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MAJOR
NATIONAL ISSUES
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MAJOR NATIONAL ISSUES
TABLE OF CONTENTS
SECTION 1 - OFFICE OF THE ADMINISTRATOR/OFFICE OF
INTERNATIONAL ACTIVITIES
Stratospheric Ozone Depletion
Global Climate Change
Funding for Long-Term and/or Interim-term Measures for Correcting the
Tijuana Sewage Problem
U.S.-Canada Negotiations on Air Quality Accord
The Transboundary Movement of Hazardous Waste
U.S.-U.S.S.R Environmental Agreement
SECTION 2 - OFFICE OF ADMINISTRATION AND RESOURCES
MANAGEMENT
Building Public-Private Partnership
Regional Superfund Contracts Management
Move to a New Headquarters Facility
SECTION 3- OFFICE OF ENFORCEMENT AND COMPLIANCE
MONITORING
Expediting Private Party Cleanups
EPA's Criminal Enforcement Program
The State/EPA Enforcement Relationship
Enforcement Presence and Deterrence
Organization of EPA's Enforcement Program
SECTION 4 - OFFICE OF POLICY, PLANNING AND EVALUATION
Agriculture and the Environment
Global Climate Change
Pollution Prevention Program
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Major National Issues
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SECTION 5 - OFFICE OF EXTERNAL AFFAIRS
National Environmental Policy Act Section 309
The EPA Federal Facilities Compliance Program
EPA Indian Program
State/Federal Relations
SECTION 6 - OFFICE OF WATER
Surface Water Controls
Drinking Water
Ground Water Protection Legislation
Ground Water Protection Strategy
State Capacity
The Recommendations of the National Wetlands Policy Forum
Coastal Protection
SECTION 7 - OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE
Legislative Initiatives and Agency Program Directions for Chemical Accident
Prevention
Federal Facility Issues
RCRA Reauthorizatlon
Superfund Enforcement Program Evaluation
National Contingency Plan (NCP)
Superfund Remedial Action Construction In FY 1989
State Capacity Assurance Project
SECTION 8 - OFFICE OF AIR AND RADIATION
Onboard Refueling and Fuel Volatility Final Rules
Clean Air Act Legislative Amendments
Ozone/Carbon Monoxide Nonattainment
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Major National Issues
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Section 8 - Office of Air and Radiation (continued)
Review of the National Ambient Air Quality Standards for Sulfur Oxides
Air Toxics
Stratospheric Ozone Protection
Acid Deposition
Radlonuclide Standard
Radon Legislation
SECTION 9 - OFFICE OF PESTICIDES AND TOXIC SUBSTANCES
Asbestos in Public and Commercial Buildings
Biotechnology
Dissemination and State/Local and EPA Use of SARA Section 313 Data
Endangered Species Protection Program
Final Rule Farmworker Safety
FIFRA Amendments of 1988
Pesticide Indemnification and Disposal
Pesticides in Ground Water
SECTION 10 - OFFICE OF RESEARCH AND DEVELOPMENT
Implementation of Major Recommendations of EPA's Science Advisory Board
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OFFICE OF
THE ADMINISTRATOR
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Major National Issues Office of International Activities Page 1 - 1
STRATOSPHERIC OZONE DEPLETION
BACKGROUND: In September 1987,55 nations participated In the diplomatic conference that adopted
the Montreal Protocol on Substances that Deplete the Ozone Layer. The Protocol will require partici-
pating nations, using 1986 as a base year, to halve their consumption of CFCs by 1998 and to freeze
their use of halons by 1992. The Protocol Includes special provisions for developing countries, allowing
them a ten-year grace period In which to meet their basic domestic needs. It also provides for trade
restrictions In imports from non-parties to parties of the controlled chemicals and products containing
them.
Ratification by 11 nations representing at least two-thirds of global consumption of controlled
substances will be required for the Protocol to enter Into force on January 1, 1989. Otherwise, the
Protocol will take effect 90 days after these conditions have been met.
In April 1988. an international group of over 100 distinguished atmospheric scientists reevaluated
ground- and satellite-based data for the years 1969 to 1986 and concluded that the problem is even
more serious than originally thought. The panel stated that "the weight of evidence strongly indicates
that man-made chlorine species are primarily responsible for the observed decrease in ozone" in
Antartica.
hi addition, last September EPA released a new study entitled "Future Concentrations of Stratospheric
Chlorine and Bromine." The study concluded that an immediate 100% reduction In the use of all fully
halogenated compounds and a freeze in methyl chloroform a chemical used mostly as a solvent and
not covered by the Protocol -- will be needed to stabilize concentrations of ozone-depleting substances
in the stratosphere In the next 100 years. On September 26, based on the conclusions of this report,
EPA Administrator Lee Thomas called on all nations to ratify the Montreal Protocol and then move
toward a complete phaseout In the production and use of these chemicals.
DISCUSSION AND CURRENT STATUS: To date, 45 nations and the European Economic Commu-
nity have signed the Montreal Protocol, and 12 nations have deposited their instruments of ratifica-
tion, acceptance, or accession, hi addition, the Protocol's framework agreement, the Vienna
Convention on the Protection of the Ozone Layer, has been ratified by 34 nations. It entered Into force
on September 22, 1988.
The United States deposited its instrument of ratification for the Montreal Protocol on April 21, 1988,
thereby becoming the second nation (after Mexico) to join. EPA Is now working to Implement the
Protocol in this country. On August 12, 1988, for example, EPA Issued a domestic regulation setting
an "allocated quota" system by which production and consumption allowances are allocated to firms
based on their production and consumption levels In 1986.
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INTERNATIONAL PLATERS/ORGANIZATIONS
EPA Office of International Activities - Works with Department of State, foreign embassies In
Washington and U.S. embassies abroad to encourage broadest possible participation In Montreal
Protocol. Manages bilateral research programs on causes and effects of stratospheric ozone depletion.
Department of State - Headed U.S. delegation at Montreal Conference. Works with EPA to encourage
participation and Implementation of Protocol.
National Aeronautics and Space Administration (NASA) - Led International study of Antarctic ozone
hole, as well as revaluation of ground- and satellite-based data for 1969-1986 ("ozone trends report").
Will chair International assesssment of atmospheric science in accordance with Article 6 of the
Protocol.
United Nations Environment Program (UNEP) - Acts as Secretariat for Montreal Protocol. Organized
series of meetings on atmospheric science and effects, substitutes and alternatives, data harmoniza-
tion, and legal issues (Octoberl7-25 in the Hague).
ACTION DATES OR MILESTONES
April 1989
UNEP convenes first meeting of parties to the Montreal Protocol and Vienna Convention (Vienna or
Helsinki). Expert panels are established by the parties to begin assessing the Protocol's control
provisions on the basis of new scientific, environmental, technical, and economic information.
August 1989
Expert panels complete their assessments and report their conclusions to Parties of the Protocol.
April 1990
Parties to the Montreal Protocol and Vienna Convention hold their second meeting to evaluate
recommendations of the expert panel and consider amending the Protocol's control provisions.
KEY EPA CONTACTS
Scott Hajost, Acting Associate Administrator for International Activities
Eileen Claussen, Acting Deputy Administrator for Air and Radiation
Courtney Riordan, Director, Office of Environmental Processes and Effects Research
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Major National Issues OJJice of International Activities Page 1-3
GLOBAL CLIMATE CHANGE
BACKGROUND: EPA participates in a number of international programs designed to improve our
understanding of the causes and effects of global climate change and to develop policy options that will
enable us to limit and/or adapt to the potential wanning. Bilaterally, EPA has expanded cooperative
activities with the Soviet Union, the People's Republic of China, and other nations with active research
programs on this issue. Multilaterally, we encouraged the establishment by the World Meteorological
Organization (WMO) and the United Nations Environment Program (UNEP) of an Intergovernmental
Panel on Climate Change (IPCC). The IPCC will bring together senior scientists and policymakers from
around the world to oversee and direct an international assessment on the state of the science and,
on a parallel track, to evaluate possible response options.
DISCUSSION AND CURRENT STATUS: The IPCC will hold its first meeting November 9-11 in Geneva.
Assistant Secretary of State Fred Bernthal will lead the U.S. delegation, accompanied by representa-
tives from EPA, the Department of Energy and other interested federal agencies.
INTERNATIONAL PLATERS/ORGANIZATIONS
EPA Office of International Activities - Works with the Department of State, foreign embassies in
Washington, and U.S. embassies abroad on activities related to global climate change.
Department of State - Will head the U.S. delegation to the first meeting of the IPCC.
United Nations Environment Program (UNEP) - Working with WMO and the International Council
of Scientific Unions, oversees the World Climate Impact Program.
World Meteorological Organization (WMO) - Oversees the World Climate Research Program and, with
UNEP. the IPCC.
ACTION DATES OR MILESTONES
November 1988 First meeting of the IPCC
December 1989 EPA/Department of State report (as required under 1987 Global
Climate Protection Act) due to Congress.
June 1990 Second World Climate Conference (tentative).
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KEY EPA CONTACTS
Scott Hajost. Acting Associate Administrator for International Activities
Linda Fisher, Assistant Administrator for Policy, Planning and Evaluation
Eileen Claussen, Acting Deputy Assistant Administrator for Air and Radiation
Courtney Riordan. Director, Office of Environmental Processes and Effects Research
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Major National Issues Office of International Activities Page 1-5
FUNDING FOR LONG-TERM AND/OR INTERIM-TERM MEASURES
FOR
CORRECTING THE TIJUANA SEWAGE PROBLEM
BACKGROUND: A rapidly growing city of some 1.5 million people, Tijuana lies in the Tijuana River
Valley just south of the Mexico/California border. The Tijuana River flows north from Tijuana, across
the border, and into the Tijuana Estuary, a unique ecosystem given special Federal status under the
Coastal Zone Management Act in 1982. Problems with raw sewage flowing from Tijuana into U.S.
waters have continued since the 1930's, but are now reaching critical proportions due to the rapid
expansion of the city in the last decade and of an Inter-American Development Bank project to provide
water and sewer lines for major portions of the city previously without these services.
EPA has maintained that from a topographical standpoint, the most logical place for a sewage treatment
plant would be on the U.S. side Just north of the border, where nearly all the city's sewage could flow
by gravity. In order to protect the Tijuana Estuary, which receives virtually no fresh water flows for
9 months out of the year and thus is saline except during winter flood flows, all effluent would need
to be taken out of the river basin - - either via a deep-ocean outfall or for reclamation.
Under the 1983 Border Environment Agreement, EPA and Mexico's Secretariat of Urban Development
and Ecology (SEDUE) were named as lead agencies for developing solutions to border pollution
problems. In 1984, EPAand SEDUE agreed InconceptonaU.S. plant and deep-ocean outfalljust north
of the border. Congress appropriated $5 million for the design of a first module of the treatment plant.
However, the U.S. and Mexican State Departments did not reach a final agreement, and in 1985 Mexico
announced plans for an all-Mexican solution. This was to consist of (1) a 34-million gallon per day (mgd)
west-side system, where existing flows would be collected and pumped over a ridge to the coast, treated
at a new treatment plant, and discharged to the ocean surf 6 miles south of the border; and (2) a 34-
mgd east-side treatment plant for future flows, with discharge to the Tijuana River.
Mexico has completed the west-side conveyance system and the first 17-mgd module of the plant, but
has Indefinitely postponed the second module, as well as the east-side plant. EPA and the State of
California oppose the discharge of effluent from an east-side plant to the Tijuana River, as it would
destroy the saline character of the estuary. In addition, EPA is concerned that breakdowns in the west-
side conveyance system or in the east-side system will result in large volumes of raw or partially treated
sewage to the estuary.
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Following the decision in 1985 not to proceed with a U.S. plant. Congress reprogrammed the $5 million
to design the "Defensive Measures Project," which would catch flows In the event of a breakdown In the
west-side conveyance system, and cany them In an Interceptor on the U. S. side to a point near the coast
where they could be pumped back Into the gravity portion of the west-side system.
Believing that a deep-ocean outfall will eventually be needed, last year EPA Increased the design
capacity of the interceptor from 34 mgd (which is compatible with the size of the west-side system), to
310 mgd. which will allow it to also serve in the long term as the land outfall joining a treatment plant
in the Tijuana River Valley to a deep-ocean outfall. This pipe size Includes long-term capacity for both
Tijuana and San Diego, since San Diego must also construct new secondary facilities, and anticipates
locating a plant and outfall in the same area. EPA would like to combine the two projects If possible.
both for the economy of scale to be realized, and because a Joint project would entail less overall
environmental impacts from construction.
In September 1988. EPA received a $20 million appropriation from Congress to construct the first
phase of the Defensive Measures Project, the main interceptor line. EPA Is proceeding with the design
of the second phase (the pump station and force main back into Mexico), and must decide whether to
seek funding for this phase in FY 1990, or whether to forego the Defensive Measures concept and
proceed on to construction of a treatment plant and outfall, given that the capacity of the west-side
system is already near to being exceeded.
In March 1988, the Administrator convened the Tijuana Task Force to review the Tijuana sewage
problem and the long-term solution that EPA Region 9 has proposed since 1984: a 100-mgd secondary
wastewater treatment plant and an ocean outfall on the U.S. side. The Task Force includes
representation from the Office of Administration and Resources Management. Office of Congressional
Liaison. Office of Water, Office of General Counsel, Office of International Activities, and Region 9. The
final Task Force Report was signed by the Administrator in September 1988, and basically reaffirms
the Region's position, recommending that EPA proceed with the Defensive Measures Project Authorization
for funding of the long-term project was given under Section 510 of the 1987 Water Quality Act.
The International Boundary and Water Commission (IBWC) has presented a similar proposal to EPA
and to Mexico, which calls for a 25-mgd secondary treatment plant on the U.S. side, (as a first module
of the long-term solution), but with a short-ocean outfall terminating In Mexican waters, with capacity
for east- side Tijuana flows only. (IBWC proposes this as an interim solution until EPA and San Diego
are ready to proceed with a joint deep-ocean outfall on the U.S. side.) Mexico Is currently considering
whether to participate in the funding of IBWC's plant, or to proceed with the east-side plant in Tijuana,
which Mexico committed to build in order to receive the Inter-American Development Bank loan. EPA
would prefer that Mexico use its resources toward a plant located on the U.S. side.
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DISCUSSION AND CURRENT STATUS: The Tijuana Task Force Report recommends proceeding with
the Defensive Measures Project and continuing to develop the long-term strategy, but does not make
recommendations with respect to scheduling or funding. The Report has been submitted to OMB and,
if cleared, will be distributed to other agencies and to Congress. Funds should be appropriated in FY
1990 to begin design of the treatment plant and outfall if a functioning system is to be operable before
the current Tijuana west-side system becomes completely overloaded andmasslve flows of raw sewage
destroy the Tijuana Estuary.
IBWC is asking for EPA's concurrence on its interim proposal in November 1988, since it wants to
negotiate an agreement with Mexico for a treatment plant in the U.S. before the next Mexican
Administration takes office on December 1. IBWC plans to seek funding through Section 510 of the
Water Quality Act for design and construction of this plant and outfall in FY 1990. Its proposed 25-
mgd secondary plant is consistent with the Task Force's recommendation for secondary treatment. Its
short-ocean outfall, however, has not been considered by the Task Force, and would be redundant if
a deep-ocean outfall were built. IBWC estimates the total cost of its proposal would be $75 million, of
which Mexico would pay about $10 million at most.
MAJOR PLAYERS IN ORGANIZATIONS
EPA
International Boundary and Water Commission
State of California
City of San Diego
Mexico's Secretariat of Urban Development and Ecology
San Diego Congressional Delegation
ACTION DATES OR MILESTONES
March 1989:
Decision on whether to proceed with Phase 2 of the Defensive Measures Project
(pump and connection to Mexico)
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Early FT 1989
Decision on whether to fund design of IBWC project or EPA Long-Term project with FY 1990 funds.
KEY EPA CONTACTS
Charles Grizzle, Assistant Administrator for Administration and Resources Management (Tijuana
Task Force Chairman)
Scott Hajost, Acting Associate Administrator for International Activities
Rebecca Hanmer, Acting Assistant Administrator for Water
Harry Seraydarian, Director. Water Management Division, Region 9
(For additional details, please consult Tijuana Task Force
Report)
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Major National Issues Office of International Activities Page 1-9
U.S.-CANADA NEGOTIATIONS ON AIR QUALITY ACCORD
BACKGROUND: In 1985. President Reagan and Prime Minister Mulroney established a Special Envoys
approach to address acid deposition Issues. The Special Envoys Issued joint recommendations in 1986
which were accepted by both governments in 1987.
DISCUSSION AND STATUS: The United States and Canada have been working on the recommenda-
tions of the Special Envoys.For example, the two governments established a Bilateral Advisory and
Consultative Group. Having met several times in 1987 and 1988, the Group has served as a principal
forum for the two countries to discuss and consider a potential air accord that would provide a
framework for reducing acid deposition and for dealing with other transboundary air pollution
problems.
hi addition, under the National Acid Precipitation Assessment Program, , a comprehensive ten-year
interagency research program, the U.S. is engaged in a massive effort to improve our scientific
understanding of the causes and effects of acid deposition as well as our ability to control air pollutants
which contribute to acid deposition. ,
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Additionally, in October 1988, in response to a petition to EPA under Section 115 of the Clean Air Act
by Ontario and New York, EPA provided an interim written response that advised it is premature, at
this time, to make a final, decision that would be an endangerment finding on behalf of Canada's
environment. This decision was delayed on the petition because of significant Issues such as research
information that would be used by the U.S. to better understand acid deposition phenomena in North
America will not be available to EPA until 1990.
Immediately after the U.S. election In November, the Canadian government is expected to request that
bilateral consultations reconvene to try to negotiate an accord on reducing acid deposition.
MAJOR PLAYERS/ORGANIZATIONS
Secretary of State for External Affairs, Canada
Minister of Environment. Canada
Assistant Deputy Minister for Planning in Environment Canada
Ministers of Environment for Provinces of Ontario and Quebec
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Department of State
EPA Administrator
National Acid Precipitation Assessment Program:
Environmental Protection Agency
Department of Energy
Department of Agriculture/Forest Service
Department of Commerce/National Oceanic and Atmospheric Administration
Department of Interior
Interest Groups such as: Utility Companies/Electric Power Research
Institute; Natural Resources Defense Council/Clean Air Coalition,
and other NGOs.
ACTION DATES
In early 1989, U.S. and Canada will continue negotiations of an accord that would reduce acid
deposition affecting both countries.
KEY EPA CONTACTS
/
Scott Hajost, Acting Associate Administrator for International Activities
Don Clay, Acting Assistant Administrator for Air and Radiation
Courtney Riordan, Director, Office of Environmental Processes and Effects Research
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Major National Issues Office of International Activities Page 1 - 11
THE TRANSBOUNDARY MOVEMENT OF HAZARDOUS WASTE
BACKGROUND: In 1980 EPA promulgated regulations requiring prior notice to importing countries of
U.S. exports of hazardous wastes under the Resource Conservation and Recovery Act (RCRA) as
enacted. However at that time, the Agency had no regulatory authority to stop a shipment. Any action
to halt a shipment rested with the receiving country. This led to some concern in the Congress and
among the public that the United States was not doing enough to prevent export of hazardous waste
to countries that might have a limited capability to properly manage the waste.
As a result. Congress included amendments to the 1984 RCRA reauthorization bill which significantly
changed the U.S. hazardous waste export controls (Section 3017). In November 1986, EPA promulgated
final regulations implementing those amendments. Those regulations require the prior notice of the
export, with more information than the previous notification system; a country's prior written consent
before the shipment(s) can take place; copy of the country's consent accompanying the shipment; and
the filing of annual reports. There is also a provision in the 1984 amendments allowing for international
agreements to incorporate different procedures from those set forth in the amendments, such as
eliminating the prior written consent requirement, while still giving the country an opportunity to obj ect
to the proposed shipments. This mechanism may be used to facilitate the legitimate trade in hazardous
waste while still protecting health and the environment from potential problems caused by exports. The
US currently has bilateral agreements with Canada and Mexico. Finally, the law specifically provides
for criminal penalties for exports without a receiving country's consent or in violation of an
international agreement. These provisions provide EPA with useful enforcement tools.
DISCUSSION AND CURRENT STATUS: Since the export regulations went into effect there has been
a considerable rise in the interest in exporting hazardous waste. For example, in 1980 when the prior
notification rule first went into effect, EPA received eight notices of intent to export hazardous waste.
So far in 1988. EPA has received approximately 620 notices of proposed export, mostly for Canada. The
notices do not indicate how much waste is actually exported, but they do reflect the growing intent to
export hazardous waste for a number of reasons.
Many generators are feeling the impact of increased domestic regulation of hazardous waste in the U.S.,
such as the closing of landfills, increased liability costs, and stricter requirements for the monitoring
of facilities. It is also difficult to site new hazardous waste treatment facilities in the U.S. because of
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heightened public awareness of possible consequences of such facilities. Thus, new alternatives for
hazardous waste treatment are being explored, including sending the waste across national frontiers.
The Congress and the U.S. government have recently begun to realize that more stringent hazardous
waste export controls may be needed to address the concerns about exporting hazardous waste,
particularly to developing countries. At present, EPA does not have general authority to stop
shipments after a consent has been received even if there are questions as to the appropriate
management of the waste in the importing country. This concern has been generated mostly by recent
proposals to export hazardous waste to several West African countries, all of which refused the
shipments. These proposals and the dumping of Italian waste in Nigeria have sparked a great deal of
international interest. It was especially relevant to the ongoing work on transboundary hazardous
waste issues in the Organization for Economic Cooperation and Development (OECD) and the United
Nations Environment Program (UNEP). Both organizations currently have international agreements
on the transboundary movement of hazardous waste under negotiation.
The U.S. is currently exploring various options to strengthen U.S. control of hazardous waste exports.
While no final decision has been made through consideration by the Domestic Policy Council, EPA is
consulting closely with members of Congressional staff and other federal agencies. A change to give
the U.S. increased authority over hazardous waste exports would allow the U.S. to sign the OECD and
UNEP Conventions and would address some of the concerns expressed within the U.S. and the
international community. The principal option identified and one EPA has supported is to require that
no exports of hazardous wastes be allowed without a bilateral agreement with the importing country.
Such an approach, which might best be implemented by amendments to RCRA, would ensure that the
foreign country wants the waste and that it would be managed in an environmentally sound manner.
MAJOR PLATERS/ORGANIZATIONS
Department of State:
Bureau of Oceans, Environment and Science;
Legal Adviser's Office;
individual country desks.
Department of Commerce:
Office of Chemicals and Allied Products.
Department of Transportation:
Office of International Transportation
Office of the Transport of Dangerous Goods
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Major National Issues Office of International Activities Page 1 - 13
Domestic Policy Council: (To formulate options for changing and
adopting new policies regarding the export of U.S. hazardous waste.)
Congress:
House Subcommittee on Energy,
Environment and Natural Resources of the House Energy and Commerce Committee;
Offices of Senator Kasten. Congressmen Conyers and Porter,
all of whom have introduced bills banning the export of hazardous
waste. The Baucus bill also has provisions for exports.
Environmental Groups: Especially those concerning exports to developing countries.
Industry: Such as the Chemical Manufacturers Association
Institute of Chemical Waste Management
International Solid Waste Association.
General Public Interest: As evidenced by numerous articles in publications such as the New York
Times, the Wall Street Journal and the Christian Science Monitor and by inquiries by private
citizens directly to EPA.
ACTION DATES OR MILESTONES: EPA hopes to have a decision by the Administration on strength-
ening U.S. hazardous waste export policy December when the OECD meets on the Convention. This
policy consideration is linked to the UNEP and OECD Conventions. Absent a positive decision to
strengthen U.S. controls over exports, the U.S. could not sigh on to the Conventions as currently
conceived and drafted. If such a decision is made not to change the present system, there is enough
interest in the Congress to do so that is is expected we may see a strengthening amendment introduced
when RCRA comes up for reauthorizatlon in the next Congress. A positive Administration decision
would involve working with Congress In securing appropriate amendments to RCRA to implement the
policy decision. (An alternative implementing vehicle that has been explored but largely set aside on
policy considerations is use of the Export Administration Act.)
The schedule for completion of the OECD Convention is the end of 1988 and in March 1989 for the
UNEP Convention. However, it is unclear at this time how long it will take for implementation of these
Conventions for the member states.
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Any changes in the export regulations which would allow the U.S. to stop a shipment to a consenting
country because of environmental concerns will require Congressional action to amend the existing
statute. This amendment will most likely be part of the RCRA reauthorizatlon in the next Congress.
KEY EPA CONTACTS
Scott A. Hajost. Acting Director, Office of International Activities
Sylvia Lowrance, Director. Office of Solid WasteOffice of Solid Waste
Linda Fisher. Assistant Administrator for
Policy. Planning and Evaluation
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US-USSR ENVIRONMENTAL AGREEMENT
ISSUE: EPA, as Executive Agency of the US-USSR Environmental Agreement, will host the 12th Joint
Committee Meeting in Washington. Timing of the meeting must be decided In early 1989.
BACKGROUND: In May 1972, the U.S. and USSR Heads of State (Nlxon/Podgorniy) signed an
Agreement on Cooperation In Environmental Protection. The Agreement renews at five-year intervals
unless terminated by either side. The last renewal was In May 1987.
The Agreement's three main features are:
(1) identification of eleven areas of mutual priority for cooperation (air, water, agricultural pollution,
urban environment, nature protection, marine pollution, biological and genetic effects, environmental
influences on climate, earthquake prediction, arctic and subarctic ecological systems.and legal and
administrative measures for protecting environmental quality);
(2) establishment of a US-USSR Joint Committee to "approve concrete measures and programs of
cooperation, designate the participating organizations...and make recommendations, as appropriate,
to the two Governments:" and.
(3) a provision to designate a "coordinator" (executive agency) to administer activities under the
Agreement.
EPA is designated the Executive Agency for the U.S. side, and the EPA Administrator is designated as
the U.S. Co-Chalrman of the Joint Committee.
The USSR Executive Agency has been GOSKOMGIDROMET (Hydromet. In English), the State
Committee for Hydrometeorology, headed by a Chairman who also was appointed Co-chairman of the
Joint Committee.
As Executive Agencies, EPA and Hydromet each provides an executive secretariat, which act together
as bilateral and"domestic coordination offices.
The U.S. Executive Secretary usually has been a State Department Foreign Service Officer familiar with
US-Soviet relations and with East-West science and technology cooperation.
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The USSR Executive Secretary since 1975, has been a Hydromet official closely allied with the Hydromet
Chairman.
In early 1988. the Soviet Government abruptly and widely publicized its establishment of a new State
Committee -GOSKOMPRIRODA - to replace Hydromet as the USSR's principal environmental
authority. "COS" and "KOM" are prefixes standing for "State Committee." "PRIRODA", however,
literally means "nature", a word which in Russian has Instant and deep popular appeal and which
broadly connotes all forms of life and natural systems. This sense is captured in the USSR's official
English translation of GOSKOMPRIRODA as "State Committee for Environmental Protection." an
indication in both languages of the priority which the USSR leadership has assigned to the subject of
environmental protection.
While PRIRODA is still a fledgling institution, its mandate is comprehensive. The new Committee's
authority covers everything from basic environmental research to monitoring, standard setting,
regulation and enforcement. It also has economic planning responsibilities for efficient use of natural
resources, which plainly signals that environmental protection has become a high political and
economic priority.under Gorbachev's "perestroika".
By September 1988. PRIRODA was staffed at about 25 percent of its expected total personnel. Some
of Hydromet's own management and international staff were shifted to PRIRODA in the summer of 1988.
In late September. PRIRODA communicated through the U.S. Embassy in Moscow that it had replaced
Hydromet as Executive Agency of the Environmental Agreement, and that a new USSR Joint Committee
Co-Chairman and Executive Secretary would be appointed soon. These appointments will be
significant In nearly coinciding with the settling-ln period of a new Administration in the U.S.. and
because the next JCM must be timed to guarantee the availability of both new Co-Chairmen. While
timing is mutual, protocol requires that the host country extend the appropriate invitation to convene
a JCM on its territory. It is therefore up to the U.S. to Invite the USSR to the 12th JCM in Washington.
DISCUSSION AND STATUS: The salient bilateral issues around which public attention and new
interest groups have gathered are global climate change and Arctic research. While attention to these
issues initially derives from purely domestic interests, the International dimension Is self-evident.
Lately, confronted with an assertive Soviet policy shift toward extensive inter-national environmental
cooperation, the mere fact of Soviet interest In global climate change and Arctic research has Itself
become a factor In U.S. domestic policy deliberations. Of related importance to the U.S. In the bilateral
relationship, however, is how effectively and when will GOSKOMPRIRODA take firm charge of its
domestic and International agenda In these and other environmental areas.
From the flood of Information out of Moscow in this era of "glasnost," we are reasonably certain that
PRIRODA Is beset by growing pains and serious inter-agency turf battles, perhaps Including conflict
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Major National Issues Office of International Activities Page 1 - 17
with Hydromet. Symptomatic is the fact that the unbudgeted new Committee has managed to procure
only a fraction of Its allotted office space and staff and is forced to depend on Hydromet for international
telex communication.
In the opinion of knowledgeable Soviet officials PRIRODA will not be operational or in position to meet
effectively with U.S. environmental counterparts for many months. Travelers from Moscow and
Washington on bilateral environmental projects have variously concluded that the 12th JCM ought to
be scheduled In the late Spring, Fall or even Winter of 1989. The U.S. Executive Secretary continually
monitors these developments, independently and through the State Department, to determine the
most promising timing for the 12th JCM In Washington. The U.S. consensus Is that the meeting ought
not be held earlier than Spring 1989 nor later than Winter 1989.
MAJOR PLATERS IN ORGANIZATIONS
Dr. Gerson Sher, National Science Foundation
Dr. Alan Hecht, NOAA
Dr. William Greenwood, US Geological Survey
Dr. Steven Kohl. US Fish and Wildlife Service
Capt. Robert Storch, US Coast Guard
Ms. Dinah Bear, Council on Environmental Quality
Mr. Dennis Galvin, National Park Service
Prof. Dennis Meadows, University of New Hampshire
ACTION DATES OR MILESTONES
January-February 1989 - Joint committee meetings: The EPA Administrator, in consultation
with his Soviet counterpart, should decide when to convene the 12th US - USSR Joint
Environmental Committee meeting in Washington. The Administrator and his counterpart must be
available to co-chair the week-long meeting. The correspondence is managed through
the executive secretaries.
