The Nation's Hazardous
Waste Management
Program at a Crossroads
The RCRA
Implementation Study
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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:
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Preface
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
v
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Acknowledgments
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)
RussWyer(OSW)
David Ziegele (OPPE)
Subcommittees
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)
Vll
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Acknowledgments
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)
GaryJonesi(OE)
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)
JimO'Leary(OSW)
Barbara Pastalove (Region 2)
Robert Pavlik (OHRM)
Joe Salata (OARM)
Bob Titus (OARM)
Rich Vaille (Region 9)
Vlll
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Acknowledgments
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)
Science/Technology
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)
TomWaddell(ORD)
Joe Williams (ORD)
Llew Williams (ORD)
Economics
Lead: Skip Luken (OPPE)
Druscilla Hufford (OPPE)
Deb Dobkowski (OSW)
Alan Carlin (OPPE)
IX
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Acknowledgments
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)
PatCohn(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)
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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
XI
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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
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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
Xlll
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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
structure?
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
maintained.
• Waste minimization efforts need emphasis to
promote the "conservation and recovery" in
RCRA.
• 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.
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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.
Communicationneedsimprovement'betweenEPA.
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
Priorities
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
RCRA'srequirements,andregulatorscandetermine
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
considered.
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.
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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
Activities
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
activities.
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
Staff
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
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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
collectinginformationandfordevelopingnecessary
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
Development
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
Superfund.
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
Branch.
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.
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CHAPTER 2
The Road Just Travelled:
A Chronicle of the RCRA Subtitle C Program
The Program's Legislative
History
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
sawadearneedforamorecomprehensiveprogram
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.
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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
characterizedbythedevelopmentofthebaseRCRA
regulations, reliance on performance-based rules,
and slow program implementation.
Development of the Base RCRA
Regulations
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,
EPApromulgatedtechnicalstandardsandfinancial
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
information.
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
program.
HSWA Greatly Expanded the Regulated
Universe
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
disposal.
• 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
wastes.
• 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
frames.
• Cl'ose the loopholes in the types of wastes and
waste management facilities notcovered under
RCRA.
• Expand the universe of regulated sources by
including generators of small quantities of
hazardous wastes.
• Minimize the amounts of wastes being
produced.
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
Generators
250.000 T
200,000 -•
I
2 150,000 • •
g
0
£ 100.000 - -
50.000 • •
J? f J
.,...'.?. !..„«.,
ff .
" ^ 4'
•>
•> f
'yff'f 'ft?
-
Treatment, storage, and
Disposal Facilities
7,000*
1980
1990
1992*
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
date.
Close Congressional Oversight Limited
Flexibility
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
implementation.
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
priorities.
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
benefit.
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
Pursued
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.
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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
industry.
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
rule.
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
minimization.
Greatly improved waste management, treatment,
storage,anddisposdpracticesthroughcomplianee
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
Introduction
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
Client/Contractor
Elements
Partnership
Directed; need not be shared
Spelled out
Spelled out
Formal, less frequent
Unequal
Formal, spelled out
Goals and priorities
Expectations
Roles
Communication
Control
Processes
Jointly developed; must be shared
Understood
Understood
Informal, frequent
Shared
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
asfrictionpointsbystate,regional,andheadquarters
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,
FIGURES
Cumbersome Authorization Process
EPA Timeliness/ Consistency
Resources:
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
Other
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
implementation.
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
goal-setting.
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
requirements.
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16 Chapter 3
FIGURE 4
Perceived and Preferred Priorities Differ
BJ Headquarters gg Region H State Q External
Perceived Priorities
Closure/ Corrective Action
Enforcement
Permuting Existing Capacity Including 1992 Deadline
Land Disposal Restrictions
State Authorization' arid Capability
:Waste Minimization
Permitting New Capacity
RCRIS
Subtitle D Issues;
Other
10
=f
15 20 25 ' ' 30 35
; Number of Times Cited (weightecj
40
45
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
RCRIS
Other
10
15 20 25 '30 35
Number of Times Cited (weighted
40
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.
RECOMMENDATIONS:
• 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
achieved.
• Actively communicate EPA's agenda to
Congress, environmental groups, and the
public.
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
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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.
RECOMMENDATIONS:
• 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.
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18 Chapters
RECOMMENDATIONS:
• Identify the "core" program requirements, and
use this concept in making decisions on
flexibility.
• Clearly define and communicate requirements
for deviating from national program priorities
to pursue state-specific environmental
initiatives.
Expectations
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
Impacts
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
program,andisnotwillingtoadmittoitslimitations.
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
programcanbegreatlyexpandedwithoutaffecting
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.
RECOMMENDATIONS:
• 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
progress.
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.
RECOMMENDATIONS:
• 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.
Roles
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
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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
Unclear
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
words."
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
iscitedasremainingdeeplyinvolvedinsite-specific,
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).
RECOMMENDATIONS:
• 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
Role
FINDING: EPA's current exercise of its oversight
role is viewed as excessive, intrusive, and
characterized by unnecessary reporting
requirements.
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.
