENDATION: Develop a unified, integrated
geological and hydrological site characterization
strategy in support of RCRA and Superfund.
RCRA Risk Issues

    Risk assessment is the key to ensuring that each
facet of the RCRA program is protective of human
health and the environment.   Currently, risk
assessment is used for the listing and delisting of
waste streams, the permitting of sites, the petition
process, closure and post-closure evaluations, and
corrective actions.
    EPA regional personnel have indicated that
improving risk assessment capabilities for specific
facilities is a high-priority need.  The variability
among facilities requires a high level of expertise in
applying risk assessment techniques. Guidance on
conducting risk assessments must address site
variability issues.

    While considerable improvements can be made
by  using existing  tools, the emphasis in risk
assessment research is to move beyond the use of
simplifying assumptions to provide more realistic
answers. There is a continuing need to enhance our
capability to assess risks associated with chemical
mixtures  and  improve  the  data  base  on
pharmacokinetics mechanisms of action for many
chemicals. An enhanced health research program
is also needed to improve these risk assessment


•   Increase  the use of risk  assessment tools
    available to the RCRA program, and provide
    readily accessible, chemical-specific guidance
    in a timely manner.

•   Develop expert systems that can aid the
    evaluation of specific cases.  These systems
    should contain upper- and  lower-bound
    defaults for each type of input needed, and also
    allow for inputting site-specific data.

«   Increase the emphasis on health research to
    improve RCRA risk assessments, particularly
    with regard  to chemical  mixtures  and
Risk Assessment Capabilities Need

FINDINGS:   The  risks associated with  RCRA
hazardous wastes are not fully characterized and
may be significant. Both advances in our ability to
characterize impacts and better use of the full range
of relevant risk assessment tools and capabilities
are needed.

DISCUSSION: RCRA oversight encompasses areas
withpotentially significantpublic healthrisks. Real-
world exposures involve multiple chemicals and
are temporally variable. Risk assessment methods
presently used under RCRA tend to be based on
simplified assumptions, such as a constant level of
exposure to a single chemical.
Ecological Risks Posed by RCRA Wastes
Are Not Being Assessed

FINDING: The RCRA program to date has notmade
significant use of information on the  ecological
impacts and risks posed by hazardous wastes and
their management.

DISCUSSION: Ecological risk assessment quantifies
the likelihood of an  adverse  ecological effect
resulting from a human activity and determines the
significance of the effect. EPA's Office of Policy,
Planning and Evaluation released a study in 1989
concerning the nature and  extent of  ecological
damages and risks at RCRA and Superfund sites,
and assessment methods and management issues

 104 Chapter 10
relating to them. Because of the limited data that
were available, the study's findings cannot be used
to estimate the degree of damage to theenvironment
thatis occurringatRCRAsites. The study,however,
did observe thatSuperfund hazardous waste sites
can have very intense ecological effects. It is likely
that in some cases RCRA hazardous wastes pose
similar threats to ecological resources.

    Current assessment capabilities are limited,
butmethods to evaluate the ecological hazards and
potential  risks of RCRA wastes are available for
selected chemicals and animal and plant species.
While risk  assessments for  populations,
communities, and whole ecosystems would often
be most meaningful in the regulatory process, the
scientific basis for exposure and risk assessment at
these levels is generally lacking.

    A flexible set of assessment tools is needed so
that analyses can consider wastes either in a generic
sense or in a site-specific situation.  The Office of
Research and Development is involved in a number
of activities seeking to develop  standardized
assessment methods.  These include the multi-
laboratory Ecological  Risk Assessment Program,
initiated to support EPA's Office of Pesticides and
Toxic  Substances;  the  Superfund  Technology
Support  Center  for Exposure and  Ecorisk
Assessment, which provides technical support for
the Superfund remedial investigation/feasibility
study (RI/FS) program; the Eco-Risk Planning
Group, which addresses reducing uncertainties in
ecological risk assessments; and  the Risk
Assessment Forum, which develops guidelines for
ecological risk assessments.  The RCRA program
could address its technical needs by becoming part
of these activities.


•   Foster and develop the capability to conduct
    ecological risk assessment for RCRA facilities.

•   Validate and transfer to RCRA program staff
    currently available biological hazard and risk
    assessment methods that could be applied to
    RCRA issues.

•   Focus research efforts to develop ecological
    risk assessment methods that could be applied
    routinely in the analysis of complex wastes and
    effects on biological populations, communities,
    and ecosystems.
Sampling, Monitoring, and

    Measurement and monitoring activities under
RCRA are conducted for the following purposes:

    •  characterizing wastes and sites;

    •  determining the extent of contamination at

    •  writing permits and monitoring compli-
       ance with them;

    •  taking corrective action;  and

    •  closure and post-closure monitoring.
    The  measurement  and  characterization
activities can be classified by contaminated media
into three broad areas: (1) hazardous wastes in
solids and liquids, (2) gaseous incinerator emissions,
and (3) ground-water and soil contamination.

Additional Analytical and Sampling
Methods Are Needed

FINDING:  Additional methods may need to be
developed for newly regulated organic chemicals.

DISCUSSION:   Regulations promulgated under
RCRA  have  challenged  EPA's  methods
development capabilities. Analytical methods for
solid and  liquid wastes have been satisfactorily
completed for the  initial list of RCRA  priority
pollutant  compounds.   The  large number of
chemicals listed as  toxic and hazardous  and the
broad universe of waste types and environmental
media far exceeded the analytical state of the art in
the early 1980s.  Applicable analytical methods
were quickly identified among the air and water
programs, and ORD initiated an intensive methods
development program to fill the large remaining
void in EPA's analytical capabilities.  That effort
has been largely  successful,   with  completed
methods being incorporated in the EPA document
"Test  Methods  for  Evaluating Solid  Waste:
Physical/Chemical Methods," commonly referred

    The validation process for adding methods to
review and comment procedures. Once a  method

                                                                  Science and Technology  105
is added to SW-846, it is not simple to change. This
lack of flexibility can result in methods beyond
their limitations or intended purpose, and has
caused concern regarding questionable data and
the quality of EPA's measurement methods.


•  Continue  developing  methods for new
   compounds, and enhance the existing methods
   as needed. As faster, less expensive alternative
   methods become available, add them to SW-

•  Develop methods for assessingbioavailability.
Air Sampling Methods Need to Be

FINDING:  Air emission and ambient sampling
methods need to be developed and/or improved to
meet RCRA implementation needs.

DISCUSSION: The principal needs for air pollutant
measurements arise  from  hazardous  waste
combustors.  These include incinerators,  waste-
firing boilers, and waste-firing industrial furnaces.
Compliance with existing and proposed regulations
requires  measurement  of selected organic
compounds to  prove  adequate  destruction
efficiency, and measurement of particulates, metals,
and hydrochloric acid to prove acceptable emission
levels.  Carbon monoxide, oxygen, and sometimes
total hydrocarbons are monitored continuously to
prove  adequate combustion efficiency  and
destruction of products of incomplete combustion.
Better  continuous  monitors, along with better
quality control and audit procedures, may help
alleviate  public  concern over the  safety of
incinerators. Methods are inadequate for many of
the organic  compounds, and total  hydrocarbon
monitors require significant improvement.

    Finally, ambient air measurements have not
been a significant part of the RCRA  regulatory
program thus far,  but  are needed to support
regulations and to testair models. Ambientmethods
are being tested on Superfund sites, but will need
more research before being fully proven for RCRA

RECOMMENDATION: Develop, validate, and publish
improved sampling, analysis,  monitoring, and
quality control procedures for source and ambient
air emission measurements.
Faster Development of Field Sampling and
Analysis Methods Is a High Priority

FINDING: Regional and program office staffs have
identified rapid, transportable, and portable field
sampling and analysis methods as a high-priority

DISCUSSION: The traditional approach of collecting
samples in the field, shipping them to analytical
laboratories, and waiting for the results is expensive
and  involves a  number  of delays.  The long
turnaround times preclude prompt decisions and
timely corrective action. Field methods for sample
screening and on-site analysis offer great hope for
reducing the costs and dramatically shortening the
acquisition time for critical information.

   Two years ago, the Superfund programinitiated
the Advanced Field Monitoring Methods Program
to identify and demonstrate available technologies
to address the problems of high cost and delays in
response.  This new program has overseen the
demonstration of a number  of highly promising
technologies at hazardous waste sites, which need
to be made available for RCRA application.

RECOMMENDATION:  As  the  development and
demonstration of rapid monitoring approaches
continue under Superfund, a parallel effort to
address RCRA needs should be incorporated.

New Monitoring Methods Can Improve
the Reliability of Containment Facilities

FIN D ING: New monitoring approaches can enhance
the safety and reliability of containment facilities.

DISCUSSION: A number of research areas offer
promise for long-term protection of ground water.
These areas include sensitive, specific chemical
detectors for real-time and  unattended ground-
water monitoring; early detection systems—,
tracer chemicals,  and electronic or fiber optic
networks  for  monitoring the  integrity of
containments; and telemetry for rapid relay of site
conditions  to central  facilities.   These  new
technologies can be incorporated into new facility
designs to enhance safety and reliability.

RECOMMENDATION: Collaborative monitoringand
engineering research should  evaluate and  test
monitoring technologies for incorporation into new
waste facility designs.

 106  Chapter 10
Post-Closure Monitoring Methods Are
Needed for Hazardous Waste Facilities

FINDING:  Low-cost, highly reliable monitoring
techniques are needed to ensure the  long-term
safety of closed hazardous waste facilities.

DISCUSSION:  RCRA regulations require owners
and operators to monitor facilities for 30 years after
their closure. Numerous waste facilities are being
closed,butresearchto support monitoringguidance
Non-invasive or minimally intrusive techniques
will be particularly important, so clay caps and
other structures are not disturbed. While a number
of  geophysical, in situ, and remote-sensing
techniques  are available, further  research,
development, and testing are needed.