EPA KEY CONTACTS
Scott Hajost, Acting Associate Administrator for
International Activities
Sidney Smith, Executive Secretary.
US-USSR Environmental Agreement, Office of International Activities
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Page 1-18 Office of International Activities Major National Issues
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ADMINISTRATION &
RESOURCES MANAGEMENT
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Major National Issues Office of Administration and Resources Management Page 2-1
BUILDING PUBLIC-PRIVATE PARTNERSHIPS
ISSUE: Due to the serious budget constraints facing the federal government, public-private partner-
ships and other innovative financing techniques have great potential to help meet the growing
environmental and resource challenges facing this country in the 1990's and beyond.
BACKGROUND: Two trends threaten our ability as a nation to achieve and retain a high standard of
environmental quality. First, needs and expectations for environmental protection are increasing,
which is evident by the considerable amount of environmental legislation reauthorized by Congress in
recent years. Second, national concern over the budget deficit and growing demands on state resources
have constrained traditional sources of environmental funding. We believe the result will be an
increasing shortfall between the need for environmental dollars and the resources available to meet
that need.
DISCUSSION AND CURRENT STATUS: In response to these issues, the Administrator formed an
Agencywlde Steering Committee and Task Force on Public-Private Partnerships and also established
a full-time staff to support this important initiative. Our strategy to increase private sector involvement
in traditionally public environmental projects includes:
Finding and disseminating cases of successful public-private partnerships;
Educating community officials on the possibility of partnerships and how to arrange
them on the local level;
Determining what impediments we in federal government place in the way of partner
ships and what incentives we could offer to private investors; and
Discovering and publicizing alternative types of financing arrangements that states and
communities could utilize.
MAJOR PLATERS IN ORGANIZATIONS
Our strategy intends to assist state and local governments. It will require the coordination
and cooperation of industry, the financial community, national associations, environmental
groups, and the EPA.
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Page 2 - 2
Office of Administration and Resources Management
Major National Issues
ACTION DATES AND MILESTONES
WORK PRODUCT
FY1989
ASSIGNED TO
Legislative/Regulatory Options
Costs-Resources Report
P-P P Primer
National Conference
Regional Conferences
Self-Help Guides
Self-Help Video
Demonstration Project
Communications Strategy
DEC & MAR
NOV & DEC
OCT
OCT
FEE & MAY
DEC
DEC
DEC & APR
ONGOING
OPPE. OEA
GARM.OPPE.OAR
OARM.OW.OSWER
OARM
ORO, RIV, RVI
OW, OSWER
ORO. OSWER, RVI
RIV. STATE
OEA, RVI
Legislative/Regulatory Options The Legislative/Regulatory Options will detail the legislative and
regulatory alternatives that we can pursue in order to overcome barriers to building public-private
partnerships.
P-P Primer and Self-Help Guides
The Public-Private Partnership Primer and Self-Help Guides are designed to provide
technical assistance to state and local governments on how to build public-private part
nershlps.
National Conference and Regional Conferences
We are sponsoring conferences to assemble experts in the field to assist us in preparing
an action plan and to provide technical assistance to state and local areas.
KEY EPA CONTACTS
Charles L. Grizzle. Assistant Administrator for
Administration and Resources Management (382-4600)
David P. Ryan. Comptroller (475-9674)
1 John J. Sandy. Director. Resource Management Division (382-4425)
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Major National Issues Office of Administration and Resources Management Page 2-3
REGIONAL SUPERFUND CONTRACTS MANAGEMENT
BACKGROUND: The amendment and reauthorization of Superfund legislation in October 1986
authorized a 5-year funding level of $8.5 billion for FY1986-1991. By comparison, the previous 1980
Superfund legislation authorized $1.6 billion to use over FY 1980*1985. Inaddition. 1986 amendments
Included statutory deadlines for Superfund program accomplishments. EPA concluded that the best
way to meet the programmatic requirements and manage this large increase in contracting activity was
to decentralize portions of the Superfund program to the Regions.
CURRENT STATUS: The decentralization entails the breakup of large, national, centrally managed
contracts into multiple, regionally based contracts. In the Remedial Program, the regional contracting
officers will manage 45 contracts ranging from $62 million to $230 million. These contracts will replace
the 3 large centrally managed contracts.
In the Emergency Response Program, the regional contracting officers will manage the emergency
response cleanup contracts and they will be involved in the placement of smaller contracts for
individual sites within a region. The four large centrally managed contracts will be broken down into
as many as 15 to 25 regional and site-specific contracts, ranging in size from $ 10 million to $40 million.
Sixteen of these contracts have been awarded to date.
The potential for the needless expenditure of hundreds of thousands of dollars at the onset by
inexperienced contractors is great. Thus, the key to the success of the Agency's decentralization
strategy is having trained officers in the regions to manage these expensive, highly complex contracts.
The Superfund program has, and continues to receive, intense scrutiny from the Congress, the General
Accounting Office, and our own internal Inspectors General.
The vulnerable areas that have been frequently cited center around cost control, product quality, and
overall contract management. The Agency has been criticized for spending too much money for the
quality of services it Is receiving in return. With this in mind, the Agency is placing greater emphasis
on the business and technical management of its contractor resources.
The contracting officers will assist the program by tracking of dollar and labor hour expenditures,
developing realistic cost estimates, and ensuring that contractor performance and cost control are
effectively realized. Their proximity to the contractors' offices and the individual Superfund sites will
naturally facilitate their greater involvement in contract management issues and the more expedient
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Page 2-4 Office of Administration and Resources Management Major National Issues
resolution of Individual problems. We believe that this approach will result In higher-quality cleanups
at substantially less cost than has been Incurred In the past.
MAJOR PLATERS IN ORGANIZATIONS
Congress restored funding for the 20 regional positions to the Agency's FY 1989 appropriation.
The General Accounting Office is monitoring the program as part of its evaluations of the adequacy
of the Agency's management of the Superfund contracts. This scrutiny is expected to intensify as
we complete decentralization.
ACTION DATES OR MILESTONES
22 Regional Contracting Officers in place December 31, 1988
42 Regional Contracting Officers in place September 30, 1989
KEY EPA CONTACTS
David J. O'Connor. Director, Procurement and Contracts Management Division
Sallyanne Harper, Associate Director. Superfund/RCRA Procurement Operations
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Major National Issues Office of Administration and Resources Management Page 2-5
MOVE TO A NEW HEADQUARTERS FACILITY
BACKGROUND: The major leases for the present EPA Headquarters will expire In September 1992.
In coordination with the General Services Administration (GSA), the EPA Project 1992 effort Is to plan,
construct and move to a new Headquarters facility. The EPA Headquarters Is presently housed in three
locations that total nearly 1 million square feet of space. The space Is less than ideal and the logistical
problems created by having three locations are numerous. The support network required is extensive
and costly. The lack of centralized service areas common to all employees results In an Inefficient
operation. Major amenities are Inadequate or altogether lacking. Additionally, the buildings lack
adequate flexibility to meet changing technological requirements.
An opportunity to correct the present deficiencies will be available as the leases for the Headquarters
facilities expire. A concerted planning effort has already begun to have a new Headquarters facility
ready when the leases expire. Continuous coordination through the 1992-93 time frame will be
required to successfully plan, construct, and move to a new EPA Headquarters facility.
While it is the responsibility of GSA to acquire a new EPA Headquarters. EPA has played a major role
in the process. Future EPA involvement In the project will be formalized in a Memorandum of
Understanding between GSA and EPA. The EPA effort will be focused in the Office of Administration.
DISCUSSION AND CURRENT STATUS: There has been universal agreement that EPA requires a large
(up to 1.4 million square feet) consolidated facility to meet its Headquarters housing requirements
beyond 1992. GSA, OMB, and the House and Senate Committees have all supported this cause. There
has been disagreement, however, over the method of acquisition (lease/purchase vs. purchase), the
area of consideration (D.C. vs. Metro-wide area), and whether to focus on a federal site or open
competition to include private-sector sites. A synopsis of EPA1 s position on these issues is as follows:
Lease/purchase vs. purchase - EPA is neutral. The EPA goal Is to be housed In a suitable facility. The
method of acquisition Is a matter for deliberation among GSA/OMB and Congress.
D.C. vs. Metro-wide - EPA has a strong functional need to be located within Washington, D.C. EPA
has demonstrated a continual and dally need to interact with D.C. federal agencies, Including OMB and
Congress. Additionally, EPA needs to be located within D.C. to be readily accessible to the public
interacting with the Agency. Furthermore, to remain within D.C. will prove minimally disruptive to the
nearly 7,000 employees and support personnel.
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Page 2-6 Office of Administration and Resources Management Major National Issues
Federal site vs. open competition - EPA feels it Is in the best government interest to broaden the
competitive field to include federal and private-sector sites. Site/developer selection should be made
in consideration of the best technical and least costly option.
In September. 1988 the House Committee on Public Works and Transportation gave its approval for
GSA to proceed in obtaining a new EPA Headquarters. That approval provided for the following:
acquisition of 1.4 million occupiable square feet;
consolidation within Washington. D.C.;
lease/purchase with a lease term not to exceed 30 years;
consideration of development on both federally and
privately owned sites; and
a requirement for GSA to report back to the Committee
before site selection.
At this writing, the Senate Committee's approval has not yet been received but is expected. In the
meantime. EPA is finalizing a building requirement report that will serve as a basis for the GSA
Solicitation for Offers. GSA has been fully supportive of our requirement analysis.
MAJOR PLAYERS IN ORGANIZATIONS
House Subcommittee on Public Buildings and Grounds
ChairmanrDouglas H. Bosco, California
Ranking Mln.:Guy Molinari. New York
House Committee on Public Works and Transportation
Chairman:Glenn M. Anderson. California
Ranking Mln.: John Paul Hammer-Schmidt, Arkansas
Senate Committee on Environment and Public Works
Chairman:Quentin N. Burdick, North Dakota
Ranking Min.: Robert T. Stafford, Vermont
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Major National Issues Office of Administration and Resources Management Page 2-7
General Services Administration, Central Office
Acting Administrator Richard G. Austin
Assistant Commissioner for Plannlng:Davld L. Bibb
General Services Administration, National Capital Region
Regional AdminlstratorRichard M. Hadsell
Assistant Regional AdminlstratonPaul Chistolini
MAJOR PLATERS IN ORGANIZATIONS
Unions:
National Federation of Federal Employees
American Federation of Government Employees
D.C. Government
Deputy Mayor Wylie Williams
Federal City Council
Executive Vice President: Ken Sparks
KEY ACTION DATES
GSA Issues Solicitation for Offers January 1989
Developers Submit Bids May 1989
GSA/EPA Evaluate Bids November 1989
GSA Awards Contract January 1990
Developer Completes Building Design September 1990
Ground Breaking September 1990
Shell Construction Complete September 1992
Developer Begins Interior Finishing January 1992
EPA Begins Phased Move September 1992
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Page 2 - 8 Office of Administration and Resources Management Major National Issues
Key EPA Contacts
Assistant Administrator for Administration and Resources
Management, Charles L. Grizzle
Executive Assistant to the Administrator, Craig W. DeRemer
Director, Office of Administration, John C. Chamberlin
Special Assistant, Office of Administration, Nelson W. Hallman
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ENFORCEMENT &
COMPLIANCE MONITORING
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Major National Issues Office of Enforcement and Compliance Monitoring Page 3-1
EXPEDITING PRIVATE PARTY CLEANUPS
BACKGROUND: The Superfund program has recently come under strong attack by industry, the
Congress, environmentalists and even former Agency officials for Its allegedly slow progress in the
cleanup of hazardous waste sites. One of the primary criticisms has been that the Agency's enforce-
ment program has not been aggressive enough in its efforts to secure private party cleanups through
>
the use of its administrative andjudicial enforcement tools. In particular, the criticisms have Indicated
that the Agency has not used the injunctive relief authority provided by Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) Section 106, which allows EPA to seek site
cleanup from potentially responsible parties (PRPs) through injunctive court actions or administrative
orders whenever an imminent and substantial endangerment may exist at a site. This concern has
focused on EPA's preference, when negotiations with PRPs break down, to proceed with a Superfund-
financed cleanup (with later cost recovery) rather than issuing an order or going to court to compel a
PRP cleanup. While it is true that the government has not initiated a large number of unilateral
CERCLA Section 106 enforcement actions in recent years, the reasons for this are far more complex
than the perceived lack of will to enforce.
One reason for the lack of unilateral action is that at many sites it has not been necessary. Where the
government has assembled a strong liability case against the PRPs, we have been very successful in
persuading the PRPs to perform or finance cleanup pursuant to a consent decree, with over 40% of the
remedial actions initiated since the passage of SARA being PRP-funded.
In addition, since enactment of the Superfund Amendments and Reauthorization Act of 1986 (SARA),
there has been sufficient money available from the Fund to commence all response actions which were
ready to be commenced and which PRP's had not agreed to undertake themselves. Given the luxury
of consistent access to the Fund, Agency decision-makers have generally taken advantage of it to avoid
some significant negatives that have been associated with the "enforcement" option.
The overriding negative on using "enforcement" in the minds of many of EPA's Superfund managers
is the potential delay In initiating the cleanup. Use of the Fund is a process within EPA's control;
litigation in court is not. The affected public wants the site cleaned up now; they do riot perceive and
will not accept protracted litigation as an acceptable alternative.
Compounding this-concern is the possibility, stronger in some cases than in others, that EPA will not
prevail in court in establishing the statutory requisites for a Section 106 action. For example, it may
fail to establish liability or fail to establish the threat of an imminent and substantial endangerment.
EPA could then proceed to use the Fund, of course, but much time would have been lost. In addition.
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Page 3 - 2 Office of Enforcement and Compliance Monitoring Major National Issues
courts, not particularly well suited to involve themselves In the complex technical issues involved in
remedy selection, have sometimes done just that without giving due deference to the Agency's expertise,
with potentially disastrous results. A final area of concern has been the commitment of technical and
legal resources required for a Section 106 Judicial action. Establishing liability, documenting an
imminent and substantial endangerment, and establishing the remedy all Involve a significant and
unpredictable resource burden.
Even with all of these countervailing considerations, the Agency has now recognized that increased use
of Section 106 unilateral orders and court actions is necessary. There are several reasons for this. First.
the State may not be willing or able to provide the State's share, a statutory prerequisite to the use of
the Fund. Second, we will soon reach a point where the Fund alone cannot possibly address all sites.
Finally, it is the Agency's perception, reinforced by recent experience, that PRPs are more willing to
settle in negotiations for remedial action if they sense a real possibility that the Agency will seek to
compel them to do the cleanup if negotiations fall.
DISCUSSION AND CURRENT STATUS: To Increase the number of Section 106 actions taken, the
Agency has initiated several related activities to bolster the overall CERCLA enforcement and
settlement effort. First, the CERCLA Settlement Incentives/Disincentives Workgroup was created to
analyze fully potential improvements to the Agency's current enforcement and settlement efforts.
Second, the CERCLA Section 106 Initiative, prompted by the concerns over the lack of unilateral
administrative or judicial enforcement actions to compel PRPs to perform remedial design and remedial
actions, was instituted. Each of those activities is discussed below.
A. Settlement Incentives/Disincentives (SI/D) Workgroup
Concerns about the effectiveness of the Agency's use of Section 106 were discussed by Agency top
management from the Headquarters and Regional waste enforcement programs, as well as the
Department of Justice, at a conference in San Antonio in February 1988. As a result, the CERCLA
Settlement Incentives/ Disincentives (SI/D) Workgroup was formed in March of 1988 to determine how
current practices and policies could be modified to create the right climate for achieving settlements
in the public interest.
The Workgroup met four times during the spring and early summer of 1988. A final report was issued
on July 19,1988 which was subsequently adopted and transmitted to the Regional Administrators by
the Administrator on August 4. 1988.
Prominent in the recommendations of the Workgroup were those relating to the use of Section 106. The
Workgroup recognized that unilateral Section 106 actions could both expand the total number of sites
cleaned up and serve to encourage settlement at other sites. In particular, the Workgroup
recommended that "there should be a bias in favor of the issuance of a unilateral AO (administrative
order) in cases where some or all of the PRPs are unwilling to enter into settlements."
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Major National Issues Office of Enforcement and Compliance Monitoring Page 3-3
B. Section 106 Initiative
In April 1988, the Administrator held a conference call with all ten Regional Administrators exhorting
them to support the Agency's Section 106 enforcement program. One of the Items that he Introduced
was the concept of a Section 106 Initiative. On May 2, 1988, the Assistant Administrators for OECM
and OSWER sent a follow-up memo to the Regions requesting that they identify one or more Section
106 cases for each Region.
Conference calls were held with each Region to refine the list of candidates, ultimately resulting in 22
sites being proposed. As of mid-October, four of these cases had been settled and two had been referred
for civil action. Of the remaining 16, several were in the final throes of settlement negotiations, and
several others have had the projected ROD signature date slip and hence are not ready for referral.
Including additional sites not specifically part of the Initiative, in the period from the Administrator's
conference call to mid-October, there had been three judicial referrals and eleven unilateral adminis-
trative orders. While the numbers are not yet large, the movement to a more balanced program,
combining effective use of both the fund and the Section 106 enforcement authorities, has clearly
begun.
MAJOR PLATERS:
The major commentators on this Issue have been from the environmental defense bar, especially the
Superfund Settlements Project (a group of approximately a dozen Fortune 100 companies with
significant Superfund liability). Representative John Dingell and Senator Frank Lautenberg have
shown a particularly strong Interest in the Agency's enforcement efforts. At the Department of Justice,
David Buente, Chief of the Environmental Enforcement Section of the Land and Natural Resources
Division, and Nancy Firestone, his deputy, are the primary management contacts.
ACTION DATES OR MILESTONES:
There are no specific deadlines or milestones associated with these projects. However, OECM and
OWPE Intend to work closely with the Regions over the next six months to Integrate the SI/D Workgroup
recommendations Into general Agency enforcement practice and continue to identify sites where
unilateral 106 enforcement actions are appropriate.
KEY EPA CONTACTS:
Edward E. Reich, Deputy Assistant Administrator for Civil Enforcement .OECM;
Bruce Diamond, Director, Office of Waste Programs Enforcement, OSWER
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Page 3-4 Office of Enforcement and Compliance Monitoring Major National Issues
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Major National Issues Office of Enforcement and Compliance Monitoring Page 3-5
EPA'S CRIMINAL ENFORCEMENT PROGRAM
BACKGROUND :Phase I was a period during which EPA and the DOJ instructed U.S. Attorney Offices,
often by going into those offices and actually trying all the environmental cases. At EPA, there were
periodic efforts to educate the several media programs (Headquarters and regional) as to what the
criminal program could accomplish.' Efforts were made to gain support from Agency organizations for
an approach different from the administrative or civil judicial in orientation, that Is, a criminal
enforcement presence. This presence was established by taking cases from each of the media with few
selective criteria. Quantity ruled over quality at times.
Neither lawyers nor investigators knew with great specificity what a good case was. It was not known
exactly what it would take to persuade a judge or jury that an "environmental crime" had been
committed. Unforeseen technical evidentiary problems had to be faced and continue to be faced as
knowledge and understanding of this evolving area of criminal law continues. EPA began to discover
what resource demands, both legal and Investigative, were necessary to try a complex, multi-count
indictment and to determine how many of the cases would go to trial.
Prioritizatlon, not initially a problem, began to become difficult as regional and national priorities began
to mesh and were further complicated by DOJ's own priorities. This phase gave rise to certain
exaggerated expectations among the Program Offices as to what the criminal program could
accomplish. This is the area that most closely marks the delineation between Phases I and II; that is,
given the fixed resources currently available within DOJ and EPA, the expectations as to the time
between case referral and closure have been substantially shorter than what can be delivered.
During this period. Memoranda of Understanding have been executed between the Agency and the FBI,
the Office of Inspector General, the Department of Transportation, and the Bureau of Customs.
Additionally, through NEIC and its Grants Program, regional state organizations such as the Northeast
Hazardous Waste Group have been set up in all regions of the country. These groups exchange
Information and foster better federal-state relationships and, within the states, better criminal
enforcement/regulatory relationships with the objective of dosing the gaps in the federal-state
enforcement shield protecting the environment.
A landmark decision in Phase I was the selection of trained criminal investigators from state and federal
law enforcement agencies and their development as competent environmental investigators with
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Page 3-6 Office of Enforcement and Compliance Monitoring Major National Issues
knowledge of the complex laws and regulations In this area. Many of these agents have developed into
creative white-collar investigators and have handled extremely complicated cases. They have
increased in number from 22 agents in 1982 to 48 agents, including both investigators and supervisors.
in 1988. Effectively, Phase I is behind us and we have now entered Phase n which will continue for
some years until the criminal program reaches another maturing factor or event. Phase in may thus
be hurried or slowed by the number of resources and the pace of development of the law in this emerging
field.
ISSUES: Phase n consists of the refinement or sophistication of the concept of criminal enforcement
at EPA. It includes the institutlonalizatlon of policies, procedures and relationships that were
established in Phase I.
The current dynamic caseload of the 48 EPA agents is approximately 150-160 cases. Currently, there
are 22 DOJ trial attorneys authorized for the Environmental Crimes Section. These attorneys handle
all environmental criminal cases, of which the EPA cases are only a part. Recently, several of the most
experienced DOJ lawyers have entered private practice; thus, we can anticipate a cadre of competent
defense lawyers who will now defend their clients. This, plus the resource issue, forces us to now deal
with the question of how do we maintain an Inventory of substantial investigations while, at the same
time, litigating those complex cases already in the pipeline. This will be a problem for both DOJ and
EPA.
Management of the docket now becomes critical and the establishment of possibly more rigorous
criteria as to what constitutes an appropriate case, likewise, becomes important. It should be noted
that the FBI, with approximately 10,000 agents, currently dedicates about 22 man-years of time to
environmental cases and has an inventory of open environmental investigations of between 150 and
200. These are not always well monitored by DOJ because of staffing shortfalls. While we need and
appreciate the FBI's support, it complicates the EPA criminal program objectives. This parallel FBI
investigative effort creates the likelihood that it will embark on cases which could make precedential
law with which we will have difficulty dealing and because of the different national goals and priorities
that FBI/DOJ may have.
Additionally, there appears to be some discussion at DOJ as to the need for the Lands and Natural
Resources Division setting up a policy wherein the Assistant Attorney General would have to sign off
on all indictments and grand Jury proceedings. This would create a bottleneck and stifle creativity
within the U.S. Attorney's Offices with whom we have good relationships and upon whom we depend
to expand our program into new judicial districts. On the positive side, DOJ recognizes that the
quantity/quality crossroad has been reached and seems to be leaning toward a decision for quality
cases rather than quantity. This gives rise to the question of what happens to those cases which cannot
be handled by the Environmental Crimes Section. Currently, that question is mostly unanswered;
however, we are striving to build state capacity to handle these types of cases.
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Major National Issues Office of Enforcement and Compliance Monitoring Page 3-7
The challenge of Phase n then, is to set up realistic criteria that speak to the Agency and regional
priorities, to build real deterrence in the regulated communities and to accomplish this with the limited
resources provided. The challenge will be to redefine DOJ's Environmental Crimes Section/Assistant
U.S. Attorney relationship. We need the Environmental Crimes Section to handle the very complex
cases that we are bringing, but we also need access to the various Assistant U.S. Attorneys to develop
less high-profile cases to make the presence of the criminal program felt in every judicial district.
Phase n is currently being marked by the development of a strong cadre of Regional Criminal
Enforcement Counsels, previously known as Criminal Contacts. These attorneys on the regional
counsel staffs hone and polish cases before referral and. as they are used more by the Office of Criminal
Investigations to help review cases prior to commitment of substantial resources, the program will
become more efficient and effective. Currently, all but four regions have full-time Regional Criminal
Enforcement Counsels. The answer, in part, to the deficit of resources at the Department of Justice
at least would be to designate as Special Assistant U.S. Attorneys, the various EPA Regional Criminal
Enforcement Attorneys and OCEC attorneys. This would leverage the expertise within the Agency in
the criminal field and would develop better relationships directly with the U.S. Attorneys Offices in each
region. This has been successful in Regions I, IV and VI.
Phase n's success will enhance the Phase I achievements in maintaining the criminal program as a
headquarters-managed program, such that the necessity for national prosecutive consistency is
furthered. The need for the regulated community to understand that the Agency speaks with one voice
is critical In this enforcement area. If inconsistencies within EPA were to develop, the Agency could
find the Department of Justice making the nation's environmental policy in this critical area. This can
be avoided by continued strong management of this highly visible national enforcement effort. This
has been highlighted In the EPA Office of Inspector General's audit of OCI in the summer of 1988, which
resulted in OIG's recommendation, adopted In draft by the AA-OECM. that periodically the AA-OECM,
or his/her designee, conduct an audit of the various OCI field offices regarding their effectiveness In
achieving national priorities.
Phase II, thus. Is now well underway but continues to need careful attention and continued leadership
with the AA-OECM, through the Deputy Assistant Administrator for Criminal Enforcement. With this
national management team, EPA's criminal enforcement program will continue to build upon its record
of success.
EPA CONTACT:
Paul R. Thomson, Jr., Deputy Assistant Administrator for Criminal Enforcement
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Page 3-8 Office of Enforcement and Compliance Monitoring Major National Issues
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Major National Issues Office of Enforcement and Compliance Monitoring Page 3-9
THE STATE/EPA ENFORCEMENT RELATIONSHIP
BACKGROUND: Enforcement is one of the most sensitive aspects of the State/EPA relationship. The
federal environmental statutes stipulate that States should be the primary Implementers and enforcers
once they have Federally approved programs. Nonetheless, those statutes leave ultimate enforcement
responsibility with EPA. This statutory scheme can lead to State/EPA tension, particularly since many
States view any form of federal enforcement action as a direct criticism of their program.
The Policy Framework For State/EPA Enforcement Agreements, hi 1984, a Federal/State Task
Force developed policies on state delegation and oversight. To Implement the oversight policies in the
enforcement context, EPA developed In June 1984 the "Policy Framework for State/EPA Enforcement
Agreements." The Policy Framework, subsequently revised In 1986, Is the blueprint for the State/EPA
enforcement partnership. The Policy Framework calls for EPA Regions and States to develop state-
specific annual enforcement agreements. The agreements were designed to meet several principles:
(1) clear oversight criteria, specified in advance, for EPA to assess State (and Regional) compliance and
enforcement program performance; (2) clear criteria for direct federal enforcement in delegated States
with procedures for advance consultation and notification; and (3) adequate state reporting of a core
set of management measures to ensure effective oversight.
The Policy Framework also addresses such areas as oversight of state civil penalties. Involvement of
the State Attorneys General in the enforcement agreements process, "timely and appropriate"
enforcement response and implementation of nationally managed or coordinated cases.
Implementation of the Policy Framework is overseen by an Agency-wide Steering Committee on the
State/Federal Enforcement Relationship (which meets twice a year) composed of 30 EPA and state
members in all programs.
State/EPA Enforcement Agreements. EPA negotiates annual enforcement agreements with States
for all programs. The enforcement agreements, which are updated as needed to reflect new policies
and procedures, process helps define the respective roles and responsibilities of EPA and States and
helps sustain a predictable enforcement presence.
Timely and Appropriate Enforcement Response. The most significant feature in the Policy
Framework is the concept of "timely and appropriate" enforcement response. The criteria which EPA
developed for this concept are intended to increase deterrence by ensuring that EPA and States make
systematic progress toward resolving "significant violations." Implementing program guidance defines
what enforcement responses are appropriate (including when penalties are appropriate) and defines
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timeframes for returning sources to compliance or taking formal enforcement action and escalating the
response if compliance is not achieved.
Emerging and Continuing Issues
Federal Facility Compliance States believe that EPA should take a more aggressive enforcement
posture at Federal facilities, seeking penalties and taking unilateral enforcement action despite DOJ's
public statements that EPA has limited legal authority to do so. EPA has recognized the need for new
policies and procedures for achieving compliance at Federal facilities and has recently issued its revised
Federal Facility Compliance Strategy. EPA is encouraging State action and/or joint State/EPA
enforcement at Federal facilities. The issue of EPA's legal authority will likely continue to arise during
implementation of the Strategy.
Enforcement of SARA Title m Data Requirements Many States have expressed concern about and
interest in implementing and enforcing Title HI (without additional program funding from EPA),
specifically, enforcing reporting requirements and using data for enforcement purposes, e.g., targeting
of inspections. This last issue is very important to the Agency and it will be discussed within EPA and
the Steering Committee.
Overflling The Policy Framework contains criteria for when EPA may consider overfilling, i.e.. if state
action is untimely or a state action falls to meet requirements for a formal or appropriate enforcement
response such as compliance schedules being unacceptably extended or if there is no appropriate
penalty or sanction. While EPA rarely overflies, each action strains the particular State/Regional
relationship and raises other issues about oversight, duplication of effort, second guessing, and
differing compliance policies. EPA is seeking to improve operational relationships and has reiterated
its policy of no surprises, of dispute resolution, and of reaching upfront agreements with States about
when direct Federal enforcement may be necessary.
Differential Oversight Differential oversight of States means that EPA tailors the extent of periodic
oversight to the quality of a state's performance. In response to plans for a pilot demonstration of how
EPA could lessen oversight in "good" States in the NPDES program, several States want EPA to eliminate
the possibility of direct unilateral federal enforcement action. This degree of reduced oversight.
however, is inconsistent with EPA's statutory enforcement responsibilities.
State Authority for Administrative Penalties Administrative enforcement actions generally are less
resource intensive and allow EPA to respond more quickly to violations. About half of the States do
not have this authority and it affects the timeliness of their enforcement responses and hinders their
ability to create an enforcement presence relative to the ever increasing universe of regulated facilities.
While EPA has not required States to develop administrative penalty authority (RCRA may propose it),
EPA continues to encourage States through outreach efforts.
