vvEPA United States Environmental Protection Agency Office of Solid Waste & Emergency Responsa EPA/ 530-SW-84-006 May 1984 Solid Waste Interim National Criteria for a Quality Hazardous Waste Management Program under RCRA Do not weed. This document should be retained in the EPA Region 5 Library Collection. l Protection Agervy - 11 We4?! Jacfcson Boulevard, 12th Chicago, \l 60604 -3b90 ------- PREFACE Implementation of the RCRA program is without precedent among environmental programs in technical and management complexity. The program cannot succeed without close cooperation between EPA and the States. The foundation for this cooperation must be a common understanding of what is necessary to build and sustain a quality RCRA program. This document provides for the first time the basic goals and performance expectations to be followed by the States and EPA in managing the RCRA implementation effort. It is a critical first step in developing the management system necessary to move toward full implementation over the next several years. The criteria are interim only. Their incorporation into our existing activities will require close interaction among Headquarters, Region, and State offices during the next several months. We plan to use the criteria both to develop our joint Region/State agreement to build program capability (negotiated during the final authorization process) and to develop State grant work programs for the FY 1985 program planning cycle. The criteria will provide a common point of departure for Region and State discussions on all aspects of RCRA management. Because the criteria are interim, they should be applied realistically, recognizing that individual situations may require adjustments to the national benchmarks. Oversight will continue to be based on the individual grant work programs and the memoranda of agreements negotiated between the Regions and States. Where not specifically referenced in these documents, however, the national criteria will be expected to be followed. Development of the RCRA program quality criteria involved active participation by RCRA managers at Headquarters, Regions, and the States. It was built around the Task force on RCRA Program Quality, which held numerous meetings over the last five months and distributed two earlier drafts tor comment. It is as close to a consensus document as possible. The Task Force Policy Group overseeing the effort included senior RCRA managers from both EPA and the States. John H. Skinner Office of Solid Waste Gene Lucero Office of Waste Programs Enforcement Robert Wayland Policy & Program Management Staff/OSWER Lewis Crampton Office of Management Systems & Evaluation/OPPE Kirk Sniff Associate Enforcement Counsel for Waste/OECM Mel Hohman Region I, Waste Management Division ------- Allyn Davis Region VI, Air and Waste Management Division Bill Constantelos Region V, Waste Management Division Ron Nelson Maryland Waste Management Administration Wladimir Gulevich Virginia Bureau of Hazardous Waste Management Robert Kuykendall Illinois Division of Land/Noise Pollution Contrc Jon Grand Council on State Governments The Task Force was directed by Carl Reeverts from the Office of Solid Waste and Emergency Response. Core working group members supporting the Task Force included Sue Moreland from the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), Laura Yoshii from EPA Region IX, and Robert Knox, Elaine Fitzback, Elizabeth Cotsworth, Susan Absher, Amy Schaffer, Katherine McMillan, and Cheryl Wasserman from EPA Headquarters. I encourage all RCRA managers to review this document and discuss it with your colleagues in the Regions and States. We plan to revise the criteria to reflect major policy changes and as we gain experience in program implementation. Initially, we will review the criteria annually as part of the program planning process leading to the issuance of the Agency operating guidance. Comments on the criteria are welcome at any time. ^V I DfcUlU*- f^^"^ Lee M. Thomas Donald Lazarchik Assistant Administrator President Solid Waste & Emergency Response Association of State and Terri- Environmental Protection Agency torial Solid Waste Management Officials Date ~ 1 1 ------- INTERIM NATIONAL CRITERIA FOR A OUALITY RCRA PROGRAM TABLE OF CONTENTS SECTION I. II. III. Appendix A Appendix B Appendix C TITLE Introduction: Purpose, Scope and Use of the Criteria , PAGE Criteria for a Quality RCRA Program: Characteristics of a Quality RCRA Program. Description of the Performance Criteria... Enforcement Program Criteria Permit Program Criteria Management Criteria Response to Performance Against the Criteria 3 4 5 10 15 19 Timeline for Enforcement Actions 23 Compliance Formulas 25 Timeline for Permit Processing 28 111 ------- PART I INTRODUCTION: PURPOSE, SCOPE, AND USE OF THE CRITERIA Purpose & Scope This document establishes interim national criteria for planning and overseeing a quality hazardous waste management program under the Resource Conservation and Recovery Act (RCRA). The same criteria are to be used for evaluating both State performance under interim and final authorization and Regional performance in non-authorized States. The purpose of the document is: 0 to clarify program goals and performance expectations to ensure that EPA and the States have a common under- standing of what must be done to effectively implement RCRA; and 0 to outline general principles to describe how EPA and the States should respond when the criteria are either not met or are exceeded. The development of useful and relevant performance criteria for RCRA is an evolving process, reflecting our growing experience in program implementation. As the program matures, the criteria will stabilize and shift away from the "process-oriented" measures contained in this version towards "performance-oriented" measures. We plan to review the criteria annually as part of the program planning cycle leading to the Agency operating guidance. The criteria will be revised, as appropriate, to incorporate major policy changes and new program emphases. This document and related followup guidance materials imple- ment for RCRA the Agency's policy on delegation and oversight. Use of The Criteria The criteria will influence a wide range of current management and evaluation activities in Headquarters, the Regions, and the States. Use of the criteria as the common framework for a variety of related activities will provide better coordination and greater consistency in the overall RCRA management system. The criteria will be used: 0 to provide the multiyear criteria and performance expecta- tions for defining annual commitments contained in the Agency Operating Guidance and the RCRA Implementation Plan; 0 to define consistent planning and evaluation protocols (including standard reports) for developing State grant work programs and overseeing the program on an on-going basis; ------- PART II CRITERIA FOR A QUALITY RCRA PROGRAM Characteristics of a Quality RCRA Program Subtitle C of the Resource Conservation and Recovery Act (RCRA) provides the statutory authority for the hazardous waste management program. Implementation of Subtitle C is in its early stages, with full implementation of a quality program still several years away in most States. In general, a fully imple- mented quality program is one which: 0 knows the status of its regulated community, communicates program progress effectively to the public, and has taken steps to ensure that all handlers covered by the regulations are identified and brought into the RCRA system; 0 has made final determinations (issued or denied pemits, approved closures) for all existing treatment, storage, and disposal (TSD) facilities and has procedures to promptly address new facilities and permit revisions; and 0 demonstrates improving compliance rates for all handlers, with all violators returned to compliance as quickly and effectively as possible through a vigorous enforcement program. The criteria presented below are designed to bring the program closer to achieving each of these characteristics. The criteria define the benchmarks and expectations of the EPA Regions and States to get the program fully implemented. Their focus is on the intermediate milestones (i.e., compliance with interim status requirements, initial permit issuance, getting management systems in place). The following two assumptions underlie the definition and use of the RCRA program quality criteria. 0 The criteria apply to the full authorized State program, including the more stringent provisions that are authorized. Individual State performance expectations are those delineated in the State/EPA Memorandum of Agreement and the State grant work program. 0 The performance expectations in the criteria are not explicitly constrained by existing resources. They reflect the needs for a quality RCRA program. The annual operating guidance sets priorities among the national criteria within the resource levels available to the program in any given year. ------- Description of the Performance Criteria The performance criteria are organized to address three of the major performance areas of the RCRA program: enforcement, permitting, and management. The management criteria have been split into two groups to separately identify (I) those criteria related to activities of the authorized State (or Region, in non- authorized States), and (2) those criteria related to the over- sight Agency. In this way, the management criteria capture the mutual dependence of EPA and the authorized States for ensuring a quality program. The performance criteria do not include national expecta- tions for certain measures (e.g., the compliance rate). This is for one of two reasons: the specific levels are dependent on annual priorities; or our experience to date provides no clear, quantifiable preference. For some of these measures, annual targets may be included in the annual Agency operating guidance. For others, the performance expectation will evolve over time as the RCRA program matures and more performance information becomes available. The criteria provide three levels of information for each RCRA goal. o Key Questions. The questions represent the key areas to describe a quality RCRA program for permitting, enforce- ment, and management. o Performance Expectations. The performance expectations (where precisely defined) provide the national benchmarks to assess performance of the program for each of the key questions. Note that when the performance expectation is in terms of days, it refers to calendar days, not work days. o Oversight Tools. The oversight tools are the principal source of program information used to track progress against the criteria. The oversight tools available to the program include program reviews (i.e., HQ program reviews of Regions, quarterly, mid- and end-of-year reviews of States), monthly monitoring (including use of reporting information), file reviews, and review of individual State actions (i.e., oversight inspections, permit reviews). - 4 - ------- 3OAL: ENFORCEMENT PROGRAM CRITERIA OPERATE AN ENFORCEMENT PROGRAM WHICH ACHIEVES AN IMPROVING LEVEL OF COMPLIANCE TO PROTECT PUBLIC HEALTH AND THE ENVIRONMENT. KEY QUESTIONS , Is the multi-year compliance monitoring strategy consistent with the national enforcement strategy? PERFORMANCE EXPECTATIONS A. Strategy is written and updated annually as nec- essary. B. The strategy includes: 1) a plan to inspect all ma- jor handlers each year. 2) a four-year timeframe for completing inspections of non-major treatment, storage, and disposal (TSD) facilities and a 10-year timeframe for non-major generators and transporters, with priority given for those which pose the great- est public health or environ- mental threat. 