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I
20 Chapters
TABLE 2
Current Roles Contrast Sharply With Perceived Appropriate Roles
Perception of
Appropriate
Roles
Headquarters
Develop national
policy/guidance to
ensure national
program consis-
tency
Analyze national
trends
Establish overall
program direction
Develop and help
provide training and
technical assistance
Oversee regional
offices
Regional Offices
Oversee state
programs
Provide technical
assistance and
support
Implement only
when state is not
authorized or
unwilling
States
Responsible for
all day-to-day op-
erations
Primary contact
with industry and
the public
When authorized,
work jointly with
EPA
Perception of
Current Roles
Policy/guidance
often late or inade-
quate
Require excessive,
meaningless report-
ing
Second-guess
regions, especially
regarding authoriza-
tion
Oversight of regions
lacking or limited to
numeric reporting
Conduct intensive
oversight
Require excessive
meaningless
reporting
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
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Federal/State Alliance 21
FIGURES
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
friction.
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.
RECOMMENDATIONS:
• 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
oversight.
• Redefine current methods of oversight to be
supportive of states' roles and responsibilities
and to focus on meaningful measures of
progress.
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22 Chapters
Tailor the degree of oversight to the experience
and ability ofastate,exercisinggreateroversight
of states with limited experience or marginal
programs.
Communication
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
Efficiency
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.
RECOMMENDATIONS:
• Encourage more staff-to-staff level
communication between the states and the
regions through regularmeetings, workshops,
joint training exercises, and rotational
assignments.
• 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,
justthatStatesoftenfeelthatEPAmiscommunicates
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.
RECOMMENDATIONS:
• Emphasize the importance of issuing timely
guidance documents, and incorporate this
concept into headquarters' performance
standards.
• 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
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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
Categoiy
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
Authorization
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
4.)
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.
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24 Chapters
Interviewees suggested that, particularly in ORC,
these resources are frequently shifted from state
"ler-
as
enforcement and corrective action."
RECOMMENDATIONS:
• 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
Unrealistic
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.
RECOMMENDATIONS:
• Recognize that resources are limited, and
support state efforts to plan and set priorities
for activities when applying for additional
authorization.
• 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
relationships.
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."
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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
regions.
• Increase delegation during a trial period, with
headquarters consultation on a limited number
of revision applications per "major" rule per
region.
• 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."
Equivalence
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
waste.
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
regulations.
Capability
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
frustratingCongress'overarchingintentthatRCRA
be delegated to the states. EPA has initiated a work
group that is developing revised guidance on
capability assessments and will consider thisstudy's
recommendations.
RECOMMENDATIONS:
• 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
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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
granted.
Consider other options, such as:
establishinganindependentEPAoroutside
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
authorization.
Several Issues in the Existing Process Need
Attention
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
authorization.
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
immediately.
RECOMMENDATIONS:
• 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.
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Federal/State Alliance 27
to
0>
i
sL
•n
a
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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.
Thefollowingnewprocessoptionswouldapply
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;
and
• excluding major program elements, such as
corrective action and the land ban, from self-
certification.
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.
Commissioning
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
Easier
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.
RECOMMENDATIONS:
• Use federal rulemaking to withdraw
authorization in lieu of the currentadjudicatory
hearing procedure.
• Consider adopting a process by which an
independentboard or auditprogram composed
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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
program.
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CHAPTER 4
The Regulations Machine:
Too Many, Too Fast
Introduction
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
percent.
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
OSWER Pr
Faster Th
Office of Solid Waste
& Emergency
iResponse;
; Office of Pesticides &
; Toxic Subtances
jOffice of Water i
; Office of Air &;
Radiation:
omulgates Regulations
an Other EPA Offices
/'I777
/„ , 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
Unclear
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.
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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.
RECOMMENDATIONS:
• 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).
RECOMMENDATIONS:
• 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
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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
stage.
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.
RECOMMENDATIONS:
• 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.
RECOMMENDATIONS:
• 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.
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34 Chapter 4
Work Group Decision-Making Process Is
Inefficient
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:
the
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.
RECOMMENDATIONS:
• 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
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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.
RECOMMENDATIONS:
• Encourage OGC to reevaluate the applicability
of ex parte communication restrictions to state
representatives.
• Work with OGC to determine other methods of
involving the states in regulatory development
after proposal.
Resources Constrain Regional and State
Participation
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
resource-intensive.
RECOMMENDATIONS:
• The OSWER Assistant Administrator should
commend OSW staff for actively seeking and
responding to regional and state input on
implementation.
• 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
process.
Implementation and Enforcement
Issues
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
Clarity
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
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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
states.
Implementation Issues Need Early
Consideration
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
violator.
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
failure.
RECOMMENDATIONS:
• Consider state and regional implementation
and resource requirements systematically in
the regulatory development decision-making
process.
• 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
Effectiveness
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
errors.
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.
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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.
RECOMMENDATIONS:
• 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
Regulation
Solid Waste
Definition
Used Oil
H.W. Tanks
H.W. Exports
Preamble
Pages
47
38
48
17
Regulation
Pages
8
9
16
4
Ratio
6:1
4:1
3:1
4:1
Preambles should, of course, continue to include
responses to major comments received on proposals,
although these could appear in a separate
background document. \
RECOMMENDATIONS:
• Write regulations simply and clearly, with the
aim of their being understood without a
preamble.
• 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
regulation.
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
Limited
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
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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.
RECOMMENDATIONS:
• 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.
RECOMMENDATIONS:
• 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
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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
system.
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
appropriate.
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
controversial.
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
exclusive:
• 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
hazardous.
• 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
Minimization
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
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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
environment.
RECOMMENDATIONS:
• 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
regions.
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.
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CHAPTER 5
The Permit Dilemma:
Deadlines vs. Need
Introduction
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.
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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.
Methodology
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
managementsystemsandreviewingearlierreports,
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
RCRA.
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,
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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
(28%)
!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.