    The  Superfund program  is  committed  to
reviewing "all sites at least every five years after the
initiation of the remedial action where hazardous
substances remain on the site."

RECOMMENDATION: Initiate research to develop
and adapt technologies for post-closure monitoring
in coordination with the Superfund research effort.

Standard Sampling and Analysis Methods
Are Needed

FINDING: Standard methods for ground-water and
soil sampling  and  geophysical techniques are
essential toadvancethestateoftheartin subsurface
site characterization and monitoring.

DISCUSSION:   Standard methods are  being
developed through an EPA-sponsored American
Society of Testing and  Materials (ASTM) effort,
which involves scientists from industry, academia,
and government. The formal review process that
precedes the designation as a  standard  ASTM
method ensures opportunities for comments and
encourages involvement by all concerned parties.
EPA has fostered the effort by providing draft
protocols  and  methods from EPA-sponsored
research, by providing EPA experts to participate
in ASTM acti vi ties, and by funding participation of
other experts in the standards writing process.

RECOMMENDATION: Continue this joint effort.
Modeling Capability

    The RCRA program primarily uses modeling
in the following areas:

    •  to assess exposure assessments as part of
       risk assessments;

    •  to develop regulatory levels for national

    •  to complete Regulatory Impact Analyses;

    •  to assess the risk at specific RCRA sites and
       to design risk reduction programs; and

    •  to evaluate the performance of designed
       containment and control systems.

    Modeling in the RCRA program can generally
be divided into two categories: (1) generic analyses
for  developing regulatory packages and (2) site-
specific modeling for analyzing RCRA facilities. In
both cases, a range of modeling can be used— from
relatively simple screening-level models to complex
state-of-the-art models. EPA uses generic modeling
when it is necessary to make decisions on the basis
of waste properties and assumptions about how
such wastes will be managed.   Data for such
modeling are often aggregated and scaled to apply
to a wide range of environmental conditions, rather
than directed to a precise  description of any
particular site or system.  For sites or facilities
where site-specific data are available, the models
may be adjusted to accommodate local conditions
and characteristics.

    Table 11 lists the program areas where some
form of modeling is used and  the scale of the

                  TABLE 11
   Several RCRA Program Areas Use Modeling
    Program Area

    Corrective Actions
    Subtitle C Siting &
Level of Analysis
National Scale
Specific Waste Streams
at National Scale
Site Specific
Site Specific

                                                                     Science and Technology  107
    Modeling, as part of regulatory development,
is typically conducted under the scrutiny of the
public commentprocess (as implemented by Federal
Register notices, proposals, etc.) and can include
scientific oversight by EPA's Science Advisory
Board and various ad hoc groups, including the
Office of Research and Development. Site-specific
modeling, however, is much more varied. Uniform
procedures for scientific review, model selection
and validation, quality assurance/quality control
of modeling, and site characterization for model
parameterization are generally not available.

Models Need Improvement in All Levels
of Capability

FINDINGS:   Models currently used in  RCRA
programs vary in type and capability, and there is
no  program to  evaluate, test, and recommend
models for  specific applications.   Further, the
capability of field personnel  to use  models is
             DISCUSSION: As can be seen from Table 12, there
             are several areas where modeling capabilities exist
             at some level. However, the capability of end-users
             in the field is generally low, and improvements in
             all levels of capability are needed. Making such
             improvements  will provide more reliable and
             accurate assessments for site-specific and national
             decision making.

                 Enhancing our ability to address chemical and
             biological  transformations  could significantly
             improve  model  predictions concerning the
             concentrations and ultimate exposure levels that
             waste sites present. In addition to these areas, the
             improvement of modeling capabilities for complex
             media, complex/oily wastes, terrestrial food chain
             risks, and other processes is necessary for better
             evaluations of corrective action needs.


              •  Develop guidance for application of modeling
                 to corrective actions at specific sites.
                                            TABLE 12
         Models Are Not Available or Applied for Some Media and Pollutants
    RCRA Program      Air
    Characteristics       ?
    Listing/Delisting      ?
    Corrective Action     X
    Subtitle C Siting      X
     and Permitting
    RCRA Program     Metals
    Characteristics         X
    Listing/Delisting        ?
    Corrective Action       X
    Subtitle C Siting        X
     and Permitting
Pollutant/Waste Type

Complex    Oily
Wastes     Wastes
  9          9

  ?          X
  X          X
    In the above table, "X" represents areas where capability now exists at some level, "N/A" indicates that the area
    is not applicable, and"?" indicates that the capability is generally not available or applied. Mixed wastes represent
    mixtures of hazardous and radioactive wastes, whereas complex wastes represent mixtures of hazardous

 108  Chapter 10
    Select a limited number of models suitable for
    application  to  site-specific  analyses, and
    and technical guidance on how to best use

    Expand the  Characteristics and Listing/
    Delisting modeling efforts  to include
    multimedia  pollution and  subsequent
    exposures, including  air, surface water, and
    food chain pathways.

    Develop and implement  an  education/
    technology transfer and technical assistance
    program module designed to foster the
    consistent and appropriate use of models in the
    RCRA program.

    Develop both specific decision-tree approaches
    to  site  characterization and management
    schemes to help identify data needs, model
    selection, and site evaluation and planning. In
    addition, identify criteria for consideration in
    the  selection of appropriate models and
    successful use of these models.
Site-Specific Data Can Enhance Generic

FIN D ING: Incorporating site-specific data in generic
models will improve their reliability and accuracy,
and field validation will demonstrate their ability
to correctly simulate real-world conditions.

DISCUSSION: Generic models arebeingdeveloped
for using health risk as the basis for classifying
wastes as hazardous or nonhazardous.  Generic
models represent a reasonable approximation of
whether levels of  protection  that  a national
regulation is designed to achieve will be realized.
They do not  indicate whether those levels will be
realized at a particular site.

   A  nationwide  data collection effort  for
determining  ranges and distributions of  input
parameters is needed. Also needed is the collection
of data on  site-specific heterogeneity,  since a
weakness in  the approach is that individual sites
simulated are treated uniformly.


•  Identify,measure,andstatisticallycharacterize
   the environmental and chemical properties of a
   wide range of Subtitle D facilities.
    Develop and make  available exposure
    assessment models that include important fate
    and transport mechanisms operating in the
    soil, vadose, and saturated zones.
 Pollution Prevention and Risk
 Reduction Technologies

    Technology development plays an important
 role in the implementation of RCRA in three areas:

    •  pollution prevention;

    •  the technical standards for owners and
       operators of hazardous waste treatment,
       storage, and disposal facilities; and

    •  corrective action at these facilities.

    These specific areas are  technology driven.
 Advances in pollution prevention depend on the
 development of new products, processes, and
 materials. The land ban regulations are based on
 the "best demonstrated available  technology"
 (BDAT).  Corrective action for ground water at
 RCRA facilities can  only be implemented using
 pump-and-treat  technologies  of uncertain
 effectiveness. Control of the contamination source
 (soils, wastes) can be implemented through various
 technologies;  however,  information  on  the
 economics and long-term performance of these
 technologies is limited.  It is clear that technology
 improvements are needed. The technologies being
 developed for cleaning up Superf und sites in many
 cases will be applicable to RCRA corrective action
 situations. Thus, a close coordination of the two
 programs is essential.
EPA Has an Important Role in Fostering
Pollution Prevention

FINDING: As a leader in pollution prevention, EPA
has a crucial role to play in forging partnerships
with private and public organizations, stimulating
private-sector development and implementation
of technologies, and disseminating information.

DISCUSSION:   Pollution prevention offers great
opportunities to extend the life of our current RCRA
facilities and reduce the associated environmental
risks.   The term "pollution prevention"  means
reducing the volume and/ or toxicity of pollution at
the source of its generation. It is a broad concept
that includes  product changes, manufacturing

                                                                   Science and Technology  109
changes, and recycling  and reusing materials.
Pollution  prevention  technology is industry-
specific. ORD is currently carrying out studies to
determine  the  state  of pollution  prevention
technologies in a variety  of industries  and is
evaluating many innovative  approaches  to
achieving pollution prevention.

    Realizing the full potential of the benefits of
pollution prevention will take a concerted effort by
both the private and the public sectors.  In most
cases the private sector is in a better position to
address pollution  prevention  research and
development than EPA.   While many other
organizations recognize the benefits  of pollution
prevention, their lack of information, knowledge,
and resources has  often been  a  barrier  to
implementingpollutionpreventionprograms. EPA
has recently completed  the Pollution Prevention
Research Plan: Report to Congress, which presents a
comprehensive pollution  prevention research


•   Implement the Pollution Prevention Research
    Plan, emphasizing the  following areas: low-
    and non-waste  production  technologies,
    environmentally benign products, techniques
    that lead  to more  recycling  and  reuse,
    socioeconomic  implications  of pollution
    prevention, the effects on pollution generation
    of new technologies now under development.

 •   Disseminate the information from this research
    to the private sector and various consumer-
    oriented users and municipalities.
 Long-Term Effectiveness of Containment
 Systems Needs to Be Determined

 FINDING: EPA has specified criteria for the design,
 construction,  and operation of land  disposal
 facilities, but does not have adequate information
 concerning the long-term performance of systems
 for containing hazardous wastes.