3) procedures for completing record reviews for all major handlers not previously reviewed and 33% of the non- major handlers each year until completed. 4) procedures to evaluate and verify that facilities to close have closed in accordance with closure/post-closure plans and that requests for withdrawal are valid. 5) procedures to inspect all facilities in conjunction with the permit application requests. 6) procedures to identify non- notifiers, and handlers operating without a permit or use of a manifest. OVERSIGHT TOOLS o Program Reviews * o State grant work program reviews o MOA reviews Includes HQ program reviews of Regions and Regional quarterly, mid- and end-of-year reviews of States. - 5 - ------- KEY QUESTIONS PERFORMANCE EXPECTATIONS OVERSIGHT TOOLS 2. Are inspections and record reviews con- ducted in accordance with the compliance rtonitoring strategy? 3. Are inspections and record reviews thorough and properly documented? 7) procedures to coordinate with other Agencies charged with responsibility for regulating transporters. A. Inspection of 100% of major handlers each year. B. Inspection of at least 25% of nonmajor treatment, storage and disposal (TSD) facilities and 10% of non-major generators and transporters each year. C. Evaluation and verification that all facilities to close have followed approved plans and that all withdrawals are valid. D. Number and types of handlers (i.e., gener- a tors, transporters, TSDFs) inspected meets quarterly commitments. E. Number of record reviews by major area (ground- water monitoring reports, closure/postrclosure plans, financial assurances, mani- fest exception/discrepancy reports) conducted meets quarterly commitments. A. Inspection checklists are completed accurately. B. Files are maintained and readily accessible; viola- tions are well documented. C. Sampling quality assurance/ quality control procedures have been followed. D. Class I violations at inspected handlers have been identified. o Monthly Compliance and Enforcement Log (HWDMS) o Facility Status Sheet (HWDMS) o Program Reviews o File reviews o Oversight inspections o Program reviews - 6 - ------- KEY QUESTIONS , Are enforcement actions timely and appropriate? (See timeframe in Appendix A.) * PERFORMANCE EXPECTATIONS A. For high priority violators: ** 1) If the State has administra- tive penalty authority, an administrative order with penalty will be issued with- in _90 days after violation discovery.*** Steps 4, 5, and 6 outlined under Part B below will then be followed if escalated actions are necessary. 2) If the State lacks administra- tive penalty authority, the case should be referred to the appropriate judicial authority, e.g., State Attorney General, District Attorney, etc., within 9Q days from the discovery of violation. Steps 5 and 6 outlined under Part B below will then be followed if escala- ted actions are necessary. OVERSIGHT TOOLS o Monthly Compliance and Enforcement Log (HWDMS) o Program Reviews * The timeliness criteria are national performance expectations. They may be more stringent to reflect individual Regional/State requirements or they may be adjusted to incorporate unique State processes and authorities. The specific criteria used in each State must be included in the annual State grant work program or the MOA. Note that emergencies (such as imminent and substantial endangerment situations) should be acted on immediately and not be limited by these criteria. * High priority violators are those with Class I violations who create a substantial likelihood for potential or actual exposure to hazardous waste, realize a substantial economic benefit as a result of non-compliance, are chronic or recalcitrant violators, or have intentially committed violations. The forthcoming Enforcement Response Policy will provide an operational definition for Region and State use. * The violation discovery date is the date when the case development staff determines a violation has occurred through review of the inspection report and/or other data (e.g., laboratory reports). For purposes of track- ing progress against the criteria, the violation discovery date will be fixed at 45 days after the inspection. - 7 - ------- KEY QUESTIONS PERFORMANCE EXPECTATIONS OVERSIGHT TOOLS B. For Other Violators with Class I Violations: * 1) An initial enforcement action (e.g., warning letter, notice of violation, or equivalent action) is taken within 3t() days of violation discovery. 2) Decision is made to escalate action (e.g., administrative order, civil referral) within 9Q days of the initial enforcement action for handlers not returned to compliance or on an agreed upon compliance schedule.** (More than one action, such as a warning letter, NOV or equivalent, may be taken within this time period.) 3) If a decision is made to issue an administrative order (AO), it should be issued within 60_ days after the decision to escalate. (Note that pre- hearing negotiations should not generally continue beyond _90 days fron issuance of the initial AO.) 4) Decision is made to refer case to appropriate judicial authority after the administrative process is exhausted for handlers not in compliance, not on an agreed upon schedule or for which no administrative hearing has been scheduled.** 5) Case is referred to judicial authority within JX) days after decision to refer case. 6) Judicial authority files the case within 60_ days of referral. * At its option an EPA Region or State may choose to bypass less formal enforcement actions and go immediately to an AO or civil referral. The criteria in Part A above should be followed in such cases. (See page 7.) ** Handlers on a compliance schedule will be monitored to ensure conformance with the schedule. Escalated enforcement actions will be taken if the handler is not in compliance within ^30 days of the compliance schedule. ------- KEY QUESTIONS PERFORMANCE EXPECTATIONS OVERSIGffl? TOOLS C. Appropriate enforcement actions: 1) An enforcement response is expected for every instance of known non-compliance. 