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44 Chapters
FIGURE 10
EPA and the States Have Made Oven ,000 Permit Determinations
.Storage and Treatment:;
603 (56%)
Land Disposal 172
(16%)
|| 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
Priorities
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.
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The Permit Dilemma 45
FIGURE 11
Hundreds of Closing
Facilities Stilf Need Attention
Post Closure
Permits Issued
93 (6%)
Closed/Closing
1,342 (79%)
"Clean Closed^
255(15%)
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
program.
TABLE 4
Hundreds of New Facilities May Be
Added to the RCRA Universe
Regulations
Controlling Facilities
Toxicity Characteristic
Leaching Procedure
Boilers and Furnaces
Wood Preserving Listing
Mixed Waste
Mining Waste
Research, Development,
and Demonstration
# of New Facilities
500
500
400
300
100
1,820
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
facility.
• 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
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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.
RECOMMENDATIONS:
• 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
turnoverrateamongpermitwritersandthelackof
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
practicalityofday-to-daywastemanagement.Also,
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
contamination.
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
experience.
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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.
RECOMMENDATIONS:
• 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.
RECOMMENDATIONS:
• 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
matters.
• 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
Frequently
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
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48 Chapters
the ground-watermonitoringrequirementsare also
examples of difficult regulations with which to
work.
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.
RECOMMENDATIONS:
• 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
system.
• 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
functions.
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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.
RECOMMENDATIONS:
• 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
permits.
• 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
permit.
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
processes.
As Table 5 shows, the comprehensiveness of the
permit process causes significant delays. The table
does not even include the time for appeals, which
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50 Chapters
FIGURE 12
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
_ . .
1
«-«-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)
Results
'
Conducted
Ar-
Pubfie Comment;
Hearing
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
Incinerator
Land Disposal
Storage
Treatment
Causes Significant Delays
Issuance
4 1/2 yrs.
4 1/6 yrs.
2 1/2 yrs.
2 3/4 yrs.
Denial
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.
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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
1,569
0
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. :
RECOMMENDATIONS:
• 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
important.
• 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
notices.
• 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
3005(c)(3).
• 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
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52 Chapters
in good faith, particularly in a post-closure
situation.
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
Process
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
along.
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.
RECOMMENDATIONS:
• 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
interim.
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
problem.
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
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The Permit Dilemma 53
monitoring, and other provisions. Thus, the appeals
areraisingmanysignificantissues,whichobviously
contribute to the delay.
RECOMMENDATIONS:
• 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
community.
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.
RECOMMENDATIONS:
• Accelerate the HSWA authorization process so
that states are in a position to issue the full
permits.
• 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
advantageous.
Certain Facilities Need Only Simple
Permits
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
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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
Permits
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
plan.
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
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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.
RECOMMENDATIONS:
• Strengthen and make more specific the
regulatory provisions concerning waste
minimization.
• Explore other concepts in addition to
permitting, such as technical assistance,
economic incentives, inspection of generators,
and recognition programs, to expand waste
minimization.
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[ol
CHAPTER 6
Compliance and Enforcement:
Better Targeting for Better Results
Introduction
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.
Methodology
In addition to extensive interviews, the
Compliance and Enforcement (C&E) Subcommittee
relied mainly on the following sources of
information:
« 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.
RECOMMENDATIONS:
• 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.
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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.
RECOMMENDATIONS:
• Target strategic initiatives to provide the
greatestpotentialforbringingenvironmentally
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
FIGURE 14
Flow Char
i '
Issue Warning
Letter/ NOV
i
Noncompliance
i
Develop Administrative
Complaint, Draft relief,
Calculate penalty
4
Negotiate _
*'
— ...fi.— • — .,g.~v...~... , ...» v.vv>,
Establish Compliance Schedule **
4
Oversee Compliance
^ f
Noncompliance
t of the Federal RCRA C&E Process
Conduct Ir
'
i
Write
Lab Analysis of Sample
Inspection Report
1
Decis
take enf
onto
. action
i '
Offer State
enforcement lead
Adjudicate
J«
-
y Proceeding
reALJ
.
Final Order
•^
***** Appeal to
/.
Administrator
1
Respondent Files
Civil Suit
.
-
, ,
1
State Enforcement
1 1
Administrative '• •* Refer to AG
•• f
% i •
Develop Civil
* Judicial Referral
\
Refer to DOJ, Direct,
Through OECM
1
Provide legal
and technical assistance
I ' '.
Judicial Decree
( ^
Appeal
,
-------
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
Non-Notifiers
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
generatornon-compliance,non-notifiers(thosewho
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
impact.
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.
RECOMMENDATIONS:
• 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
Publicity
FINDING: RCRA C&E publicity has not maximized
deterrence.
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
improvements.
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
RCRA
II II! IV V VI VII VIII IX X NEIC
Regions
By Program
Clean Clean
Rogkm RCRA Air Water FIFRA TSCA CERCLA Other Totat
I
II
lit
IV
V
VI
VII
VIII
IX
X
NEIC
Total 24
3
Z
4
3
4
5
1
1
8
2
1
2
1
1
4
2
1S 30
12
10
8
6
5
6
S
S
5
12
1
76
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
isgenerallyfelttosendastrongerdeterrentmessage.
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
case.
RECOMMENDATIONS:
• 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
DOJ.
- Meet regularly with DOJ to discuss
priorities and workload.
- Encourage DOJ attorneys to take RCRA
training.
- 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
EnforcementResponsePolicybyEPAandthestates
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
should.