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Major National Issues Office of Enforcement and Compliance Monitoring Page 3-11
Independent State Environmental Boards The Steering Committee has started to discuss the role
of Independent state boards In the enforcement process. While the functions of the boards differ from
State to State, in many Instances they affect the timeliness or appropriateness of state enforcement
actions. The Agency is currently conducting a study to identify any areas critical to State/EPA
Enforcement Agreements.
State Criminal Environmental Programs EPA recognizes that States and local governments play a
major role in the criminal enforcement effort and has been working with them to provide training and
technical assistance. In addition, EPA is working with the National Association of Attorneys General
in developing model state environmental criminal statutes. Upcoming issues will be: increased
coordination between Attorneys General and district attorneys and other local prosecutors and
whether EPA will be able to start tracking the number of state criminal environmental enforcement
actions given the various state and local organizations involved.
MAJOR PLAYERS
Office of Enforcement and Compliance Monitoring (OECM)
Headquarters Compliance Office Directors
Deputy Regional Administrators (enforcement contacts)
KEY EPA CONTACTS
Gerald Bryan, Director, Office of Compliance Analysis and Program Operations, OECM
Cheryl Wasserman, Chief, Compliance Policy and Planning Branch, OECM
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Major National Issues Office of Enforcement and Compliance Monitoring Page 3 - 13
ENFORCEMENT PRESENCE AND DETERRENCE
BACKGROUND In 1984, EPA began to develop a management system that would define success in
each enforcement program, help direct limited resources towards the most environmentally-Important
violations, and make Agency managers accountable for getting problems resolved. Today. EPA's
Strategic Planning and Management System (SPMS) provides a structure for identifying environmental
and programmatic priorities and establishing performance goals for both EPA and the States. SPMS
requires reporting on enforcement performance, through quarterly program-by-program summaries
and semi-annual region-by-region analyses.
Participation by States In program planning, target setting, routine information sharing and reporting
on accomplishments is an Important element of the SPMS process. To improve State involvement.
protocols were developed for negotiating annual State/EPA Enforcement Agreements, that would
include common management indicators for measuring performance across programs and States, and
establish a clear process for Regional and State oversight. The core management activity indicators
are: number of inspections; number of civil and criminal case referrals; and number of administrative
actions. The core management results indicators are: percentage of facilities in compliance/
noncompllance; level of significant noncompliance (SNC) and resolution of significant noncompliance.
Each year OECM, the Headquarters program offices, the Regions, and representatives from the States
review and refine these Indicators to assure that they provide consistent, predictable and acceptable
measures of activity and results. Major Improvements have been made in how SNC is defined, enabling
each program to track the violators' progress towards compliance.
Establishing clear enforcement priorities and performance targets and tracking individual program
performance has enabled EPA and the States to know that they are accomplishing the most important
tasks first. Beyond this, however, the Agency is fine-tuning its management systems to track
compliance with consent decree requirements, and adherence (by EPA and the States) to established
"timely and appropriate" response criteria. OECM's recent analysis of its FY1987 cases Indicated that
the Agency's enforcement actions do address SNCs, other programmatic/environmental priorities, or
areas needing policy or legal precedents.
IMPROVED LEVELS OF ENFORCEMENT ACTIVITY These systems have served to enhance enforce-
ment performance. Over the last few years, EPA has been referring to DOJ nearly twice as many cases
as it referred during the FY 1982-1983 period. In FY 1988. the Agency referred 372 cases to DOJ for
civil judicial prosecution. The number of administrative actions initiated has increased dramatically
to 3,200 in 1987. Civil penalties are at record levels, totalling $24.4M in FY 1987. In the past three
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years, the Agency has levied nearly 60% of all penalties assessed since Its inception. EPA's criminal
enforcement program has become a potent tool, bringing charges against 164 defendants and
convicting 124 defendants over the past two years. Nearly 50% of those convicted were directors.
presidents or other policy-level executives. Last year alone. Federal judges imposed criminal fines of
$3.6M and ordered jail terms of over 80 years, of which about 24 years will be served.
PERCEPTIONS OF EPA's ENFORCEMENT PROGRAM: Despite these improvements in the focus.
management and performance of EPA's enforcement program, the Agency must improve the way it
communicates to the public and the regulated community about its enforcement efforts. The Agency
is enhancing and broadening its enforcement message in the following ways:
Recognizing Various Measures of Success. For years the number of civil case referrals has been the
primary indicator of program activity. As administrative penalty authorities and criminal sanctions
have been authorized under more statutes, civil casework has become only one of several measures
of performance. The Agency now emphasizes the balanced use of administrative, civil and criminal
remedies, as well as the environmental protection accomplished by orders and settlement agreements.
Indeed, the number of civil referrals may level off or decline in the future, as administrative and criminal
enforcement expand.
Broadening the Deterrent Impact of Individual Actions. The Agency can take enforcement action
against only a small fraction of the regulated community. EPA encourages voluntary compliance by
demonstrating a willingness and ability to detect and punish environmental violators. The environ-
mental gain attained by bringing one violator into compliance is magnified hundreds fold when
information about an individual case is broadcast throughout the industry through the public news
media and specialized trade press. Deterrence is enhanced as our outreach efforts demonstrate to the
regulated community that (a) there is a reasonable expectation that violators will be caught; (b)
enforcement will promptly follow detection; (c) the penalties will remove any economic benefit of non-
compliance, and may impose additional punitive sanctions; (d) environmental harm must be remedied
and full compliance achieved as a consequence of any action; and (e) criminal prosecution is possible
where misconduct Is willful or knowing.
Promoting Compliance Through Public Outreach. The Agency has also expanded its efforts to (a)
consult with all parties affected by EPA decisions or rules, (b) inform members of the regulated
community of their responsibilities, and (c) assist firms In obtaining technical assistance in meeting
their obligations.
ENFORCEMENT COMMUNICATIONS AIMED AT ACHIEVING DETERRENCE: EPA's new Enforce-
ment Communications Policy encourages the issuance of press releases whenever significant admin-
istrative, civil, and criminal cases are brought, targeting local or national audiences depending upon
the magnitude or precedential nature of the case. Enforcement managers also use speaking
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Major National Issues Office of Enforcement and Compliance Monitoring Page 3-15
engagements. Interviews, and articles In trade and professional Journals to deter violators. The Agency
Issues an Annual Enforcement Press Release and an Accomplishments Report summarizing year-end
statistics and highlighting Important cases.
The Agency recently formed an Enforcement Communications Workgroup to help it tell its enforcement
story more effectively, improve Internal planning and management, and better coordinate with DOJ
and the States in implementing outreach activities. The Workgroup seeks to assure that the full
measure of the enforcement program's success are communicated to the public and the regulated
community. This Includes not only the traditional measures (number of referrals, orders, penalties),
but also the more qualitative descriptions of environmental benefits achieved through enforcement
casework.
MAJOR PLATERS
Headquarters Compliance Office Directors
Office of Enforcement and Compliance Monitoring (OECM)
Office of Management Systems and Evaluation
Enforcement Management Council
State Program Directors
Deputy Regional Administrators (enforcement contacts)
Regional Program Divisions
Office of External Affairs
Enforcement Communications Workgroup
KEY EPA CONTACTS
Gerald A. Bryan, Director, Compliance Analysis and Program Operations, OECM
Rick Duffy, Acting Chief, Compliance Evaluation Branch, OECM
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Major National Issues Office of Enforcement and. Compliance Monitoring Page 3-17
ORGANIZATION OF EPA'S ENFORCEMENT PROGRAM
BACKGROUND: During the early years at EPA, the legal and technical enforcement staff for all
statutory areas were grouped together In one organizational unit headed by an Assistant Administra-
tor. This structure was used for both Regional and Headquarters operations.
In 1981, the Agency reorganized the enforcement function, integrating the technical enforcement staff
with the full range of program functions, combining regulation development, standard setting,
permitting, compliance monitoring and enforcement response. Legal resources were grouped together
in one General Counsel/Enforcement Counsel Office. This organizational pattern pertained at both
the Headquarters and Regional levels.
In 1983, the Agency tried another approach to managing enforcement, which is essentially the
structure in place today. At Headquarters, a separate focal point for enforcement and compliance
monitoring was created, the Office of Enforcement and Compliance Monitoring (OECM). It combined
attorneys with legal enforcement responsibilities with analysts responsible for oversight and direction
of Agency strategic planning, accountability system design and performance assessment for enforce-
ment. In addition, it Included responsibility for the national management of the Agency's criminal
investigations program and a multi-media national enforcement Investigations capability In Denver,
Colorado, to provide Investigative, technical and laboratory support to complex enforcement actions.
Legal counsel for regulatory development and management of defensive litigation remained in a
separate Office of General Counsel. Regions also remained as reorganized in 1981 with technical
enforcement staff within separate media program offices and unified legal resources under an Office
of Regional Counsel, reporting to the General Counsel In Headquarters.
The current organization is something of a hybrid in that it preserves in OECM an Independent core
of legal enforcement personnel who act as advocates for the function, while compliance responsibilities
are integrated Into the programs. This approach expands the number of decision-makers, creating
potential conflicts In priorities and accountability.
Most recently, the Agency has established an Enforcement Management Council, comprised of senior
career managers from Headquarters and the Regions, which has as its charge the constant
reassessment of current practices and exploration of new opportunities to streamline and Improve the
effectiveness of approaches to enforcement.
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ORGANIZATIONAL OPTIONS
Central enforcement office with both legal and technical staff for all media. A separate multi-
media enforcement office would locate the full range of enforcement responsibilities and skills within
one office. Within a single organization, legal and technical staff skills can more easily be melded to
a common purpose. Once a regulation, standard, or permit is written, an independent workforce would
be responsible for proper Implementation. Finally, it is held by many that an "enforcement mentality"
is needed to aggressively pursue administrative, civil judicial and criminal enforcement actions.
Planning, budgeting and management of enforcement activities could be more efficient and consistent
in a consolidated office. It also could foster the recognition and consideration of cross-media
compliance issues in its monitoring and enforcement actions. Finally, it provides a Agency leader and
focal point for all enforcement activity.
Integration of enforcement and program functions with legal and technical staff combined hi
separate media enforcement offices. Under this option, the same manager within each media
enforcement program is accountable not only for policy and regulations on paper, but for results in the
field. Enforcement is considered one tool among many for achieving compliance and integration could
enhance the use of a broad array of actions to achieve widespread compliance, including Improved
regulatory design, promotion of compliance through information dissemination and the like, as well
as improved targeting of compliance monitoring and enforcement through better ties to program
priorities. Conflicts over interpretation of program requirements could be minimized. Finally, given the
high degree of program delegation to the States, enforcement in the Regions is often concerned with
State reporting and oversight considerations, closely tied to general program operations. With
*
enforcement integrated in the programs, effective management systems with strong support from top
agency management are essential to keep the need for strong enforcement in focus, and to assure that
enforcement operations receive adequate resources in the face of competing program office demands.
Under this option, the Agency would lack a central focus for advocacy, leadership and oversight of the
enforcement function.
Centralized management of legal support with all Agency lawyers in one "law shop" Consolidation
of legal resources is now a fact in the Regional Offices but at Headquarters, legal consolidation could
be accomplished by combining the Office of General Counsel and OECM attorneys into a single unit.
Consolidation would facilitate coordination of enforcement and defensive legal matters. Currently, the
two legal offices share oversight of unified legal resources in the Offices of Regional Counsel, and
although approximately 80% of Regional Counsel resources are devoted to enforcement support, the
Regional Counsels formally report only to the General Counsel. Under a one "law shop" approach, the
legal office could be the focal point for enforcement or a separate capability for leadership and cross-
media oversight could be considered.
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Major National Issues Office of Enforcement and Compliance Monitoring Page 3 - 19
Suboptions:
A central legal office could include technical enforcement staff as well. It also would not preclude the
parallel consolidation into a single unit of all of the media technical resources dedicated to enforcement.
Both of these suboptions would provide a focal point for enforcement but the latter would still separate
the required technical and legal resources.
CONSIDERATIONS
Certain programs may require different treatment. The Superfund enforcement program is not a
traditional compliance program. In focusing on remediation and fund recovery, it is more closely tied
to program site operations. The Mobile Source program, controlling automobile emissions and fuels
at the national level, currently is a stand-alone fully-integrated program, reflecting the specialized legal
and technical expertise that has evolved to regulate the auto and petroleum industries.
Finally, the Agency has endorsed a centralized approach to the criminal enforcement program because
of the specialized management concerns inherent in a program which has the power to deprive
individuals of their civil liberties.
Need for parallel headquarters and regional structure Although parallel organizational structures
of EPA Regions and Headquarters can facilitate communications and accountability, it Is not always
essential. For example, the current structure for enforcement is not parallel within Headquarters and
the Regions in that there is no regional organizational counterpart to OCCM. As organizational changes
are considered at Headquarters, the question of the advisability or need for similar changes in Regions
could be assessed separately.
Impact of change on the organization. Any organizational change in this sensitive area requires
careful analysis and deliberation to ensure the right signals are sent and that all of the complex
relationships are defined and accommodated.
MAJOR PLATERS
Office of Enforcement and Compliance Monitoring (OECM)
Program Office Assistant Administrators
Regional Offices
Office of General Counsel
Department of Justice
KEY EPA CONTACTS
Gerald Bryan, Director, Compliance Analysis and Program Operations, OECM
Ed Reich, Deputy Assistant Administrator - Civil Enforcement, OECM
Paul Thomson, Deputy Assistant Administrator - Criminal Enforcement. OECM
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POLICY, PLANNING,
& EVALUATION
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AGRICULTURE AND THE ENVIRONMENT
BACKGROUND: Agricultural activity can have profound effects on the environment. It can cause soil
to erode into streams and rivers, to silt up water bodies and to produce turbidity. Pesticides,
manufactured fertilizers, and manure applied to cropland can infiltrate ground water and run off into
surface waters. These chemicals, particularly nutrients, often contaminate drinking water supplies,
deplete oxygen in water bodies, and destroy habitat that would otherwise support viable populations
of aquatic species. Cropland conversion from wetlands, woodlands, range, and pasture destroys
wildlife habitat and threatens plant and animal species. Use and misuse of pesticides pose health risks
to farm, storage and transportation workers. The potential presence of pesticide residues in
agricultural produce continues to cause concern among consumers.
Previous institutional and regulatory mechanisms have been inadequate to mitigate the adverse
environmental effects of modern agricultural practices. Agricultural nonpoint source pollution
remains the single most important reason that states are not able to meet their water quality objectives.
Forty-seven states identified nonpoint source pollution as the predominant pollutant in rivers and
streams (65%), lakes (76%), and estuaries (45%). Agriculture is estimated to be responsible for 64%
of the impaired segments of rivers and streams and 57% of the impaired lakes.
Agricultural chemical use is likely to be responsible for widespread contamination of ground water.
As many as 60 pesticides have been found in the ground water of 30 states. As of 1984, the U.S. Geologic
Survey had found nitrate contamination in excess of naturally occurring levels in over 20% of 124,000
wells sampled. Furthermore, nitrates have accounted for most of maximum contaminant level (MCL)
violations in public drinking water supplies.
These environmental damages may be exacerbated by or are the indirect result of federal farm
programs. The current federal farm programs, particularly the commodity support programs,
encourage monocultural cropping practices and heavy reliance on high levels of chemical inputs. They
discourage the adoption of practices involving crop rotation that would reduce the need for pesticides
and commercial fertilizers. In addition, traditional USDA conservation programs have focused only
on controlling soil erosion without focusing on agricultural contaminants that exit fanned land. The
large field staff of the U.S. Department of Agriculture could assist EPA in investigating the adverse
effects of agricultural production.
CURRENT STATUS: Four major initiatives are being instituted by the EPA and the U.S. Department
of Agriculture (USDA) to protect surface and ground water from agricultural nonpoint source pollution.
These are the EPA-directed Section 319 Water Quality Program, the EPA Agricultural Chemicals in
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Ground Water Strategy, the EPA initiative to focus USDA conservation programs on water quality, and
the USDA Water Quality Initiative.
The WQA Section 319 Program. Section 319 of the 1987 Water Quality Act requires states to assess
the extent of their nonpolnt source pollution problems and to develop a detailed strategy to address
these problems. The assessment phase Is near completion and many states are now in the process
of submitting their management programs to EPA for approval. The USDA Soil Conservation Service
is assisting a number of states and almost all EPA regions in this process. While the program is likely
to be very successful in identifying problems and strategies to control them, funds have not been
appropriated to EPA to make It possible to provide grants for building the state institutions and dem-
onstration programs necessary for strategy implementation. Furthermore, concerns about reducing
the federal deficit make it unlikely that these funds will be forthcoming in the near future. Within EPA,
the Office of Water has primary implementation responsibility for this initiative.
The Agricultural Chemicals in Ground Water Strategy (ACIGWS). EPA recently proposed a cross-
program Initiative to protect ground water from pesticide contamination. This strategy is based on a
concept of differential protection, which establishes three classifications of ground water based on its
use, value, and vulnerability. Ground water classification would be established In each state. The
strategy is based on a continuum of Increasingly more stringent actions triggered by finding pesticide
contamination approaching and exceeding the levels that may pose health concerns. A key component
of this continuum will be the use of state management plans for individual problem pesticides that
identify specific actions such as changing the rate, timing, and location of pesticide applications. It
may even specify "best management practices" necessary for reducing environmental exposure to
chemicals. If state actions are not likely to be adequate to achieve acceptable ground water quality,
EPA may consider appropriate regulatory actions, such as monitoring requirements, label statements,
or use restrictions. States must design and implement management plans, ground-water monitoring,
and enforcement activities. The Office of Pesticides and Toxic Substances and the Office of Ground-
Water Protection have the lead in developing this initiative.
EPA Initiative to Evaluate USDA Conservation Programs. EPA is now participating in a USDA
workgroup to make suggestions for redesigning the conservation components of the 1990 farm bill.
EPA is encouraging the targeting of these conservation programs on croplands directly affecting water
quality in state Section 319 watersheds. The Agency is also requesting more permanent solutions to
environmental problems beyond the 10 year Conservation Reserve leases. EPA is working to have the
crop acreage bases of the commodity programs redefined to be more flexible so as to encourage crop
rotations with non-program crops. The Agency is also attempting to toughen the soil erosion standards
for farmer's conservation compliance plans in priority watersheds that are designated through the 319
process and to further strengthen the Swampbuster provision. Within EPA, the Office of Policy,
Planning and Evaluation has undertaken several analyses of this initiative and represents EPA on the
USDA Conservation Reserve Program Implementation workgroup.
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Major National Issues Office of Policy, Planning & Euoluoflbn Page 4 - 3
The USDA Water Quality Budget Initiative. The USDA Is currently proposing a FT 1990 budget
initiative for research, technical assistance, and education on methods to protect surface and ground
waters from the adverse effects of agricultural production. Among other things, it would provide
educational and technical assistance for implementing the agricultural component of state water
quality management plans. This initiative is premised on voluntary compliance by the agricultural
community. The USDA initiative focuses most heavily on the agricultural chemical contamination of
ground water, a subject of great concern to the farm community.
ISSUES TO BE RESOLVED
Linking ACIGWS with the 319 Program. State pesticide management plans in the ACIGWS are
generally devised by state departments of agriculture and are not specifically linked to the state water
quality management plans in the Section 319 process, which are usually proposed under the auspices
of state health or environmental agencies. These two planning efforts should be integrated.
Developing Risk-Benefit Criteria in the ACIGWS. EPA has determined that detection of a pesticide
triggers an early warning approach to prevent further area contamination by that pesticide. This early
warning approach includes increased monitoring activities to determine if any of the established
protection criteria are being approached. These protection criteria Include the MCL and where no MCL
exists, the interim health-based criteria, i.e., maximum contaminant level goals (MCLG) for non-car-
cinogenic pesticides, and a negligible risk level for carcinogenic pesticides. A state may find it necessary
to implement or change a management plan based upon monitoring results. The Agency needs to
determine how risk-benefit analyses will be used on a case by case basis, and where federal intervention
will be necessary and what regulatory action will be appropriate.
Integrating Nutrients in the ACIGWS. Although research is planned, the Agency has no strategy to
deal with applications of fertilizers and manure which result in nitrate contamination of ground water.
The Office of Drinking Water regulates nitrates and nitrites in public drinking water supplies. The
Office of Toxic Substances may have authority to regulate them under the Toxic Substances Control
Act. The ORD researched nutrient management in the late 1970s. Currently, the Nonpoint Source
Branch in OW is reviewing nutrient management techniques that would be useful in the Section 319
process.
Integrating USDA and EPA Activities. EPA must determine to what extent it will support USDA's
initiative and how it will integrate its activities with that of USDA. In particular, it must determine how
it will maintain oversight, monitor the performance of USDA's approach, and determine where and how
it should participate in USDA activities.
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Focusing PSA 1985 Conservation Provisions on Off-Farm Effects. The conservation provisions of
the 1985 Food Security Act were a major advance in the direction of protecting the environment.
However, the Conservation Reserve Program and the Conservation Compliance provisions have been
focused primarily on the on-farm effects of soil erosion. These provisions should be expanded to
encompass other environmental impacts and better coordinated to help improve water quality in
Section 319 watersheds.
MAJOR PLAYERS IN OTHER ORGANIZATIONS
Mack Gray, Soil Conservation Service, USDA
Chuck Benbrook. Nation Academy of Sciences Board on Agriculture
House and Senate Agriculture Committees
American Farmland Trust's Conservation Coalition
USDA CSRS Low Input Program Staff
Rodale Institute and other low input advocates
National Agricultural Chemicals Association
National Coalition Against Misuse of Pesticides
American Farm Bureau Federation
Pesticide Producers Association
Fertilizer Institute
ACTION DATES OR MILESTONES
Yet to be specified.
KEY EPA CONTACTS
Agricultural Nonpotnt Source Controls:
Rebecca Hanmer, Acting Assistant Administrator for Water
Martha Prothro, Director for Office of Water Regulations and Standards,
Agricultural Chemicals in Ground Water Strategy:
Susan Wayland. Deputy Director. Office of Pesticide Programs, OPTS
Marian Mlay, Director, Office of Ground-Water Protection. OW.
1990 Form Bill Reauthorizatton:
Rob Wolcott. Director, Environmental Resources Economics Division, OPPE.
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Major National Issues Office of Policy, Planning & Evaluation Page 4-5
GLOBAL CLIMATE CHANGE
BACKGROUND: Greenhouse gases, such as carbon dioxide, nitrous oxide, methane, and others, occur
naturally in the atmosphere. They serve as a figurative thermal blanket, allowing solar radiation to pass
through the atmosphere and strike the earth's surface, while absorbing some of the infrared radiation
emitted back from the surface. This absorption of radiation warms the atmosphere resulting in the
present climate. If there were no greenhouse gases, the earth would be approximately 30oC colder. If
the concentrations of greenhouse gases are increased, atmospheric temperatures would increase.
There is a scientific consensus that increases In greenhouse gas emissions will result in climate change.
The National Academy of Sciences' Nlrenberg Study Commission estimated that the effective doubling
of the concentration of carbon dioxide in the atmosphere could eventually lead to a global warming of
1.5 to 4.5oC. Atmospheric concentration of carbon dioxide has increased approximately 25 percent
since about 1860. in part due to fossil fuel combustion and industrial and agricultural activities.
Considerable uncertainty exists with regard not only to the timing, but also to the ultimate magnitude
of any global wanning. In addition, there is great uncertainty about how climate variability and regional
climate patterns may change.
Higher temperatures would cause oceans to expand and the polar ice caps to melt, leading to a rise in
sea level. Such a rise would result in coastal flooding, beach erosion, destruction of wetlands, and
increased salinity of estuaries and aquifers. Changing precipitation patterns and evaporation could
increase or decrease river and lake levels. Crop yields could change through the combined Impacts of
higher temperatures, longer growing seasons, changing rainfall, and increased CO2 concentrations.
This may force changes in the types of crops grown, resulting in significant geographic shifts in
agriculture. Ecosystems such as forests and estuaries could also undergo geographic shifts and
changes in composition. Higher temperatures could change the distribution of energy consumption,
harm human health, and lead to more ozone pollution. These and other impacts could lead to
significant economic and societal dislocations.
DISCUSSION AND CURRENT STATUS
Reports to Congress. Although the Agency has studied the effects of global warming for several years,
its current efforts on global climate change have been stimulated by Congressional actions. In 1986,
Congress requested EPA to develop two reports on global warming. The first Is a report on policy options
for stabilizing green-house gas emissions (the "Stabilization Report") and examines options to reduce
emissions of a number of greenhouse gases from energy use, CFC production, deforestation, and other
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Page 4 - 6 Office of Policy, Planning & Evaluation Major National Issues
activities. The second is a report on the health and environmental effects of climate change (the "Effects
Report"), examining such issues as agriculture, forests and water resources. EPA is committed to
delivering both reports to Congress by the end of 1988.
The focus of the Effects Report will be on the United States. The Report will examine how hydrology,
agriculture, forestry and Infrastructure may change in four regions of the United States: the Southeast.
the Great Lakes. California, and the Great Plains. The Stabilization Report will have a more
international focus, since the U.S. accounts for only roughly 20% of world-wide greenhouse gas
emissions. The study will project emissions into the future under a range of scenarios, and examine
in a gross sense the efficacy of emission reduction strategies in limiting global warming.
The Global Climate Protection Act In 1987. Congress passed the Global Climate Protection Act.
Included in its provisions is a requirement that:
The President, through the Environmental Protection
Agency, shall be responsible for developing and
proposing to Congress a coordinated national policy
on global climate change.
The Act also provides for the Secretary of State to seek further international cooperation on limiting
global climate change. In addition, the Act requires that the Secretary of State and the Administrator
jointly submit, by the end of 1989, a report analyzing current international scientific understanding
of the greenhouse effect; assessing U.S. efforts to gain international cooperation in limiting global
climate change; and describing a U.S. strategy for seeking further international cooperation to limit
global climate change.
In responding to this mandate, the Agency has developed a workplan, approved by the Domestic Policy
Council, that coordinates the work of EPA, DOE. NASA, NOAA, USDA. DOI, and other agencies in order
to develop a national climate policy. The workplan anticipates that while the Act names EPA as the
lead agency, a consensus among a number of agencies must emerge before a national climate change
policy can be adopted.
With respect to the Act's requirement for a scientific assessment, the Agency believes that the
involvement of the international scientific community, under the auspices of the United Nations
Environment Programme's (UNEP) Intergovernmental Panel (discussed below) Is crucial. EPA,
therefore, plans to meet the requirements of the Act through its involvement with the UNEP, which will
likely produce a scientific assessment by the end of 1990.
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Major National Issues Office of Policy, Planning & Euolttatton Page 4-7
EPA's International Activities. Several international organizations are currently involved in the
global climate change arena. The United Nations Environment Programme (UNEP) is responsible for
conducting climate impact assessments. The World Meteorological Organization (WMO) is supporting
research and monitoring of atmospheric and physical sciences. The International Council of Science
Unions (ICSU) is developing an International geosphere biosphere program that is focusing on the
biological sciences.
EPA is participating In the international arena through multilateral and bilateral initiatives on climate
change. On the multilateral level, it is working with the Department of State and other agencies to
support UNEP and WMO. In particular, the U.S. Government endorsed the establishment of an
Intergovernmental Panel on Climate Change (IPCC) by UNEP and WMO. The panel will have its first
meeting In November. 1988. The US position on the IPCC is that efforts should be made In parallel
to assess the state of scientific knowledge on the Issue, the social and economic effects from wanning.
and potential global response strategies.
EPA has a protocol on environmental protection with several nations, including the Soviet Union and
the Peoples' Republic of China. EPA's discussions with the U.S.S.R. have focused on: (1) future
climates; (2) climate and paleocllmate studies in the Arctic; (3) measuring methane and ozone changes
in Arctic and Antarctic regions; and (4) possible response strategies to climate change. This effort will
be linked to the proposed International assessment, led by UNEP and WMO. on global climate change.
In 1987. EPA also signed a bilateral agreement with the Peoples' Republic of China, which Included
specific provisions on climate change. Potential areas for cooperative research include exchange of
Information and development of data on future energy development paths, emissions from rice fields
and other sources, and concentrations of trace gases In remote regions.
Policy and Control Options. As the global climate change issue evolves, discussion Increasingly
focuses on policy options to reduce emissions. These generally center on energy uses, agricultural
practices, deforestation, and CFC production.
The United States emits 23% of the world's CO2. Of this. 38% conies from electric utilities, 27% from
transportation, 18% from residential/commercial uses, and 17% from industrial processes. Energy
efficiency Improvements have already enabled the United States to hold energy use to 1973 levels while
expanding the economy by 40 percent. But efficiency improvements in the United States In such
sectors as transportation and Industry have leveled off In recent years.
Reductions in CO2 emissions In the generation of electricity is often discussed as a control option.
Strategies to limit emissions in the energy sector focus either on reducing energy demand, switching
to less polluting fuels, or producing and distributing energy more efficiently.
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Many end-use efficiency options exist, including making appliances, buildings and transportation
more energy efficient, enhancing industrial competitiveness with energy-efficiency research, promot-
ing least-cost utility services, and promoting international cooperation to encourage energy efficiency
on a global basis.
Less use could be made of fossil fuel technologies, and more use could be made of alternative energy
sources such as solar, nuclear, and hydroelectric, to the extent that they are technologically and
economically competitive in any given application, and can gain public acceptance. Fossil fuel use
could also be shifted to natural gas, which emits much less carbon than does coal and oil for the same
heating value. Such shifts, however, must be balanced against (1) the considerable investment already
made in existing power generation and transportation systems, and (2) the potential, on a global scale,
to increase reliance on strategically insecure natural gas supplies. (The U.S.S.R accounts for 43% of
world gas reserves, and the Middle East for 26% of the world's total.)
Advanced technologies that may significantly boost the efficiency of coal and other fossil fuel fired power
plants are already under development in the U.S. and elsewhere. These new technologies will reduce
the amount of fossil fuel that is needed to generate a kilowatt-hour of electricity.
In addition to energy options, other ways of reducing emissions include changing agricultural practices
to reduce methane emissions from cattle and rice fields, reversing current trends in tropical
deforestation, and further reducing production of CFC's. Any strategy to limit greenhouse gas
emissions must take Into account the international nature of the problem. The U.S. accounts for only
20% of the problem, making international collaboration critical.