2) Penalties must be issued for all high priority violations and for other Class I viola- tions where necessary. 3) All penalties are commen- surate with the violation, based on a consistent penalty policy. 4) All actions cite authority, list violations, require a date for compliance, and require the handler to certify compliance. (Civil and criminal actions are considered appropriate actions.) 5. Are enforcement actions reported to the public or the regulated community to promote compliance? A. Compliance strategy includes procedures for publicizing precedent-setting or other important violations. B. Violations are publicized in accordance with the enforcement strategy. o Program reviews 6. What is the Class I nonconpliance rate at inspected handlers? (See description and examples of the compliance formulas in Appendix B.) A. Percent of handlers having Class I violations at the beginning of the fiscal year brought into compliance or on a compliance schedule each quarter. B. Percent of handlers with Class ] violations at a point in time that have been inspected or had record reviews (measured on a semiannual basis). o Monthly Compliance an Enforcement Log (HWEMS) - 9 - ------- PERMIT PROGRAM CRITERIA GOAL: USE THE PERMIT PROCESS TO INCREASE REGULATORY CONTROL OF TSDFS TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT KEY QUESTIONS . Is there a multi- year permit strategy consistent with the national permit strategy? PERTORMANCE EXPECTATIONS A. Strategy is written and updated annually, as necessary. B. Strategy is based on the following timeframes for first-time determinations (permit issuance, denial or closure) for existing facilities: - land disposal, FY 1983- FY 1988; - incineration, FY 1982- FY 1988; - storage and treatment, FY 1982-FY 1989. OVERSIGHT TOOLS o Program reviews* o MOA reviews o Grant work program reviews C. Strategy reflects the following completion dates for requesting Part B applications from existing facilities, unless an extension is justified for individual State situations: - land disposal, FY 1985; - incineration, FY 1985; - storage and treatment, FY 1987. D. Strategy includes the following criteria for setting priorities for requesting permit applications from existing facilities: - facilities that are current or potential sources of ground or surface water contamination, or air pollution; - facilities that handle the most hazardous types of wastes; - facilities that handle the highest volumes of wastes. E. Strategy addresses processing new facility permit applica- tions and emergency permits. Includes HQ review of Regions and Regional quarterly, mid- and end-of-year reviews of States. - 10 - ------- KEY QUESTIONS PERFORMANCE EXPECTATIONS OVERS IGHT TOOLS Are permit applica- tion requests and determinations pro- ceeding in accordance with the strategy? F. Strategy estimates annual numbers of permit application requests and determinations that reflect established time- frames and priorities. G. Strategy describes policies for: - improving quality of applications - securing adequate ground-water monitoring data for timely permit processing - coordination with enforcement - public and facility participation. A. Percent of Part B applica- tions requested to date is consistent with the pace set in the multiyear permit strategy. B. Percent of Part B determina- tions made to date is con- sistent with the pace set in the multiyear permit strategy. C. Number and type of permit applications requested meets quarterly commitments. D. Number and type of permit determinations meets quarterly commitments. Monthly Permit Status Report (HWDMS) - 11 - ------- KEY QUESTIONS PERFORMANCE EXPECTATIONS OVERSIGHT TOOLS 3. Are permit determina tions proceeding according to process- ing schedules? (See timeline for permit processing in in Appendix C.) t- A. Length of time from Part B o request to decision to issue/deny a permit is o within the following ranges: - 15 to 18 months for storage and treatment, o - 17 to 24 months for incineration (including trial burn), and - 23 to 30 months for land disposal. B. Internal decision schedules are established and tracked for individual permits for: - the receipt of the applica- tion, - completeness check - notice of deficiency, - completeness determination, - public notice of draft permit, - end of the public comment period, and - final decision on permit, using national benchmarks as the starting point (see Appendix C). C. If permit deficiencies are not resolved within 60 days of Notice of Deficiency (NOD), referral is made for enforce- ment action or permit denial is initiated, as appropriate (unless an alternative schedule is agreed upon). D. Closure/post-closure plans reviewed and final determina- tions made within timeframes specified in Federal or author- ized State program regulations. Monthly Permit Status Report (HWMDS) Monthly Compliance and Enforcement Log (HWDMS) Program reviews - 12 - ------- KEY QUESTIONS PERFORMANCE EXPECTATIONS OVERSIGHT TOOLS 4. Are permit determina- tions consistent with permit regulations? A. Lead permitting agency makes determinations that are con- sistent with the authorized State or Federal permit program. B. Conditions based upon permit writers' technical j udgments/i nterpretat ions are documented to show how they meet the intent of the regulations regarding level of control, containment, clean-up or protection. C. Comments arising fron per- mit reviews by oversight agency