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
compliance.
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.
RECOMMENDATIONS:
• 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
lost.
• 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
Process
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.
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66 Chapter 6
The numerous capacity-based time extensions of
theLDRsmadeitdifficulttodeterminewhetherthe
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
regulations.)
RECOMMENDATIONS:
• 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
Responsibilities
FINDING: The roles and responsibilities of EPA and
the states in the RCRA enforcement process are not
clear.
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.
RECOMMENDATIONS:
• 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
precedents.
• 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
assessment.
• 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
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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%
EPA
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
21%
11%
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;
Air
iiToxic Substances;
Spill Response
Water
Superfund
Z34%
J17%
6%
i26%
J18%
17%
0% 5% 10% 15% 20% 25% 30%
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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);
and
• 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.
RECOMMENDATIONS:
• 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;
11,567(5.3%)
Uninspected Handlers
205,333 (94.7%)
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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
well.
RECOMMENDATIONS:
• 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
program.
• 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
development.
Measuring and Communicating
Success
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
success.
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
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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
Fiscal
Year
1985
1987
1989
Informal
4,029 (73%)
3,863 (68%)
4,498 (74%)
Formal
1,473 (27%)
1,840 (32%)
1,589 (26%)
Total
5,502
5,703
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
1,945(11%);
.
^Informal Actions'and Format?
iActions at Non-Land Disposal'
Treatment and Storage Facilities
iGenerators, and Transporters
" •
TABLE 8
Percent of Violations for
Which No Action Was Taken Is
Fiscal
Year
1985
1987
1989
Non-Land
Disposal,
Treatment,
Generators/ and Storage
Transporters Facilities
8 8
9 8
14 15
LOW
Land
Disposal
Facilities,
3
4
18
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.
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Compliance and Enforcement 71
TABLE 9
Percent Returned to Compliance Is Decreasing
/ Percent
Fiscal
Year
1985
1987
1989
Number
of Land
Disposal
Facility
Actions
1,669
1,605
1,544
/
Percent
Generators/
Transporters
71
74
45
Non-Land
Disposal
Treatment,
Storage, and
Disposal
Facilities
73
68
42
Percent
Land
Disposal
Facilities
70
54
32
RECOMMENDATIONS:
• 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
actions.
• 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
successful.
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.
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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
diminished.
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.
RECOMMENDATIONS:
• 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
possible.
• 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
Misperceptions
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
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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
programs.
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
program.
RECOMMENDATIONS:
• 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
unnecessary.
• 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.
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-------
CHAPTER 7
Corrective Action:
A Strategy for Protection
Introduction
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
Process
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
Problem
Unlike the other sections of this chapter, this
section does not follow up its findings and
discussion with recommendations. Rather, it sets
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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
Action
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
ofHSWA'smandate—toprotecthumanhealthand
theenyironmentagainstcontaminationfromRCRA
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
facilities:
• 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
1,200-r
1,000
800--
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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
problems.
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
Priorities
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
Total
* Numbers in
RCRA
universe
313
435
584
658
1,040
565
311.
123
492
458
4,679 *
Hazardous Waste
** Numbers in Corrective Action
completed
RFAs
88
169
173
270
357
331
77
40
77
53
1,635 **
Data Management
Reporting System
RFIs are
necessary
" 74
134
145
226
281
258
70
34
70
39
1,331 **
RFIs have
been required
through permit
or order
24
35
49
146
90
98
34
20
59
46
601 **
Facilities
with RFI
Work Plan
approved
7
9
17
47
28
37
4
3
3
19
174 **
Facilities
with RFI
completed
0
3
3
6
4
4
1
0
0
0
21 **
System as of 3/1/90.
as of 3/1 7/90.
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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
goals.
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
sites.
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
program.
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
rams'
^ ^ view.
RECOMMENDATIONS:
• 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
program.
Key Priority-Setting Process Is Not
Effective
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
action.
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.
RECOMMENDATIONS:
• 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
towardapredominantlyrisk-basedrankingscheme,
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
Process
Work Plans Can Be Addressed by Their
Priority
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.
RECOMMENDATIONS:
• 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
releases.
RECOMMENDATIONS:
• 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
wastes.
Permits Can Be Issued According to
Priority
FINDING: Almosteveryregionidentified theHSWA
permit deadlines as a barrier to setting priorities
based on the most environmentally significant
problems.
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.
RECOMMENDATIONS:
• 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
Overall
FINDING: Many regions are issuing consent orders
rather than permits, or are taking steps to minimize
permit appeals.
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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
information.
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
theneedforcommunityinvolvement,buthasfound
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
Difficult
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
viableorwillingtotakeappropriatecleanupactions.
In these cases, enforcement orders under RCRA or
Superfund may be necessary to ensure proper
cleanup.
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
information.
RECOMMENDATION: Develop facility-specific
compliance plans that determine the most effective
compliance mechanism to ensure final facility
cleanup.
-------
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
costs.
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
documents.
RECOMMENDATIONS:
• 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/
operatordoesnotprovidequalityRFIwork,
- 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. ., ,
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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.
RECOMMENDATIONS:
• 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
Introduction
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
levels:
• 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
implementation.
FIGURE 20
Headquarters Resources Have Remained Constant
F 1 Adoal I I Proposed
300-
200 -*i
•g 150 -H
o
254
Work Years
297 295 294
$600 T
323
$500 .-
1460"
«
£ $30 0- -f
o
o
§ $200-1-
$100 -•
$00
Contractor Dollars
SS13
$422,
**?.?.
$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
cleanup.