EPA is also addressing a number of environmental problems that affect or are affected by climate
change. These Include control of acid rain, attainment of the ambient ozone standards, control of
methane emissions from landfills and dumps, aircraft emissions standards, CFC control for strato-
spheric ozone depletion, wetland protection, and water quality. Future decisions on these issues
should consider the interrelationship of these areas to climate change.
Adaptation is another policy option for responding to climate change. In many cases, adaptation will
occur without government intervention (i.e.. as the climate changes, people will respond by changing
agricultural practices, migrating, etc). In other cases, anticipatory planning may facilitate adaptation.
This may be the case in planning the siting and sizing of long-lived facilities such as wastewater
treatment plants or dams. EPA is working with state and local authorities and through the NEPA
process to facilitate adaptation to climate change.
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Major National Issues Office of Policy, Planning & EvaluaOon Page 4 - 9
Research. A multidisciplinary, multi-agency research program exists to reduce the uncertainties
concerning the timing and magnitude of climate change, as well as its potential effects. EPA's role
within this program is to conduct research focusing on: (1) the effects of climate change particularly
effects on natural ecosystems. (2) the development of plausible region-wide future climate scenarios
to permit the calculation of regional environmental stresses, and (3) the calculation of emission factors
for sources of greenhouse gases. This latter effort includes not only directly emitted gases, but those
additional emissions that may emanate from natural sources as the climate warms ("biofeedbacks").
MAJOR FLAYERS IN ORGANIZATIONS
Congress
Senator Wirth
Senator Chaflee
Senator Mitchell
Senator Hollings
Senator Gore
Representative Sharp
Representative Miller
Representative Dingell
Representative Waxman
Representative Schearer
Environmental Groups:
World Resources Institute
Natural Resources Defense Council
ACTION DATES OR MILESTONES
Nov. 1988: First meeting of UNEP/WMO IPCC
Jan. 1989: Release EPA Reports
Dec. 1990: Completion of IPCC Scientific Assessment
June 199O: WMO World Climate Conference
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KEY EPA CONTACTS
Robert H. Wayland in. Deputy Assistant Administrator. Office of Policy. Planning and Evaluation
Richard D. Morgenstem, Director. Office of Policy Analysis, OPPE
Courtney Rlordan, Director, Office of Environmental Processes and Effects
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POLLUTION PREVENTION PROGRAM
BACKGROUND: EPA has made substantial progress over the last 18 years In Improving environmental
quality through media-specific pollution control programs. However, growing shortages in solid waste
disposal capacity and rising treatment and disposal costs imply that there are limits to the
environmental improvement that can be achieved under these programs.
It is becoming Increasingly clear that significant environmental gains In the future can only come about
through the prevention of pollution and reduction of waste at its source. For a preventive approach
to work, moreover, it is imperative that we develop and communicate a unified view of environmental
media. The alternative is an "environmental merry-go-round" of sorts, whereby regulation of one
medium simply shifts pollution to another.
EPA's recent creation of a Pollution Prevention Office In OPPE reflects a firm new commitment by the
Agency to reduce the generation of pollutants and prevent their release to the air, land, surface water,
and ground water. The Pollution Prevention Office has been charged with developing a strategy, in
conjunction with EPA's media programs and regional offices, that will promote and achieve pollution
prevention across all media.
Recent History: Although prevention has been part of the policy debate on approaches to environ-
mental protection in the past, the first formal recognition of the shortcomings of a single-media, end-
of-pipe approach to pollution control appeared In the 1984 Hazardous and Solid Waste Amendments
to the Resource Conservation Recovery Act. Here Congress expressed its preference for a hazardous
(solid) waste management "hierarchy" that placed source reduction above recycling, followed by
treatment and disposal. In 1986, a Waste Minimization Staff was set up in the Office of Solid Waste
to promote this policy.
In the spring of 1987, a bill was introduced in the House by Congressman Wolpe (D-MI). H.R 2800,
"The Hazardous Waste Reduction Act," expands the concept of source reduction to apply to industrial
releases into all environmental media. (A parallel bill (S. 1429) was introduced in the Senate at the same
time by Senator Lautenberg.) H.R 2800 would have authorized EPA to collect information related to
a facility's source reduction practices, authorize a state grants program, establish a clearinghouse of
technical and educational materials and require a series of biennial reports by EPA. It would also have
required EPA to form an office charged with managing the Agency's policy on multi-media source
reduction.
Senator Baucus (D-MT) also developed a draft bill on waste reduction and recycling that was introduced
as Title in of The Waste Minimization Control Act of 1988 (RCRA Reauthorization) in September 1988.
This bill contains many of the provisions of H.R 2800. but also prescribes numeric performance
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standards for hazardous emissions for many Industrial facilities and includes provisions for municipal
waste.
During the last two weeks of the Congressional session. House and* Senate staff drafted a compromise
bill that combined elements of both the House and Senate legislation. This compromise bill, known as
the "Waste Reduction Act of 1988". would have authorized the major program elements of HR 2800,
and added a requirement for an industrial survey. An important departure of the compromise bill from
the House legislation was a provision to sunset the pollution prevention program after 30 months.
"The Waste Reduction Act of 1988" was passed by the full House on Thursday. October 21, 1988. It
was passed by the Senate on the evening of the last day of the Congressional session, October 22.1988.
with a nder attached enacting an Idaho commemorative coin program. The House adjourned before
the amended bill could be brought up again for vote.
Partly in response to these Congressional initiatives, and partly In recognition that "pollution
prevention" is an idea whose time has come, EPA's Office Directors and Deputy RA's met with the
Deputy Administrator in June 1988 and formed the concept for a new Pollution Prevention Office that
would serve as the Agency's focal point for multi-media source reduction activities and coordinate
pollution prevention programs across all Agency offices. An internal Pollution Prevention Advisory
Committee was also created to direct the activities of the new Office. In August 1988. the Deputy
Administrator issued a Directive to all Assistant Administrators and Regional Administrators an-
nouncing the creation of the Pollution Prevention Office, its Director, Gerald Kotas. and the
membership of the Advisory Committee. The Office became operational on September 1, 1988.
DISCUSSION AND CURRENT STATUS: Once the Pollution Prevention Office Is staffed up, it Is
expected to move Into high gear by mld-FY89. Rather than using traditional regulatory "command and
control" methods, the Office will rely on information dissemination, grant awards, hands-on technical
assistance, and a variety of communications efforts to get the message across. There are four key
objectives:
Achieving a "cultural change" making America aware of the need for pollution prevention,
influencing the corporate culture to reduce waste, and establishing source reduction as the
major theme of all EPA programs
Supporting the initiation and development of State and local pollution prevention programs
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Major National Issues Office of Policy, Planning & Evaluation Page 4-13
Creating Incentives for pollution prevention and eliminating barriers to pollution prevention
across all media In existing and future Agency policies and regulations
Developing reliable indicators of progress in waste reduction
The Pollution Prevention Office will take the lead In Implementing these objectives, working closely with
other EPA program and regional offices. The Pollution Prevention Advisory Committee will help direct
the Office's activities. Implementation of media-specific program elements will remain the responsi-
bility of EPA program offices.
The task of promoting a pollution prevention culture internally will be furthered by the following
elements:
The Pollution Prevention Advisory Committee will provide a direct forum for EPA staff
to help determine Agency strategy and priorities and will focus attention within EPA's
program offices on source reduction implications of new policies and programs.
Several positions will be established within the Pollution Prevention Office to be staffed
by rotational assignments with Individuals from each major media office. These
individuals will bring knowledge of pollution prevention opportunities within the
existing programs, gather knowledge about the overall Agency strategy and goals while
on rotation, and ultimately return to their program offices as expert advocates.
The Office will locate positions in several Regions to work closely with State, industry,
and public interest groups to promote pollution prevention on a regional level.
The Office will coordinate Information management related to pollution prevention
among the media offices for the purpose of reporting on national progress, and will
coordinate an Agency effort to consider cross-media implications in the Agency's rule
development and review process.
Outside EPA, the Office will be working to shift the corporate and consumer culture towards pollution
prevention, through several key mechanisms:
Encouraging and strengthening the States' ability to work directly with companies and
municipalities to prevent pollution. EPA will work closely with the States, support active
State pollution prevention programs through grants and technical assistance, and
establish networks of technical experts available to States and industry.
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An extensive education and outreach effort directed at Industry, States, public interest
groups, and consumers at large. Efforts will likely include meeting with a wide range
of companies and organizations active in this field, convening an industrial strategy
advisory group, publicizing access to and use of EPA's multi-media clearinghouse of in
formation on source reduction, developing liaisons with the educational community to
influence engineering and management curricula, and preparing brochures, informa
tional materials, periodic updates and articles for wide distribution.
MAJOR PLAYERS AND ORGANIZATIONS
Congress
Congressman Wolpe (D-MI) -- H.R 2800
Lauren Kenworthy. staff
Congresswoman Schneider (R-RI) - H.R 2800
Senator Baucus (D-MT) (Title ffl. RCRA Reauthorizatlon)
Cliff Rothenstein, staff & - Ron Cooper, staff
Senator Lautenberg (D-NJ)
(introduced H.R 2800 in the Senate as S.1429. but has not been vocal advocate)
Public Interest Groups
Ned Smith. NRDC
Jerry Poge. National Wildlife Federation
Industry
Dow. Dupont, 3M
States
Roger Schecter. North Carolina
New York, New Jersey, Massachusetts. Minnesota, California
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Major National Issues Office of Policy, Planning & Evaluation Page 4 - 15
EPA Is committed to completing the following pollution prevention activities In FY89:
Issue an Agency policy statement on pollution prevention - by March, 1989
Develop and communicating a strategy for achieving the four objectives stated above
by August, 1989
Administer a State grants program of $3M Included In the FY 89 budget
KEY EPA CONTACTS
Robert Wayland, Deputy Assistant Administrator,
Office of Policy, Planning and Evaluation
Gerald Kotas, Director. Office of Pollution Prevention. OPPE
Sylvia Lowrance. Director, Office of Solid Waste, OSWER
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EXTERNAL AFFAIRS
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NATIONAL ENVIRONMENTAL POLICY ACT
SECTION 309
BACKGROUND: All Federal agencies proposing legislation and other major actions significantly
affecting the quality of the human environment must: 1) consult with other agencies havlngj urisdlction
by law or special expertise over such environmental considerations, and 2) must prepare a detailed
statement of those environmental effects. The EPA Administrator must review the statement, comment
on it In writing, and make those comments public.
Every year the EPA regional offices review about 500 draft and final Environmental Impact Statements
and about 2,000 of the approximately 10,000 Environmental Assessments (EAs) prepared each year.
Regulations, proposed legislation, and programs that cut across more than one region are generally
reviewed at headquarters, with regional office Input.
If EPA determines that the Impacts raise serious environmental Issues, EPA works with the Federal
agency proposing the action to resolve the outstanding issues. If the issue cannot be resolved, the
Administrator may refer the project to the Council on Environmental Quality for resolution. On
average, EPA rates about 25% of the projects it reviews "environmentally unsatisfactory", "environ-
mental objections", or "inadequate" (insufficient analysis to determine the seriousness of the environ-
mental impacts). Over the last year, EPA has raised critical issues on a number of projects, Including:
the proposed opening of the Alaska National Wildlife Refuge: the Two Forks dam proposed for the
Denver metro area's water supply: the Outer Continental Shelf Oil and Gas Lease Sales Offshore
Northern California; and several highway, airport and harbor dredging projects.
MAJOR PLATERS IN ORGANIZATION
The other Federal agencies proposing the specific action are the major players in our
309 review process.
ACTION DATES OR MILESTONES
The action dates are actually driven by the documents themselves, as each NEPA document and
regulation have a specific comment period. The Regional and Headquarters staff complete their
reviews within the allowed comment periods.
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KEY EPA CONTACTS:
Richard E. Sanderson - Director, Office of Federal Activities
Armand Lepage - Director, Federal Agency Liaison Division
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Major National Issues Office of External Affairs Page 5-3
THE EPA FEDERAL FACILITIES COMPLIANCE PROGRAM
BACKGROUND: Federal agencies are required to comply with Federal, State, and local government
regulations in the same manner and degree as non-Federal entities. Executive Order 12088 requires
EPA to help Federal facilities comply with environmental laws. In addition, each of the environmental
statutes authorizes EPA to take enforcement actions for violations at Federal facilities.
DISCUSSION: To cany out this mandate, the Federal Facilities Compliance Program within the Office
of Federal Activities (OFA) focuses on three primary areas: (1) compliance oversight, (2) A-106 project
review, and (3) technical assistance.
Compliance Oversight OFA has developed a new Federal Facilities Compliance Strategy that Is
planned for signature by the EPA Administrator in the fall of 1988. The strategy was developed with
the assistance of an EPA-wide workgroup representing all Headquarters and Regional offices and
underwent extensive internal review over the past two years. Also known as the 'Yellow Book," this
guidance document serves as the primary compliance and enforcement framework for all EPA
programs to follow. This strategy clarifies Federal agencies obligations to comply with environmental
requirements, it also outlines EPA's ongoing efforts to help Federal facilities achieve and maintain high
rates of compliance, and sets forth the enforcement response and dispute resolution procedures which
EPA will utilize when environmental violations occur at Federal facilities.
However, due to certain constitutional and statutory constraints, there are some differences in EPA's
compliance and enforcement procedures for Federal facilities. This document outlines EPA's strategy
for maximizing use of its available enforcement tools for improving compliance at Federal facilities. It
also clarifies that EPA can use the full range of its enforcement authorities against contractor operators
of government- owned/contractor-operated Federal facilities (GOCO's) and commits EPA to developing
a follow-up GOCO Enforcement Strategy In FY '89. It also discusses the Important role of State
regulatory agencies in compliance and enforcement activities at Federal facilities.
While Federal facilities have traditionally lagged behind industrial compliance rates, OFA believes that
initiatives to Improve EPA's tracking of Federal facilities compliance status, coupled with a renewed
commitment to environmental values by other agencies, should enable Federal facilities to exceed
private sector rates over the next few years.
The A-106 Review Process, OFA's Federal Facilities Compliance Program, also oversees the implem-
entation of the Federal Agency Pollution Abatement Planning Process. Mandated by Executive Order
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12088 and OMB Circular A-106, the process Involves EPA's review of projects proposed by other
Federal agencies to ensure compliance with the environmental statutes at facilities or public lands that
they own or operate. EPA submits its evaluation of these projects in an annual report to OMB to help
it formulate the President's budget submission to Congress.
For Fiscal Year 1990. Federal agencies proposed 1,458 individual projects totaling over 1.4 billion
dollars. While the majority of these projects are in the hazardous waste area (RCRA $4,560 million/
CERCLA - $568 million), there are also significant amounts being devoted to water ($195 million) and
air pollution ($ 138 million) compliance as well. OFA is continuing to undertake initiatives to improve
the efficiency and effectiveness of the A-106 process and will be conducting intensive A-106 training
for EPA Regions and Federal agencies beginning in FY 89.
Technical Assistance OFA conducts monthly meetings of the Federal Agency Environmental
Roundtable to disseminate information on new and upcoming EPA rules, regulations, policies, and
guidance to the top environmental program managers of other Federal agencies. OFA also sponsors
periodic workshops and conferences on selected compliance programs for Federal facilities and helps
other agencies in the design and implementation of internal environmental auditing programs. In FY
89. EPA will issue two environmental auditing guidance documents for Federal agencies as part of its
continuing efforts in this area.
CURRENT STATUS The 'Yellow Book" has completed its second round of internal EPA review and
has received the formal concurrence of all ten EPA Regions, the EPA Headquarters program offices the
Office of General Counsel, and the Office of Enforcement and Compliance Monitoring. The Assistant
Administrator for External Affairs has sent the document to the EPA Administrator recommending
his approval and signature. It should be signed and issued in the Fall, 1988.
It is also important to point out that this past year, several members of Congress introduced legislation
(HR 3781.3782.3783.3784,3785) enforcing hazardous waste laws at Federal facilities. The bills were
approved by the House Energy and Commerce Committee in August. Two of the bills. HR 3785 (Eckart)
and HR 3782 (Swift), directly affect EPA's Federal facility enforcement authority. They focused
Congressional attention on Federal facility enforcement issues and underscored the need for EPA to
maintain an effective Federal facility enforcement program. Although the bills were not passed this
session, it appears they will be introduced again next year.
MAJOR PLATERS/ORGANIZATIONS
Department of Defense
Department of Energy
Other Federal Agencies
OMB, DOJ and GAO
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Major National Issues Office of External Affairs Page 5 - 5
General Accounting Office
Congressmen Dlngell, Florto, Fazio, Luken, Synar, Wyden
Senators Stafford, Chafee, Glenn, Durenberger. Lautenberg
KEY EPA CONTACTS
Dick Sanderson. Director, Office of Federal Activities
Cheryl WassennaiuActing Director, Office of Enforcement Policy, OECM,
MILESTONES
November 1988 EPA Administrator signs new Federal
Facilities Compliance Strategy
December 1988 OFA prints copies of strategy for distribution
Notice of Availability published in Federal Register
September 1989 Coordinators conduct briefings and training
sessions on new strategy for Regions. Federal
agencies, and other interested groups.
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Major National Issues Office of External Affairs Page 5-7
EPA INDIAN PROGRAM
BACKGROUND: EPA's Indian Policy directs the Agency to Involve tribes In the management of EPA
programs affecting Indian reservations. In implementing this policy, EPA works directly with tribal
governments recognizing that tribes are sovereign entities, not political subdivisions of states, with
little or no jurisdiction on reservations.
There are 280 federally recognized Indian reservations, and 197 Alaskan Native villages that are not
reservations. The EPA Indian program basically addresses the reservations, but also addresses limited
issues concerning the villages.
DISCUSSION AND CURRENT STATUS: From an organizational standpoint, EPA has chosen to
integrate the Indian program into the existing Agency structure, rather than to create a separate
"Indian Desk". EPA's efforts with tribes are overseen and coordinated by the Office of Federal Activities
(OFA) within the Office of External Affairs. An Indian Work Group, made up of representatives of the
Assistant Administrators and the Regional Administrators, assists OFA in overseeing the program. In
addition, there are Indian Program Coordinators in each region.
Three major environmental statutes have been amended to allow EPA to work directly with tribes. The
implementing regulations are beginning to be issued. The Resource Conservation and Recovery Act,
the Clean Air Act. and the Federal Insecticide, Fungicide and Rodenticide Act remain to be amended.
The Agency's operating guidance and budget process is beginning to include the Indian program. In
addition, efforts will be under way in FY 1989 to ensure that the Agency's information systems
accurately address Indian lands.
The major challenge for the next several years will be to ensure that there are sufficient resources to
fund tribes to develop and implement environmental programs. The training and technical assistance
that have been afforded the states over the past 18 years have not been available to tribes. As a
consequence, we will have to recreate a number of these programs.
The following briefly summarizes the status of each program area:
Clean Water Act: A survey of wastewater treatment needs has been conducted, five regulations to
implement the Act are currently being developed, and the Office of Water has developed an Indian
communication strategy. The major challenge in implementing the Clean Water Act will be whether
the Agency will be able to provide sufficient grant funds and hands-on technical assistance to the tribes
so that they can develop effective water quality management programs.
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Safe Drinking Water Act: The regulations for direct implementation of the Underground Injection
Control Program have been published ,as have the regulations for tribal primacy under the Public
Water Supply System. The challenges in this program will be similar to those under the Clean Water
Act.
Clean Air Act: The Agency has been funding about 8-10 tribes, and about 6 "tribal implementation
plans" are currently awaiting approval. The major challenges for this program are to amend the Clean
Air Act to specifically address tribes as states, to develop an interim process for approving tribal
Implementation plans, and to secure adequate funding for development of tribal air pollution control
programs.
Radon Program: The program has agreed to work with tribes as states. Where surveys have been
performed, we have found a number of homes with radon levels above the recommended standard. A
major challenge for this program will be to secure adequate resources to assist tribes In determining
whether they have a radon problem and. if so. how to address it
Comprehensive Environmental Response, Compensation and Liability Act: The program has
developed guidance for working with tribes and a short manual to help them recognize and report
hazardous waste sites. A major challenge for this program will be to ensure that hazardous waste sites
on Indian lands are being reported.
Title m Community Right to Know: EPA will treat tribes as states under Title in. unless they choose
to act as local emergency response commissions. The program has worked closely with the Federal
Emergency Management Administration to ensure that funding is available to train tribes. A
major challenge for this program will be to determine how to deal with tribes that expect EPA to
Implement this program for them, which the statute does not allow.
Resource Conservation and Recovery Act: This act defines Indian tribes as municipalities, but does
not address the fact that states do not generally have Jurisdiction over tribes. While EPA can directly
implement the hazardous waste permits under Subtitle C. the solid waste program and the
underground storage tank program both present major problems, since in the absence of state
j urisdictlon there is no real federal management program to implement. Solid waste is a ma] or problem
on many reservations. The challenge for this program Is to see that RCRAls amended so that the Agency
can work with tribes directly.
Federal Insecticide, Fungicide andRodenticide Act: A number of tribes receive funding to work with
EPA in implementing this Act on their reservations. The major challenge for this program is to secure
so additional funding for tribes.
Asbestos Action Program: Grants have been made to the Bureau of Indian Affairs for Indian schools.
Additional outreach is needed.
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Major National Issues Office of External Affairs Page 5-9
Toxic Substances Control Act: There does not seem to be much of a tribal role under this statute.
There may be specific problems with PCBs and asbestos.
Marine Protection, Research and Sanctuaries Act: No tribal role.
MAJOR PLATERS /ORGANIZATIONS
Congress: Senator Inouye has taken an active leadership role on the Senate Select Committee on
Indian Affairs. This committee may hold oversight hearings on EPA's programs relating to Indians next
year.
Congressman Udall has been a strong proponent of tribal interests Congressman Campbell from
Colorado is the only Indian in Congress.
The two major national Indian organizations are the National Congress of American Indians and the
Council of Energy Resource Tribes. EPA also works with a number of regional Indian organizations.
With the increased Agency Indian activity a number of non-tribal groups have become interested in
EPA's Indian Program. These include the National Association of Attorneys General, and the Western
States Water Council.
KEY EPA CONTACTS
Richard E. Sanderson, Director, Office of Federal Activities
Anne Norton Miller, Director, Special Programs & Analysis Division
Dr. Martin Topper, National Indian Program Coordinator
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Major National Issues Office of External Affairs Page 5-11
STATE/FEDERAL RELATIONS
ISSUE: By Congressional Mandate, EPA shares responsibility for planning and managing environ-
mental programs with the States. Over the last fifteen years, the tremendous growth and expansion
in the body of federal and State environmental law has generated the need for cooperative State-federal
environmental management. Increasingly, States have been called upon to carry out more of the
workload for national environmental programs, and their capacities have grown in response to federal
initiatives and assistance, as well as additional activity in their own State legislatures. Further, as
States have become the primary financiers of national environmental management activities, the
balance between EPA and the States has shifted toward the States. States are more invested in
programs and thus want more discretion and flexibility. This shift suggests more of a peer relationship
instead of one dominated by EPA, as in the past.
In the early 1980's, a growing appreciation of the need to improve EPA/State relations led to a 1984
State/Federal Roles Task Force which developed a report on the decision of responsibilities between
EPA and the States. In 1985 and 1986, policies on State delegation and oversight and articulated a
performance-based policy for grant management were produced. In February 1987, a forum of EPA
executives met in Baltimore and again addressed the issue (along with six other management themes),
concluding that because of many complex institutional and cultural factors, these policies had not been
adequately implemented in practice. A subsequent study of the issue confirmed this conclusion. Since
then, the Agency has developed closer ties to the States through an active State/EPA Committee and
the National Governors Association to address the problem raised at the Baltimore meeting.
There are several EPA program efforts underway to achieve a more comfortable and effective peer
relationship with the States, some of which came out of the State/EPA Committee. For instance, there
are projects to involve the States more in EPA program planning and management, to improve EPA
oversight effectiveness, and to help build State capacity to assess environmental and public health
risks for priority setting. A relatively new program (Underground Storage Tanks) has designed an
innovative "franchising" concept which is now being implemented with the States. Franchising gives
maximum control to the States as long as key program elements are satisfied. A new technology
transfer office has been established to promote more effective support to the technical and information
needs of States and other constituents. EPA's research and development office is developing ties to
States through the NGA to address research needs.
DISCUSSION AND CURRENT STATUS: Two initiatives in State/EPA relations will be covered in some
detail in this paper: (1) the State/EPA Operations Committee, and (2) the "differential oversight" pilot
project.
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1. STATE/EPA OPERATIONS COMMITTEE. EPAis working with the National Governors Association
and the Regions (who each nominate a lead State Environmental Commissioner) to help secure a sound
and effective federal/state relationship. The State/EPA Operations Committee is an Important facet
of EPA's outreach to the States. EPA serves as the host and convener of the Committee. The agendas
arejointly developed by EPA and the States. The Committee is co-chaired by a State member (appointed
by the Chair of the NGA's Energy and Environment Committee) and the EPA Administrator.
During its three-year life, the Committee has matured as an organization, and has been actively
supported by its State members. The committee meets both State and EPA needs:
States use the opportunity to meet with the Administrator and the Deputy Administrator to discuss
operational program issues; States appreciate the openness and frankness of the discussion and its
uncomplicated access to senior program managers without the usual buffer of organizational
structure; EPA views the Committee as a vehicle to gain quick insightlnto Stateoplnlons and concerns
and asaforum for dlscussingStateagencymanagementprioritles without institutional constraints;
EPA uses the Committee as a means to quickly and effectively communicate with State Agency heads.
2. DIFFERENTIAL OVERSIGHT PROJECT. EPA's State oversight practices are often a point of
disagreement between EPA and the States. The Agency's Oversight and Performance-Based Assistance
policies attempted to resolve many areas of disagreement, but as mentioned earlier, these policies have
not been fully implemented. As stated in GAO's 1988 review of EPA management. States continue to
be concerned about "the level of detail and the amount of review of Individual program transactions
and State operational decisions. [States want] EPA's trust to let them make these decisions without
second-guessing and excessive justification."GAO further suggested that ".individual transaction
review is usually not in keeping with the general program delegation principle that States are
responsible for day-to-day operations. EPA may be able to substitute oversight fortransactional review
by reviewing a sample of these transactions as part of its evaluations of State program performance."
In July 1988 the State/EPA Committee recommended that EPA focus initially on the Water program,
and relax oversight of some of the best-performing states that have delegations to implement the Clean
Water Act NPDES (National Pollution Discharge Elimination System) program. By reducing review of
individual State transactions, regional staff could provide more technical assistance or help the States
in other constructive ways. It would demonstrate increased EPA trust In the States, which would
improve their staff working relations.
A pilot project is underway to test differential oversight with two States (Virginia and North Carolina)
with good NPDES performance records. The basic principle for oversight of these States will be
evaluation by periodic audits of permitting and enforcement performance, with less "real time" review
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Major National Issues Office of External Affairs Page 5-13
of Individual actions. Some high priority categories of permits and enforcement actions will continue
to be reviewed by EPA according to standard oversight procedures. There should be enhanced informal
communication between States and EPA throughout the year to discuss progress and problems, and
EPA should provide assistance whenever possible to help States solve problems upon request. To
evaluate the pilot, a baseline of State performance will be established and mid-year and end-of-year
audits will be conducted.
Some important issues that we expect will be raised by this project include:
1. What eligibility criteria should we establish for States to qualify for differential oversight after the
pilot project? No State seems to perform consistently well In all aspects of the NPDES program.
2. Should some oversight procedures/activities be relaxed or revised for all States -not just the good
performers because they are not essential or nonproductive? GAO recommends that we identify such
practices and eliminate them.
3. What is the best way to judge successful state-EPA performance? Environmental results are the
bottom line. But we still do not have good indicators for measuring a program's impact on improving
the environment.
4. We originally thought that differential oversight would free EPA staff to provide more constructive
assistance to the States. But it does not appear that staff workloads in the pilot regions will be
sufficiently reduced to enable them to offer such services. What can we do to enable regional staffs to
provide more "constructive" oversight for the States?
5. Environmental groups may object that EPA is not doing its job that EPA needs to tighten oversight
rather than relax it. This conflicts with our intention to improve performance by not getting in the way
of States that we believe can do the Job on their own.
6. If the pilot is successful, should we expand differential oversight to other EPA programs? (OAR is
considering differential oversight in the New Source Review program; OSWER does not consider it
appropriate at this time in the RCRA and Superfund programs.)
MAJOR PLATERS
National Governors Association
State/EPA Committee
State and Environmental Associations
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KEY EPA CONTACTS
For the State/EPA Committee:
Office of External Relations (Paul Guthrie, Director, State Relations)
For the Differential Oversight Project:
Office of Policy, Planning and Evaluation (Robert Wayland. Deputy Assistant Administrator);
Office of Water (Jim Elder, Director, Office of Water Enforcement and Permits)
ACTION DATES OR MILESTONES
Next meeting of the State/EPA Committee is In December 1988
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WATER
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Major National Issues Office of Solid Waste & Emergency Response Page 7 - 1
LEGISLATIVE INITIATIVES AND AGENCY PROGRAM DIRECTIONS
FOR CHEMICAL ACCIDENT PREVENTION
BACKGROUND: Over the next year, EPA will have to decide whether It will recommend or support
catastrophic chemical accident legislation. It will also have to determine the future directions of its
currently non-regulatory program.
After Bhopal, EPA initiated a voluntary Chemical Emergency Preparedness Program, aimed at
assisting local communities in Identifying acutely toxic chemicals and preparing for their accidental
release. Much of this program was adopted by Congress in the Emergency Planning and Community
Right to Know Act of 1986. While it is believed that the program Congress set in place will go far to
protect the public in the event of an accidental release of hazardous chemicals. Congress Is still very
concerned about the safe handling of chemicals by industry and the need for a regulatory program.
These concerns have been fueled by recent incidents in Henderson, Nevada; Springfield. Massachu-
setts; Texas City, Texas; and Commerce, California.