 DISCUSSION:    The  major concern regarding
 containment systems is their long-term performance
 and reliability. Agency guidance and regulations
 recommend specific containment system designs
 based onbest engineering judgment. This judgment,
 in turn, isbased on short-term evaluations of system
 components made of soil and/or geosynthetic
    Long-term performance monitoring has not
been  conducted  at  sites  where the  EPA-
recommended liner systems and covers have been
constructed.   Subsystems have only been
constructed within the past half dozen years and
are only now being closed. Improvements are also
needed  in  the  technology  for measuring
performance. The drain systems in present designs
can provide a warning that seepage (leakage) is
occurring but cannot  identify the location or
measure exact rates.  Devices such as large pan
lysimeters must be improved and tested and then
incorporated in the designs for cover and liner
systems so  it will be possible to monitor

RECOMMENDATION: Improve and test technology
and designs for measuring performance, and then
conduct evaluations at land disposal facilities that
meet the current RCRA regulations. Evaluations
would include cover and liner leakage, materials
integrity, structural endurance, and characterizing
releases  (e.g.,  subsidence  monitoring and
subsidence effects on covers).
More Information on Incinerator
Performance Is Needed

FINDING: More information on the performance of
incinerators is needed to develop reliable surrogates
for monitoring organic emissions of products of
incomplete  combustion  and  to  improve
technologies for treating contaminated soils.

DISCUSSION:  Incineration (or  more generally,
thermal destruction) has been designated as the
BD AT for many hazardous wastes and is commonly
used for Superfund waste. The character of metal
and PIC emissions and how they can be controlled
are not fully understood.

    Development of  reliable  surrogates  that
correlate to organic PIC emissions could greatly
reduce compliance costs, improve our ability to
implement the RCRA program, and foster public
confidence.  Continued  efforts are needed to
evaluate the partitioningof metals and the character
of incinerator residuals (ash and scrubber water) as
a function of operating conditions  and waste
characteristics. Additional performance evaluations
of the ability of newer air pollution control devices
 to control metal emissions are required.

    The use of high-temperature incineration to
 treat contaminated soil is expensive; may increase
 the mobility of metals remaining in the ash; and

 110  Chapter 10
may increase  the emission of metals from the
combustion chamber.   Promising  innovative
approaches are: (1) the use of additives (lime, silica,
elc.) to improve the efficiencyof air pollution control
devices to collect metals, and/or to  reduce the
mobility of the metals in the ash, and (2) low-
temperature thermal desorption in the primary


•   Develop more  information  on  incinerator
    performance with respect to PIC and metal
    emissions  to  satisfy EPA's  regulatory

•   Investigate the  use of additives and low-
    temperature desorption.
Ground-Water Treatment Technologies
Need Improvement

FINDING: "Pump and treat" is the most prevalent
method used to dean up aquifers. Results to date,
however, do not indicate whether this method can
achieveground-water standards withoutadditional
actions to control the contaminant source.

DISCUSSION:  Cleaning up chemicals from the
subsurface,inboththe solid and theaqueous phases,
is a difficult task. Remediation systems (pump and
Careful study of the contaminants and the transport
processes in the subsurface indicates that many of
the contaminants exhibit low aqueous solubility
and are strongly partitioned (sorbed) onto soil and
aquifer matrices.  For this reason, corrective action
by  passing water through  contaminated zones
(pump and treat) will take much longer  than
originally estimated. Additional actions to deal
with the contaminant source must be coupled with
improvements in pumping strategies to ensure that
aquifer and soil materials do not continue to re-
contaminate ground water for long periods.

RECOMMENDATION: Conduct further research on
source control technologies  and on the gaseous,
solid, and immersed phases of contaminants in
aquifers in order to understand how corrective
actions involving pumping systems can be better
designed and operated to meet cleanup standards.
Cleanup Technologies Need Improvement

FINDING: There is a need to research, develop, and
demonstrate improved, cost-effective remediation
technologies and to  minimize barriers to their

DISCUSSION:  Besides incineration, few proven
technologies are available for destroying organics.
Incineration may not be suitable for large volumes
of material withlowconcentrationsof contaminants,
high moisture content, and low BTU. Some chemical
and biological innovative treatment methods are
under   development;    a   base-catalyzed
decomposition process appears very promising for
halogenated and some other organics where
moisture content is low to moderate.  Biological
methods are applicable to a number of wastes over
a wide range of concentrations. Another approach
is to extract and concentrate the pollutants from the
solids matrix, and then detoxify the residual by
conventional chemical,  thermal, or  biological
processes. Many advances have been made in the
field, and a few commercial systems are available;
however, many technical problems remain.  Other
extraction processes  for organics, such as soil
washing and critical  fluid extraction, are  being

    Soils, sludge, and sediments contaminated with
heavy metals present different problems.  Since
metals cannotbe destroyed, they must be converted
to a form that is not toxic, does not migrate, or is
easily removed through conventional treatment
systems. Extraction of low concentrations of metals
from soils  requires very aggressive  extraction
chemicals (very strong acids or bases) and has not
been shown to be effective. Thus, most approaches
to controlling heavy metals have been to convert
the metal to a less toxic and/or less mobile form.
Some successes have been demonstrated using this
approach (i.e., solidification/stabilization), but the
long-term  stability of  the material  has  been

    Finally, no single system has emerged where
the material is contaminated with both organics
and heavy metals. A "treatment train" may provide
the solution. First, the organics must be removed or
treated, followed by the stabilization of the heavy
metals. One exception to this rule maybe biological
systems, where heavy metals toxic to the organisms
must be removed before the organics can be treated.

                                                                  Science and Technology 111

•  Determine RCRA priority areas for research,
   development, and demonstration of cleanup

•  Assess whether Superfund technologies meet
   RCRA needs. If not, consider the need for a
   separate effort to address any unmet RCRA
Development, Demonstration, and
Use of Innovative Treatment

    The three major phases of evolution for a
technology are development,  demonstration/
evaluation, and full-scale  application.   EPA
regulations, policies, and guidance have a major
impact on a developer's prospects at each of these
critical points.

RD&D Permits Do Not Effectively
Promote Innovation

FINDING:   The  Research,  Development,  and
Demonstration (RD&D) permit mechanism has not
generally  been a  streamlined mechanism for
fostering technology development.

DISCUSSION:   Development  of  innovative
hazardous waste treatment technologies is relatively
unique in the extent to which the innovation process
itself may be subject to regulation. To date, EPA
and state energies have not  been  focused on
developing a hospitable regulatory environment
for innovation.  The Hazardous and Solid Waste
Amendments (HSWA) envisioned a streamlined
version of the formal, full-scale permitting process
for small, minimal-impact technology development
projects. Due in part to concerns regarding abuses
of experimental-use permits in other programs, the
RD&D permit guidance took a narrow rather than
an expansive view.

    Despite headquarters guidance that RD&D
permits are a national priority, EPA's management
systems contain no measure by which the regions
may receive credit for such activities. Regions
commonly estimate 12-18 months for RD&D permit
processing. The actual time is often less than the 12-
18 month estimate, but is considerably longer than
many vendors find desirable. At least one report
citeiffiplication costs and paperwork requirements
    	_^__ _'' ; full "Part B" application. Smaller
vencjorswith capital and cash-flow limitations find
the IproCess frustrating.

   iThere is a significant challenge for each region
to rrjajntain the expertise to deal with infrequent
requeftsi for permits for technologies that may not
be well understood.   The situation is further
conffiiicated by the low rate of state adoption of
RD^i-p permitting. A potential source of some
reliefis that a number of RD&D permits have been
issuejl to testing and evaluation (T&E) facilities,
which plan to market their services to vendors of
innp^ative technologies. EPA's Office of Research
and Development is developing such a facility (E-
TEC) in Edison, New Jersey.


•  -Encourage the establishment and use of T&E
   : facilities to reduce the permit workload for
    regions" and vendors.

•   Considercentralizingtheprocessof evaluating
    and even issuing RD&D permits.

•   Considergivingcreditinmanagementsystems
    for issuance of RD&D permits.,
State Adoption of "Innovation Relief"
Mechanisms Has Been Limited

FINDING:  A 1988 survey of three EPA regional
offices covering 20 states found that adoption of the
Subpart X, RD&D permitting, 1,000 kg treatability
exclusion, and permit modification provisions was
virtually nil.

DISCUSSION:  The 1,000 kg rule is intended  to
facilitate laboratory and pilot-scale testingof limited
quantities of hazardous waste by exempting them
from permitting.   It has the potential  to take
additional pressure off of RD&D permitting.

    Similarly the permit modification rule may
save time and effort for facilities that already have
permits. However, a number of regions report that
for full-scale treatment, this will still be a resource-
intensive "major modification" of the permit.

RECOMMENDATION:  Strongly encourage state
adoption of these relief mechanisms, particularly
in states with active programs and significant
contamination problems.

 112 Chapter 10
Permitting Requirements Hamper Mobile
Treatment Units                  ^T^J
                                  ™F  i "*'
FINDING:   Permitting  requirements," are an
impediment to the  development  and use  of
innovative mobile treatment units (MTUs).

DISCUSSION: An MTU rule was proposed in 1987
following  a petition by the Hazardous Waste
Treatment Council (HWTC). Currently, mobile/
transportable units must  undergo  full  RCRA
permitting at  each location, regardless  of the
quantity of material to be processed or the duration
of the operation.                          I

    In principle, the proposed  MTU rule  was
designed to capture some of the attributes of the
ToxicSubstances Control Actprogram,whichissues
nationwide permits for  technologies that  treat
polychlorinated biphenyls.  The proposed  rule
suggested  that MTUs be issued statewide permits
forgenericcomponents, withsite-specific additions
as necessary.

    The current EPA position is that such a permit
would trigger a requirement for corrective action at
an entire facility, and that altering that situation
requires a legislative amendment. One  of the
objectives  of the Keystone dialogue group  is to
develop statutory language for consideration in
RCRA  reauthorization,  under the  rubric of
"accelerated corrective action."

considerable attention to facilitating permitting of
units  intended to be applied at multiple sites.
Continued investment is clearly warranted.  For
truly low-risk technologies, it may even be possible
to develop permit-by-rule provisions.