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.
Methodology
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 -
w
e
£ $60.0 -
1
^T $50.0 -
Js
5 $40.0 -
0)
"as $30.0 •
W
$20.0 •
$10.0 -
$0.0 *
$88.0 . . ~
$66.5 $66.8 '•
$62.9
$46.7
mi
''A
^
*•&'
sv;
vl
x">i
•;
*^i
*3O.«
™—
&•••&
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^ X *•
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'• ,
• '<•
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v
^ ""
"-;
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•• v..
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;
.,•
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•• \
••
f'~ t
f
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>'
^ £
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;#!$'
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V
?"<
,
f
,
,
f
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f
.tAJj^J.^..—.^^^^..... ,,........,, i.,,.,,..,.f..,.,,^,.n.. ,
1985 1986 1987 1988 1989 1990 1991
1000 -
900 •
800-
J2 700.
0>
> 600 ;
^ 506,
_
•• _ g 400 -
_o
S5 300-
cc
_; 260 .
-_ -i ioo -
.I :=s:to •
945
.676
: f f
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1985
,
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'•
793
" •*;
; <•
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; ^
: ^
,
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798
'
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!' ""
804
_
'
''
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'"';
'
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'"'\
M
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,
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
budgets).
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
presented.
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
withoutconsciousdecisionsregardingwhetherthe
shift in resources produces optimal environmental
results.
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.
RECOMMENDATIONS:
• 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
priorities.
• Improve EPA's analyses for estimating the
resource impactsof new regulations brprogram
initiatives.
• 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
Balancing
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
75%
50%-.
O 25%
vP
0%
9%
20%
24%
Ixs
r
25%
1985 1986 1987 1988 1989 1990
FIGURE 23
•:-:- •:-:-" •-:-:-,->.- .-.•.-.•:-:•, : :-:-:-:-:- -.---.-.-:•:-:-:-:-.-,-:-:•.-.-:•. .•:-:-:-;-: . .-:- -:-:-:-.-:-:- •" ,-.-"•• .":-:-:-"-:•:-•-;•;-.-:-:': "•:•:".••:• »:-:•>:•;• .•:•:-: :-:-:-:-;-:• • :
Annual Corrective Action Needs
Dj'ected Corrective
Needs Are It
p-ps
• : •*
fff '• •
"•— ' Ava
(Assumes
II 1
Action Reso
icreasing
A
iou'rc
able
NoP
1 1
ff"f
* ' '*'
"f
Sho
,%
V ff
falj."
urce
^
f/'
%,
ffff <•
,, /'
$41
esources
3st-91 Increase)
I H II
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
O
Dollars
£
O
O
Q
O
s
40-f
35-
30..
20-
15,.
10-i
125
f~l Proposed
1000
900 i
soo •-
700 . - 676
600 -r
500 '•
400 +
300
200
100 -
0
Years
794 793 798
945
804
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
Applied
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.
RECOMMENDATIONS:
• 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
responsibilities.
• Balance the responsibility for overseeing state
programs with the responsibility for assisting
with state program development and
improvement.
• The regions should retain overall responsibility
for corrective action in states that lack the desire
or ability to take on corrective action program
responsibilities.
Resources Need to Be Balanced with
Planning
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
appropriate.
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
assumptions.
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.
Compoundingthislackofunderstandingabout
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
estimates.
RECOMMENDATIONS:
• Refinetheplanning/budgetingprocesstomore
accurately estimate regional and state grant
resources, and salaries and expenses for regional
staff.
• Evaluate how grant resources are spent, with
headquarters developing a national report for
use in making future projections and budget
requests.
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
FY
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
resources.
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
appeals.
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
High
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
program.
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)
30x
20
10-
HO 1 2 3 4 S 6 f 8
Region
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
databasedonjobfunctions(astheydoforSuperfund
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
system.
RECOMMENDATIONS:
• 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
Expanded
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:
Moveextramuralmoney(grants,contracts)
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
Enforcement
Inspections
0
Corrective Action
Project Management "
IRisk Communication T
lEnforcement Strategy
; Innovative Technology
C
---•-' i — s , '-*
•!.V... ' 1 \
,-t ]
h
•
' 1
20 40 ,60 , 80 100
Advanced Training
, •> >, •••.-.? |
1 | |
1 |
1 1
1
) 20 40 60' 80 100
Percent
-------
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.
UsetheexpertiseofEPAfieldstaffintheregions,
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
Boosting
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
funds.
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
Focus£
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
jobs.
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.
RECOMMENDATIONS:
• 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.
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Maximizing Program Resources 95
Consider all available means of converting
extramural contract dollars to S&E for travel,
equipment, and personnel compensation and
benefits.
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
Streamlining
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
candidates.
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.
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CHAPTER 9
Information Management:
Data to Measure Progress
Introduction
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
patterns).
• 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
universe.
• Technical: information describing and
supporting models and technologies, such as
ground-water models and treatment
technologies.
Administrative: information describing the
personnel, financial, and property resources
associated with the program.
Findings and Recommendations
Insufficient Environmental
Information
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
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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.
RECOMMENDATIONS:
» 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,
determine:
which program functions are best
supported by regular data collection, and
which are best supported by special
surveys;
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
Information
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
usebecauseitisbasedonoutdatedsoftwaresystems,
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.
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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
Support
FINDING: The RCRA program does not provide
consistent technical support to the regions and the
states.
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
action.