are resolved before the next stage of permit processing is completed. D. Permit determinations are upheld on technical, legal cal, legal and procedural grounds. E. Permit determinations are enforceable. F. Permit conditions are clear, understandable and properly documented (through applica- tion or administrative record). G. Requirements and frequen- cies for facilities' monitoring, reporting, inspection and analyses after permit issuance are defined and described. o Reviews of designated draft and final permits (either through the MOA or other documents) o File reviews - 13 - ------- KEY QUESTIONS PERFORMANCE EXPECTATIONS OVERSIGHT TOOLS 5. Are provisions made for adequate public participation in accordance with the State (or Fede- ral) program and the national permit strategy? A. Facilities are encouraged to o communicate information o and plans about how they intend to comply with permit standards and operate under a permit directly to local governments, public interest groups and the community at large. B. Final permits reflect all significant public comments on the draft permit. C. Informational public notices and meetings are provided dur- ing processing of permit applications for environmentally or publicly significant facili- ties. Program reviews File reviews - 14 - ------- MANAGEMENT CRITERIA GOAL #1: PROVIDE MANAGEMENT SUPPORT WHICH FACILITATES ACHIEVEMENT OF PROGRAM GOALS AND SUSTAINS A HIGH QUALITY PROGRAM OVER TIME. KEY QUESTIONS . Are resources used in accordance with the annual State grant and Regional resource allocation? 2. Has staft training been provided and maintained? PERFORMANCE EXPECTATIONS A. Wbrkyears used for RCRA match workyears allocated. B. Wbrkyears used for each key program element (e.g., en- forcement, program manage- ment, permitting) match workyears allocated. A. Staff are trained in accordance with an annual training plan that identifies permit and enforcement training needs and specifies how these needs will be met. OVERSIGHT TOOLS o Program reviews.' o Program reviews. Is an information system in place that effectively supports program management? A. Information system has the following features: 1) Data system (automated or manual) tracks key program elements and provides data to meet EPA and State reporting requirements. 2) Data base accurately identifies regulated community covered by the authorized program. 3) Management tracking system provides up-to-date and accurate permit and enforce- ment status information. B. Management at various levels within the Agency uses the information system. o Program reviews. Includes HQ review ot Regions and Regional quarterly, mid- and end-of-year reviews of States. ------- KEY QUESTIONS 4. Is the State contin- uing to operate an equivalent Federal program? PERFORMANCE EXPECTATIONS C. Information on facility status changes (e.g., notification, Part A) is provided within 10 days of receipt of new information. D. State/Region provides data to meet EPA reporting require- ments . A. State informs EPA in advance of action of potential waivers, variances, delistings and changes to State statutes and regulations. B. After final authorization State adopts changes made in Federal requirements within the specified time period. C. State adequately addresses EPA comments on waivers, delistings, variances and regulation changes. OVERSIGHT TOOLS o Program reviews o MOA reviews - 16 - ------- GOAL #2: PROVIDE EFFECTIVE OVERSIGHT TO ENSURE ACHIEVEMENT OF PROGRAM GOALS KEY QUESTIONS . Are the Regions admin- istering State hazar- dous waste grants in accordance with grant regulations (Part 35 Subpart A)? Are HQ and Regional oversight activities resulting in an improved RCRA program? PERFORMANCE EXPECTATIONS A. Regional program guidance to each State contains EPA's national objectives and priorities, the State's funding allocations, the program elements EPA uses for budget justification and management outputs and spe- cial conditions or limitations relevant to the State. B. Regional program guidance to States is provided at least 60 days prior to application deadline. C. All complete applications are approved, conditionally approved, or disapproved within 30 days of receipt. A. Regions conduct State file and program reviews according to schedules specified in grant assistance agreements. B. Reviews address the key ques- tions and performance measures specified in this policy. C. Review findings are provided to the State within 45 days of completing the review. If the evaluation reveals problem areas, negotiations are conducted to reach an agreement for resolving them. D. EPA and State take corrective actions in accordance with negotiated agreements. E. EPA performs oversight inspections at key handlers (e.g., majors, chron i c v iola tors). F. Number of oversight inspections per quarter matches plan. OVERSIGHT TOOLS o Program reviews o Program reviews - 17 - ------- KEY QUESTIONS Does EPA HQ provide guidance and assist- ance which strengthens program implementation capabilities? PERFORMANCE EXPECTATIONS G. EPA oversight inspection reports completed and transmitted to the State within 30 days of inspection. H. EPA reviews and comments on permits agreed upon by the Region and State. Comments include a state- ment of the reason for the comment and the actions that should be taken by the State. A. Training and technical assis- tance needs identified. B. National technical and policy guidance provided to all Regions in accordance with schedules outlined in annual agency operating guidance. OVERSIGHT TOOLS o Program reviews - 18 - ------- PART III RESPONSE TO PERFORMANCE AGAINST THE CRITERIA Part II establishes the criteria for a quality RCRA program and lists the oversight tools most appropriate for tracking progress against each of the criteria. This Part outlines the