Subpart X Rule Needs Supplemental

FINDING: While conferring flexibility, the generic
nature of the SubpartXrule also poses problems for
permit  writers  unfamiliar with innovative

DISCUSSION:  This rule establishes  generic
standards for permitting miscellaneous treatment
units.   Before its promulgation,  innovative
B permit could not be issued because there were no
permitting standards.
    The  Subpart X rule contains general rather
than technology-specific standards. Theruleallows,
but does not enable or assist permit writers in
writing, permits for the wide range of treatment

RECOMMENDATION: Develop additional guidance
to supplement Subpart X regarding the permitting
of innovative technologies. This would increase the
confidence of permit  writers, and would help
vendors understand what is expected of them.

Effects of BDAT/Land Disposal
Restrictions on Innovation Are Unclear

FINDING: It is not clear at this point whether BOAT
will have a positive or negative effect on innovation,
in large part because BOAT regulations for soil and
debris are still under development, and because
BOAT regulations provide for technology waivers
in appropriate situations.

DISCUSSION: The prospect of choosing expensive
cleanup  technologies  (e.g., high-temperature
incineration) due to the stringent treatment and
disposal requirements of the land ban regulations
for RCRA wastes has been cited as a factor in no
action or capping decisions at Superfund sites.
Even if an innovative technology vendor is capable
of meeting BDAT, treated material must still be
disposed of  in a hazardous waste management
facility, unless it is delisted. Delisting is perceived
as a slow, cumbersome, uncertain process.

    An important  test of  the effect  of  BDAT
standards for soil and debris will come with the
evaluation of bioremediation alternatives.  While
this technology offers considerable promise, it may
not be able to meet the precise standards for organics
destruction based on incineration technologies.

RECOMMENDATION: Ensure  that in developing
environmentally protective BDAT standards for
soil and debris, we are sensitive to the need to foster
affordable,   effective  innovative  cleanup

Corrective Action Can Stimulate
Development of Innovative Technologies

FINDING:  RCRA corrective action  may create a
significant demand for innovative technologies to
address serious contamination situations. Despite
regulatory uncertainties, there is potential for a
large market.

                                                                   Science and Technology  113
DISCUSSION: Corrective action activity is, for the
most part, in the early site investigation (i.e., RCRA
Facility  Assessment  and  RCRA  Facility
Investigation) stages. The regions have had limited
experience  evaluating, selecting, and  applying
treatment remedies.

    The  Corrective  Action Outyear  Strategy
(CAOS) estimates that 60%-70% of the estimated
5,700 facilities (with some 81,000 solid waste man-
agement units) will require some forrhof corrective
action. If only 10%-15% of those [units require
source control, the corrective action remedial work-
load will rival that of Superfund.

    In response  to  Superfund requirements,  a
hazardous  waste treatment industry oriented
toward site remediation has  developed.   This
industry,  focused  on mobile/transportable
technologies, supplements the fixed facilities that
grew  up to serve the existing hazardous waste
treatment and  disposal market.  The industry
generally consists  of small-  to  medium-size
companies. These firms often have limited capital
and cash reserves and limited staff to deal with
regulatory issues.

    Many contamination problems at solid waste
management units will be  similar  to  those
encountered at Superfund sites.  For sites with
single contaminants in relatively easy-to-address
media, there will be opportunities  to develop
innovative  cost-effective cleanup methods.  We
havelimited experience treatingmafwres of organics
and inorganics  and/or complex  soil  matrices.
Innovation at these sites is wide open, and in many
cases  is essential  if  treatment  is to  occur.
Considerable development  work remains,
particularly where treatment "trains" are needed
and for bioremediation, which offers the potential
for substantial cost savings in in-situ applications.

    Unlike  SARA,  HSWA is silent on issues of
level of treatment and permanence. This creates
uncertainty regarding the extent to which source
control will be required. Despite the uncertainty,
there is potential for a large market. Economically
viable owner/operators with property that has
redevelopment/resale value will be exploring "cost-
effective" remedies.   Prospective  buyers are
increasingly aware  of the dangers of buying
contaminated property.

    Permitting and other regulatory requirements
of resources and time delays. Among the questions::
are what regulatory requirements will apply to1
interim»r measure^," to treatability studies, and to
full-scale corrective action.  A large influx of
corrective action treatmentproposals would swamp
the regions  with issues of timing, efficacy of
technology, and cleanup standards. Enforcement
orders issued under RCRA 7003(h) have been
construed to not require permits.  Unfortunately,
owner/operators are very reluctant to sign orders
that require a finding of "imminent and substantial"

   As discussed above, state failure to adopt the
"innovation relief mechanisms" developed by EPA
is a significant problem. This is exacerbated by the
possible requirement to obtain air and/or water
permits  in addition  to hazardous  waste


•  Draw upon Superfund treatment experience to
   the maximum  extent   practicable   in
   implementing the corrective action program.

•  Technical  information  dissemination,
   technology-related training, and technology
   transfer  are  needed  to allow innovative
   solutions at severely contaminated sites.  A
   combined RCRA/Superfund treatability and
   treatment data base, perhaps housed in the
   current  Alternative Treatment Technology
   Information Clearinghouse  (ATTIC)  and
   accessible via computer to regional and state
   staff, should be a priority action.

•  Evaluate the utility of a RCRA analog of the
   Superfund  "on-site policy," such  as  that
   contained in section 121 (e) of SARA regarding
   the requirement to obtain federal and state
State Involvement in Innovative
Technology Development and
Demonstration Is Increasing

FINDING: Some state governments are becoming
more active in establishing programs that foster the
development and  demonstration  of innovative

DISCUSSION: Innovative technology development
has been a growing interest of states over the last
five years. Several states have established Offices
of Science and Technology at the highest levels of
state government.  Some have backed  up their
policy commitment to  technology development

 114  Chapter 10
and innovation with grant programs to stimulate
such activity.  During this study, the work group
learned that California, Illinois, New York, and
New  Jersey  have programs aimed  at the
developmentof technologies fortreatinghazardous


•  EPA should seek to harness and nurture state
   leadership inpromotinginnovativetechnology.
State  assumption  of  RD&D,  permit
modification,  and 1000  kg  treatability
exemption authorities would empower a small
but growing number of states to take leadership

Where states are exercising such leadership
and  developing  information,  EPA should
disseminate that information and facilitate
networking among those states.

                       -:,     APPENDIX A
     Status of EPA's Action on Subtitle C Statutory Requirements
3001 (a)

3001 (b)(1)






3001 (d)





§221 (c)

§221 (d)

§221 (e)

§221 (f)

Hazardous waste
characteristic and
listing determination

Hazardous waste
characteristic and
listing regulations
Oil and gas waste

Utility waste
Decision to regulate
mining waste

Mineral processing
wastes regulatory

Cement kiln dust waste
regulatory determination
Small quantity
generator (SQG)
SQG mgmt. practices
Uniform manifest and
SQGs study
Licensing transporters
of SQG wastes study
SQG wastes from educa-
tional institutions

' j

6 months
after RTC •

6 months
after RTC
6 months
after RTC

6 months
after RTC

Federal Register Next
Publication Date * Milestone**

.;!.. -''-1'
' ; 5/19/80


No reg.
(Note 2)
(extraction and
(Note 3)

6 months 4/96
after RTC









t Report to Congress

A-2 Appendix A
          Status of EPA's Action on Subtitle C Statutory Requirements
3001 (e)(1)
3001 (e)(1)

3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
Dioxin-containing wood
preserving waste
hydrazine ("UDMH")
diisocyanate (TDI)
Methyl bromide
Add'l organo-bromines
Listing-refining wastes
Federal Register
Publication Date *

(Note 4)
final & add'l
notice of data




7/93 add'l
1/97 proposal
4/91 add'l

                                                 Status of EPA Actions  A-3
Status of EPA's Action on Subtitle C Statutory Requirements
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (f)
3001 (g)
3001 (h)
3004(d) & (m)
Listing-dyes and
chemical industry waste
Listing-coke byproducts
production wastes
Listing-coal slurry
pipeline effluent
Temporary delisting
grant expiration
Revisions to EP
toxicity characteristic
(test only)
characteristics- TC
Hazardous waste
generator standards
Hazardous waste
transporter standards
Hazardous waste
fuel transporter stds
Hazardous waste
treatment, storage, and
disposal facility stds
Containerized liquids-
landfill standards
Land disposal
Federal Register
Publication Date *

(Note 5)

11/29/85 .


     California wastes

A-4 Appendix A
            Status of EPA's Action on Subtitle C Statutory Requirements

3004(e) & (m)
3004(f) & (m)
3004 (g) (4)


 3004(o) (4) (A)

 3004 (o)(7)

Land disposal
solvents and dioxins

Deep well injection

Land disposal
determinations schedule

Land disposal
first third

Land disposal
 second third

Land disposal
final third

Land disposal
determinations -
newly listed wastes

Hazardous waste
treatment, storage,  and
disposal facility air
emissions regulations

Leak detection systems

Minimum technology
regulations or
Vulnerable hydrogeology
guidance criteria
 Location Standards
6 months
after listing

Federal Register
Publication Date *
(Phase I)
notice of
notice of


Phase II


                                                                     Status of EPA Actions  A-5
            Status of EPA's Action on Subtitle C Statutory Requirements
RCRA                                     Statutory
Section           Description              Deadline

3004(q)           Burning & blending admin   11/08/85
                  controls for generators
                  transporters and burners

3004(q)           Burning & blending-tech    11/08/86
                  burning (emissions) stds

3004(s)           Burning and blending-      2/08/86
                  notification  requirement

 3004(u)           Corrective action           None
                  at permitted facilities
                  standards (SWMUs)

3004(v)           Corrective action           None
                  beyond facility
                  boundary standards

3004(w)           Underground hazardous    3/01/85
                  waste tank standards

3005(a)           Hazardous waste          4/28/78
                  treatment, storage, and
                  disposal facility
                  permit requirements

3005(c)(2)(A)      Issue final permits-         11/08/88
(!)                land disposal
 3005(c)(2)(A)       Issue final permits-          11/08/89
 (ii)                incinerators
 3005(c)(2)(B)       Issue final permits-          11/08/92
                   other facilities