RECOMMENDATIONS:
• Continue to develop expert systems to support
regional and state permit writers.
• Develop GIS capability to support priority-
setting.
• Improve modeling support, and provide
informationclearinghousesthroughintegration
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.
RECOMMENDATIONS:
• 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
mationmanagementresourcesbybuildmgon
integrating with existing processes and by
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100 Chapter 9
finding lower-cost solutions to information
management problems.
RECOMMENDATIONS:
• 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
management.
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.
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CHAPTER 10
Science and Technology:
Breaking Barriers
Introduction
EPAhasmadeconsiderableprogressinmeeting
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.
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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
community.
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.
RECOMMENDATIONS:
• 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
audience.
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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
activities.
RECOMMENDATIONS:
• 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
pharmacokinetics.
Risk Assessment Capabilities Need
Improvement
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
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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.
RECOMMENDATIONS:
• 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
Measurement and monitoring activities under
RCRA are conducted for the following purposes:
• characterizing wastes and sites;
• determining the extent of contamination at
sites;
• 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
toasSW-846.
The validation process for adding methods to
SW-846hasbeenslow,becauseoftheFederaZ.Register
review and comment procedures. Once a method
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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.
RECOMMENDATIONS:
• 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-
846.
• Develop methods for assessingbioavailability.
Air Sampling Methods Need to Be
Improved
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
applications.
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
need.
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— e.gl,
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.
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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
forthemhaslaggedbehindotherresearchactivities.
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
regulations;
• 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
application.
TABLE 11
Several RCRA Program Areas Use Modeling
Program Area
Characteristics
Listing/Delisting
Corrective Actions
Subtitle C Siting &
Permits
Level of Analysis
National Scale
Specific Waste Streams
at National Scale
Site Specific
Site Specific
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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
limited.
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.
RECOMMENDATIONS:
• 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
Soil
X
X
X
X
Media
Ground
Water
X
X
X
X
Pollutant/Waste Type
Complex Oily
Wastes Wastes
9 9
? X
X X
Surface
Water
X
X
Terrestrial
N/A
N/A
Infectious
Agents
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
wastes.
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108 Chapter 10
Select a limited number of models suitable for
application to site-specific analyses, and
developcasestudies,tutorials,trainingsessions,
and technical guidance on how to best use
them.
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
Modeling
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.
RECOMMENDATIONS:
• 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
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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
program.
RECOMMENDATIONS:
• 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
materials.
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
performance.
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
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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
chamber.
RECOMMENDATIONS:
• Develop more information on incinerator
performance with respect to PIC and metal
emissions to satisfy EPA's regulatory
requirements.
• 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
application.
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
evaluated.
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
questioned.
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.
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Science and Technology 111
RECOMMENDATIONS:
• Determine RCRA priority areas for research,
development, and demonstration of cleanup
technologies.
• Assess whether Superfund technologies meet
RCRA needs. If not, consider the need for a
separate effort to address any unmet RCRA
needs.
Development, Demonstration, and
Use of Innovative Treatment
Technologies
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.
RECOMMENDATIONS:
• -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.
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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."
RECOMMENDATIONS: EPA has devoted
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
Guidance
FINDING: While conferring flexibility, the generic
nature of the SubpartXrule also poses problems for
permit writers unfamiliar with innovative
technologies.
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
technologies.
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
technologies.
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.
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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
(e.g.,BDAT)mayposesignificantproblemsinterms
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"
danger.
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
requirements.
RECOMMENDATIONS:
• 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
permits.
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
technologies.
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
waste.
RECOMMENDATIONS:
• 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
positions.
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
RCRA
Section
3001 (a)
3001 (b)(1)
3001(b)(2)(B)
3001(b)(3)(C)
3001(b)(3)(C)
3001{b)(3)(C)
3001(b)(3)(C)
3001 (d)
HSWA
HSWA
HSWA
HSWA
§221 (c)
§221 (d)
§221 (e)
§221 (f)
Description
Hazardous waste
characteristic and
listing determination
criteria
Hazardous waste
characteristic and
listing regulations
Oil and gas waste
regulatory
determination
Utility waste
regulatory
determination
Decision to regulate
mining waste
Mineral processing
wastes regulatory
determination
Cement kiln dust waste
regulatory determination
Small quantity
generator (SQG)
standards
SQG mgmt. practices
study
Uniform manifest and
SQGs study
Licensing transporters
of SQG wastes study
SQG wastes from educa-
tional institutions
study
Statutory
Deadline
4/28/78
*
' j
4/28/78
"
6 months
after RTC •
6 months
after RTC
•
6 months
after RTC
6 months
after RTC
;
Federal Register Next
Publication Date * Milestone**
5/19/80
.;!.. -''-1'
' ; 5/19/80
7/06/88
(Notet)
i
No reg.
determin.