general principles to use when determining how EPA and the States should respond to performance against the criteria. The RCRA program quality criteria provide explicit national expectations of program performance. The ability to meet the national criteria is dependent on the individual State authorized program and the resources available in a given year. Evaluation, therefore, must be directly linked to the commitments and expecta- tions contained in the Memorandum of Agreement (MOA) and the annual grant work program. Where not specifically referenced in these documents, the national criteria are expected to be followed. General Principles for Response Actions The appropriate response to performance against the criteria will depend on a number of conditions, including: o the relative importance of the criteria to program objectives, o the seriousness of the failure to meet the criteria, o the frequency of failure, o the number of criteria failed, and o the past response to corrective actions. The response action will be tailored to the needs of the situa- tion, recognizing that the principal goal is to strengthen the credibility, capability, and performance of the implementing agency. Certain situations demand a nationally consistent response (e.g., revocation of authorization or withdrawal of the program grant). Most situations, however, require a response based on what will work for the individual Region and State, reflecting the general principles outlined here. The level and severity of the response action should be con- sistent for similar performance problems, whether the lead Agency is the EPA Region or the State. However, the available range of EPA response actions differs depending on whether the Region or the State is the lead agency. Response actions in an authorized State must be based on the oversight authorities explicitly agreed to in the MOA and the annual grant work program. Response actions where the Region is the lead agency are based on internal performance tracking and personnel performance standards. - 19 - ------- Oversight in Authorized States Where the authorized State is the lead agency, the Region is responsible for developing a consistent oversight approach that provides a rational mix of incentives and sanctions for perform- ance against the criteria. This approach must be delineated clearly in the Memorandum of Agreement or other Regional/State agreements so that response actions are both predictable and effective. Where the State consistently meets the performance criteria, the Regional Office will reduce the degree of oversight to levels appro- priate to the need for that State. For example, if the State's inspections follow the established procedures and are always thor- ough and well documented, the Region may reduce the number of over- sight inspections. Alternatively, where performance has been demon- strated to be of consistently high quality, the Region may reduce the frequency and scope of performance reviews. Where the State fails to meet the performance criteria, the Regional Office will take corrective action. The primary emphasis of corrective action will be on meeting the enforcement and permits criteria and maintaining an equivalent program. Where a State has problems meeting those criteria, the Region will take a more rigorous look at how the State is handling certain of the management criteria, such as effective use of resources and training of staff. In some cases, failure to meet the criteria will trigger a direct EPA action. This is particularly true in the enforcement area, where EPA has the authority under S3008(a)(2) to bring Federal enforcement action if the State action is not timely or appropriate. The criteria in Part II define "timely and appro- priate" and establish a system of escalating enforcement actions based on the seriousness of the violation (e.g., Class I viola- tions) and the available authorities (e.g., administrative penalty authority). Lack of conformance to these criteria will trigger EPA involvement. EPA may also take direct action in response to State-prepared permits that are inconsistent with the authorized State permit regulations. EPA will prepare comments in writing to the State for all permits designated for EPA review through the specific Regional/State Memorandum of Agreement. Based on 40 CFR §271.19, comments reflecting requirements of the authorized State program are enforceable by EPA, even if not included in the final State- issued permit. For the remainder of the criteria, the response will depend on the pattern of the performance evaluated through program moni- toring and the mid- and end-of-year reviews. Where failure to meet a criterion has a minor impact on the overall quality of the State's program, the Regional Office may slightly increase - 20 - ------- oversight or urge the State to modify a procedure. Where a State consistently fails selected criteria and shows little intent to correct the situation, stronger actions are called for. This should include award of conditional grants and quarterly or semi- annual release of the funds, directly linked to performance. Listed below in roughly ascending order are examples of responses to failure to meet the criteria. These responses are not mutually exclus ive. o Suggest a minor change to State or Regional procedures (e.g., a change to filing procedures to improve avail- ability of enforcement information). o Provide technical assistance (e.g., provide training on drafting groundwater corrective action provisions to State permit writers). o Slightly increase oversight (e.g., where file reviews indicate inspection checklists are not being properly completed, increased number of oversight inspections or file reviews may be appropriate). o Raise performance issues to higher level of management