 3005(j)(5)          Variance - surface          11/87
                   impoundment retrofit        (Note 6)
 3005(j)(7)(A)       Minimum technology        None
                   requirements               (Note 7)
                   exclusion study
Federal Register
Publication Date *





   92% operating
   permitted by

   permitted by


   14 variances
   granted by statutory

A-6 Appendix A
            Status of EPA's Action on Subtitle C Statutory Requirements
301 4(b)
301 7(b)
301 8(a)
301 8(b)
301 8(c)
State hazardous waste
program guidelines
Mandatory inspection
Use of private
inspectors study
Proposed listing of
used oil
Final listing of
used oil
Recycled used oil
management standards
Hazardous waste export
Domestic sewage
exclusion report
Domestic sewage
Wastewater lagoons
Waste minimization
report to Congress
(program only)
Federal Register
Publication Date *
draft report
(Note 8)

notice of
data availability

(Note 9)

    Final action, unless otherwise indicated
    informed judgments of future resources and

1.  RTC on oil and gas waste submitted 12/87.
2.  RTC on combustion of coal at utility power
    plants was submitted on 3/8/88.
3.  RTC is due by July 31,1990.
4.  Final listing for dioxin-containing wastes F020,
    F021,F022,F023,F026,F027, F028.
5.   EPA clarified  that  lithium batteries are

    reactivity characteristic.
6.   Administrator must make determination on
    retrofit variances submitted by 11/86.
7.   Administrator "shall" study and report to
    Congress; but no deadline given.
8.   Determination made to not list recycled oils;
    overturned by Court 10/88.
9.   Final regulations to be issued along with CWA
    pretreatment program revisions.

                                       APPENDIX B
                     Case Study of Federal-State Relations

    On February 21 and 22,1990, three people from state A were interviewed, representing the areas of
enforcement, permitting, and state authorization. In addition, eight regional office staff were interviewed
(one individually, seven as a group), representing current and past state officials.

    The consensus among all regional and state staff was that the relationship between the region and the
state had been seriously troubled, but that they had been able to substantially overcome those problems over
a period of years. This required a concerted effort by the state and the region to resolve the problems, as well
as a change in philosophy by the state and the region about how the RCRA program is to be implemented.

                                  Program  Background

    Before the RCRA regulations were promulgated in 1980, state A already had an active hazardous waste
program. During the early years of the RCRA program, the state's relationship with the EPA regional office
was likened to that of contractor and client, with EPA "contracting" with the state to conduct inspections of
facilities and EPA playing the role of the enforcer. The relationship was depicted by the interviewees as fairly
good during this period. The only criticism of the relationship was that state staff often believed they were
being second-guessed by EPA.

    In 1983, the state made significant changes to  its hazardous waste program to encompass the RCRA
requirements and to close what it believed were loopholes in RCRA. In implementing this interim-authorized
program, the state chose to operate essentially two programs: the state program that focused on state
priorities (funded by state funds above the required match) and the RCRA program that addressed federal
regulatory requirements (funded by the EP Agrant and the state match). EPA, however, considered the state's
entire hazardous waste program (regardless of what was funded by the grant) to be the authorized program.
This fundamental difference over the role of the grant was perhaps the major problem between EPA and the

    The state currently has final authorization for the base RCRA program, non-HSWA Cluster I, and mixed
waste. The state is working on additional modifications to its program.

                            Description of  Past Relationship

    All interviewees agreed that the past regional-state relationship was poor.  A number of problems
contributed to the breakdown in the relationship. A primary cause was the difference in philosophy over the
role of the grant. The state had its own legislative and regulatory requirements that needed to be met, and
believed that its state-specific hazardous waste requirements could be carried out separately from the federal
RCRA program. Given the resource constraints that existed, the state was not able to address EPA's priorities
to the extent that the region believed appropriate. Furthermore, the state did not believe EPA should have
a role in setting priorities for the "state-only" program. The region, consistent with national policy, wanted
to look at the larger hazardous waste program and thought it should have a role in setting overall state

B-2  Appendix B

   Compounding this problem was the fact that the state and federal planning cycles are not the same. The
state's fiscal year runs from July to June, and the federal fiscal year from October to September.  The state
would identify its priorities for the year, only to have EPA, whose planning cycle begins months later, give
the state additional RCRA requirements to complete by the end of the federal fiscal year. The state and the
region each perceived the other as being rigid and inflexible in its views.

   Oversight was another part of the grant process that caused conflicts, in terms of the scope of the region's
oversight activities and its approach to it. Again, the region took a much broader view of the scope of its
oversight authority, not limiting it strictly to that portion of the program funded by the grant and the state's
match. In addition, the region and the state took a different approach to oversight meetings (audits). One EPA
interviewee observed that EPA came to the meetings with facilities identified, prepared to hear how the state
intended to fix the problems. The state, on the other hand, came prepared to discuss whether there were
problems at facilities and, if so, how to address them. Each had a different concept of the purpose of oversight.
The state also believed it was being criticized in areas in which it either had received no guidance or had not
received the most recent guidance. One state interviewee thought that EPA's expectations were unrealistic
and ambiguous.

   The perceived rigidity was also reflected when dealing with programmatic issues. The region and the
state were unable to resolve differences on several matters of regulatory interpretation or national policy. For
example, there was a major disagreement over how to classify treatment, storage, and disposal facilities. The
state tended to call a generator with drums a generator that had exceeded the storage limit, while the region
classified it as an illegal storage facility. The state also disagreed with the region on whether spills should
cause a handler to be classified as a  land disposal facility.  In the enforcement area, the state resisted
identifying Class I (the most serious) violations because EPA would hold the state to  the "timely and
appropriate" enforcement criteria. The state differed from EPA in its approach to enforcement by trying to
differentiate in treatment or procedures between large facilities with ample resources and small facilities with
few resources. The region, however, was more tied to the timely and appropriate criteria, thus appearing to
be inflexible to the state. This resulted in several EPA overflies when the state took enforcement actions that
EPA thought to be inappropriate.

   Authorization exacerbated an already strained relationship. The region, again reflecting national policy,
judged the state strictly by the statutory requirements of consistency, equivalency, and adequate enforcement.
However, the region and the state had different expectations. While the state was not carrying out the
program the region envisioned,  it believed it was carrying out a hazardous waste program that was an
improvement over RCRA. The state was required to change at least one aspect of its program that it strongly
believed was better thanRCRA. WhenEPA determined, however, that the state was not meetingthe statutory
requirements, final authorization was delayed for a year. The state received final authorization on January

    In addition to the inability to understand and be flexible about each other's needs and priorities, the
interviewees all agreed that the structure of the RCRA program begged for conflicts. There were numerous
problems inherent with the new RCRA program that caused tensions between state and regional personnel.
The new RCRA requirements were very complex and difficult to understand. The program was new to both
the region and the state, and each was trying to determine its respective role. It was thought that the detailed
nature of the regulations and the expectations of Congress and EPA would put stress on any relationship,
especially an already weak one.

                                                                 Federal/State Case Study   B-3
                                   Problem Resolution
    The interviewees agreed that the EPA-state relationship hit its lowest point by 1987. Both the state and
the region realized the relationship was severely strained. Top state and EPA management organized a RCRA
program managers' retreat to try to deal with the program's problems and conflicts. One state interviewee
pointed out that it was at this meeting that state staff realize for the first time that an authorized state program
meant the state's entire hazardous waste program, not simply that portion funded by the federal grant. This
realization, coupled with limited resources, loss of a number of state inspectors, and poor federal-state
relations, caused the state to form a committee to deter mine whether to retain the authorized hazardous waste

    At the same time, EPA proposed to withdraw the RCRA program due to its belief that the state's
permitting and enforcement programs were inadequate and that the state's philosophy on hazardous waste
management would prevent it from ever running a program that would be acceptable to EPA. EPA's
Administrator did not approve this recommendation, so the state and EPA developed a formal agreement
providing for a period of time during  which the state would run a state priority program, while EPA
implemented the RCRA program.  For the next year, EPA's regional office  ran the RCRA program,
withholding grant money from the state to do so. The state retained its authorization, with EPA performing
the technical permit review and taking enforcement actions as necessary. The state issued the EPA-developed
permits, usually with minimal involvement.

    After a year of running the state priority program, the state decided to retain its RCRA authorization,
recognizing that it would mean accepting EPA's view of the scope of the authorized hazardous waste
program. Pressure from industry and  environmental groups were factors in  this decision. They both
preferred a state-run program over a federal program. The state made a major concession by acknowledging
that the hazardous waste program was a comprehensive program drivenby both state and Federal laws. EPA
also recognized that some concessions were necessary and appropriate, and agreed to be selective in making
decisions about the state's plans and priorities. The region agreed to look at the relative priorities of the entire
program (apart from RCRA priorities).  If EPA agreed that state priorities were  more important, the state
could pursue them and the region would defend the state's priorities to EPA headquarters, if necessary. Once
the state started showing EPA the whole picture, the region gained a better understanding of the state's
priorities and resource constraints and was much more supportive of the state's initiatives.

    Some time during 1987, the state began to think that the regional staff members were making an effort
to improve their relationship with the state and to understand the state's needs. The state interviewees
indicated that when they saw the region beginning to cooperate and compromise, the state was then willing
to meet the region half way. Similarly, the region indicated that once it saw the state begin to cooperate, it
felt more comfortable making compromises. A change in attitudes, new personnel who had not experienced
the more rancorous EPA-state relationship, and a growing familiarity with RCRA all seemed to contribute
to an improved relationship. Informal, weekly lunch meetings were hosted by EPA's Operations Office to
enable EPA and state staff to get to know each other and to work out problems in an informal, neutral setting.
Joint projects were set up to work out problems together. For example, in the summer of 1988, a team looked
at both state and regional inspection reports to determine if the state inspections were of the same quality as
the regional inspections and whether they fulfilled RCRA requirements. The team concluded that both
parties obtained the same information, but used different formats. The state, however, is now developing a
standard format in order to improve consistency among its field offices in reporting inspection results.