The Air Toxics Bill, part of the Senate's Clean Air Act Reauthorization attempt during this past
Congress, included catastrophic release provisions. This bill required the conduct of detailed hazard
assessments by Industry on a list of 55 chemicals to be promulgated by EPA, gave EPA regulatory and
enforcement authority, and set up a Hazardous Chemical Investigations Board to investigate all
releases causing death or Injury and make recommendations to the Administrator on rules, actions,
enforcement, and future directions. The provisions of the bill would be difficult to implement and
expensive.
While legislative action was under debate, EPA conducted a study of emergency systems for detecting,
monitoring, and preventing releases of extremely hazardous substances and alerting the public to
them. The study confirmed that any approach to preventing chemical accidents had to be holistic -
- i.e. it had to consider all facets of chemical handling, storage, manufacturing and useincluding
management support and training-and all stages in the life of a facility. It voiced concerns regarding
a perceived lack of understanding of chemical hazards by smaller companies and indicated a need for
a concerted effort in identifying causes of accidents and sharing information on technologies and
practices that would prevent releases. It did not recommend a national regulatory program at this time.
DISCUSSION AND CURRENT STATUS: It is likely that future Clean Air Act legislation will include
chemical accident prevention provisions, most certainly if a major release occurs in the near future.
It will be important for EPA to determine which elements of a legislative effort (if any) it will support.
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EPA has taken a number of steps to implement a non-regulatory prevention program that builds on
current legislation and the organizations created by that legislation, and that brings together all the
actors who have responsibilities In this area i.e. Industry, federal agencies, states, local governments
environmental and labor organizations, and professional and trade associations. The program
emphasizes that it Is primarily industry's responsibility to take initiatives to promote chemical safety
and takes actions to prod it in those directions. It emphasizes technical assistance and information
dissemination. The following are elements of the Agency's Chemical Accident Prevention Program.
Chemical Accident Prevention Work Group. Representing all Headquarters offices and the regions.thls
work group guides EPA's prevention efforts. Its subcommittees meet regularly, dealing with issues
regarding accident data bases, audits, research, and technical guidance. The group's work Is
complemented by a close liaison with the National Response Team, a body chaired by EPA and
responsible for planning and coordinating federal efforts to respond to releases.
Accidental Release Information Program . In cases where large or frequent releases of hazardous
chemicals occur, or there is a death or injury associated with the release, management Is asked for
information on the causes of the release and prevention practices and technologies in use and
proposed. The Accidental Release Information Program refines our information. Identifies trends, and
shares this Information with interested parties. It increases corporate awareness puts pressure on
industry to take initiatives in this area, and helps to identify non-regulatory and regulatory prevention
options.
Chemical Safety Audit Program. In certain cases where a release has occurred, EPA conducts an
indepth audit that highlights problems concerning the Identification and correction of the chemical
hazards. Audit technical training is being offered to states. These audits are required as part of the
Strategic Planning and Management System.
External Chemical Accident Prevention Committee. Still in the planning stages.thls Committee,
will be composed of representatives from industry, professional organizations, federal agencies, states,
and labor and environmental groups, will help to formulate a national program aimed at improving
accident prevention technology, and will foster a close working relationship among all parties with
expertise in accident prevention. The Committee will provide a credible forum for analyzing
information, considering prevention technologies, and communicating prevention information. The
Committee will direct the work of technical panels originally established as part of the emergency
systems review. At present, it is being organized.
International Commitments. EPA has played a major role in designing an international chemical
emergency preparedness and prevention program directed by the Ad Hoc Group on Chemical Accidents
of the Organization of Economic Cooperation and Development (OECD). In addition, it is working
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Major National Issues Office of Solid Waste & Emergency Response Page 7-3
closely with the United Nations Environment Program to provide guidance to developing nations and
with the World Health Organization to provide information on the Hazards of Chemicals.
MAJOR PLATERS IN ORGANIZATIONS
Senate Environment and Public Works Committee
Trade Organizations such as the Chemical Manufacturers
Association, and the Chlorine Institute
Professional Organizations, such as the American Institute
of Chemical Engineers
Environmental Groups, such as the National Wildlife
Federation and the Environmental Policy Institute
State Emergency Response Commissions and Local Emergency
Planning Committees established under the
Emergency Planning and Community Right to Know Act
Other federal agencies, such as OSHA, FEMA, and DOT
World Health Organization International Program on Chemical Safety
United Nations Environment Program
ACTION DATE/MILESTONES
Winter 1988 - Meeting of the Chemical Accident Prevention
Committee and Technical Panels
Spring 1989 - Analysis and evaluation of prevention
legislative initiatives and the EPA Chemical Accident Prevention Program
KEY EPA CONTACTS
Jonathan Z. Cannon. Deputy Assistant Administrator,
Office of Solid Waste and Emergency Response
Jim Makris, Director, Preparedness Staff,
Office of Solid Waste and Emergency Response
Elaine Davies, Chief,
Chemical Accident Prevention Team, Preparedness Staff
Office of Solid Waste and Emergency Response
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Major National Issues Office of Solid Waste & Emergency Response Page 7-5
FEDERAL FACILITIES ISSUES
BACKGROUND: The Resource Conservation and Recovery Act (RCRA) requires federal facilities to
comply with all federal, state, and local substantive and procedural requirements for disposal and
cleanup of solid or hazardous waste, including corrective action requirements. It also provides for a
waiver of sovereign immunity, thus allowing enforcement by citizens and by states whose programs
have been authorized to operate in lieu of the federal RCRA program. Similarly, the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) explicitly preserves state
authority, including enforcement authority.
Under these provisions, RCRA, CERCLA and independent state law may all apply to the same cleanup
at a federal facility. Therefore, Federal agencies face potentially conflicting cleanup requirements. For
example, conflicts may arise where a state disagrees with a proposed cleanup, and attempts to require
a different, perhaps inconsistent remedy by exercising either its RCRA authority or its independent
authority under state law. Inconsistent or duplicative response actions may result, and federal facility
cleanups may be delayed while EPA attempts to define the state's role.
Some segments of Congress and the public have expressed strong support for preserving state
enforcement authority, since EPA itself may be powerless to enforce against federal facilities which are
not in compliance with RCRA. The Department of Justice (DOJ) has construed RCRA narrowly and
has concluded that EPA cannot issue administrative compliance orders to federal agencies or obtain
penalties from a federal agency under the statute. It has also concluded that EPA may not bring a
judicial enforcement action against another federal agency.
DISCUSSION AND CURRENT STATUS: At issue is how to resolve the conflict between federal and state
laws to avoid conflicting response actions and cleanup delays, while preserving the role of the states.
EPA is developing a policy to address this issue.
EPA has established a workgroup to address federal facility issues, including the role of states in federal
facility cleanups. The workgroup will act as an advisor as the policy is developed. The policy Is aimed
at a practical solution which provides incentives for reaching three-party agreements (state-EPA-other
federal agency) for cleanups. EPA is also working with states, the Department of Justice and other
agencies to develop the policy. The policy will be issued in the Fall of 1988, and the new Administrator
may need to review the policy or help implement it, depending on the response from the states and
other agencies.
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In response to the concern that EPA does not have the authority to Issue compliance orders to federal
facilities that violate RCRA requirements, several members of Congress Introduced legislation (HR
3781.3782.3783.3784.3785) that addresses RCRA enforcement at federal facilities. The bills were
passed by the House Energy and Commerce Committee in August. Two of them, HR 3785 (Eckart)
and HR 3782 (Swift) .directly affect EPA's federal facility enforcement authority. The bills served to
focus Congressional attention on federal facility enforcement issues and underscored the need for EPA
to maintain a credible federal facility enforcement program.
It is unlikely that the bills will be passed by the House this session. However, they will be incorporated
into RCRA reauthorization legislation next year and will continue to draw attention to federal facility
enforcement issues.
EPA has implemented a federal facility enforcement strategy that encourages full use of available
authorities and has finalized enforceable compliance agreements for many federal facilities. EPA
issued a guidance memorandum to the regions. The memorandum clarified EPA's enforcement
approach to federal facilities, outlining enforcement actions available to EPA under RCRA and CERCLA
and encouraged the Regions to use all available authority to address federal facility compliance
problems. EPA has also taken action against government owned/contractor operated facilities.
MAJOR PLATERS IN ORGANIZATIONS
Congress
House Energy and Commerce Committee
House Armed Services Committee
Environmental Restoration Panel of the Readiness Subcommittee
Senate Environment and Public Works Committee
Interest Groups
Sierra Club
Natural Resources Defense Council
Key Federal Agencies
Department of Justice
Department of Energy
Department of Defense
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Major National Issues Office of Solid Waste & Emergency Response Page 7 - 7
ACTION DATES OR MILESTONES
April 1989
Statutory deadline to evaluate and list on the NPL appropriate Federal facilities found in the Fed-
eral Agency Hazardous Waste Compliance Docket (Section 120)
April 1989; October 1989
Update Federal Agency Hazardous Waste Compliance Docket
Remedial Investigation/Feasibility Study (RI/FS) Starts: Federal agencies required to start
RI/FS, In consultation with EPA, within 6 months of NPL listing. EPA required to
publish time tables and deadlines.
Approximately 50 Federal facility listings estimated for 1989.
KEY EPA CONTACTS
Jonathan Z. Cannon, Deputy Assistant Administrator,
Office of Solid Waste and Emergency Response
Bruce Diamond, Director,
Office of Waste Programs Enforcement,
Office of Solid Waste and Emergency Response
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Major National Issues Office of Solid Waste & Emergency Response Page 7 - 9
RCRA REAUTHORIZATION
BACKGROUND: The Resource Conservation and Recovery Act (RCRA) provides the framework for
implementation of the nation's solid and hazardous waste programs and for the regulation of
underground storage tanks. Passed In 1976 to amend the Solid Waste Disposal Act of 1965 (SWDA),
RCRA's most prominent feature was its emphasis on the management of hazardous waste. (In its initial
form, the SWDA had focused on solid, non-hazardous waste.) Subtitle C of RCRA directed EPA to
establish a cradle-to-grave tracking system for hazardous wastes and to develop regulatory standards
for generators and transporters of these wastes as well as permitting requirements for facilities used
to treat, store, or dispose of them.
In 1984, the Hazardous and Solid Waste Amendments (HSWA) to RCRA were passed. While HSWA
showed interest in improved management of solid, non-hazardous wastes (under Subtitle D of RCRA),
a larger portion of EPA's responsibilities under HSWA concerned the management of hazardous
wastes. In general, HSWA acted to create, among other things, a more pro-active ground water
protection program. Specifically. HSWA required EPA to develop regulations for treating hazardous
wastes before their land disposal, for locating hazardous waste facilities, and for cleaning up releases
from all solid waste management units at facilities required to obtain a RCRA permit.
In addition, an entire new Subtitle was added to RCRA (Subtitle I) to address concerns about leaking
underground storage tanks. Underground tanks were to become subject to regulatory controls,
regardless of whether they contained wastes, petroleum, or chemical products.
DISCUSSION AND CURRENT STATUS: EPA has made significant progress toward implementing the
HSWA provisions for solid and hazardous wastes and for underground storage tanks since 1984. Major
new regulatory requirements will be in place in FY89.
However, since HSWA was passed, a number of developments have led to increased scrutiny of the
nation's solid non-hazardous waste management practices and standards. They are likely to be the
focus of RCRA reauthorization. which is expected to gain significant momentum during the coming
year. Although not the primary focus of reauthorization at this time, some revisions to the hazardous
waste statutory provisions are also .likely.
The Waste Reduction and Control Act of 1988, co-sponsored by Sen. Baucus (D-MO) and Sen.
Durenberger (R-MN). was introduced during the final days of the 1988 Congressional session, is likely
to be the first vehicle for Congressional action on reauthorization. Although EPA did not testify on this
bill in the 1988 Congressional session, EPA will be called upon in 1989 to comment on it and on other
reauthorization legislation.
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Following are reviews of solid and hazardous waste issues. Underground storage tank Issues, including
above ground and exempt tanks, are the subject of another issue paper.
A. Solid Waste Issues likely to be raised by reauthorization include: 1) development of management
standards for municipal solid wastes, medical wastes, large volume wastes, and other miscellaneous
solid wastes; 2) state and regional solid waste planning and permitting programs; 3) federal
enforcement authorities for solid waste management; and 4) source reduction and recycling.
1. Development of Management Standards
(a) Municipal Waste
There are approximately 6000 municipal waste landfills in the U.S.. and some 150 municipal
incinerators. For the most part, state standards have been applied to municipal waste facilities. The
federal role in municipal waste has been limited to setting minimum criteria for municipal waste
management, providing technical assistance to the states, information gathering, and exercising
enforcement and compliance monitoring authorities at municipal waste facilities which may have
received household hazardous wastes and hazardous wastes from small quantity generators. Current
concerns relate to siting new facilities, controlling air emissions from Incinerators, the need for
improved management practices for potentially toxic Incinerator ash, and clarification on the
regulatory status of ash.
(b) Medical Wastes
Incidents in which medical wastes were found on beaches in the U.S. resulted in extreme pressures
for a national tracking system for medical wastes. The Medical Waste Tracking Act, which was enacted
in 1988, requires development of a two year demonstration tracking program In the Northeast and in
the states bordering the Great Lakes. A RCRA reauthorization bill may therefore defer on medical waste
issues or may add to requirements already imposed by this bill.
(c) Large Volume Wastes
Oil. gas. and geothermal wastes, and mining wastes are two categories of wastes known within EPA
as 'large-volume wastes." The 1980 Amendments to RCRA required EPA to report to Congress on
management practices employed for these and other categories of wastes, and to determine whether
they should be regulated as hazardous under Subtitle C. The Agency concluded, In both these cases,
that requirements tailored for these waste categories under Subtitle D were desirable, but that
regulation under Subtitle C was not warranted.
A "strawman" regulatory approach under Subtitle D was developed for mining wastes. A Report to
Congress on utility wastes, a third large-volume waste category, was submitted In March 1988, but a
regulatory determination has not yet been made. Any reauthorization bill will probably impose on EPA
extremely demanding time frames for developing these waste-specific management standards.
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Major National Issues Office of Solid Waste & Emergency Response Page 7-11
The numbers of facilities, both operating and abandoned, that generate these wastes and the volumes
of waste generated by each will lead to significantly different economic consequences than those
associated with regulation of other wastes. In addition, heavy interest group and Congressional
involvement will add complexity to program development.
(d) Other Wastes
Reauthorizatlon will probably require EPA to gather information and develop management standards
for industrial solid wastes managed in surface impoundments, underground injection of solid wastes,
and various other undefined solid wastes. These are categories of wastes on which EPA has limited
information at this time.
2. State and Regional Solid Waste Planning and Permitting Programs
Any reauthorizatlon bill will probably establish new permitting requirements for solid waste disposal.
For Instance, facilities managing all types of solid waste could be required to cease operation unless
they receive a permit from a state or from EPA.
States would have to certify to EPA that they have adequate authority to both issue and enforce permits.
In the absence of a state certification, EPA would be required to issue facility permits. The size of the
universe of facilities subject to RCRA requirements would increase dramatically if such a provision were
enacted. Following reauthorizatlon, states could be required to develop solid waste management plans
to forecast future waste generation and management capacity, to develop a facility siting process to
ensure adequate capacity, and to adopt a hierarchy for solid waste management practices.
The resource implications of these provisions for EPA would be significant. Absent acceptable certi-
fications by states. EPA would be required to issue large numbers of new permits, each including
corrective action provisions, and to assume a primary enforcement role. Further, states would look
to EPA for guidance on methods for forecasting waste generation and management capacity, and review
of state certifications would consume additional EPA resources.
3. Federal Enforcement Authorities
Historically, the federal enforcement role for solid wastes has been very limited. Reauthorization could
greatly expand EPA's authority to enforce not only statutory provisions, but also future federal and
state regulations covering nearly all aspects of solid waste management. Fundamental issues, such
as the need for additional EPA enforcement resources, the possible need for reorganization or
reapportionment of staff responsibilities, and the need to develop enforcement strategies are likely to
arise. Another significant issue that will arise if the bill is enacted is the federal/state relationship. This
will include the need to evaluate the adequacy of state enforcement authorities, the capability and
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Page 7-12 Office of Solid Waste & Emergency Response Major National Issues
performance of states with regard to implementing these authorities, and development of policies
concerning federal enforcement of state-Implemented programs.
4. Source Redaction and Recycling
Significant efforts have been undertaken in the hazardous waste as well as solid waste arena. These
Include the establishment of an EPA office to promote waste reduction, the provision of grants to states
for the purpose of developing technical assistance programs, the development of a national clearing-
house for information exchange, and the establishment of national solid waste recycling goals. Any
reauthorization bill will probably require significant expansion of EPA's current activities, and will be
likely to generate significant opposition from industry. For example, reauthorization could impose a
tax on any virgin materials used in product packaging.
B. Hazardous Waste Issues likely to be raised include EPA jurisdiction over recycling facilities (the
concern relates to sham recycling facilities) and federal facility compliance with RCRA (primarily the
Department of Defense and the Department of Energy). Additional issues will arise as bills are
introduced and considered, or as EPA chooses to raise them. One of these is addressed in a separate.
but related issue paper: Transfer of PCBs from the Toxic Substances Control Act to RCRA.
Existing Subtitle C enforcement provisions are likely to be reevaluated for reauthorization. EPA's
enforcement history will probably be the subject of Congressional scrutlnyjust before reauthorization.
EPA maintains information resources which are readily available to testifying officials.
MAJOR PLATERS IN ORGANIZATIONS
Senate: Subcommittee on Hazardous and Toxic Substances of the Committee on
Public Works and the Environment
House: Transportation, Tourism, and Hazardous Materials Subcommittee of the
Energy and Commerce Committee
National Solid Waste Management Assn.. Chemical Manufacturers' Assn.,
Hazardous Waste Treatment Council.
Assn. for State and Territorial Solid Waste Management Officers,
American Petroleum Institute. American Iron and Steel Institute,
American Hospital Assn., Browning Ferris, Inc.,
Waste Management, Inc.. Environmental Defense Fund,
and National Resources Defense Council.
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Major National Issues Office of Solid Waste & Emergency Response Page 7 - 13
ACTION DATES OR MILESTONES
None currently set. Congress may call for EPA testimony on any or all of these issues at any time.
EPA may initiate discussions concerning Issues it would like to see
addressed during reauthorizatlon.
KEY EPA CONTACTS
Jonathan Z. Cannon, Deputy Assistant Administrator,
Office of Solid Waste and Emergency Response
Sylvia Lowrance, Director,
Office of Solid Waste,
Office of Solid Waste and Emergency Response
Bruce Diamond, Director,
Office of Waste Programs Enforcement
Office of Solid Waste and Emergency Response
Gerald Kotas, Director,
Office of Pollution Prevention
Office of Policy, Planning, and Evaluation
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Major National Issues Office of Solid Waste & Emergency Response Page 7-15
SUPBRFUND ENFORCEMENT PROGRAM EVALUATION
BACKGROUND: EPA is evaluating the Superfund enforcement program In response to Senate and
House Appropriation Committee requests and a corresponding study undertaken by the Surveys and
Investigation Staff for the House Appropriations Committee. It must submit a report by January 1,
1989, "providing recommendations for program, policy, and management changes which will create
meaningful, positive incentives for 1) Regional staff to achieve enforcement settlements and cost
recoveries, and 2) responsible parties to settle and undertake privately financed remedial Investiga-
tions/feasibility studies ('RI/FSs') and cleanups."
The Committees raised several issues pertaining to the operation of Superfund and the environmental
benefits resulting from the resources invested in the program. The Committees expressed concerns
about disagreements and delays within the program that detract from faster cleanups. Of particular
concern to the Committees was the need to achieve greater consistency in enforcement philosophies
and strategies as practiced in the Regions. The Committees suggested that "better defined procedures,
policy guidelines, and criteria are needed to give consistency to such a highly decentralized program."
The Office of Waste Programs Enforcement signed a cooperative agreement with the Environmental
Law Institute (ELI) to evaluate Superfund enforcement across the Regions to assess the proper role
of the enforcement program in achieving a greater number of cleanups.
DISCUSSION AND CURRENT STATUS: ELI began work on this project on June 15,1988. ELI's goals
are to characterize and evaluate the existing Superfund enforcement program, to identify impediments
to the program, and to present options to enhance performance of the program. ELI will study two maj or
aspects of the program: the Superfund legal enforcement structure, which Includes the policies.
procedures, guidance, laws and litigation decisions which define and shape Superfund legal enforce-
ment: and the Superfund management/implementation structure, which includes the institutional
and management structure of the Superfund enforcement program.
Based upon these analyses, the final report will offer short- and long-term strategies to improve the
effectiveness of the enforcement program. A full range of options to address different approaches to
Improve Superfund enforcement was preferred over specific recommendations. This approach gives
EPA the full benefit of ELI's analysis and expertise, as well as control over the selection of options for
implementation.
ELI is consulting widely with participants In the enforcement process, including States, the Regions.
relevant EPA Headquarters offices, the Department of Justice, and potentially responsible parties
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Page 7-16 Office of Solid Waste & Emergency Response Major National Issues
for cleanups. The role of the Office ofWaste Programs Enforcement In this effort Is primarily to provide
oversight for project management activities such as scheduling and financing, and to ensure that the
evaluation reflects the reality of the program by soliciting a broad base of review and comment. A Project
Review Panel was formed to review and comment on ELJ's work products. The Panel consists of
representatives of the Office of General Counsel, Office of Emergency and Remedial Response, Office
of Enforcement and Compliance Monitoring, Department of Justice, and the Regional Counsels and
Waste Management Division Directors from all ten Regions. ELI is currently conducting Regional visits
and detailed Interviews with six of the ten Regions.
Upon submittal of the evaluation to Congress, the Agency should be prepared to respond to Congress
concerning what, if any. modifications to enforcement policies and procedures may be implemented
as a result of this effort, and how they will enhance program results.
MAJOR PLATERS IN ORGANIZATIONS
House Appropriations Committee
Senate Appropriations Committee
Environmental Law Institute
ACTION DATES OR MILESTONES
Report due to Congress - January 1. 1989
Draft report due to the Agency - November 30, 1988
KEY EPA CONTACTS
Jonathan Z. Cannon, Deputy Assistant Administrator,
Office of Solid Waste and Emergency Response
Bruce Diamond. Director.
Office of Waste Programs Enforcement,
Office of Solid Waste and Emergency Response
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Major National Issues Office of Solid Waste & Emergency Response Page 7-17
NATIONAL CONTINGENCY PLAN (NCP)
BACKGROUND: The National Contingency Plan (NCP) Is the framework regulation for the Superfund
program. It is a blueprint for response, laying out the roles and responsibilities of government and
private entities and the procedures, criteria, and standards to be followed when responding to
contaminated sites under the Comprehensive Environmental Response. Compensation, and Liability
Act (CERCLA). The Superfund Amendments and Reauthorizatlon Act of 1986 (SARA) required revision
of the NCP within 18 months (l.e.. by April 17. 1988).
Three major Issues addressed by the proposed revisions to the NCP are selection of remedy, deferred
listing, and State involvement. We expect to receive considerable public comment on these issues.
Decisions will have to be made with respect to how to respond to such comments and whether and how
to revise these sections when the NCP is promulgated.
Selection of Remedy. The statutory mandates In CERCLA Section 121 regarding cleanup standards
for remedial actions are numerous and Inherently competive. Fundamentally, all remedies at sites
must be protective of human health and the environment and must comply with applicable or relevant
and appropriate requirements under Federal and State laws (except where they may be waived).
Furthermore, remedial actions must be cost-effective and must use alternative treatment technologies
or resource recovery technologies to the maximum extent practicable. Finally, there is a stated
preference that a principal element of each remedy will be treatment to reduce the mobility, toxldty,
or volume of wastes. These different mandates, plus ancillary requirements regarding State and
community Involvement, create dynamic tensions for selecting remedies that have to be resolved both
programmatically in the NCP and at each site.
The primary issue regarding selection of remedy Is how to interpret these statutory mandates in light
of the need for site-specific flexibility and, to the extent possible, consistent decisionmaklng among
Regions. Such consistency has implications for negotiations with potentially responsible parties for
cleanups and cost recovery.
Deferred Listing. In the revised NCP. EPA solicits comment on changing the extent of response under
CERCLA in deference to conducting response actions under other statutes. The NCP proposes to defer
listing sites that would otherwise be eligible for Superfund funding if they can be addressed under
other authorities.
The rationale for the proposal is that since CERCLA was originally enacted, other Federal and State
programs have been developed to address specific types of hazardous site problems (e.g.. corrective
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Page 7-18 Office of Solid Waste & Emergency Response Major National Issues
action under the Resource Conservation and Recovery Act (RCRA) for RCRA facilities, State Superfund
programs). Thus, CERCLA Trust Fund resources could be focused on those sites where other
authorities are not available.
State Involvement. The 1986 Superfund amendments require promulgation of regulations providing
for "substantial and meaningful involvement" of States in virtually all phases of pre-remedlal and
remedial activities. How to formally increase State Involvement and cooperation with States while
retaining EPA's ultimate prerogatives and authorities has been the major challenge.
DISCUSSION AND CURRENT STATUS: The revisions to the NCP will be proposed in the Federal
Register in November.
Selection of Remedy. EPA proposed in the NCP a site-specific balancing approach that translates
the statutory mandates into nine criteria used to evaluate and compare sites' remedial alternatives.
The proposal suggests that: (1) overall protection of human health and the environment and
compliance with applicable, relevant, and appropriate requirements (or invoking a waiver) are thresh-
old criteria that must be satisfied: (2) long-term effectiveness and permanence: reduction of toxicity,
mobility, or volume; short-term effectiveness: Implementabllity; and cost are the five primary balancing
factors used to weigh major trade-offs among alternative remedies: and (3) State and community
acceptance are modifying considerations. After (1) considering public comment on a proposed plan at
a Superfund site, (2) confirming that the proposed remedies provide the best balance of trade-offs in
terms of the primary balancing criteria, and (3) taking Into account the preference for treatment and
State and community acceptance. EPA finally selects the response action.
Deferred Listing. Current program policy allows deferral of NPL listing only for sites that can be
addressed under RCRA Subtitle C or Nuclear Regulatory Commission authorities. The proposed NCP
solicits comment on whether and how to expand this policy to encompass deferral of NPL listing for sites
that can be addressed under other Federal and State authorities or under CERCLA enforcement
authorities with responsible parties what conditions EPA should impose before a site will be deferred,
and to what extent EPA should maintain oversight once a site has been deferred. The proposal solicits
comment on several options for deferral to States and to responsible parties performing activities under
enforcement authorities.
State Involvement. Subpart F of the NCP proposes a comprehensive framework of State involvement
in the Superfund program. The cornerstones of this proposal are (1) a new mechanism for EPA/ State
cooperation, known as the Superfund Memorandum of Agreement (SMOA) and (2) a concurrence
process for remedy selection. The SMOA is a one-time, voluntary agreement between EPA and a State
that delineates procedures each will follow in all phases of response at sites. The proposed concurrence
process is intended to foster the EPA/State partnership by increasing State Involvement in Trust Fundr
financed responses and EPA involvement In non-Trust Fund-financed responses supervised by States
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Major National Issues Office of Solid Waste & Emergency Response Page 7-19
at NPL sites. The objective is that State-led Trust Fund-financed actions will comply with NCP
requirements and will be deleted from the NPL without extensive Federal involvement. Under both
scenarios. EPA retains the authority to select the remedy and sign the record of decision for a site.
MAJOR PLAYERS IN ORGANIZATIONS
Congress
Committee on Environment and Public Works
Committee on Energy and Commerce
Committee on Environment, Energy and Natural Resources
Appropriations Committees (House & Senate)
Federal Agencies
National Response Team Members Including:
Department of Defense
Depertment of Energy
Department of Justice
Department of Interior etc.
Associations
Natural Resources Defense Council
Environmental Defense Fund
Hazardous Waste Treatment Council
Association of State and Territorial Waste Management Officials
ACTION DATES OR MILESTONES
- Final Rule, November 1, 1989. .
KEY EPA CONTACTS
> Jonathan Z. Cannon, Deputy Assistant Administrator,
Office of Solid Waste and Emergency Response
Henry Longest, Director,
Office of Emergency and Remedial Response,
Office of Solid Waste and Emergency Response
Bruce Diamond, Director,
Office of Waste Programs Enforcement,
Office of Solid Waste and Emergency Response
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Page 7 - 20 Office of Solid Waste & Emergency Response Major National Issues
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Major National Issues Offlceof Solid Waste & Emergency Response Page 7-21
SUPERFUND REMEDIAL ACTION CONSTRUCTION IN FY 1989
BACKGROUND: The Supeifund program historically has been able to fund all cleanup or remedial
action (RA) construction projects to date, since the pool of projects ready for construction has been
relatively small. The FY 1989 budget will require difficult mid-year decisions about which remedial
action construction projects are delayed until FY 1990. Any decision will affect the achievement of goals
that drive the program: Statutory goals, environmental priorities, or other management objectives.
The FY 1989 appropriation for Superfund is significantly less than the President's request, which when
coupled with other budget restrictions, results in an even larger reduction to the total account. EPA
has decided to apply the total reduction to remedial action funding, yielding a 40% reduction in
resources available to fund these construction projects. EPA made this decision in order (1) not to
decimate other parts of the program already tightly funded; (2) to recognize that certain program areas
are restricted from funding cuts due to Congressional add-ons or previous commitments; and (3) to
avoid a cut in the early stage of the remedial program whose size would lead to years of rebuilding in
order to achieve a substantial flow of projects for construction.
In FY 1989, EPA must make critical decisions as to which remedial action projects are funded and
which are delayed. It must weigh various, often competing, factors in developing a strategy for funding
construction projects. Two of the most important considerations that will affect these decisions are:
(1) the potential environmental significance of "subsequent" as opposed to "first" construction starts
at sites; and (2) the mandate in Section 116 of the Superfund Amendments and Reauthorization Act
(SARA) to begin remedial actions at 175 sites by October 16.1989.
Remedial construction activities (all remedial action projects) are often performed in stages (operable
units) at a given site in an effort to address problems expeditlously . The first remedial action start
begins construction work at a site, and In some cases may be a relatively small phase designed to
stabilize a site, provide a water supply, or remove a potential hot spot. Construction of subsequent
operable units at a site brings that site closer to complete cleanup and may address a problem that is
of greater environmental significance than the "first start".