(Note 2)
'i
7/03/86
(extraction and
benefication)
(Note 3)
6 months 4/96
after RTC
3/31/86
HAMMER
4/1/85
4/1/87
4/1/87
4/1/87
3/24/86
2/28/85
10/86
11786
-;~t*--
10/88
t Report to Congress
-------
A-2 Appendix A
Status of EPA's Action on Subtitle C Statutory Requirements
RCRA
Section
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)
Description
Listing-chlorinated
dioxins/dibenzofurans
Listing-halogenated
dioxins/dibenzofurans
Dioxin-containing wood
preserving waste
Listing-chlorinated
aliphatics
Listing-dioxin
Listing-dimethyl
hydrazine ("UDMH")
Listing-toluene
diisocyanate (TDI)
Listing-carbamates
Listing-bromocil
Listing-linuron
Listing-organo-bromines:
EDB
Methyl bromide
Add'l organo-bromines
Listing-solvents
Listing-refining wastes
Listing-chlorinated
aromatics
Statutory
Deadline
5/08/85
11/08/85
11/08/85
2/08/86
2/08/86
2/08/86
2/08/86
2/08/86
2/08/86
2/08/86
2/08/86
2/08/86
2/08/86
2/08/86
Federal Register
Publication Date *
1/14/85
12/30/88
(proposal)
12/11/89
1/14/85
(Note 4)
5/2/90
final & add'l
proposal
10/23/85
10/24/86
5/1/85
proposal
5/1/85
proposal
2/13/86
10/06/89
2/25/86
11/20/80
proposal
2/11/85
4/13/88
notice of data
availability
Next
Milestone**
11/90
1/97
(proposed)
9/93
7/93 add'l
proposal
9/92
final
9/92
final
1/97 proposal
4/91 add'l
proposal
9/90
final
4/91
proposal
BH^_H
-------
Status of EPA Actions A-3
Status of EPA's Action on Subtitle C Statutory Requirements
RCRA
Section
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (e)(2)
3001 (f)
3001 (g)
3001 (h)
3002(a)
3003(a)
3003(c)
3004(a)
3004(c)
3004(d) & (m)
Description
Listing-dyes and
pigments
Listing-inorganic
chemical industry waste
Listing-lithium
batteries
Listing-coke byproducts
Listing-paint
production wastes
Listing-coal slurry
pipeline effluent
Temporary delisting
grant expiration
Revisions to EP
toxicity characteristic
(test only)
Additional
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
determinations-
Statutory
Deadline
2/08/86
2/08/86
2/08/86
2/08/86
2/08/86
2/08/86
11/08/86
HAMMER
3/08/87
11/08/86
4/28/78
4/28/78
11/08/86
4/28/78
2/08/86
7/08/87
HAMMER
Federal Register
Publication Date *
3/07/84
(Note 5)
11/08/86
11/07/86
3/29/90
2/26/80
2/26/80
11/29/85 .
5/19/80
12/24/86
proposal
7/08/87
Next
Milestone**
6/91
proposal
7/97
proposal
rf
8/90
proposal
12/91
proposal
12/95
proposal
6/94
final
California wastes
-------
A-4 Appendix A
Status of EPA's Action on Subtitle C Statutory Requirements
RCRA
Section
3004(e) & (m)
3004(f) & (m)
3004(g)(1)
3004(g)(4)(A)
&(m)
3004(g)(4)(B)
&(m)
3004(g)(4)(C)
&(m)
3004 (g) (4)
3004(n)
3004(o) (4) (A)
3004(o)(5)(A)
3004(o)(7)
3004 (o)(7)
Description
Land disposal
determinations-
solvents and dioxins
Deep well injection
prohibition
determinations
Land disposal
determinations schedule
Land disposal
determinations-
first third
Land disposal
determinations-
second third
Land disposal
determinations-
final third
Land disposal
determinations -
newly listed wastes
Hazardous waste
treatment, storage, and
disposal facility air
emissions regulations
Leak detection systems
proposal
Minimum technology
requirements
regulations or
guidance
Vulnerable hydrogeology
guidance criteria
Location Standards
Statutory
Deadline
11/08/86
HAMMER
8/08/88
HAMMER
11/08/86
8/08/88
HAMMER
6/09/89
HAMMER
5/08/90
HAMMER
6 months
after listing
6/08/87
5/08/87
11/08/86
5/08/86
Federal Register
Publication Date *
11/07/86
7/26/88
5/28/86
8/17/88
6/23/89
6/1/90
6/23/89
6/01/90
6/21/90
(Phase I)
5/29/87
3/28/86
proposal
4/17/87
notice of
guidance
8/07/86
notice of
guidance
Next
Milestone**
3/92
1990
Phase II
proposal
9/92
final
11/90
proposal
-------
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
facilities
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
individual
determinations
Federal Register
Publication Date *
11/29/85
5/06/87
proposal
11/29/85
7/15/85
12/01/87
7/14/86
5/19/80
Next
Milestone**
3/91
final
92% operating
facilities
permitted by
11/08/88
90%
permitted by
11/08/89
30%
completed
14 variances
granted by statutory
deadline
-------
A-6 Appendix A
Status of EPA's Action on Subtitle C Statutory Requirements
RCRA
Section
3006(a)
3007(e)(1)
3007(e)(2)
301 4(b)
3014(b)
3014(c)(2)(A)
301 7(b)
301 8(a)
301 8(b)
301 8(c)
8002(r)
Description
State hazardous waste
program guidelines
Mandatory inspection
program/regulations
Use of private
inspectors study
Proposed listing of
used oil
Final listing of
used oil
Recycled used oil
management standards
Hazardous waste export
regulations
Domestic sewage
exclusion report
Domestic sewage
regulations
Wastewater lagoons
report
Waste minimization
report to Congress
Statutory
Deadline
4/28/78
11/08/85
(program only)
5/08/85
11/08/85
11/08/86
11/08/86
11/08/85
2/08/86
8/08/87
11/08/87
10/01/86
Federal Register
Publication Date *
5/19/80
10/91
proposal
3/91
draft report
11/29/85
11/19/86
(Note 8)
11/29/85
proposal
8/08/86
2/86
11/23/88
proposal
11/87
10/15/86
Next
Milestone**
8/90
notice of
data availability
4/91
re-proposal
7/90
(Note 9)
Final action, unless otherwise indicated
informed judgments of future resources and
priorities
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
Introduction
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
state.