 B-4  Appendix B

   The state and the region made concerted efforts to address the specific problems that had caused friction
between the region and the state. Quarterly compliance oversight meetings were suspended, since no one
was satisfied with them. Instead, compliance issues are now dealt with on a case-by-case basis. The state and
EPA formally agreed on when and how to handle spills under RCRA: if residuals cannot be cleaned up, the
handler will be placed in the RCRA treatment, storage, and disposal facilities (TSDFs) universe. Otherwise,
the state will handle the cleanup under other state authorities. The state adopted the Enforcement Response
Policy and a penalty policy, resulting in more consistency and formality in enforcement actions and a ten-fold
increase in the number of actions. EPA agreed, in return, not to hold the state strictly accountable for timely
actions if violations were correctly classified and appropriate enforcement actions taken.

   In the past, the state had found it difficult to maintain a contact at the region to discuss inspection
problems. The state acknowledged that this was due to the high turnover rates of inspectors. To open and
maintain the lines of communication, EPA assigned an inspector from its Operations Office to be available
as support to the state. This inspector does independent inspections, joint inspections, and oversight
inspections. One of the state interviewees stated that such a good relationship between the EPA inspector and
the state has been built over the last two years, that the interviewee would send a new, inexperienced
inspector along with the EPA inspector, and would trust the EPA inspector to help the state inspector by
giving him or her constructive criticism. In the past, the state would not have trusted EPA enough to agree
to this arrangement.

                                       Current Status

   All the interviewees agreed that the working relationship between the state and the EPA region has
drastically improved. The state thinks that the region understands and is willing to be flexible about state
priorities. The state and the region have a process by which they can agree to joint priorities. The interviewers
also admitted that the state has become more flexible as well. Both parties seemed to trust each other more
and are more willing to work together to meet program goals. Two state interviewees also pointed out that
increased state funding was also important in relieving some of the pressure on the state hazardous waste
program. New organizational units have been created to handle spills, municipal solid waste, and other
toxics. This allows the hazardous waste program more flexibility to address EPA and state hazardous waste

   The region and the state have developed the concept of partnership through sharing the workload. Both
believe this is a more productive use of resources than the typical state-EPA mode of EPA giving out work,
the state performing it, the region frequently duplicating the work through its oversight activities, and EPA
telling the state what it is doing wrong. The region believes that work can be divided based on capability,
resources, and priorities. While this is not a substitute for oversight, there is much less frequent review of the
state's technical judgments. For example, the state may not have the resources to conduct all of the TSDF
inspections EPA wants conducted because the state is devoting some resources to high-priority generator
inspections. The region may agree to conduct some of the federal facility inspections in lieu of having the state
do these. EPA and the state believe that this concept will minimize overlap and conflict between EPA and
the state and maximize resource utilization. These trade-offs have been made both informally and through
the formal RIP-flex process.

   Although all interviewees agreed that the current relationship with the EPA region was good, a few areas
still need improvement. One of the areas discussed was exchange of information. The state interviewees
thought that the region has ready access to  state information, but the state often finds if difficult to get
information from the region. For example, the state has not been able to obtain early information on what
activities EPA is conducting in the state (e.g., RFAs).  In addition, the state still finds it difficult to get
regulatory interpretations in a timely manner.

                                                                 Federal/State Case Study  B-5

    The adequacy of technical assistance and training was discussed by all interviewees. One state
interviewee thought that training was made easily available to the state. Another state interviewee, however,
thought that it was not offered often enough, especially  the basics and inspector training.  The state
interviewees agreed that training was too oriented toward the regulatory requirements, with insufficient
emphasis on implementation.


    The state interviewees made a number of recommendations for improving federal-state relationships. To
improve the authorization process, one interviewee mentioned both the ASTSWMO proposal and the
Keystone report, favoring ASTSWMO's automatic authorization approach. The interviewee suggested that
since the authorization process is so complex and cumbersome, an automatic authorization approach would
save both time and resources. The interviewee also was in favor of partial authorization.

    All interviewees suggested that EPA should improve its method for providing regulatory interpretations.
It was suggested that more training should be provided, and that requests for regulatory interpretations
should be answered in a more timely fashion. The state interviewees thought that this could be accomplished
by EPA headquarters, delegating more authority to the regions and supporting the regions more in making
interpretations and taking risks. This would allow for quicker responses to state-specific requests.

    Another suggestion to improve the federal-state relationship was to initiate more joint projects to allow
state and regional staff to work closely together toward a common goal. The use of focused evaluations was
one method suggested. For example, a team of regional, state, and headquarters staff could evaluate permits.
This method would result in a positive focus, instead of a negative one, providing a shared evaluation
experience for those involved and a more balanced assessment to those being evaluated.

    To address the problem of state staff turnover, one state interviewee suggested that EPA develop
innovative ways to recognize the accomplishments of state  staff.  A reward or incentive program was
recommended. One such program suggested by both the state and the region was a management training
program for experienced staff, which EPA would offer and subsidize. A global perspective on hazardous
waste management would be given to these top state people.

    The state, in general, was not very concerned with EPA headquarters, other than to say that it should not
be involved with the state's activities, except in a technical assistance capacity. The region, however, made
several specific recommendations:

        •   headquarters needs to establish real priorities, linked to resources, and recognize
           that not everything can get done;
        •   headquarters should approach Congress, rather than being reactive, and explain the
           needs of the program and the way headquarters thinks RCRA should be structured;
        •   headquarters should focus more on policy and implementation issues because there
           is a disconnect between the regulations and implementation; and
        •   headquarters should pursue partial  authorization and easier state program

    One regional interviewee stated that headquarters must maintain the integrity of the program nationally.
Where headquarters sometimes fails is with the style in which it carries out this responsibility. Headquarters
is often perceived as being rigid, inflexible, and condescending. The region's ability to develop a cordial,
cooperative relationship is impossible if headquarters is totally inflexible and allows only one outcome—its


                                     APPENDIX C
    Evaluation of the Implementation of RCRA Subtitle C Questions
          From the Permitting Subcommittee, February 13,1990
   Thank you for agreeing to be interviewed for EPA's study of the implementation of RCRA Subtitle C. This
study is being conducted at the request of Don R. Clay, EPA's Assistant Administrator for Solid Waste and
Emergency Response; its general purpose is to determine whaf s working well in the Subtitle C program and
what isn't. The Permitting Subcommittee is specifically interested in having the benefit of your experience
and your observations about the quality and timeliness of Subtitle C permits, the permitting process,
permitting priorities, and the use of permitting to promote waste minimization. Where you believe there are
problems, we want to hear your suggestions for solving them. We are providing this list of questions to give
you an opportunity to think about our questions before we actually interview you. You are not expected to
provide answers in writing.


       1. What do you think we should be getting from permitting in terms of environmental or
          other benefits?
              a.   Are we getting these benefits?
              b.   Are there other ways to get the same or more benefits?

       2. What do you think are the elements of a "quality" RCRA permit?
                  Conformance to regulations
                  Conformance to guidance
                  Tailored to site/facility
                  Consistency among Regions and States
                  Provisions are enforceable
                  Fact sheets are complete
              -   Other

       3. How are we doing on permit quality so far?
              a.   Have you observed problems with the quality of some permits?
              b.   Have you observed things that we are doing well?

       4. In your experience, what factors have had the greatest impact on the quality of permits?
                  Availability, timeliness, and quality of, and training on use of  guidance
                  (technical and policy)
                  Turnover among permit writers
                  Adequacy of resources at RO/State level
                  Knowledge and training of permit writers
                  Federal/State coordination
                  Content of permit applications (quality)
                  Content of permit applications (quantity of information - not enough, or too
                  Cooperativeness of applicant
                  Involvement of enforcement staff in developing permit
                  EPA oversight of State base permits

C-2  Appendix C
                  Adequacy of legal and technical review
                  Complexity of regulations
                  Statutory deadlines and grant commitments
                  Participation by public

       5.  What can we do to improve the quality of permits?
              a.   Are there things we can do within the existing process?
              b.   Are there regulatory changes that could be made without changing the
              c.   Are there changes that could be accomplished only through statutory

                             Permit Process and Timeliness

       6.  Of the basic steps in the permit process, which are working well and which are problem
          areas? Why?
                  Adrninistrative/Technical review
                  Draft permit
                  Public Participation
                  Final Determination

       7.  What are the principal factors affecting the timeliness of the permitting process?
               -   Statutory deadlines
                  Joint Federal/State process
                  Timeliness of permit application
                  Quality of permit applications
                  Review within Regional Office/State
                  Number and quality of Notices of Deficiency
                  Adequacy of owner/operator response to Notices of Deficiency
                  Public involvement
                  Complexity of regulations
                  Availability of training
                  Availability of guidance/policy/regulations
                  Staff turnover
                  Adequacy of resources
                  Development of corrective action provisions
                  Permit appeals
                  State permit fees
              -   Other

       8.  What suggestions do you have to improve the permitting process?   .
              a.   To make it more timely?
              b.  To protect the environment more effectively?
              c.   To use resources more efficiently?

                                                          Permitting Questionnaire  C-3

9.   Are there any permitting approaches used by other regulatory programs that should be
    considered in the RCRA Permitting Program?
           Scheduling "rounds" of permitting, adding new requirements in the next
           "round" (NPDES)
           "General" or "class" permits for certain types of facilities (NPDES)
           More flexibility for mobile treatment units (TSCA)
           Limit corrective action to priority facilities (Superfund)

10. How well is the permit modification process working, and how can it be improved?
           Are too many modifications required?
           Did the new modification regulations improve the permitting process?