both at the Region and State (e.g., include as agenda item on routine RA/State Director meetings). o Revise future work program (e.g., add additional grant conditions requiring program management changes designed to correct problems with meeting performance criteria). o Greatly increase oversight (e.g., overview more permits where State consistently drafts permits not in accord with State regulations). o Award conditional grants or revoke a State's letter of credit (e.g., where States consistently fail to take timely enforcement actions, future grant awards should be tied to improved performance). EPA will award conditional grants and release them on a quarterly or semiannual basis, where a consistent pattern of problems has developed for an individual State. Release of subsequent increments should be conditioned on correcting per- formance deficiencies. Where a State consistently fails to follow through on the corrective actions agreed upon, or the State's legal authorities are no longer equivalent, EPA may initiate withdrawal of the State's authorization. The criteria for withdrawal of the program are outlined in 40 CFR §271.22. Oversight of Regional Office Where the EPA Region has responsibility for a portion or all of the hazardous waste program because the State is not authorized, - 21 - ------- the Region both must meet the performance criteria listed in Part II and follow the general principles on regional actions outlined in this Part. The Regional performance standards against which Regional job performance is measured should reflect the Part II criteria. » The annual program reviews conducted by Headquarters in each Region will address the criteria, and Headquarters may increase or decrease Regional oversight based on Regional performance. For example, if a Region consistently does a poor job of developing technically sound and enforceable permits, the Headquarters Permit Assistance Teams (PATs) may be directed to participate in more reviews of draft permits in that Region until performance improves. Or, if a Region is doing an outstanding job meeting the criteria, the frequency and intensity of Headquarters reviews may be reduced. If the Region consistently fails to meet the enforcement criteria, Headquarters may take direct enforcement actions and/or require concurrence on Regional enforcement actions. - 22 - ------- APPENDICES ------- TIMELINE FOR ENFORCEMENT ACTIONS HIGH PRIORITY VIOLATIONS APPENDIX A days states with penalty authority Issue Admlnlstratlvt Order Admin. Process CO I High Priority VioUtloo Discovered In* ompllanca or on Schedule 7 Yes Decision to Refer C«»« state* without penalty authority 90 days 90 days Case Referred to Judicial Authority 60 days Case Piled Handlers on a compliance schedule will be monitored to ensure confornance with the schedule. Escalated enforcenent actions will be taken If a handler Is not In compliance within 30 day* of the compliance schedule date. Tine required for administrative procetalng Is In addition to the days Indicated on the tlsiellne. Pre-hear Ing negotiations should not generally continue beyond 90 days frost Issuance of an Initial Administrative Order. ------- APPENDIX A (cont'd) TIMELINE FOR ENFORCEMENT ACTIONS CLASS I VIOLATIONS Class I Violation Discovered 30 » days^ Initial* Enforcement Action Taken * Warning. Letter Notice of Violation * or Equivalent In ** Compliance or on Schedule If the Region or State chaoses to Issue an Adminls tia tlve Order (AO) or refer the case immediately Instead of taking leas fornal action, then the timeline for High Priority Violation should be followed. Handlers on a compliance schedule will be monitored to ensure conformanca with the schedule. Eacalated enforcement actions will be taken if a handler is not In compliance within 30 day* of the compliance chedu 1« da te . Tine required for adninli tra t Ive processing is in addition to the days Indicated on the timeline. Pre-hearlng negotiations should not generally continue beyond 90 days from Issuance of an initial Administrative Order. Refers to a* optional action. ------- COMPLIANCE FORMULAS APPENDIX B INTRODUCTION EPA will use two types of formulas to track compliance. The first compliance formula tracks the progress of a fixed universe of handlers returniny to compliance over time. The purpose of this formula is to track the Reyions' and States' success in brinyiny handlers with Class I violations into compliance. The second compliance formula tracks the percentaye of handlers with Class I violations at the beyinniny and middle of the fiscal year. The purpose of this formula is to take a snapshot of the compliance rate at a point in time. These formulas will be applied to handlers with all types of Class I violations, as well as to handlers with particular types of Class I violations, e.y., yround-water monitoriny or closure/post-closure violations. COMPLIANCE FORMULA A - PROGRESS OF HANDLERS RETURNING TO COMPLIANCE At any point in time, handlers found to have Class I violations fall into one of three categories: 1. returned to compliance; 2. on a compliance schedule and meeting scheduled milestones; or 3. behind the compliance schedule or not yet on a schedule. Compliance Formula A is designed to show the movement of a fixed universe of handlers with Class I violations from Categories 2 and 3 into Category 1. EPA will use the compliance formulas to compute the percentage of handlers in each of these categories each quarter. (Handlers with new violations discovered each quarter will represent a new universe and will be tracked separately.) Table I illustrates these formulas. TABLE I - COMPLIANCE FORMULA A COMPLIANCE FORMULA Al HANDLERS RETURNED TO COMPLIANCE Handlers in Compliance on December 31 Handlers with Class I Violations on October 1 Handlers in Compliance