A second consideration. Section 116 of SARA, is key to any decision relating to allocation of resources
for construction starts. The statutory goal applies only to the first remedial action at a site, and States
and citizens have the option of suing EPA if it is not met. During FY 1988 (before the enactment of the
reduced appropriation), EPA developed plans to achieve the statutory goal by using both the Trust Fund
and the efforts of responsible parties.
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Page 7-22 Office of Solid Waste & Emergency Response Major National Issues
In the fall of 1988, after the reduction In appropriations, the program examined the Impact of a funding
strategy designed to go all out to meet the 175 statutory goal. This strategy would have required EPA
to delay funding some subsequent remedial actions until FY 1990. (As noted above, many of these
subsequent remedial action projects are more environmentally significant than first starts.) In
addition, a number of these subsequent remedial action projects are scheduled to be funded In the first
three quarters of the fiscal year. The history of the program has shown that projects scheduled in the
fourth quarter often slip to the next fiscal year. Consequently, deferral of subsequent remedial actions
In favor of possible fourth quarter funding of first remedial actions at sites may still not result in achieve-
ment of the 175-site goal.
Based on this information, EPA decided to fund remedial action projects that are ready to proceed
during the first three quarters, irrespective of whether they are first or subsequent actions. This
decision includes a recognition that meeting the statutory goal of starting remedial action at 175 sites
is less likely since 22 projects potentially available for achieving this goal will remain unfunded in the
fourth quarter of the year.
Under this strategy of "first ready, first funded", all FY 1989 funds for remedial construction projects
will be spent by the end of the third quarter. Fourth-quarter projects (approximately 31) would not be
funded until FY 1990.
DISCUSSION AND CURRENT STATUS: In choosing this strategy, EPA determined that it would revisit
the issue at the end of the second quarter (February-March 1989). This is a logical check-point since
under any of the options for taking the Congressional cut, the projects funded through the first two
quarters will be identical. The mid-year reconsideration can take into account available funding.
Regional accomplishments to date, and additional information on projected needs and environmental
priorities.
In choosing which projects should be delayed due to the anticipated end-of-year funding shortfall. EPA
has two options available: (1) continue funding remedial actions on a "first ready, first funded" basis,
or (2) decide to fund anticipated RAs according to Regionally determined environmental priorities.
Going all out to meet the goal of remedial action at 175 sites is not discussed as a viable mid-year option
because of the funds committed to subsequent starts In the first two quarters of the year.
Advantages of this option Include: (1) allows no delay in funding of subsequent remedial actions
through the third quarter; (2) provides the incentive to the Regional offices to move projects to remedial
action construction start as quickly as possible; (3) facilitates better scheduling of resource require-
ments. Unlike Option 2. resources are allocated as needed and are not reserved until the fourth quarter
for particular projects. History suggests that fourth quarter remedial action projects may not be ready
for funding and many projects would have slipped to the following year; (4) ensures that deserving
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Major National Issues Office of Solid Waste & Emergency Response Page 7-23
projects ready earlier In the year do not have needless delays In funding; (5) RA projects "ready to go"
in the fourth quarter are delayed for only a few months until the start of FY 1990.
The disadvantage of this Option (as well as Option 2) Is the risk of missing the statutory goal of starting
RAs at 175 sites. Under this option, the fund will start RAs at 87 sites to be added to a projected 92
sites funded by responsible parties for a total of 179. Due to the slippage of projects, the total may fall
short of the 175.
Option 2 - Environmental Priorities Scenario A combination of first and subsequent starts would
occur during the first three of quarters; some of the larger, more expensive sites would be delayed until
subsequent years, while addressing sites that are deemed to pose a higher risk; and funding would be
reserved to the fourth quarter to provide resources for activities deemed environmentally significant.
In examining this approach in FY 1988, EPA left the definition of "environmental significance" to each
Regional manager to interpret. However, the definition would include a sense of degree of harm posed.
number and proximity of people exposed, and level of public interest combined with Agency credibility.
Additional information as to both environmental significance and schedule of specific projects will be
gathered during the first two quarters, prior to further negotiations with the Regions.
The advantages of this option are that Regional managers see it as the most "environmentally sensible"
option and it produces the greatest number of FY 1989 remedial action starts - adding some margin
of safety to meeting the 175 SARA goal.
There are two notable disadvantages related to this option: (1) It delays remedial action projects that
are ready to start in favor of fourth quarter projected starts. These delays may be unnecessary .since
history suggests that some or all of the fourth-quarter projects may not be ready for funding if project
schedules slip. (2) Regions may slow down work on projects that would have been ready to go, but where
funding is delayed due to a higher priority site. As a result, these projects may not be available for
funding in the fourth quarter if projected project schedules slip to FY 1990, thus undermining the
credibility of the program.
MAJOR PLATERS IN ORGANIZATIONS
Committee on Environment and Public Works
Committee on Energy and Commerce
Committee on Environment. Energy and Natural Resources
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Page 7 - 24 Office of Solid Waste & Emergency Response Major National Issues
ACTION DATES OR MILESTONES
In (February-March) 1989 . the options will have to be reviewed and
the current choice affirmed or changed.
KEY EPA CONTACTS
Jonathan Z. Cannon, Deputy Assistant Administrator.
Office of Solid Waste and Emergency Response
Henry L. Longest, Director,
Office of Emergency and Remedial Response.
Office of Solid Waste and Emergency Response
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Major National Issues Office of Solid Waste & Emergency Response Page 7 - 25
^^~
^^^^^"^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
STATE CAPACITY ASSURANCE PROJECT
Background: In the Superfund Amendments and Reauthorizatlon Act of 1986. Congress declared that
each State must give EPA a plan that shows It will be able to treat or dispose of all of Its own hazardous
wastes over the next 20 years, or the State will no longer be able to receive Superfund money to clean
up its dangerous toxic waste sites. EPA is responsible for seeing that dangerous sites are cleaned up
and that future wastes generated are treated and disposed of safely. It therefore has an interest in
ensuring that as many States as possible have an acceptable plan and thus can continue to receive
cleanup money from the fund. The State plans, known as "Capacity Assurance Plans" (CAPs), are due
to EPA by October 17. 1989.
EPA has the specific responsibilities to: (1) evaluate the CAPs, and (2) have in place procedures to
disallow Superfund money to States that do not have acceptable plans or that do not submit plans. EPA
currently has a "State Capacity Assurance Project" underway to meet these responsibilities and to help
the States develop their CAPs. Congress does give the States some flexibility in finding adequate
capacity; a State without enough capacity may make interstate agreements with other States that have
excess treatment and disposal capacity to share..
DISCUSSION AND CURRENT STATUS We established several overriding goals for EPA's State
Capacity Assurance Project to assist the States. First, we want to let the States know what we would
expect from them in their CAPs. To achieve this goal we are developing Guidance that the States can
use to formulate their CAPs.
Second, we want to draw upon existing State experience as much as possible. Thus, we have
commissioned a planning project with the National Governors Association (NGA) to develop a draft
version of the guidance. We have worked closely with the NGA throughout the process and have
published a draft of the guidance and its backup Technical Support Document. We have asked for
feedback on the draft that we can factor into the final Guidance. Simultaneously, we have given grants
to Illinois, Kentucky and Oregon for pilot projects on capacity assurance to test the draft guidance
criteria and backup documents in the real world prior to issuing the guidance as final.
Third, we want to be available at Headquarters and in the Regions with "hands-on" technical assistance
throughout the next year for complicated parts of State CAPs. EPA personnel are available to help the
States access valuable EPA computer software and data bases on treatment and disposal capacity.
This computer capability will also help with interstate agreements in assessing overall regional capacity
for groupings of States. The EPA Regions have funding available for any meetings that they might need
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Page 7 - 26 Office of Solid Waste & Emergency Response Major National Issues
to convene to resolve any conflicts among States in reaching Interstate agreements to share treatment
and disposal capacity.
Four work groups that developed the guidance and technical support represented 38 States, Industry
and environmental groups. They looked into four key topics that impact hazardous waste treatment
and disposal capacity: (1) plans for siting new treatment and disposal facilities; (2) minimization of
future waste volume through recycling waste and reducing chemicals used at the "front end" of
industrial processes (source reduction); (3) issues related to interstate agreements; and (4) technical
data needs and computer models to project waste production, future market trends and available
capacity.
The remaining time frame (through 1990) for the CAPs process is divided Into three phases:
Phase 1: EPA will publish thefinal Guidance and Technical Support Document by DecemberSl. 1988.
We fully expect the computer data software technical assistance capability to be operational at that
time.
Phase 2: EPA will be helping the States develop their CAPs by the October 17, 1989 deadline.
Concurrently. EPA will be developing the procedures for withholding Superfund resources for those
States who do not submit, or submit inadequate, CAPs. Because the statutory date for States to submit
their CAPs (October 17,1989) is the same date that EPA must make a determination as to whether or
not a State's CAP is adequate (and thus the state is eligible to continue to receive Superfund money),
EPA will issue only interim approval to CAPs on that date, thus allowing a State to receive funding until
a final approval or disapproval can be made (by March 30, 1990).
We anticipate that EPA will be heavily involved in resolving interstate issues during the January-
October 1989 period. Therefore, high level EPA decision makers may be called upon to make policy
decisions on some of the issues that develop.
Phase 3:
During November 1989-March 1990 EPA will review CAPs for final approval or disapproval. We are not
able to predict what issues may develop.
MAJOR PLATERS IN ORGANIZATIONS
Senate: John Chaffee (Rhode Island)
House: Jim Florio (New Jersey)
National Governors Association
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Major National Issues Office of Solid Waste & Emergency Response Page 7 - 27
^*^~^g^^^^
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^"
Consortium of State Hazardous Waste Siting Authorities
Hazardous Waste Treatment Council
Natural Resources Defense Council
ACTION DATES OR MILESTONES
December 31, 1988: Guidance document to be published
October 17, 1989: State Capacity Assurance Plans due to EPA and EPA Issues
Interim CAP Approvals
March 30, 1990: EPA Issues Final CAP Approvals/Disapprovals
KEY EPA CONTACTS
Jonathan Z. Cannon, Deputy Assistant Administrator,
Office of Solid Waste and Emergency Response
Thomas W. Devine, Director,
Office of Program Management and Technology,
Office of Solid Waste and Emergency Response
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Page 7-28 Office of Solid Waste & Emergency Response Major National Issues
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SOLID WASTE &
EMERGENCY RESPONSE
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Major National Issues Office of Water Page 6 - 1
SURFACE WATER CONTROLS
ISSUE: How will EPA and the States address the widespread and growing public concern about aquatic
and environmental damage to surface waters from toxic and other pollutants?
BACKGROUND: The 1987 Water Quality Act (WQA) amendments to the Clean Water Act (CWA)
imposed major new surface water requirements on both EPA and the States, along with tight statutory
deadlines. EPA must make significant decisions on regulatory approaches and policies in 1989, as well
as over the next 3 to 5 years, focusing on new directions for water quality standards for toxics;
development of toxic control strategies and issuing permits to individual industrial and municipal
dischargers; the role of technology-based standards for toxics; sewage sludge; pretreatment of
industrial wastes; urban stormwater runoff control; and nonpoint source programs. These decisions
represent a major Agency commitment to the Congress to address continuing damage to the Nation's
surface waters.
DISCUSSION AND CURRENT STATUS:
Water Quality Standards and Water Quality-based Permitting: States must adopt numeric criteria
in water quality standards fWQS) for all toxic pollutants for which EPA criteria have been published
on those waters where the discharge or presence of such toxic pollutants is reasonably expected to
interfere with attaining designated uses. EPA will accept a State's narrative standard in satisfaction
of this requirement only if it is supported by a specific State-adopted and EPA-approved procedure to
translate the narrative standard into numeric criteria for purposes of setting NPDES permit limits.
Major environmental groups oppose this interpretation, would insist on numeric standards, and are
expected to challenge the approach EPA is taking.
Permitting authorities will continue to address all pollutants of concern in developing water quality-
based permits necessary to meet State numeric and narrative water quality standards for protection
of aquatic life and human health. New data being generated will be used to establish controls in permits
to assure that all applicable water quality standards will be met. These controls will include, where
necessary, limitations on individual chemicals and whole effluent toxicity.
As States upgrade their water quality standards, including incorporation of toxics, and issue permits
with new limits requiring additional control measures, the possibility of severe adverse economic
impact on certain individual dischargers increases. This will heighten the controversy about specific
standards, and appropriate permit limits; therefore States will need a great deal of technical support.
Toxic Controls: Section 304(1) requires States to identify waters adversely affected by toxic, conven-
tional, and non-conventional pollutants, and requires the States to prepare individual control
strategies (ICSs) in the form of NPDES permits that will control point source discharges of toxic
pollutants that are causing standards violations or use impairments. The Office of Water is prepar-
ing a rule for promulgation in May 1989 to clarify key policy and procedural questions regarding
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Page 6 - 2 Office of Water Major National Issues
development and approval of the lists and ICSs. The three main Issues which must be addressed are:
1) what Information must be used by States to complete lists and how States will gather additional data
to resolve the status of unassessed waters, 2) what EPA's position will be If ICSs require additional
controls that will be completed after 1992 (statutory deadline) or that are economically unachievable;
and 3) how EPA and the States will interpret narrative standards when a State has not adopted numeric
toxic criteria. EPA and State staff capacity may need to be enhanced to deal with these questions on
a case-by-case basis.
Technology Based Standards: Section 304(m) requires EPA to publish a plan which shall (a) establish
a schedule for the annual review and revision of promulgated effluent guidelines, and (b) identify
categories of sources discharging toxic or nonconventlonal pollutants for which guidelines and New
Source Performance Standards have not been previously published. For "identified" categories of
sources, EPA must establish a schedule for promulgation of effluent guidelines within three years. The
WQA required publication of this plan by February 4,1988. The Agency has not met this date and the
final notice is now scheduled to be published, after a significant Internal review period, in September
1989. In late August, EPA published for comment a notice responding to the requirements of section
304(m). Among other things, the notice explains the criteria the Agency will use when it decides whether
to select an industry category for regulation. The Agency expects some adverse comment on the notice,
including concerns that the Agency has not "identified" a sufficient number of new industries for the
promulgation of effluent guidelines limitations and standards. Additionally, the expanded workload
and the technical Issues associated with promulgating guidelines will likely result in schedule delays
and, if history holds true, suits by environmental and/or industrial groups.
Sewage Sludge: The WQA amended section 405 of the CWA to expand the requirements for EPA to
develop a comprehensive program for reducing the environmental and health risks presented by use
and disposal of municipal sewage sludge. The amendments provide that sludge use/disposal
requirements be incorporated into NPDES or other Federal permits or State permits issued pursuant
to an approved Federal program. The first round of regulations establishing numeric limitations for
various toxic pollutants governing sludge management activities for certain use/disposal practices is
being developed, and Is scheduled to be proposed In April 1989.
Also, new regulations for Incorporating sludge use/disposal limits and other requirements Into NPDES
permits (if they are not controlled by other State programs) and approving State sludge permit programs
(using NPDES or another mechanism) were proposed in March 1988 and are scheduled to be
promulgated In April 1989.
The schedules for both regulations are currently being considered by a Federal district Court in
response to a lawsuit filed by NRDC on March 10, 1988. NRDC and Industry litigants are requesting
the Court to Impose a tight courtmonitored regulatory schedule. The sludge regulations are of high
public interest because of their potential economic impact on municipalities. The 1987 amendments
directed EPA to revise regulations to add new permit application requirements for stormwater
discharges from industries and from large (over 250,000 population) and medium-sized (between
100.000-250,000 population) municipalities. This requirement will result In permits being issued to
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Major National Issues Office of Water Page 6 - 3
many dischargers not previously regulated by permits. The primary impact will be on municipal
stormwater discharges because many industries are already regulated. Regulations are scheduled to
be proposed in FY 89 and promulgated in FY 90.
Pretreatment Program: The pretreatment program requires that POTWs regulate their Industrial
contributors to assure that industrial pollutants do not pass through municipal plants to surface
waters or otherwise interfere with the plants' operations (Including sewage sludge disposal). To the
extent that municipal dischargers are causing or contributing to toxics, the pretreatment program will
be crucial to controlling these problems. Also as options for disposal of hazardous wastes become more
limited (with continued implementation of RCRA requirements), disposal of such wastes to POTWs
becomes more attractive and will potentially move the problem from one media to another, unless
pretreatment requirements are adequate. Amendments to the general pretreatment regulations
addressing the RCRA-related Domestic Sewage Study are scheduled to be proposed In November 1988
with the decisions made on issues for final rulemaking In 1989.
Stormwater: The 1987 amendments directed EPA to revise regulations to add new permit application
requirements for stormwater discharges from industries and from large (over 250,000 population) and
medium-sized (between 100.000-250.000 population) municipalities. This requirement will result in
permits being issued to many dischargers not previously regulated by permits. The primary impact
will be on municipal stormwater dischargers because many industries are already regulated.
Regulations are scheduled to be proposaed in FY 89 and promulgated in FY 90.
Nonpolnt Source Programs: States have identified nonpolnt source (NFS) pollution as their most
pervasive and among their most serious remaining water quality problems. Nonpolnt source problems
are difficult to address because they often Involve land use patterns, e.g. agricultural practices and
runoff from urban development and the statutory authorities for nonpolnt source control do not provide
direct Federal regulatory responsibility. EPA must rely on State and local programs. Under section
319 of the CWA, States were required to submit NPS Assessments and Management Programs to EPA
for review and approval by August 4,1988. The Act provided no significant new implementation funding
and many States argue that It is difficult or impossible to implement nonpoint source control programs.
EPA will be approving or disapproving State nonpoint source assessment/management programs,
many of which are late and/or appear to be inadequate, and some of which will be controversial. Where
State assessments are disapproved, EPA must conduct the assessments Itself. EPA will also submit
required January 1989 and January 1990 reports to Congress outlining the status of States'
implementation of their nonpoint source programs. Environmental groups will be taking a hard look
at those plans and assessments, and are anxious to see EPA take a strong position on assuring the
adequacy of State programs.
MAJOR PLATERS AND ORGANIZATIONS
State water quality agencies
State agriculture agencies
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Page 6 - 4
Office of Water
Major National Issues
State natural resource agencies
Natural Resources Defense Council
Association of State and Interstate Water Pollution
Control Administrators
Association of Metropolitan Sewerage Agencies (AMSA)
Senate Environment and Public Works Committee
House and Senate Appropriation Committees
House Public Works and Transportation Committee
Audubon Society
Environmental Defense Fund
United States Department of Agriculture (USDA)
Publicly Owned Treatment Works (POTWs)
Izaak Walton League
Business/Industry Groups (e.g., CMA, NACA. API)
National Wildlife Federation
Office of Management and Budget
ACTION DATES AND MILESTONES
November 1988:
January 1989:
April 1989:
May 1989:
September 1989:
FT 1989:
Propose Stormwater Regulations
Annual nonpoint source report due to Congress
Propose first round sludge technical regulations
Promulgate State sludge program regulations
Promulgate final rule requiring States to
identify waters adversely affected by toxic.
conventional and non-conventional pollutants
and to prepare individual control strategies.
Publish a plan for review of existing
guidelines and development of new guidelines.
Propose stormwater regulations
KEY EPA CONTACTS
Assistant Administrator, Office of Water
Director, Office of Water Regulations and Standards
Director, Office of Water Enforcement and Permits
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Major National Issues Office of Water Page 6 - 5
DRINKING WATER
BACKGROUND: Although several drinking water standards will be issued in response to the statutory
mandate of the Safe Drinking Water Act Amendments of 1986 (SDWA), three standards will need the
Administrator's attention during the next year. These three standards, which are for lead, radon, and
surface water treatment (including filtration and coliforms) will have a significant impact on public
water systems, the consumer, and state drinking water programs.
The Safe Drinking Water Act Amendments of 1986 (SDWA) require EPAto set drinking water standards
for 83 contaminants. In addition, the Amendments require EPA to establish filtration and disinfection
requirements for public water systems. Our standards are primarily based on health; however, we also
consider our ability to reliably measure the contaminant at very low levels, national cost and residual
risk. EPA's policy Is that drinking water standards for carcinogens be set at an excess upper bound
life-time risk of between 10-4 and 10-6, (I.e.. a risk of between 1 In 10,000 and 1 in 1,000,000).
Of the 60.000 community water systems in the country, 52.000 (87%) are small systems (serving a
population of 3300 or less) or very small systems (serving a population of less than 500). Due to lack
of resources and management expertise, these systems will be least able to comply with the regulations
and could incur significant costs. For example, a family served by a very small system would Incur
an increase of $100/year, while a family on a very small unfiltered system would incur a cost of $250/
year. Depending on the exact level of the radon standard, between 5,000 and 30,000 systems will need
to install technology to meet the radon standard. ODW expects that compliance with all the regulations
that the Safe Drinking Water Act Amendments require will cost existing small systems about $420
million per year. The cumulative effect of these new requirements will place a financial strain on many
systems, especially new ones.
DISCUSSION AND CURRENT STATUS: Lead Lead exposure is associated with a number of health
effects including anemia, kidney damage, impaired reproductive function, impaired learning, delayed
physical development, and elevations in blood pressure.
The control of lead In drinking water presents a unique problem for the EPA. Lead at the tap comes
from two sourcescontaminated source water and lead leached from plumbing (through corrosion)
during distribution of treated water. Unlike other contaminants that occur primarily In source water,
most of the problem with lead results from corrosion of plumbing. Thus, the approach of treating for
lead at the public water system does not satisfactorily reduce the risk of lead In drinking water at the
tap. forcing EPA to look at other, non-traditional alternative methods of insuring safe drinking water
at the tap.
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Page 6 - 6 Office of Water Major National Issues
Because of the unique problem associated with lead leaching from Interior plumbing, we have proposed
both a numerical standard for lead (to control the lead from source water) as well as a treatment
technique and public education program to control the corrosivlty of the distributed water (to control
the lead leaching from plumbing) and reduce exposure to high lead levels.
We proposed that compliance with the lead standard be measured at the treatment plant and
compliance with corrosion treatment requirements be measured at the tap. Compliance with corrosion
control requirements would be based on a system's ability to meet certain "no action levels" for a
number of parameters or a good corrosion control program and public education when no action levels
can't be met. The parameters proposed for use in the no action level include lead and pH levels.
As we expected, the proposal has been very controversial, and without consensus from a variety of
commenters. The major Issues are where and how often monitoring should be required, what
parameters should be used to define corrosion control, what standard should be set for lead at the
treatment plant, and In cases where corrosion control does not work well, whether replacement of lead
service lines and public education should be required. The impacts of this regulation are substantial.
We estimated that the regulation as proposed would cost about $265 million per year and Impact
39,000 systems. There Is also a substantial cost to the State to administer the program since It will
have to approve treatment plans for many systems.
Surface Water Treatment Rule (including coliforms). To protect against waterbome diseases, the
SDWAAmendments of 1986 require EPA to promulgate disinfection requirements and criteria for when
surface water systems must filter. They also require EPA to establish standards for five microbiological
contaminants: Glardia lamblia. viruses. Legionella, Heterotrophic Plate Count bacteria, and coliforms.
In November 1987. we proposed several criteria for determining whether filtration of surface water
would be required. In order to avoid filtration, a system would have to demonstrate that the fecal or
total coliform and turbidity concentrations of its source water were below certain concentration levels.
The system would also have to practice disinfection, maintain an effective watershed management
program to minimize the potential for contamination of the source water by Glardia and viruses,
conduct annual, on-site sanitary surveys, demonstrate that it has not been responsible for any
waterbome disease outbreaks, and comply with the standard for total coliforms.
The major Issues are how far we should go to be sure drinking water is of high quality and what is the
proper balance between minimum regulatory requirements and State discretion. The more discretion
we give the States, the more resources will be needed by the States to make Individual decisions about
each water system that must comply.
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Major National Issues Office of Water Page 6 - 7
Radon. Radon occurs naturally in many underground water supplies, often at high levels. Unless
removed by the public water system, radon can volatilize when water Is used for baths, showers and
washing clothes and dishes. Inhalation of radon gas causes lung cancer. EPA estimates that as many
as 20,000 deaths occur every year due to radon, mostly from gas that seeps up through the foundation.
About 200 to 1400 of these are due to radon in water. Existing data indicates that the inhalation of
radon from drinking water Is a much more serious problem than Ingestlon of radon.
We currently have no standard for radon. The SDWA Amendments require us to issue final regulations
by June 1989. We will not be able to meet that deadline but expect to propose a standard for radon
in the fall of 1989. However, decisions on the standard to propose must be made much earlier (spring
or early summer) If we are to propose In the fall.
The major issue is what level we should propose for the radon standard. We are planning to co-propose
4 standards: 200 plcocuries/liter (piC/1, a measure of radioactivity), 500 piC/1,1500 piC/1. and 2000
piC/1. At the 200 piC/1 level we are within the long-term human risk range for the drinking water
program but as many as 30,000 systems (almost all of them small systems) would need to install
technology at an annual cost of $200 million.
At 2000 piC/1 we are out of the risk range that is generally considered acceptable, perhaps having a
significant precendentlal affect on the program, but at a lower cost of about $8 million per year for 5000
systems. At 200 plC/1 about 130 cancer cases per year are avoided, while this number drops to 11 at
2000 piC/1. Another consideration is the consistency with the Office of Radon Program's action level
of 4 piC/1 in air (this is equivalent to 10,000 piC/1 In water). The action level is driven by technology
considerations because affordable radon (in air) reduction technology Is not available, while radon (in
water) reduction technology reduces radon to very low levels and thus Is only a minor consideration
in setting the radon standard. In fact, we can reduce radon In water down to equivalent average ambient
levels of radon in outdoor air.
MAJOR PLATERS IN ORGANIZATIONS
Wade Miller, Association of State Drinking Water Administrators
George Degnom, Association of State & Territorial Health Officials
Ken Kirk. Association of Metropolitan Water Agencies
John Mannion, American Water Works Association
James Groff, National Association of Water Companies
John Montgomery, National Rural Water Association
John Adams, Natural Resources Defense Council
Robert Perclval, Environmental Defense Fund
Jay Hair, National Wildlife Federation
Michael Clark, Environmental Policy Institute
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Page 6 - 8 Office of Water Major National Issues
James Manwaring, American Water Works Foundation
Orvllle Burch, Great Lakes Rural Network
Kenneth Bruzelius, Midwest Assistance Program
John Squires, Community Resources Group, Inc.
Jens Appel, Southeast Rural Community Assistance Project
Jack Sullivan. American Water Works Association
Donna Clrolia, Water Quality Association
William Deal. International Bottled Water Assoc.
ACTION DATES OR MILESTONES
The proposal and promulgation dates for the three regulations are listed here, however, decisions
will need to be made much earlier than these dates, possibly 3-5 months earlier.
1. Promulgation: Spring/Summer 1989 Lead
2. Promulgation: Summer 1989 Surface Water Treatment
3. Proposal: Fall 1989
4. Promulgation: Fall 1990 Radon
KEY EPA CONTACT
Michael Cook, Director. Office of Drinking Water, Office of Water, 382-5508.
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Major National Issues Office of Water Page 6 - 9
GROUND WATER PROTECTION LEGISLATION
BACKGROUND: While many of our environmental statutes relate directly or indirectly to ground water,
there currently is no comprehensive national law to protect the resource. In response to a growing
national concern that continued degradation of ground water poses a significant risk to human health
and the environment, several major environmental, industry, and government organizations have
developed recommendations for a national ground-water protection statute.
Increasing the Federal government's role in ground-water protection has been one of Congress' top
environmental priorities over the last few years as well. The 100th Congress was very active in the
ground-water area. While no one piece of legislation was enacted into law, the House approved abroad
bill to increase Federal ground-water research efforts, and, during the last days of the session, the
Senate approved a version of a ground-water research bill which also provided for more coordination
between Federal agencies, and authorized a State grant program. Ground-water protection is certain
to be a high priority in the next Congress as well.
DISCUSSION AND CURRENT STATUS: Many committees in both the House and the Senate have
Jurisdiction over ground water. As a result, many different types of bills have been introduced over the
last few years that raise a number of fundamental issues. The types of bills introduced include
measures to:
Increase Research - to authorize and increase ongoing research efforts in EPA, DOI and USDA.
and provide States with ground-water data and technical assistance.
Improve Coordination - to create a national ground-water research coordinating committee
to integrate federal efforts and further serve State needs.
Control Pesticides - to amend FIFRA to create a Federal standard for pesticides in ground
water, and to require EPA to respond to contaminated wells.
Improve State Programs - to mandate the development of comprehensive State ground-water
protection programs.
Require Control Technologies - to mandate control technologies for numerous activities not
now Federally regulated. In order to achieve a near-nondegradation standard for ground-water
protection and cleanup.
Impose a Tax on Industry - to tax Industries (chemical and water supply) to pay for Federal
and State ground-water protection activities.
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Page 6-10 Office of Water Major National Issues
Some of the issues that the various pieces of legislation are attempting to address include the following:
(1) The extent to which the Federal government contributes financial resources to solving ground-
water problems;
(2) Whether the Federal government should assume primary responsibility for protecting ground
water similar to its role in surface water and air;
(3) How "clean" ground water should be in prevention and clean up programs.
During the last eight years, the Administration has opposed any new legislation in this area stating that
(1) the States should have the primary role in protecting ground-water due to the importance of land
use and water allocation issues, historically State issues, in protection programs; and that (2) current
statutory authorities, combined with enhanced State programs, are adequate to protect ground water.
In addition, the Administration has expressed concerns about many of the bills in written comments
and testimony.
In 1987, however. Administrator Lee Thomas discussed several ideas that he felt should be Included
in ground-water legislation. He proposed incorporating into legislation: (1) the principles of EPA's
Ground-Water Protection Strategy -e.g. applying a consistent approach in all ground-water programs
that takes Into account the use. value, and vulnerability of the resource; and (2) increasing State
capacity building. During the period of June 1987 to January 1988, an Interagency Ground-Water
Committee, formed by OMB, developed an Administration position on ground-water research
legislation basically restating the position described above. The Administration, however, did not
pursue Lee Thomas' issues in this Interagency Committee, choosing instead to address research issues
only.