11. Do you have any suggestions for handling 5-year reviews?

12. How well is joint (State RCRA/EPA HSWA) permitting working and how can it be


13. For the following pairs of activities, which one do you think provides the greatest
    environmental benefit?
        a.  Issuance of storage and treatment permits vs. issuance of post-closure
        b.  Permitting of interim status facilities vs. maintenance of existing permits
           (e.g., modifications, review of reports submitted by permittee)
        c.  Issuance of permits  to existing vs. new facilities
        d.  Preventive (i.e., operating) vs. corrective action portion of the program
        e.  USEPARegionalOfficeoversighttoStateactivitiesvs.directimplementation
           of program

 14. How have shifting priorities affected your permitting activities?

 15. What criteria should we be using to set priorities for permitting?
        a.  Can and should they be set solely on the basisof environmental significance?

                              Waste Minimization

 16. Are permittees submitting waste minimization plans that are meaningful?

 17. Do you think permitting could be effective in promoting waste minimization?

 18. Are there alternative approaches to promoting waste minimization that should be
    pursued more aggressively?


                                       APPENDIX D
                         Post-Closure Permitting Strategy
                      Strategy Is One Element of Overall Strategy

    EPA currently estimates that the post-closure universe includes 1,690 facilities. Of those:

        •   93 have received post-closure permits.
        •   255 facilities have "clean closed."  EPA estimates that the majority of these will
           require additional work to determine whether post-closure permits are necessary.   \
        •   1,342 are dosed or will close.

    In addition to issuing post-closure  permits to 1,600 potential facilities, EPA  and the states have
approximately 850 storage and treatment permits to issue. Furthermore, corrective action requirements will
be necessary at most of these storage and treatment and post-closure facilities. Given this enormous task, EPA
must address the post-closure workload in conjunction with the storage and treatment and corrective action
workloads. Thus, this post-closure permitting strategy is actually one element of an overall permitting and
corrective action strategy.

    There are two key elements of this permitting strategy:

           Prioritizing facilities; and
           Selecting appropriate mechanisms for addressing facilities.

    Recommendations for priorization and selection of appropriate mechanisms are set out below, with
suggested timeframes.

                          Continue Intensive Permitting Effort

    EPA and the states should immediately prioritize facilities as follows:

        •   Reduce emphasis on storage, and treatment to most environmentally significant
           facilities. These facilities would include those with the most immediate corrective
           action needs and those providing new or expanded treatment capacity.

        •   Increase emphasis on environmentally significant post-closure facilities, including
           those with the most immediate corrective action needs.

    In addition, the agencies should identify facilities whose need for corrective action could be addressed
through enforcement orders or agreements. These facilities would then be directed to enforcement rather
than permitting personnel.

                      Develop Prioritization Management System

    Within 3 to 6 months, EPA should develop a management system to address post-closure permits, storage
and treatment permits, and corrective action. The system should be based on/environmental significance.

D-2 Appendix D

The need for corrective action is one element of environmental significance, and the system should
incorporate the Environmental Priorities Initiative. This management system should also include factors
such as waste volume and toxicity, toxic release inventory data, location of the facility, and the facility's past

              Allow for "Decoupling" of Corrective Action and Permits

    WithinS months,EPAshould decide under what circumstances the base operatingor post-closure permit
and the corrective action portion could be "decoupled." Action to initiate a statutory change would following
the Agency's decision.

                    Identify Alternative Mechanisms to Permitting

    Within 3 months, EPA should decide to allow the use of alternative mechanisms for permitting. For post-
closure permits, alternatives would include enforcement or a hybrid permitting/enforcement action. Class
permits  for certain storage facilities would be another alternative.  Action to initiate the  appropriate
regulatory or statutory changes would follow the Agency's decision.

                                Implement New System

    Within 6 months, EPA should implement the new prioritization management system and alternative
mechanisms identified above.

                                      APPENDIX E
             Public Participation Can Affect the Permit Process
                  CWM Chemical Services, Inc. Chicago Incinerator
                                    Chicago, Illinois

   CWM Chemical Services, Inc. Chicago Incinerator (formerly SCA) is one of the nation's three permitted
commercial PCB incinerators, which also burns a variety of hazardous waste. The CWM facility is located
on the south side of Chicago in an area of concentrated industrial activity, with a high population density.
Southeast Chicago, in general, is one of the areas with the worst air quality in Illinois in terms of airborne
particulate matter.

   The RCRA/HSWA permit for the CWM Chicago Incinerator was originally proposed on May 22,1987.
A public hearing was held on July 9, 1987.  Substantial comments were received from Illinois and U.S.
Congressmen and a number of environmental and community groups.  The majority of the comments
received have expressed opposition to the issuance of a permit to the facility. The public believes that the
CWM incinerator emissions are causing an increased incidence of cancer and other health problems in the
area. In addition, the public is very concerned about the environmental record of this facility, and the
numerous violations alleged against CWM.

   Public and Congressional interest in the site resulted in the formation of the Illinois General Assembly
Joint Committee to investigate the hazardous waste situation in southeast Chicago. At the request of this
Committee, the Illinois Environmental Protection Agency (IEPA) delayed the issuance of its portion of the
RCRA/HSWA permit. U.S. EPA agreed to do the same. The Joint Committee report was due to the General
Assembly on October 31,1987, one month after the originally scheduled permit issuance date.

   The IEPA and U.S. EPA received the Committee report for review in December, 1987. The report
supported the issuance of the RCRA/HSWA joint permit to CWM. However, permit issuance was delayed
againin early 1988 when CWM announced that the stack monitorfor carbon monoxidehadbeen disconnected
on four occasions in November 1986. As a result of these violations, the issuance of the permit was delayed
for over a year while enforcement actions were taken.

    The U.S. EPA opened a new public comment period on June 15,1989, to accept comments on changes in
the HSWA portion of the permit. Again, public interest was significant. On September 29,1989, the RCRA
portion of the permit was denied by the IEPA, due to the Company's failure to correct certain technical
deficiencies in its Part B permit application. As a result of the State's decision, the U.S. EPA did not issue the
HSWA portion of the permit. The Company appealed the State's decision on November 2,1989. Currently,
the CWM Chicago Incinerator is operating under interim status while the appeal is resolved.

                                Cecos International, Inc.
                                   Williamsburg, Ohio

    CECOS is a commercial land disposal, treatment, and storage facility that operated under the interim-
status requirements. Of the 1,214 acres of land that CECOS owns, 211 acres were being used for hazardous
waste management, and 163 more acres were being proposed for future expansion of the waste management

E-2  Appendix E

   On September 23,1983, CECOS submitted a Part B permit application. Over the next 5 years, EPA issued
three Notices of Deficiency and a Compliance Order to CECOS regarding deficiencies in the application.
CECOS responded to these deficiencies by submitting new permit applications, which were subsequently
determined to be incomplete. Despite the several meetings and conference calls that took place between EPA
and CECOS to discuss the deficiencies, the facility failed to submit a complete application. As a result, on
April 21,1988, EPA issued a Notice of Intent to deny CECOS the permit.

   The Citizens of Claremont County were extremely active in the permit process for the CECOS facility.
Their major concern was the potential contamination of drinking-water sources. They used the Claremont
County Board of Commissioners to voice their opposition.  The Commissioners hired consultants and legal
representation to present their position to EPA.  Attendance at the public hearing exceeded 200 citizens,
including county residents; company officials, employees, and customers; public interest groups; and local,
state, and Congressional representatives. Individuals presented statements supporting both issuance and
denial of the permit.

   After considering the numerous  oral and written comments submitted during the public participation
process, on September 29,1988, EPA issued its final determination to deny the permit. The denial was based
primarily upon a large number of deficiencies remaining in the applications after EPA  and  Ohio EPA
reviewed them.  In addition, several deficiencies were  identified by the Clermont County Board of
Commissioners during its review undertaken at the request of the local citizenry.

   On November 1,1988, CECOS submitted a Petition for Review of the permit denial. On January 11,1990,
EPA's Administrator signed the order denying the CECOS petition for review. Then on February 14,1990,
CECOS sent the Administrator a Request for Reconsideration or a Stay Pending Judicial Review.  A decision
on this request is still pending.

                                       APPENDIX F
         RCRA Treatment, Storage and Disposal Facilities (TSDs)
   Have Received the Large Majority of Attention in the C&E Program
   The consistent emphasis placed on TSDs has also resulted in a program where a similar understanding
is much less clear for generators, non-notifiers, and illegal hazardous waste disposal. This finding was
generally supported by the 46 interviews of representatives of the federal (EPA-15,DOJ-1 DOE-1), state (17),
industry (8), and environmental (2) communities. Moreover, the priorities that have been set each year have
consistently been comprehensive and have covered virtually all possible C&E activities. The requirement
that "mandatory" inspections be conducted semi-annually, annually, and biennially for TSDs, regardless of
their compliance history, has had the effect of committing a major share of available resources to this segment
of the regulated community.

   This is clearly illustrated by a review of the Agency Operating Guidance (AOG) from fiscal 1985 to fiscal
1991.  During this period, the highest C&E inspection priority has consistently been to support enforcement
against handlers or activities or releases that present the greatest threat to the public or the environment. This
is universally appropriate but has not really driven resources. Just as consistently, the second priority has
been the annual inspection of federal, state, and local TSDs to support the statutory requirement. The third
priority has been, beginningin fiscal 1987, commercial TSDs to support the off-site policy. The fourth priority
between fiscal 1987 and 1991 is other land disposal facilities (LDFs) (this was second and third in fiscal 1985
and 1986, respectively), consistent with EPA's priority to protect ground water and to meet permit deadlines
and statutory requirements.  The fifth to seventh priorities (from fiscal 1986 on) have  been permitted
incinerators and other TSDs to support permit deadlines and statutory requirements. The lowest priorities
for mandatory inspections (sixth to ninth) have been large-quantity generators (and transporters), although
the percent of the universe to be inspected annually increased from no minimum in fiscal 1985 to 2% in fiscal
1986 to 4% in fiscal 1987-88, and finally to 7% in fiscal 1989 to the present. All of the above C&E priorities were
consistent with the RCRA national program priorities.