on March 31 Handlers with Class I Violations on October 1 Handlers in Compliance on June 30 Handlers with Class I Violations on October 1 Handlers in Compliance on September 30 Handlers with Class I Violations on October 1 of Previous Year COMPLIANCE FORMULA A2 HANDLERS ON COMPLIANCE SCHEDULES Handlers on Schedule on December 31 Handlers with Class I Handlers on Schedule on March 31 Handlers with Class I Handlers on Schedule on June 30 Handlers with Class I Violations on October 1 Violations on October 1 Violations on October 1 Handlers on Schedule on September 30 Handlers with Class I Violations on October 1 of Previous Year COMPLIANCE FORMULA A3 HANDLERS BEHIND SCHEDULE/ON NO SCHEDULE Handlers Behind Schedule /No Schedule on Dec.31 Handlers with Class I Violations on October 1 Handlers Behind Schedule /No Schedule o'n Mar 31 Handlers with Class I Violations on October 1 Handlers Behind Schedule /No Schedule on Jun 30 Handlers with Class I Violations on October 1 Handlers Behind Schedule /No Schedule on Jun 30 Handlers with Class I Violations on October 1 Of Previous Year ------- APPENDIX B (cont'd) Table II below is an example of the application of Compliance Formula A. This example illustrates tracking for only one universe of handlers, a group of 150 handlers out of compliance on October 1, 19XX. TABLE II - EXAMPLE OF FORMULA A Category Dec.31 Mar.31 Jun 30 Sep 30 Returned to compliance (Compliance Formula Al) 20% 30% 40% 50% On schedule (Compliance Formula A2) 50% 30% 20% 40% No schedule or behind schedule (Compliance Formula A3) 30% 40% 50% TOTAL 100% 100% 100% In this example, by the end of the first quarter, 30 of the 150 handlers (20%) have returned to compliance, 75 (50%) are on schedules to achieve compliance, and 45 (30%) either do not have a schedule yet or are behind schedule. By the end of the second quarter, 15 nore of the 150 handlers have reached compliance for a total of 45 (or 30%) handlers in compliance. Forty-five handlers (30%) are on schedule to reach compliance and 60 (40%) are either behind schedule or do not have a schedule. The value of this type of tracking system is that one can follow the progress of a fixed universe of handlers over time until all come into compliance. COMPLIANCE FORMULA B - COMPLIANCE RATE AT A POINT IN TIME The second formula will take a "snapshot" of handlers with Class I violations at the middle (March 31) and at the end (September 30) of each fiscal year. The formula locks at all handlers out of compliance on those dates as a factor of the number of handlers that have been evaluated. To compute the total number of handlers out of compliance, sum the number of handlers on a compliance schedule, behind schedule, or on no schedule for all violators. The number of handlers evaluated includes all handlers that have received inspections and/or record reviews. Table III below illustrates Compliance Formula B. - 26 - ------- APPENDIX B (cori₯'d) TABLE III COMPLIANCE FORMULA B AND EXAMPLE Handlers with Class I Violations on March 31 Total Number of Handlers Evaluated Handlers with Class I Viol ations on Sept. 30 Total Number of Handlers Evaluated Mar 31 Handlers with Class I Violations: On compliance schedule (Formula A2) 1000 Behind schedule/no schedule (Formula A3) 500 1500 Total Number of Handlers Evaluated to Date 3000 Percent Out of Compliance 50% Sep 30 1370 1150 2520 4500 56% In this example, of the 3,000 handlers evaluated as of March 31, 1,500 have Class I violations. The noncompliance rate is 50%. As the State inspects more handlers, completes more record reviews and conducts more in-depth inspections, they find more Class I violations. As of September 30, of the 4,500 handlers evaluated, 2,520 have Class I violations. The noncompliance rate increases to 56%. The chanye in the compliance rate from one period to another must be analyzed on a case-by-case basis to properly interpret the situation. An increase in the rate of non-compliance does not necessarily mean that the State's performance is decreasing. In fact, it may mean that a State's performance is improviny. The State may be finding more Class I violations because they are lookiny at handlers more closely. On the other hand, a high rate of continued non-compliance may mean that the State is finding violations, but not taking timely and appropriate enforcement actions to bring handlers into compliance. Because of this, EPA will not use this compliance rate alone to judge a state program, but will base its judgment of the quality of the program on the overall state program. - 27 - ------- APPENDIX C TIMELINE FOR PERMIT PROCESSING STORAGE & TREATMENT PERMITS Application Application Requested Received 1 1 Draft Completeness Application Permit Check Complete Issued 1 i 1 0 6 mos. 8 mos. 9 BOS. Application Review Deficiency Preparation Resolution 11 BOS. Drafting Permit Public Consent Period Ends | 13 DOS. Public Participation Permit Decision Hade 15 DOS. 18 DOS. Preparing Final Permit INCINERATOR PERMITS Application Requested Application Received 1 0 6 BOS. Application Revi Preparation Completeness Application Check Complete 1 1 8 BOS. 10 BOS. tw Deficiency Drafting Resolution Permit Draft Public Permit Comment Issued Period Ends 13 mos. 15 mos. Public Participation Permit Decision Made * 1 ^| ITmos. 24 mos. Preparing Final Paralt Application Application Completeness Requested Received Check I ' ' 0 6 BOS. 8 BOS. Application Review Preparation LAND Deficiency Resolution DISPOSAL PERMITS Application Complete | 13 BOS. Drafting Permit Draft Permit Issued | Public Comment Period Ends | 17 mos. 19 BOS. Public Participation Permit Decision Hade 1 23 BOS. Preparii Final Penal Note: The permit proving tl^frames are the best achievable achedule based on existing reflations policies and technical guidance. The - 28 - ------- |