Because Congress is likely to introduce ground-water protection legislation in the beginning of the next
session, the new Administration will have to consider what approach it wants to take in responding
to that legislation. The new Administration may want to review current Federal statutory authority to
determine if new legislation is warranted. It may also want to consider the issue of whether we want
to work with Congress to direct more resources toward preventing ground-water contamination
currently, over 90% of EPA's total ground-water budget is used for clean up efforts while a very small
percentage is spent on protection.
When the next Congress convenes in January, there are a number of options EPA could pursue:
(1) Maintain the status quo: generally oppose any new legislation, react to Congressional proposals
through testimony and written comments, and work with the existing Ground-Water Protection
Strategy.
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Major National Issues Office of Water Page 6-11
(2) Support a limited bill that does not Increase EPA's regulatory role in ground-water protection but
does increase research and authorize State capacity building grants (two of EPA's current activities).
(3) Introduce an EPA/Administration bill comparable to Lee Thomas' Ground-Water Strategy proposal,
or a new proposal developed by the Agency, that directly addresses the issues discussed by Congress.
(4) Establish a "neutral" outside group to review options and develop a position on legislation, similar
to the National Ground Water Policy Forum formed by the NGA and assisted by the Conservation
Foundation.
MAJOR PLAYERS AND ORGANIZATIONS
(1) Congress:
Senate Environment and Public Works Committee - Senators Burdick, Moynihan, Mitchell and
Baucus introduqed legislation which passed the full Senate, to increase the Federal role in ground-
water protection and research, and mandate State protection programs. Senator Durenberger
introduced his own nondegradation bill to greatly increase EPA's regulatory goal. Other Senate
Committees involved in ground-water protection legislation include:
Agriculture Committee
Government Operations
Energy and Natural Resources
House Interior and Insular Affairs Committee - Congressman Gejdenson introduced a ground-
water research bill which was consolidated with several other House ground-water research bills
and eventually passed the full House. Other House Committees involved include:
Agriculture Committee
Science, Space and Technology Committee
Public Works and Transportation Committee
Energy and Commerce Committee
(2) Interest Groups
Generally, industry organizations such as the National Environmental Development Association,
Chemical Manufacturing Association, Fertilizer Institute, and American Petroleum Institute,
support a ground-water coordination bill only, and do not favor
increasing federal regulatory responsibilities.
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Page 6 - 12
Office of Water
Major National Issues
(3) Environmental Groups
Five key organizations out of a group of eleven that forged an agreement on a national ground-
water policy last June include:
Environmental Policy Institute
Natural Resources Defense Council
Environmental Defense Fund
National Wildlife Federation
National Audubon Society
They generally advocate a nondegradation standard and support a major
federal regulatory statute similar to the Clean Water Act.
(4) State Organizations
There is no lead State organization on the ground-water issue. The National Governors Association
(NGA) with the Conservation Foundation established the National Groundwater Policy Forum in
.1986, which recommended a comprehensive State ground-water protection program.
ACTION:
December 1987 -
the House of Representatives, overwhelmingly approved H.R
791, the Ground-Water Contamination and Research Act of
1987.
October 1988
the Senate overwhelmingly approved a different version of H.R
791.
January 1989 -
the 101st Congress convenes.
KEY EPA CONTACTS
Marian Mlay, Director, Office of Ground-Water Protection, 382-7077
Robert (Bob) Barles, Director. Ground-Water Policy and Management Staff,
Office of Ground-Water Protection, 202/382-7077
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Major National Issues Office of Water Page 6 - 13
EPA'S GROUND-WATER PROTECTION STRATEGY
BACKGROUND: Through various environmental statutes, EPA has responsibility to establish and
enforce standards and regulations to protect and clean up ground water from a variety of sources of
contamination. During the late 1970s. EPA recognized that the Agency's role in ground-water
protection was fragmented, largely undefined, and clearly controversial. As a result, the Agency drafted
and later issued in 1984 a Ground-Water Protection Strategy containing four objectives:
(1) to develop State capacity to protect ground water:
(2) to focus on major sources of contamination such as underground storage tanks,
pesticides, and landfills;
(3) to adopt and consistently apply a policy that takes into account the use. value, and
vulnerability of the ground water -- a differential protection policy when making
decisions:
(4) to increase coordination within EPA and with other Federal agencies and the States.
DISCUSSION AND CURRENT STATUS: Much has been accomplished since the adoption of the
Strategy in 1984 by EPA, and State and local governments in the ground-water area. To address the
Inconsistencies in ground-water decisions, EPA developed guidelines for classifying ground water
according to its use, value, and vulnerability; and the States have moved ahead to develop their own
ground-water protection strategies with the help of a $7 million a year grant program under the Clean
Water Act.
While considerable progress has been made in ground-water protection since 1984, significant issues
remain. Only limited Integration of the differential protection policy has occurred within EPA's
programs and staff. EPA's effort to build State capacity has been limited by a lack of resources, and
this Is reflected in State ground-water programs which vary tremendously in terms of comprehensive-
ness and effectiveness. Key questions.lnvolved in confronting these Issues Include:
whether to maintain or pursue more aggressively the concept of differentiating ground-water
decisions based on the use, value and vulnerability of the resource as in EPA's ground-water
classification guidelines;
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Page 6 - 14 Office of Water Major National Issues
how to more effectively Integrate our ground-water efforts at Headquarters and the Regional
Offices; and
how to more effectively build State capacity to deal with the States' ground-water problems.
Should wfi TPfMTOfaMni pr pursue more aggressively the policy oj[ djffrrejrctteltfoff ground-water decisions
based on the use, value, and vulnerability of the resource as In EPA's Ground-Water Classification
Guidelines? hi December 1986, EPA Issued Draft Classification Guidelines for public comment.
Currently. OMB is reviewing the final version. EPA included the concept of differential protection in
our 1984 Strategy, yet considerable controversy continues to surround the concept and the specific
"classes" of ground water established in the Guidelines, the extent to which they are to be Incorporated
Into agency programs, and how they tie Into the "how clean is clean" issue.
For example, many environmental groups continue to lobby to tighten the policy or discard it altogether
in favor of a nondegradatlon policy, and OMB supports the policy of differential protection but would
like to see less of the ground- water resource protected by Federal programs. This has made the concept
of a consistent, cross-program, ground-water policy problematic.
In addition, it Is unclear how the Guidelines are to be implemented by the various Agency programs.
An implementation policy statement requiring each EPA program to consider, where appropriate,
incorporating the Guidelines into new policies or regulations, has been developed with the Adminis-
trator but he has not yet Issued it due to the delay of OMB reviewing the Guidelines.
Options to address this issue Include:
(1) Continue to administratively pursue the concept of differential protection: continue to pursue the
release of the Guidelines and the implementation statement, and rely on the program offices and
internal processes for achieving implementation. Possible actions to further strengthen implementa-
tion Include:
(a) issuing a statement from the Administrator confirming the policies In the Ground-Water Protection
Strategy;
(b) placing the Deputy Administrator in charge of overseeing Implementation and policy coordination
across offices on a day-to-day basis; and
(c) requiring an explicit discussion in the development and Steering Committee review of regulations
relating to ground water, of how such regulations relate to the Ground-Water Protection Strategy.
(2) Pursue the concept of differential protection through legislation: propose an Administration bill
similar to the proposal put forth by Lee Thomas (see issue 1).
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Major National Issues Office of Water Page 6 - 15
(3) Drop, or revise, the concept of differential protection: either (1) establish a long-term goal of
nondegradation, which is what the environmentalists are calling for, (2) establish a long-term goal of
nondegradation, but use differential protection as a priority-setting tool for actually implementing
programs; or (3) keep the differential protection concept, but revise the Guidelines to provide more
flexibility but less consistency in its application.
How should we more effectively integrate and coordinate all of EPA's ground water programmatic
efforts? The Regional Offices play an Important role In directly implementing ground-water related
programs, and providing oversight of State programs. Each Regional Office, however, has a different
approach and organization for integrating these diverse activities. Certain coordination schemes are
common to all Regions and others may apply to only one or two Regions. Without increasing
coordination and integration between offices and between the Regions and Headquarters, implemen-
tation of a consistent ground water policy may continue to be problematic, duplication among highly
trained personnel may continue to occur, and the regulatory process may continue to be delayed.
Some of the options available for addressing this Issue Include:
(1) Provide greater leadership in the Regions by giving the Deputy Regional Administrators (DRAs) a
greater role In ground-water coordination. The DRAs may have the capacity to cut across program
divisions to assure policy and programmatic consistency. .
(2) Require the establishment of ground-water steering committees In all Regional Offices. These
committees have been formed in 6 of the 10 Regions.
(3) Centralize the ground-water technical staffs in the Regional Offices. This might provide greater
policy consistency and stronger technical support, and it could result in the more effective use of scarce
personnel resources. Region IV Is organized in this way.
(4) Require greater coordination with the RCRA program in the Regions. As the RCRA program Is
reauthorized and likely strengthened over the next few years, there may be an Increasing need to
coordinate better in the future.
The Administrator recently commissioned the Regions to develop a "white paper" on how to deliver the
Agency's ground water program In the most integrated fashion, which will also contain recommenda-
tions In this area. The recommendations are to be completed by November 1988.
How do we most effectively build State capacity to protect ground water? Many of EPA's problems
relating to the lack of resources for prevention activities and the large number of ground-water statutes
and programs and resulting Inconsistencies, are mirrored in the State departments of environmental
protection. Initiatives have been put forward in the 1990 budget submission for helping States and
localities address these problems and build the capacity to address ground-water contamination.
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Page 6 - 16 Office of Water Major National Issues
The Administration may want to examine more carefully Its approach to State capacity building and
determine If a different approach is needed. Some possible options for addressing this Issue include
the following:
(1) Require the DA and DRAs to take a greater role in coordinating State capacity building efforts across
programs and across the Regions. The DA and DRAs cross-program perspective might provide them
with an ability to reduce duplication and ensure that EPA's State support efforts are effective.
(2) Encourage the development of stronger, more comprehensive State strategies using the findings of
the Urban Institute Study on current State capacity to protect ground water (phase I Is due in February
and the final study in August) as the basis for further action. As the first comprehensive analysis of
the nature and scope of the strategies, and the States' progress and problems to date, this study will
probably be valuable for planning future EPA activities.
(3) Better Integrate and Increase funding levels for the existing ground-water protection State grant
programs, such as the State Ground-Water Strategy Grant Program, the Wellhead Protection.
Pesticides, UST, and UIC. programs. This option might help provide States the needed resources to
protect ground water and integrate their different protection programs.
(4) Institute regular "Ground-Water Strategy Forums" in which EPA officials and State environmental
directors discuss ground-water protection issues. This might provide an opportune setting for
regularly exchanging information and discussing how EPA can better support State activities.
MAJOR PLAYERS AND ORGANIZATIONS
Other EPA program offices, the States, and OMB.
ACTION DATES/MILESTONES
This is an ongoing process and there are a number of major Agency policies, programs, and regula-
tions under development that will involve these issues in 1989.
KEY EPA CONTACTS
Marian Mlay, Director, Office of Ground-Water Protection, 382-7077
Robert (Bob) Barles, Director, Ground-Water Policy and Management Staff,
Office of Ground-Water Protection, 382-7077
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Major National Issues Office of Water Page 6 - 17
_.^^^i^«a»
STATE CAPACITY
BACKGROUND: States administermany of the Federal water programs. They are currently beginning
to face a large financial shortfall In doing so. The shortfall is the result of having to implement many
new legislative requirements at the same time as Federal funding continues to diminish. The new
Administration will have to face States' concern as they seek ways to fill the financial gap.
To carry out the requirements of the Safe Drinking Water Act (SDWA) and the Clean Water Act (CWA),
and consistent with the intent of Congress, the Environmental Protection Agency (EPA) has authorized
State and Territories to administer, among other activities, 54 water supply programs. 51 wastewater
treatment grant programs. 41 underground Injection control programs, and 39 water pollution
discharge permit programs.
Congress amended the SDWA in 1986, and the CWA in 1987. Both Amendments greatly Increased
State responsibilities to cany out drinking, surface, and ground-water programs. For example. States
must adopt 83 new drinking water standards. Surface water programs must add new activities in
toxics, nonpoint sources, sludge, and stormwater.
The CWA Amendments also initiated the transition from the Federal construction grant (CG) program
to State Revolving Loan Funds (SRF). Construction grants fund 55 percent of the construction of
wastewater treatment plants, and, through "set-asides", nearly 50 percent of the Federal contribution
to base State water program activities such as planning and monitoring.
These set-asides will begin to phase down in Fiscal Year (FY) 1989 as the CG/SRFprogram phases down
and will be totally eliminated in 1994.
DISCUSSION AND CURRENT STATUS: It is important to ensure strong State water programs for
several reasons. EPA can't do the on-site pollution control and water supply Jobs itself; States are
closest to the problems and the institutions that can solve those problems most effectively and
inexpensively. If new State programs get a poor start, both Federal and State governments will bear
greatly increased enforcement costs to correct problems.
In addition, we fear that States will try to squeeze funds out of already overburdened existing water
programs to set up new ones, resulting in degradation of the existing water quality we have spent so
much to gain.
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Page 6 - 18 Office of Water Major National Issues
A. NEW DEMANDS INCREASE STATE NEEDS FOR FUNDING AND ASSISTANCE EPA estimates that
States In FY1990 will face a 56 percent increase over current water operating budget costs, and in 1994.
a 81 percent increase. These increased costs reflect new requirements as well as more complex existing
State program operations such as planning and monitoring. The figures exclude project funding such
as wastewater treatment plant construction.
Because our knowledge of water pollution and Its causes has grown over the years, the new require-
ments demand not only a greater number of programs, but programs of greatly increased complexity
and sophistication. States need us to provide increased technical assistance, information, and tools,
and must increase their own assistance to local, and particularly small, communities.
B. LESS FEDERAL FUNDING At the same time States face new and more complex statutory
requirements, they must also deal with a decline in Federal funding to meet these needs, hi water
programs, funding is declining because:
1) Half of the Federal funds States use to administer their surface water programs under the CWA
comes from the CG/SRF set-asides. The bulk of these set-asides terminate in FY 1990, the remainder
by the end of FY 1994.
2) The remaining Federal funds for State water programs come from Section 106 water quality
planning grants to the States, and from drinking water grants for Public Water Supply and
Underground Injection Control. These funding levels have remained essentially flat since 1981 in
effect a 30 to 40 percent cut in State purchasing power.
EPA estimates the State shortfall will be $213 Million in 1990. and $322 Million in 1994. These figures
do not include project funding needs such as those for construction grants.
C. FEDERAL FUNDING ENDS FOR WASTEWATER TREATMENT PLANTS hi 1990. States must also
deal with the CG/SRF transition itself. CGsfund 55 percent of wastewater treatment works. After 1990
the CG authorizations cease and new funds must come from SRFs or other sources. Federal funds for
SRFs are authorized only through 1994. The Agency's 1990 budget request exceeds the amount OMB
had originally proposed as part of the President's $ 12 billion funding phaseout proposal which totalled
$12 billion through 1993. However, data developed since the passage of the CWA amendments make
it clear that this figure is no longer adequate. Our 1990 request is based on a multi-year funding
strategy designed to provide the money necessary to develop SRF programs of long-term viability, thus
giving states less of a need to rely on Federal funding beyond 1994, which is the last year that such
funding Is currently authorized.
The CWA Amendments broaden eligibility for SRF funding of such proj ects as control of combined sewer
overflows; collector sewers; stormwater; and activities in groundwater. nonpoint source controls, and
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Major National Issues Office of Water Page 6 - 19
estuaries. This increases the potential demand on SRFs. Under CG these projects were only eligible
using the Governor's 20% discretionary fund.
D. FINDING ALTERNATIVE FUNDING EPA is conducting a State Funding Study, scheduled to end
in April 1989. The Study aims to stimulate State use of innovative funding mechanisms (those other
than general tax revenue) to fund water programs. In addition, the Office of Drinking Water has a
Mobilization Strategy to pursue creative approaches to SDWA implementation by working with all
concerned organizations.
MAJOR PLAYERS IN ORGANIZATIONS
To stimulate State action on alternative funding, we are working with State governments and
organizations and interest groups, all of whom are concerned about this State funding shortfall.
ACTION DATES OR MILESTONES
February Workshops on State alternative funding methods.
April Conclude State Funding Study
KEY EPA CONTACTS
Drinking Water Mobilization - Michael Cook, Director, Office of Drinking Water. 382-5543.
CG/SRF Program; State Funding Study - Michael Quigley, Director,
Office of Municipal Pollution Control, 382-5850.
1990 Budget - William Whittington, Acting Deputy Assistant Administrator for Water. 382-5704.
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Page 6 - 20 Office of Water Major National Issues
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Major National Issues Office of Water Page 6-21
THE RECOMMENDATIONS OF
THE NATIONAL WETLANDS POLICY FORUM
BACKGROUND: Wetlands are very valuable and diminishing natural systems. The nation has already
lost over half of its original wetlands, and continuing high loss rates are a significant environmental
concern. In addition, unknown numbers of our remaining wetlands have been degraded. When
wetlands are filled, drained or Impaired, we lose many vital environmental functions, including food
and habitat for fish and wildlife, water quality improvement, and recreation.
In 1987, EPA initiated the National Wetlands Policy Forum to develop sound, broadly-supported
recommendations to protect and manage the nation's wetlands. Governor Kean of New Jersey serves
as the Forum's Chair. There are twenty Forum members and five Federal agency ex offlcio members
representing a very divergent range of perspectives on wetlands issues (see attached list of key
members). The impetus for the Forum included: concern over the continuing loss and degradation of
wetland resources; the current scattered array of protection efforts lacking a unifying wetlands policy;
the controversy surrounding individual permit decisions; and government policies operating at cross
purposes - encouraging and discouraging protection. The Administrator asked the Conservation
Foundation to convene and facilitate the Forum. EPA provided initial funding and additional funds
came from several foundations. The Forum, set apart from existing institutions, has been able to take
a step back from ongoing policy conflicts.
DISCUSSION AND CURRENT STATUS: The Forum's report will be issued on November 15. and will
be followed by briefings for key Federal, State, and local officials. It will set a template for action by
the public and private sectors. A subset of the Forum members will monitor the implementation of the
recommendations over the next year, at which time the Forum will reconvene to decide whether
additional action is necessary.
The Forum recomendations present a key opportunity for EPA to act with the support of a broad
spectrum of interests. Some of the Forum's recommendations are directed towards EPA (alone or with
other agencies) and are within our existing authorities. Other recommendations have another agency
with the lead or the lead is not clear. Finally, some recommendations propose fundamental legislative
changes. Following is a description of actions EPA has initiated or is planning to initiate in response
to the Forum.
The Forum recommends a national goal for wetlands, which in the near-term calls for no overall net
loss of wetlands, and in the longer-term calls for an increse in the quantity and quality of our nation's
wetlands. EPA should revise the Administrator's 1973 policy addressing wetlands to reflect the goal.
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Page 6 - 22 Office of Water Major National Issues
The Forum strongly emphasizes an Increased use of natural resource planning for wetlands protection,
including preparation of State Wetlands Conservation Plans for meeting the national goal. Federal
agencies are asked to provide guidance and technical support, and to actively participate In State/local
wetlands planning processes to the extent appropriate. To respond to these recommendations, OWP
is preparing case studies of successful wetlands planning efforts, and is developing training/guidance
on wetland assessment, planning skills, and a regulatory planning tool called Advance Identification
(ADID). We may also have seed money in FY 1990 for a few pilot tests of innovative State planning
approaches for wetlands.
The Forum emphasizes a significant role for State and local governments in both regulatory and non-
regulatory wetlands protection efforts. The recommendations include: revising EPA/State water
quality programs to reflect wetland considerations; developing State action plans addressing chemical
integrity of wetlands; and providing grant funds for wetlands programs. OWP is planning to issue a
handbook In January 1989 on how States can use Section 401 of the Clean Water Act (water quality
certification) for more effective protection of wetlands. An internal strategy for how EPA can help local
governments protect their wetlands is also being developed. Regional meetings of EPA/State/local
officials are being planned. We may also have grant money In FY 90 for a few States to develop /operate
wetlands regulatory programs.
The Forum recommends actions to Improve regulation of wetlands. While some would require statutory
changes, EPA can proceed in several areas to improve the 404 program without amendments:
Enforcement: The Forum recognized enforcement of 404 is deficient, and recommends that the Army
Corps of Engineers and EPA agree on strategies to effectively and aggressively monitor, verify, and
enforce permits and mitigation requirements. OWP is currently developing an agreement with Army
to clarify enforcement roles and to implement new administrative penalty authorities. OWP is also
emphasizing workshops and enforcement training for our regional staffs.
Jurisdiction: The Forum recommends a single method to determine wetland regulatory boundaries.
OWP is participating in negotiations with the Corps, U.S. Fish & Wildlife Service, and Soil Conservation
Service on a Joint method. The agencies have resolved many basic issues and expect to agree to ajoint
manual early in 1989. OWP is also working with the Army to improve our agreement that establishes
the agencies' respective roles in delineating Clean Water Act jurisdiction.
Mitigation Policy: Wetlands mitigation consists of steps taken to avoid or reduce the adverse impacts
to wetlands, and. for unavoidable wetlands losses, steps to compensate for the damages by creating
or restoring wetlands. The Forum has developed a number of specific recommendations to help define
the concept of mitigation as It occurs in our regulations, as well as In programs under the National
Environmental Policy Act (NEPA) and Executive Order 11990. OWP will work on a mitigation policy
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Major National Issues Office of Water Page 6 - 23
under the Section 404(b)(l) Guidelines to address the Forum's recommendations. OWP expects to
revitalize a Federal mitigation task force in light of the Forum's recommendations. With the EPA Office
of Federal Activities, OWP will identify potential approaches to pursue sound mitigation practices
through EPA's NEPA program. The Forum also supports the establishment of mitigation banks in
appropriate circumstances. OWP is working with Office of Policy, Planning and Evaluation to explore
existing mitigation banking efforts and to conduct a joint workshop next year.
The Forum, with public input, identifies a pressing need for information on wetlands, existing
management programs, alternative development techniques, management and protection options for
farmers, and tools for local governments. EPA Is working to improve public awareness of wetland
functions and values. We are targeting important audiences such as farmers and the development
community. Written and audio-visual products are planned on wetlands mitigation, creation.
wetlands values and trends, and citizen involvement.
The Forum report calls for research on methods to assess the cumulative affects of many individual
actions on wetland systems, and for incorporating these methods into the wetlands planning
processes. The Corps is currently reviewing OWP draft 404 guidance on bottomland hardwoods
wetlands, which is intended to respond to the severe cumulative losses of these ecosystems. EPA has
also initiated an Advance Identification in the Pearl River Basin in Mississippi to pilot test cumulative
impact assessment. EPA's wetlands research program is developing a method to assess cumulative
impacts.
The Forum makes recommendations to restore former wetland areas to increase our overall wetlands
base. EPA could become involved in this effort by initiating projects to demonstrate restoration of
wetlands as a technique for controlling nonpotot source pollution and to manage stormwater. EPA can
also encourage creation/restoration of wetlands for wastewater treatment to offset losses due to the
municipal wastewater construction program. ORD has included an initiative in its FY1990 budget to
work with the Tennessee Valley Authority in Improving the scientific data base for creating wetlands
from municipal wastewater effluents. The Forum specifically notes restoration to offset damages from
hazardous waste disposal, and OWP will work with the Superfund program to identify such
opportunities. OWP is also identifying the number of Superfund sites sited in or otherwise impacting
wetlands.
MAJOR PLATERS AND ORGANIZATIONS
Forum participants.
KEY EPA CONTACT
John Meagher, Division Director in OWP, 382-5043
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Page 6-24 Office of Water Major National Issues
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Major National Issues Office of Water Page 6 - 25
COASTAL PROTECTION
BACKGROUND: During the summers of 1987 and 1988, the condition of our oceans generated Intense
public concern as medical wastes, garbage, and plastic debris repeatedly washed ashore, massive fish
kills occurred, and dolphins died by the hundreds. At the height of vacation season, miles of beaches
were closed due to bacterial contamination from inadequate treatment plants, and combined sewer
overflows (CSOs) that dumped millions of gallons of raw sewage into coastal waters. At the same time,
commercial fish Increasingly showed cases of fin rot and cancer, lobsters with "bum holes" turned up,
and thousands of acres of prime shellfish beds were closed due to contamination.
These Incidents were graphic indicators of a fundamental problemcoastal ecosystems today can no
longer assimilate the habitat changes and pollution caused by accelerating population growth and
uncontrolled development. The events of last summer were reflections of the way we live and the
choices we have made about development, resource use, and long-term environmental quality. They
brought into serious question the Agency's ability to provide leadership on these basic issues. EPA has
only the next four to six months to prepare for next summer's events.
DISCUSSION AND CURRENT STATUS: Medical waste, plastics and marine debris, and ocean
dumping are three related problems that have generated particularly intense public concern.
This concern prompted highly impacted States, such as New York and New Jersey, to launch Immediate
new control efforts, and spurred Congress to pass new legislation addressing these issues.
MEDICAL WASTES: Washed up medical wastes, especially syringes and blood products, created
public anxiety about exposure to diseases such as AIDS and hepatitis. Current and future EPA actions
to control medical wastes Include:
Spot checking garbage transfer operations and patrolling coastal waters to identify illegal dumpers;
Establishing an EPA task force to coordinate medical waste activities, including enforcement, public
education, and preparing technical guidance for managing infectious waste; and
Implementing recently passed legislation to establish a demonstration program for identifying and
tracking medical waste and to regulate barges carrying solid wastes.
PLASTICS AND MARINE DEBRIS: The appearance of plastics and other marine debris is another
symptom this summer of coastal deterioration. Such trash comes from many sources: spills from
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landfills and garbage barges, spills and dumping from ships, and accumulated litter from combined
sewer overflows (CSOs) and stormwater runoff. Not only does trash cause significant economic losses
for coastal communities, but plastic products such as six-pack ring carriers persist for decades in the
marine environment, endangering birds, marine mammals, and other wildlife.
In accordance with new legislation and the terms of the International Convention for the Prevention
of Pollution from Ships (MARPOL), EPA and other agencies have taken actions to control plastics and
marine debris, including:
Studying the feasibility of requiring the use of biodegradable plastic ring carriers;
Banning overboard plastics disposal from U.S. ships;
Studying harbors, CSOs, and the plastics manufacturing industry to identify the sources and impacts
of plastics In coastal waters;
Sponsoring citizen beach cleanups to help develop a marine debris database, and beginning a major
public education program on the problem of plastic pollution.
OCEAN DUMPING: Although EPA has worked to virtually eliminate the use of ocean outfalls for sewage
sludge disposal, reduce industrial dumping in the ocean to minimal amounts, relocate sludge dumping
to a deepwater site more than 100 miles offshore, and reduce to nine the number of municipalities
dumping sewage sludge in the ocean, these actions have not been sufficient. This Fall. Congress
unanimously passed legislation to bain disposal of sewage sludge and industrial waste in the ocean by
December 31, 1991. By the summer of 1989, no dumping will be allowed without a permit issued by
EPA that includes a realistic schedule for ending ocean dumping and for having alternative disposal
systems in place. EPA's current and future actions to regulate ocean dumping include:
Implementing the new ocean dumping legislation, which Imposes new dumping fees, as well as civil
penalties for dumpers who do not meet the 1991 deadline;
Continuing the existing moratorium on the ocean disposal of low-level radioactive wastes. (NOTE:
Ocean disposal of high-level radioactive wastes is banned under provisions of the international London
Dumping Convention.); and
Suspending the Incineration of Wastes-at-Sea program.
NATIONAL ESTUARY PROGRAM: While these are important steps to alleviate the more visible
symptoms of coastal deterioration, they do not address the underlying issues of coastal development
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Major National Issues Office of Water Page 6 - 27
and land-based pollution sources, both point and nonpoint. EPA has extensive authority to regulate
point sources by setting standards, issuing permits, and enforcing permit conditions. In the past, the
Agency has used its authority to focus largely on protecting human health, rather than addressing
ecosystem effects. Thus, we know very little about coastal ecosystems, and the effects of habitat loss
on living resources. In addition, nonpoint sources appear to have major impacts on coastal waters,
yet EPA has only limited knowledge about these impacts and authority to control contaminated runoff
into coastal and estuarine waters.
The Water Quality Act of 1987 was a first step in addressing these problems. The Act broadened the
scope of EPA water programs to Include issues such as nonpoint pollution, toxics, and protection of
critical aquatic habitats such as estuaries. Even more important, the Act officially established the
National Estuary Program (NEP) within EPA precisely to provide a comprehensive, geographic-based
approach for dealing with critical coastal issues.
This approach is unique in that it calls for explicit agreements between EPA , state, and local
governments to carry out Jointly identified financial, institutional, regulatory, and political commit-
ments. It is one of the few federal programs that really does depend on strong grassroots support.
This year alone, EPA under the NEP has negotiated agreements with six states to carry out plans in
Buzzards Bay, Narragansett Bay, Long Island Sound. Albemarle-Pamlico Sounds. San Francisco Bay,
and Puget Sound. In addition, six new programs joined the NEP this summer New York-New Jersey
Harbor. Delaware Bay. Delaware Inland Bays. Sarasota Bay, Galveston Bay, and Santa Monica Bay.
In FY 89, Congress named Massachusetts Bay, Barataria Bay (LA). Indian River Lagoon (FL), and
Peconic Bay (NY) to be considered for inclusion in the NEP.
NATIONAL COASTAL AND MARINE POLICY: This summer showed clearly that EPA is dealing with
complex, long-term problems that will take time and resources to solve. EPA needs to have a plan of
action and to be ready to exercise a leadership role.
To identify what needs to be done, both for next summer and for the long-term. EPA is now developing
a comprehensive policy for the coasts and oceans. This policy sets a national goal of protecting the
nation's coastal and marine waters, and identifies specific objectives to achieve this goal. If imple-
mented, this policy will for the first time provide a framework for federal, state, and local governments
to work together to control the basic causes of coastal deterioration, including nonpoint source
pollution, solid waste, inappropriate land use, and other land-based sources. The new Administrator
should closely examine the policy and identify key short-term actions that could be taken to avoid a
repeat of last summer.