    Following mandatory inspection priorities are the non-mandatory priorities.  Foremost in this category
(except fiscal 1991) has been support of criminal enforcement activity (seventh to fourteenth).  However,
because of the increasing types of mandatory inspections (exports, Toxicity Characteristics, boilers and
furnaces, mixed waste) and non-mandatory inspections (Medical Waste Treatment Act, delisting), criminal
support ranks below more activities than ever before in fiscal 1991. Following criminal support, non-notifier
inspections have consistently ranked next from fiscal 1987 on. As with criminal support, it ranks behind more
activities than ever in fiscal 1991.  Burners, blenders, and waste oil inspections have been consistently at or
near the bottom of all C&E inspection activities. However, the potential violation of greatest concern at these
facilities is the illegal mixing of hazardous waste with used and virgin oil;  this  could fall under criminal

    The above priorities (especially mandatory inspections) have been more or less consistent from fiscal 1985
to fiscal 1991. Emphasis has been on TSDs, especially LDFs. This has been consistent with the national RCRA
priorities of protecting public health and the environment, issuing permits, protecting ground water, meeting
statutory and EPA policy requirements, preventing future CERCLA sites, and ensuring the compliance of
federal facilities.

    Furthermore, a review of 31 annual state RCRA grant work plans and 21 EPA end-of-year program
evaluations in a total of 12 states and regions during the period 1986-89 was conducted to determine whether
the C&E program priorities were being reflected in annual work plans and effectively implemented. The

 F-2  Appendix F

 results show that the priorities in the mandatory inspection and enforcement categories of the AOG (i.e., those
 focusing primarily on LDFs and TSFs) received the highest priority in the field and were included in work
 plans and implemented at a 90% level.

    On the other hand, non-mandatory inspection and enforcement activities (including criminal, non-
 notifier, and waste oil) received much less emphasis (30%-40%), although criminal efforts as a separate
 subcategory showed a higher level of activity (about 70%). The conclusion of this review of state activity is
 that due to the AOG's historical focus on LDFs and TSDs, and the recent emphasis on HSWA implementation,
 fewer resources were available for criminal, non-notifier, waste oil, and generator activities.

    This consistent emphasis on TSDs has provided an assurance that cradle-to-grave hazardous waste
 management practices are generally being followed by TSDs.  This is not to say that violations are not
 occurring, being detected, and being enforced against. In fact, the situation is quite the contrary; violations
 continue to be found in this important segment of the RCRA universe. On the other hand, due to an inability
 to conduct compliance monitoring at the majority of generators and for much of the non-notifier and criminal
 areas due to resource constraints, many violations are going undetected, much less being addressed in any
 manner. The absence of a strong and aggressive program to assess generator compliance on a much broader
 level than exists and to better detect criminal and non-notifier violations and to pursue enforcement may be
 failing to create the deterrent effect necessary to  offset the economic incentive to violate. This is not only a
 conclusion based on a review of past priorities but a perception widely held by regulatory agency staff and
 others interviewed.

    Two recent cases in EPA Region n illustrate this point. One case (administrative penalty and ongoing
 criminal investigation) involved a facility that notified  EPA it was a generator but that had  never been
 inspected. Based on information from an informer, an inspection found over 300 drums, illegally stored for
 up to 10 years, of hazardous waste (toxic solvents). Many of the drums were corroded, leaking, uncovered,
 and exposed to the elements, causing overtopping and spillage to bare earth and a nearby storm drain. A
 routine practice was intentional dumping of liquid hazardous waste onto the soil and to the storm drain. Air
 violations (no permit) were also found.

    The second case involved a non-notifier that, in fact,  operated as a generator and illegal storage facility.
 Over 150 drums of hazardous waste (F-solvents, D001) were stored so that incompatible wastes were mixed
 toge ther without marking, labeling, or other protective requirements. Employees were at risk, since there had
been no training in handling hazardous waste, no contingency or emergency preparedness plan, etc. During
a recent major fire at the facility, firefighters had to operate at risk in the illegal storage area, probably causing
spillage.  A large penalty is being sought, and a criminal investigation is being conducted.

    In order to improve the C&E program with respect to coverage of generators, non-notif iers, and criminal
activity and at the same time maintain the deterrent program in place for TSDs, it is appropriate to consider
that the criteria used to determine inspection frequency be related more to the potential for finding significant
violations and less to an automatic reinspection on a set internal of every 6,12, or 24 months. This conclusion
is further supported by the increased workload due to the expanding RCRA universe over the next few years.

    One option is to select TSDs with histories of satisfactory compliance with RCRA (one criterion could be
 three years without a formal action and where a determination has been made that there are no apparent
reasons to expect a deterioration in compliance status) for an oversight program that requires less frequent
on-site inspections. For example, inspect LDFs, including federal, state, and local facilities (FSLs) once every
other year; TSFs, including FSLs, once every three years; and commercial facilities once a year. Requiring

                                                            TSD Inspection and Enforcement   F-3

submissions from TSDs, such as written certification (using a standardized checklist) that compliance is being
maintained, is another option. Technical certification (e.g., ground-water monitoring, incinerator operation)
could be by a registered professional engineer, whereas administrative certification could be by the facility's
owner or operator. Likewise, reinspection of generators found to be in compliance could be optional until
all other non-inspected generators received an inspection.

    The resources made available from this targeted approach could be dedicated to areas of major
environmental significance, such as generators, non-notifiers, and illegal hazardous waste disposal. Moreover,
annual planning efforts, expressed through the AOG, could identify which specific generator, non-notifier,
etc., initiatives (e.g., industrial SIC, geographic, quantities/toxicity of hazardous waste) would be major
activities for  the upcoming year based on environmental significance and  previous C&E  activity and

    It is important to recognize, however, that flexibility is needed region to region and state to state in
establishing such initiatives based on the special characteristics and needs of different geographic areas.
Moreover, EPA and the states must develop and agree on the essential components, roles, and activities
comprising successful non-notifier and criminal programs before grant funding and implementation. Once
implemented, EPA needs to carry out state oversight as well as direct C&E activity, just as it has with TSDs.


                                    APPENDIX G
          RCRA Compares Favorably with Other EPA Programs
                       in Terms of Enforcement Activity
   If success is measured through the imposition of formal actions and penalties, RCRA compares favorably
with other programs. The figures in this appendix show fiscal 1989 data for EPA's major programs.

   As can be seen, penalties in RCRA administrative cases compare favorably to similar data for the air and
water programs. Also, RCRA stakes claim to the highest judicial penalty, and performs well compared to the
air and water programs in terms of the average judicial penalty. But this impressive performance on the part
of the RCRA judicial enforcement program is based largely on a single judicial action (U.S. v. Environmental
Waste Control, which is currently on appeal), thus, EPA has not actually received this penalty. Particularly
weaker areas compared to the air and water programs involve the number of judicial actions and the
percentage of judicial actions containing a penalty. This may be in part due to the fact that RCRA has
traditionally been enforced through administrative actions. Also the RCRA C&E program is considerably
smaller than the air and water programs.

G-2  Appendix G
      EPA Enforcement Actions and Penalties for Fiscal Year 1989
          350 -r
          300 - .
          250 . .
          200 -.
          150 ~
           50 -
                                   Number of Actions
                                                  f  '    :v.: \'v-.;f:f; 'ry. •

                               D Number of Actions    El Number with Penalty
               NPOES    RCRA

                                                                          ,,, .
                                                                       PWS  ,. CERCLA 103^
       Number of Actions

|   | Total   m Administrative  |  | Judicial
                NPDES    RCRA   MOB.AIR" STAT.AIR   TSCA    UIC   WETLAND  FIFRA' '   PWS-  CERCLA 103
                                                             ••      "*ffr   i ^-f frill in  ^ I I-i-i

                                             Programs          ,                  ,

                                                      RCRA Enforcement Actions  G-3
EPA Enforcement Actions and Penalties for Fiscal Year 1989
$12,000.000  * -
$10,000,000 - .
 $8,000,000 - .
                     Total Penalty
            |  | Total    ^| Administrative   |||H Judicial
 $6,000,000 - -
 $4,000,000 - •
 $2,000,000 - -
                                                               ,PWS/  CERCLA
                              Average Penalty
$70,000 -,
: : .
: $50,000: -
$40.000 ->

$30.000 ,
$20.000 .
$10.000 '
SO *


S* s\
rfffSS \
ff. f :
\ ,*',-.

" !
ff •* '""':
s :


; ff ff~"
v ffyffc
'•"f %' '
f "S
• '/,/„',

J13.214 $12.936 ^^
" ''™ ""J1^ ^ v^ j
_. •'i // '"f";M' $6.778 S7.295
•./ ,•£$?•? 
G-4  Appendix G
       EPA Enforcement Actions and Penalties for Fiscal Year 1989
        570,000 -T-
        560,000 . -
        550.000; , -
        540,000 - -
Median Administrative Penalty
        530,000 ..
        520,000 - -
        510,000 - -
                NPDES    RCRA   MOB. AIR STAT.AIR   TSCA     UIC *  WETLAND,, , FIFRA J   PWS  CERCLA103J^, ,,^,,
                                 Median Judicial Penalty
         370,000 -j-
         $60,000 . .
         550.000 --
         540,000 - .
         530,000 . .
         520,000 -.
         510.000 - -
                555,000 •
                NPDES   RCRA   MOB. AIR STAT.AIR " TSCA'  " UK)'" ^WETLAND"  FIFRA    PWS  CERCLA 103


EPA Enforcement
Number of
Total Penalty
2,542,940 "
and Penalties
Percent with
for Fiscal







Year 1989
43,31 1

615,550 •