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
priorities.
-------
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
31,1986.
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
program.
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
priorities.
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.
Recommendations
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
withdrawal.
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
way.
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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.
Quality
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
Understandability
- 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
much)
Cooperativeness of applicant
Involvement of enforcement staff in developing permit
EPA oversight of State base permits
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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
statue?
c. Are there changes that could be accomplished only through statutory
revisions?
Permit Process and Timeliness
6. Of the basic steps in the permit process, which are working well and which are problem
areas? Why?
Application
Adrninistrative/Technical review
Draft permit
Public Participation
Final Determination
Appeal
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?
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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
improved?
Priorities
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
permits
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?
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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.
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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
performance.
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.
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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
operations.
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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.
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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
support.
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
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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
presence.
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.
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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.
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G-2 Appendix G
EPA Enforcement Actions and Penalties for Fiscal Year 1989
350 -r
300 - .
250 . .
200 -.
150 ~
100.-.
50 -
220
350
Number of Actions
f ' :v.: \'v-.;f:f; 'ry. •
D Number of Actions El Number with Penalty
296
'308
157
252
58
17
4-
H.
NPOES RCRA
"MOB AIR STAT.AIR TSCA , UIC ,AA WETLAND FIFRA
Program
,,, .
PWS ,. CERCLA 103^
Number of Actions
| | Total m Administrative | | Judicial
ist
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
$14,000,000
$12,045,525
$12,000.000 * -
$10,000,000 - .
$8,000,000 - .
Total Penalty
| | Total ^| Administrative |||H Judicial
$6,000,000 - -
$4,000,000 - •
$2,000,000 - -
NPDES RCRA MOB. AIR STAT.AIB TSCA ' UlC WETLAND, , FIFRA'
••
Program
,PWS/ CERCLA
103
Average Penalty
$70,000 -,
: seo.ooo : .
: $50,000: -
$40.000 ->
$30.000 ,
$20.000 .
$10.000 '
SO *
~
H
$57,085
\'A
S* s\
rfffSS \
ff. f :
'«*£•
'"Jf,
\ ,*',-.
543,311
" !
»/.1
ff •* '""':
f\
s :
$16.403
*
I*"';
*,,?,
; ff ff~"
l^V
'•'^4f'f#'
v ffyffc
'•"f %' '
f "S
• '/,/„',
••
-'
$20,438
J13.214 $12.936 ^^
" ''™ ""J1^ ^ v^ j
_. •'i // '"f";M' $6.778 S7.295
•./ ,•£$?•?
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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
$50,871
530,000 ..
520,000 - -
510,000 - -
NPDES RCRA MOB. AIR STAT.AIR TSCA UIC * WETLAND,, , FIFRA J PWS CERCLA103J^, ,,^,,
Program
Median Judicial Penalty
370,000 -j-
$60,000 . .
550.000 --
540,000 - .
530,000 . .
520,000 -.
510.000 - -
SO
S61.500
555,000 •
;S3S,875
:S37,500
$32^53
$25,000
$9,000
f-
NPDES RCRA MOB. AIR STAT.AIR " TSCA' " UK)'" ^WETLAND" FIFRA PWS CERCLA 103
Program
-------
EPA Enforcement
Actions
Number of
Program
NPDES ADM
NPDES JUD
NPDES ADM&JUD
UICADM
UICJUD
UIC ADM&JUD
PWS ADM
PWS JUD
PWS ADM
WETLAND ADM
WETLAND JUD
WETLAND ADM&JUD
STATIONARY AIR ADM
STATIONARY AIR JUD
STATIONARY AIR ADM&JUD
MOBILE AIR ADM
MODILEAIRJUD
MODI LE AIR ADM&JUD
RCRA ADM
RCRA JUD
RCRA ADM&JUD
CERCLA 103
TSCA
FIFRA
Total Penalty
2,301,525
9,744,000
12,045,525
675,290
75,000
750,290
66,000
56,000
122,000
197,450
150,000
347,450
101,741
4,668,171
4,769,912
2,542,940 "
2,312,416
4,855,356
2,512,378
4,287,500
6,799,878
21,884
4,069,990
337,869
Actions
165
55
220
56
2
58
14
4
18
12
5
17
2
67
69
280
16
296
146
11
157
3
308
252
and Penalties
Percent with
Penalty
99%
99%
99%
62%
67%
62%
100%
80%
95%
100%
83%
94%
100%
93%
91%
100%
100%
100%
95%
73%
93%
75%
97%
79%
for Fiscal
Median
Penalty
10,000
55,000
4,000
37,500
5,000
9,000
8,000
25,000
50,871
32,253
1,000
35,875
9,792
61,500
3,334
7,000
1,014
Year 1989
Average
Penalty
16,979
177,164
57,025
12,059
37,500
12,936
4,714
14,000
6,778
16,454
30,000
20,438
50,871
69,674
69,129
9,082
144,526
16,403
17,208
389,773
43,31 1
7,295
13,214
1,341
Highest
Penalty
100,000
1,540,000
1,540,000
125,000
55,000
125,000
5,000
37,500
37,500
75,000
50,000
75,000
100,000
600,000
600,000
666,981
1,666,666
1,666,666
137,751
2,778,000
2,778,000
16,550
615,550 •
10,000
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