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MAJOR PLATERS IN ORGANIZATIONS
Congress:
Senate Committee on Environment and Public Works
House Merchant Marine and Fisheries Committee
House Public Works Committee
Environmental Organizations:
Oceanic Society
Sierra Club
Coast Alliance
Natural Resources Defense Council
Environmental Policy Institute
National Audubon Society
Greenpeace
American Oceans Campaign
Center for Environmental Education
Federal Agencies:
NOAA National Ocean Service
NOAA National Marine Fisheries Service
ArmyCorps of Engineers
Coast Guard
States:
New York.
New Jersey
State Organizations:
National Governors Association
Coastal States Organization
National Association of State Atomeys General
International:
London Dumping Convention
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Major National Issues
Office of Water
Page 6 - 29
11/88 to 6/89:
11/88
12/88 to 4/89:
ACTION DATES
Negotiate compliance and enforcement agreements, and Issue permits
for ocean dumping of sewage of sewage sludge and industrial waste.
Issue National Coastal and Marine Policy*
EPA offices develop action plans to implement draft National Coastal
and Marine Policy.
12/88: Issue EPA policy statement on source reduction and recycling.
2/89: EPA Task Force on Medical Waste recommends additional
state or federal actions needed to manage medical waste.
5/89: Issue regulations on medical waste demonstration tracking program.
5/89 Report to Congress on stormwater discharges.
6/89: Report to Congress and recommendations on plastics pollution.
6/89: Issue permit strategy for CSOs.
9/89: Administrator selects additional estuaries for NEP. based on FY 90
budget.
12/89: All ocean dumping without a permit is mandated to end.
*NOTE: Actions are only suggested, not yet decided on by EPA Administrator.
KEY EPA CONTACTS
Rebecca Hanmer Acting AA Office of Water
Tudor Davles, Director, Office of Marine and Estuarine Protection
Sylvia Lowrance, Director, Office of Solid Waste
Bill Muszynskl, RA. EPA Region 2
Rich Caspe, WDD, EPA Region 2
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AIR & RADIATION
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Major National Issues Office of Air and Radiation Page 8-1
ONBOARD REFUELING AND FUEL VOLATILITY FINAL RULES
(KEY TO OZONE CONTROL PROGRAM)
BACKGROUND: OnAugust 19,1987,EPApubllshed notices of proposedrulemaking(NPRMs)for both
onboard refueling emissions control and fuel volatility control. Both of these rules would provide
additional control of Volatile Organic Compound (VOC) emissions from motor vehicles nationwide.
VOC emissions are one of the precursors for ozone formation. In addition, gasoline vapors have been
identified as a probable human carcinogen; therefore, control of refueling emissions also provides air
toxic benefits.
Refueling Emissions Control. Refueling emissions are generated each time a vehicle is refueled, with
the vapor-laden air in the fuel tank being displaced with liquid fuel and forced through the fill tube into
the ambient air. There are two ways to control refueling emissions. One way is to use systems at filling
stations to collect the vapors emitted as the tank is refilled; these are called Stage II systems. Installing
Stage n systems involves modifications of service stations pumps, fuel lines, and tanks as well as
installation of vapor return lines and pumps.
The other way to control refueling emissions is to use systems onboard the vehicle to collect the vapors
and then route them to the engine for burning. This involves the redesign of the current evaporative
emissions control systems on vehicles to collect, store.and dispose of these emissions. The latter is
EPA's proposed approach, because it is determined to be the most effective approach in the long run.
In the 1973-1974 time period, EPA promulgated regulations under section 110(c) of the CleanAirAct
(CAA) that would have required Stage II controls in all or part of 11 Air Quality Control Regions in 8
states. EPA proposed amendments to these regulations in 1975 and in 1976; however, action was never
completed nor the previous compliance dates reinstated. In 1977, the CAA was amended to add several
specific provisions pertaining to the control of refueling emissions. Section 202(a)(6) directed EPA to
determine the feasibility and desirability of onboard refueling control systems. In response, EPA
conducted a review and analysis of available information, and tentatively determined in 1980 that
onboard control systems were technically feasible.
However, in light of the serious financial difficulties faced by the automotive industry in 1980 and 1981,
EPA, working with the Vice President's Task Force on Regulatory Relief, conducted a review of its
regulatory programs to identify possible changes to reduce the regulatory burden on the industry. As
a result, EPA decided in 1981 that the use of onboard refueling emissions control technology was
undesirable at that time. In April 1981. the Agency announced in a Federal Register notice that onboard
controls were not being required.
Because ozone nonattainment problems persisted, refueling emissions control continued to receive a
great deal of attention, especially as the Agency and the states adopted controls for other VOC
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Page 8-2 Office of Air and Radiation Major National Issues
emissions sources. By the mid-1980s, the financial condition of the automotive Industry had
improved, and EPA began to reevaluate possible action under section 202(a)(6). With the CAA
attainment deadline of December 31. 1987 quickly approaching, and in recognition that there would
continue to be a serious ozone nonattainment problem well beyond the deadline, the Administrator
signed the onboard NPRM in late July 1987.
Fuel Volatility Control. At the same time, the Administrator signed the NPRM for fuel volatility control
requirements as another means to reduce VOC emissions. Evaporative emissions from motor vehicles
have long been recognized as a major source of VOC emissions and evaporative standards have been
in effect since the 1971 model year. Designing to meet any emission standard is in part governed by
the test procedures and standard conditions used in compliance testing. With evaporative controls,
one important standard test parameter is the fuel volatility level of the test fuel. In the early 1970s,
EPA established a test fuel specification for fuel volatility of 9.0 psi of Reid Vapor Pressure (RVP), a
common measure of fuel volatility. Since then, the volatility of commercial fuel has gradually increased
to a point where the typical summertime fuel volatility is now 11 to 11.7 psi RVP. Since the control
systems on vehicles are designed for the less volatile 9.0 psi test fuel, the emission control systems are
unable to fully control the emissions generated with the use of more volatile 11+ psi in-use fuel. In
addition, the more volatile fuel results in higher evaporative emissions all along the distribution chain
for fuel. One key factor in controlling vehicular evaporative emissions is to ensure that the volatility
of EPA's test fuel matches the volatility of in-use fuel, thus making sure that the control systems are
designed for the fuel that is in actual use. To accomplish this, the NPRM proposed controlling fuel
volatility in two phases to allow sufficient industry lead time. The proposed first phase would reduce
the in-use volatility of gasoline in the summertime to 10.5 psi RVP In May 1989. The proposed second
phase would start in May 1992 with a limit of 9.0 psi RVP, resulting in the desired match in the volatility
of EPA test fuel and in-use fuel. [These volatility levels would apply in ASTM Class C areas with
proportional reductions in other hotter areas.]
DISCUSSION AND CURRENT STATUS: There are several issues related to each of these rules. For
the onboard refueling rule the major issues are the safety of onboard systems, the lead time necessary
for implementation, and the test procedures used for compliance determination. There is still some
debate over the use of Stage II rather than onboard control systems and over the cost-effectiveness of
onboard systems.
For the fuel volatility rule the remaining Issues are the standards for ethanol blends and the choice of
standards for Class A and B ASTM areas. These wanner areas need to use less volatile fuel in order
to provide the same degree of control; however, there are concerns about driveability and fuel safety
which must be evaluated.
These two rules have a number of technical interrelationships and are being processed as joint rules.
The next step is for EPA to publish a supplemental NPRM on the onboard rule, which will include a
revised safety analysis and an analysis of other changed circumstances. Of the changed circum-
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Major National Issues Office of Air and Radiation Page 8 - 3
stances, test procedure changes are particularly Important due to recent Information on so-called
"running loss" VOC emissions (non-exhaust VOC emissions which occur when a vehicle is running)
which appear to contribute significantly to VOC levels..
In the NPRMs, EPA estimated that the two rules would reduce nationwide VOC emissions by 10%. As
noted above. EPA has identified additional benefits of these rules through the control of running loss
VOC emissions with conservative estimates of nationwide VOC emission reductions of 32%. As part
of the analysis of changed circumstances for the supplemental NPRM, EPA reevaluated the costs as
well as the benefits of these regulations. This reanalysts indicates that these regulations will yield a
net cost savings due to the significant fuel economy benefits that will result.
Because of continuing problems with ozone nonattainment. Congressional interest In amending the
Clean Air Act, and public pressure from the states and environmental groups, the Agency is expected
to continue to be pressed to finalize both the onboard refueling and the fuel volatility rules as soon as
possible, hopefully prior to the 1989 summertime ozone season.
ORGANIZATIONS INVOLVED:
American Petroleum Institute
Ford
State and local air pollution control agencies
Insurance Institute for Highway Safety
Congressman John Dlngell
Department of Commerce
National Transportation Safety Board
Department of Energy
National Highway Traffic Center for Auto Safety
General Motors
Chrysler
Motor Vehicle Manufacturers Association
Automobile Importers Association
ACTION DATES OR MILESTONES
Supplemental NPRM for onboard: October 1988
Public hearing: November 1988
Final rulemaking: January 1989
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KEY EPA CONTACTS
Don R Clay, Acting Assistant Administrator for Air and Radiation
Richard D. Wilson, Director. Office of Mobile Sources
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Major National Issues Office of Air and Radiation Page 8 - 5
CLEAN AIR ACT LEGISLATIVE AMENDMENTS
(POLICY DECISION)
BACKGROUND In 1988 both Houses of Congress considered legislation that would have significantly
altered the structure of the Clean Air Act (CAA) and established a new scheme of deadlines by which
areas are to attain the National Ambient Air Quality Standards (NAAQS). Contributing to Congressional
concern was the passing of the December 31, 1987 attainment deadline in the current law at a time
when over one hundred areas remained In violation of one or more of these standards.
Between 1980 and 1987 repeated attempts in Congress to amend various provisions of the CAA had
been unsuccessful. Attempts to modify Section 112 of the Act (air toxics), to add measures addressing
the issue of acid rain, and to tighten the emission standards for both stationary and mobile sources
had been unable to secure support sufficient for passage.
hi 1987 a bill (S.1894) developed by Senator George Mitchell (D. Maine) moved through Mitchell's
Subcommittee on Environmental Protection and through the full Environment and Public Works
Committee. The bill contained provisions addressing (1) ozone and carbon monoxide (CO) nonattain-
ment, (2) acid rain, (3) mobile sources and other federal controls, (4) the NAAQS and (5) air toxics.
hi the House two bills had completed the hearing process and were awaiting mark-up in the
Subcommittee on Health and the Environment. HR 3054 addressed ozone and CO nonattalnment and
HR 2666 covered acid rain.
As 1987 drew to a close it was apparent that Congress would not amend the CAA prior to the December
31 deadline for attainment. In an effort to "preserve the status quo" while Congress considered the
legislation in 1988, Congress passed the Mltchell-Conte amendment, which prohibited EPA from
imposing new sanctions for failure to meet statutory nonattainment requirements until August 31,
1988.
DISCUSSION AND CURRENT STATUS:
A. Senate S.1894 sets forth numerous mandatory measures required to be taken by EPA and the
states, including EPA development of specified control measures, more stringent motor vehicle tailpipe
standards, more federal mobile source measures in the area of mobile sources (i.e., enhanced
Inspection and maintenance programs, 10 year/100,000 mile useful life for 1992 models and beyond
and a nationwide fuel volatility program) and a schedule of requirements for nonattainment areas that
vary depending on the severity of an area's nonattainment problem. The provisions for air toxics require
EPA to evaluate a specific list of chemicals and develop emission control standards to protect against
a statutorily defined level of risk.
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The add rain title would have added an entirely new section to the CAA. It would require national sulfur
dioxide (SO2) emission reductions below total 1980 SO2 levels beginning with 5 million tons by 1993
and concluding with a total reduction of 12 million tons by 2000. The acid rain provisions also required
a low average rate of SO2 emissions from each unit covered by the bill.
EPA criticized S. 1894 as being unnecessarily prescriptive, not allowing sufficient flexibility in planning
and the development of control measures, and imposing unnecessary and excessive costs.
During August and September 1988 various compromises were proposed to the acid rain and air toxics
provisions in an attempt to secure support for passage of the bill. Although the bill was never officially
modified or amended, the compromise discussions would have altered the acid rain provision by
reducing the SO2 tonnage reduction from 12 million to 9-10 million tons and extending the compliance
dates. The air toxics proposals focused on a two-step regulatory approach. requiring technology-based
controls In the first step and, only If further controls were needed to reduce risk, requiring additional
controls several years later. In connection with these discussions, EPA staff developed an alternative
air toxics bill which Included a two-step regulatory process, but provided for different regulatory
standards and time periods for regulatory development and Implementation which were different from
the senate draft.
The attempt to reach compromise positions In the Senate was unsuccessful. On October 4, 1988.
Senator Mitchell announced that his attempt to amend the Act in 1988 had failed. The environmental
community has pledged to renew its efforts to secure passage of Clean Air Act Amendments in 1989.
B. House of Representatives Early in the 1988 legislative year it became clear that House bills HR
3054 and HR 2666 were encountering stiff opposition within both the Subcommittee on Health and
the Environment and the full Committee on Energy and Commerce. As a result a group of nine
Democratic Congressman (Swift, Sharp, Synar, Tauztn, Eckart, Slattery, Cooper, Bruce, Boucher), all
members of the Committee, formed an ad hoc "Group of 9" to attempt to draft legislation that could win
Committee support.
Although the Group of 9 (G-9) proposal dealt primarily with ozone and CO nonattainment, and was
not officially introduced until October 5, in draft form it became the focus of House discussion. The
bill categorizes an area's nonattainment problem according to specific ozone and CO levels and
prescribes a set of measures to be implemented in each type of area according to the severity of the
nonattainment problem. The Group of 9 bill Is somewhat less stringent than S. 1894, as illustrated by
its less severe motor vehicle tailpipe control requirements and the absence of a provision requiring 10
year/100.000 mile useful life.
EPA was supportive of the general approach of the G-9 proposal because it allows enough flexibility
to target control measures to specific areas, rather than mandating numerous control requirements
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Office of Air and Radiation
Page 8 - 7
as is done In the Senate bill. Although this legislation did not go through formal hearings or committee
mark-up, it came dose to passage as a result of a long period of Informal negotiations. The G-9 bill
will probably be the base from which House negotiations will proceed in 1989.
In addition to the introduction of the G-9 bill. Congressman Dlngell In the last days of the Congressional
session Introduced the air toxics bill prepared by EPA staff (discussed above). That language is likely
to be part of the debate on air toxics in the next legislative session.
MAJOR PLATERS IN ORGANIZATIONS:
Senate Members
George Mitchell
Robert Byrd
Alan Simpson
John Breaux
Staff Person
Kate Klmball
Rusty Matthews
Brent Erickson
Paul Carruthers
House Members
John Dlngell
Henry Waxman
Al Swift
Phil Sharp
Mike Synar
Jim Cooper
Edward Madlgan
Clean Air Coalition
Dave Finnegan
Gerry Dodson
Mike Gillett
Judy Greenwald
Jeff Clark
Teresa Gorman
Richard Ayres
Dave Hawkins
Dave Donniger
Industry Groups
Edison Electric Institute
Clean Air Working Group
NAM
API
John Adams
BUI Fay
Teresa Pugh
Dale Brooks
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State/Local Groups
STAPPA-ALAPCO Bill Becker
NGA Tom Curtis
National League of Cities Carol Kocheisen
ACTION DATES OR MILESTONES
There are no specific action dates at this time. Either the Administrator or Congress,
or both, may initiate activity on CAA legislation next year.
KEY EPA CONTACTS
Don Clay. Acting Assistant Administrator for Air and Radiation
Rob Brenner. Office Director , Office of Program Analysis and Review
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Major National Issues Office of Air and Radiation Page 8 - 9
OZONE/CARBON MONOXIDE NONATTAINMENT
BACKGROUND Ozone and carbon monoxide (CO) are two of the nations most complex and intractable
air quality control problems. Ozone is not emitted directly into the atmosphere; it is formed by a series
of atmospheric reactions between precursor emissions (e.g., hydrocarbons and nitrogen oxides) in the
presence of sunlight. Ozone precursors are emitted from numerous sources, large and small, in diverse
locations. These sources include motor vehicles, petroleum refineries, oil storage tanks, household
products, petroleum marketing, chemical manufacturing, surface coating, and printing industries.
Carbon monoxide is emitted directly into the atmosphere as a byproduct of fuel combustion, primarily
from motor vehicles.
EPA has established health-based National Ambient Air Quality Standards (NAAQS) for ozone and
carbon monoxide. According to 1987 air quality data, 68 metropolitan areas failed to attain the ozone
standards, and 59 areas failed to attain the carbon monoxide standard.
The Clean Air Act attainment strategy is based on three premises: 1) that EPA set NAAQS that protect
the public health with an adequate margin of safety: 2) that State and local governments develop State
Implementation Plans (SIPs) that demonstrate how areas could meet these standards over a three-to-
five-year time period: and 3) that these plans when carried out would result in attainment of the NAAQS.
EPA is required under the Clean Air Act to approve or disapprove SIPs. EPA has taken action to
disapprove a number of SIPs which remained incomplete or were not submitted to EPA at all.
Disapproval of a SIP due to failure to demonstrate attainment automatically triggers an area ban on
construction of major sources emitting the relevant pollutant. Other sanctions (such as restrictions
on Federal funding for highways, sewer grants and air program grants) are levied at the Administrator's
discretion.
In 1977, Congress amended the attainment deadlines to allow areas until 1982 or, under certain
conditions. 1987, to attain the ozone and carbon monoxide standards. However, it became clear as
early as 1985 that many areas would fall short of attainment. In order to address the likely failures
to attain standards by the end of 1987, EPA proposed a policy (post '87 policy) in November 1987 on
how to treat areas which would not attain the ozone and carbon monoxide standards by the 1987
deadline.
Because of concerns that EPA might act to impose sanctions on States, and uncertainty whether the
CAA required EPA to do so. Congress enacted theMitchell-Conte Amendment to the Budget Reconcili-
ation Act of 1987 (Mitchell-Conte) which postponed EPA implementation of sanctions until August 31,
1988. It also required EPA to make nonattainment designations which, depending on how the
amendment is interpreted, may have certain regulatory consequences. The Mitchell-Conte deferral of
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Page 8 - 10 Office of Air and Radiation Major National Issues
sanctions has now expired and construction bans have been Imposed In Los Angeles. CA; Ventura Co..
CA; and both the Illinois and Indiana portions of the Chicago metropolitan area.
In addition to its Post '87 policy, in May 1988. EPA made calls for SIP revisions to 43 states based on
1987 data showing widespread nonattainment for carbon monoxide and ozone. These SIP calls require
areas to do such basic work as correct loopholes and deficiencies in their SIPs as well as prepare
emission inventories. New planning and control requirements are deferred until after the final Post '87
policy is issued.
Finally, several public interest groups have sued EPA to disapprove State plans and promulgate Federal
implementation plans (FIPs) in these areas. While EPA has been extremely reluctant to initiate such
activities, this litigation and the plain requirements of the law have left the Agency with little choice but
to begin FIP activities when sued.
The background and current status of specific programs dealing with long-term ozone and CO
nonattainment are discussed In more detail below.
DICUSSION AND CURRENT ISSUES:
Post 1987 - Policy EPA proposed its post 1987 ozone/CO policy on November 24,1987. The policy
requires states to ascertain that all control measures previously required have been implemented.
eliminating any deficiencies and deviations form the regulations. States will also have to develop
detailed emission inventories for 1987. These inventories will form the basis for showing that new SIPs
will produce attainment in the future.
In addition, the proposed Post '87 policy suggests that areas be allowed to adopt attainment deadlines
based on the severity of their nonattainment problems. In the past, all areas were under the same
deadlines of 1982 or 1987. This has proven unrealistic in many cases and led areas to avoid long-term
solutions which did not fit into the CAA time schedules. It has also encouraged areas to show
attainment on paper while avoiding the difficult choices needed to make real progress towards
attainment. The policy also provides, however, that areas requesting or requiring a long-term
attainment date would be faced with construction sanctions until the area was within five years of its
new projected attainment date. Also, areas will face additional sanctions (e.g., a cutoff of Federal
highway funds) if they do not make even "reasonable efforts" to correct their air quality problems.
"Reasonable efforts" are defined as achieving a minimum annual emissions reduction of 3% beyond
that achieved by federally implemented measures (e.g., the Federal Motor Vehicle Control Program).
Finally, the proposal requires that expanded geographical areas, such as the entire consolidated
metropolitan statistical area (CMSA) or metropolitan statistical area (MSA), rather than just the
immediate urban areas, be considered in ozone planning. EPA made this proposal because the
emissions responsible for nonattainment are not generated only within city boundaries. In fact.
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Major National Issues Office of Air and Radiation Page 8-11
significant concentrations of pollutants can come from sources located outside the nonattainment area
or from mobile sources (i.e., cars, trucks, other vehicles) which travel throughout the area.
Staff work is continuing on the Post '87 policy proposal to identify and resolve specific issues. Decision
on a final policy will need to be made within a few months.
Mitchell-Conte Amendment The Mitchell-Conte Amendment to the Budget Reconciliation Act of
1987 was passed on December 22,1987. Its primary purpose was to defer the implementation by EPA
of any sanctions until August 31, 1988, In order to provide Congress additional time to enact CAA
amendments. However, it also contained a provision which required EPA to evaluate air quality data
for ozone and CO and take appropriate steps to designate those areas falling to attain either or both
standards as nonattainment within the meaning of Part D of Title I of the Clean Air Act.
The exact meaning of this requirement in the Mitchell-Conte amendment is unclear and little guidance
could be found In the legislative history. Therefore, on June 6, 1988, EPA listed areas not attaining
the ozone and/or CO standards by December 31,1987, proposed nonattainment designations for these
areas, and requested public comment on 3 possible interpretations of the regulatory consequences of
these nonattainment designations.
The three possible Interpretations are:
Option 1: The nonattainment designations under Mitchell-Conte have no regulatory ef-
fects and are for information only.
Option 2: The nonattainment designations affect section 107 of the CAA and trigger or
renew the Part D planning and implementation requirements, including a
renewed possibility of sanctions, such as highway fund restrictions, in areas
whose plans previously received EPAapproval (such as New York and Houston).
Option 3: The nonattainment designations under Mitchell-Conte are the same as Option
2, but Part D regulatory and sanction consequences would be attached only to
newly designated nonattainment areas (e.g.. counties that never had to submit
Part D plans because they were not already listed as nonattainment under
section 107 authority).
A number of state transportation agencies, industrial groups, and the Federal Highway Administration
favored the first interpretation, while a number of members of Congress, Including Senators Mitchell,
Burdlck and Chaffee, as well as environmental groups, favored the second. GAO. responding to an
inquiry by Congressman Dingell, regards the first option as the best reading of the statute.
Staff is continuing to review comments. A final decision on the proposal will probably be made in
connection with the development of the final Post '87 policy.
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SIP Disapprovals On July 14,1987, EPA proposed to disapprove the Part D (1982) ozone and/or CO
SIPs in 14 areas because the SIP submlttals for those areas did not demonstrate attainment. The
proposal covered areas which had never received full approval of their 1982 SIP submlttals. It also
included areas that were required to. but did not, attain by 1982 and had previously received notices
of SIP deficiency. These areas included Chicago, IL (ozone); East St. Louis, EL (ozone); Indiana portion
of Chicago (ozone); Indiana portion of Louisville. KY (ozone); Cleveland, OH (CO); Atlanta. GA (ozone);
Dallas-Ft. Worth. TX (ozone); Denver, CO(CO); South Coast (including Los Angeles), CA (ozone and CO);
Fresno Co., CA (ozone and CO); Sacramento Co., CA (ozone); Ventura Co., CA (ozone); Kem Co., CA
(ozone); and Reno. NV (CO).
A companion discussion piece was also published simultaneously giving the reasons for EPA's decision
to propose disapproval for these areas, the ramifications of final rulemaklng, other options open to the
Administrator, and possible actions relating to the remaining nonattainment areas not covered by the
proposed disapprovals. The rulemaking also signaled a change In EPA's position and declared invalid
the use of a Reasonable Extra Efforts Program (REEP) that EPA had experimented with in seven
California nonattainment areas.
Subsequent to the July 14, 1987 proposed disapprovals, Texas submitted an Interim SIP submlttal
which substantially addressed the concerns raised in the proposed disapproval for Texas. Sanctions
will be deferred as long as Texas fulfills commitments made in the interim submlttal and Texas proceeds
to prepare a new SIP.
For some of the remaining areas for which EPA proposed disapproval on July 14,1987, EPAhas already
taken action to disapprove their plans (see below). For the remainder. EPA will probably take final
action at the same time as, or shortly after, publication of the final Post '87 policy.
Fedral Implementation Plans (FIPs) The 1970 CAA required EPA to develop and Implement FIPs
when the states failed to adopt and implement SIPs. hi the 1977 CAA amendments. Congress
recognized the difficulties Involved in EPA developing pollution control plans for states and, in part,
extended the attainment deadlines for this reason. It did not, however, relieve EPA of its duty to prepare
a FIP if a state failed to submit an adequate SIP or if a state failed to revise its SIP.
FIPs are a tremendous resource burden for EPA and place the Agency In the position of implementing
measures and programs that are better handled by local and state agencies. Examples are inspection/
maintenance programs and transportation control measures. Moreover, the timeframe in which the
FIPs have to demonstrate attainment is not clear. A longer attainment timeframe would allow EPA to
follow a more reasonable schedule; however, as with SIPs, it is not dearwhether EPAhas legal authority
to extend attainment deadlines in FIPs beyond the statutory December 31. 1987 attainment date.
Currently, as a result of litigation. EPA is now working on FIPs in several areas. It is feared that further
litigation could result In even more requirements for EPA to promulgate FIPs. with accompanying
severe resource demands on and legal problems for the Agency.
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Major National Issues Office of Air and Radiation Page 8 - 13
Arizona: A carbon monoxide FIP was earlier proposed for Arizona but that proposal was superseded
by an approved SIP.
California: As a result of litigation. EPA was compelled to disapprove the SIP for the South Coast Air
Basin in California, one of the 14 areas proposed for disapproval on July 14,1987. This disapproval
was published on January 22, 1988. Pursuant to this disapproval, a construction moratorium on
major sources of volatile organic compounds (VOC) and CO went Into effect on August 31, 1988, the
earliest date allowed under the Mitchell-Conte amendment.
In related litigation concerning the South Coast, a suit was filed in early 1988 to compel EPA to
promulgate a FIP for ozone and CO In the South Coast Air Basin following disapproval of the area's SIP.
EPA has acknowledged its duty to develop a FIP for the South Coast area. EPA Is still negotiating with
the plaintiffs to determine If agreement can be reached on a schedule for FIP development. The Agency
plans to publish an advanced notice of proposed rulemaking In November 1988 which will discuss the
numerous issues raised by the development of a Federal plan for attainment.
As a result of other litigation, EPA has recently disapproved the SIP for Ventura Co., CA. The Agency
expects to acknowledge its duty to promulgate a FIP there as well. Negotiations are underway with
plaintiffs In the Ventura lawsuit on a FIP schedule. EPA will also soon disapprove the SIP for
Sacramento, CA which may lead to a schedule for development of a FIP for Sacramento.
Chicago area (IL & IN): EPA recently disapproved the SIP for both the Illinois and Indiana portion of
the Chicago area and has acknowledged its duty to create a FIP for the area. Discussions continue with
plaintiffs In each of these cases in order to resolve outstanding issues, including the schedule for
developing FIPs.
EPA's May 1988 SIP Calls In late May and early June, 1988. the EPA Regional Administrators sent
letters to the Governors of 42 states and the Mayor of the District of Columbia notifying them that their
air pollution control plans for achieving the ozone and carbon monoxide standards were substantially
Inadequate and that revisions were necessary. The determination of SIP Inadequacy was based upon
the failure of the areas to attain the national standards by December 31, 1987.
EPA believes that even before the final Post '87 policy is issued, the states should initiate certain
fundamental activities so that they can continue to make progress towards attaining the standards.
The states will be required to correct discrepancies between EPA's guidance and their earlier approved
SIPs, to satisfy any unlmplemented commitments in their SIPs to adopt control measures, and to begin
updating their emissions inventories for the defined planning area. In general, the states have
approximately one year to complete this effort. EPA is also calling upon some areas to commit to a
schedule of monitoring for Nonmethane Organic Compounds (NMOC.s).
A complete response to the SIP call must await promulgation of EPA's final Post '87 ozone/CO
nonattainment policy. At that time, states will be expected to complete development of a SIP that will
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Page 8-14 Office of Air and Radiation Major National Issues
lead to attainment and maintenance of the NAAQS throughout expanded nonattalnment planning
areas.
MAJOR PLATERS IN ORGANIZATIONS
Congress
Senate Committee on Environment and Public
STAPPA/ALAPCO (State and local air pollution control directors)
U.S. Conference of Mayors. National Council of State Legislatures, other general interest groups of
State and local government
Environmental Groups
American Petroleum Institute
Motor Vehicle Manufacturers Association
Business Roundtable
ACTION DATES
Future items for finalization:
Post 1987 ozone/CO policy
Mitchell-Conte proposal
July 14, 1987 proposed SIP disapprovals and sanctions
Actions resulting from SIP calls:
Draft emissions inventoriesOctober 1989
Revised stationary source VOC regulations from States-Summer 1989
KEY EPA CONTACTS
Don Clay. Assistant Administrator. Office of Air and Radiation
Gerald Emlson. Director, Office of Air Quality Planning and Standards
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Major National Issues Office of Air and Radiation Page 8 - 15
REVIEW OF THE NATIONAL AMBIENT AIR QUALITY STANDARDS
FOR SULFUR OXIDES
BACKGROUND: National ambient air quality standards (NAAQS) required by the Clean Air Act are
Intended to protect the public health and welfare from the adverse effects of air pollutants emitted from
numerous and diverse stationary and mobile sources. Standards are based on air quality criteria which
reflect the latest scientific information indicating the kind and extent of all effects on public health or
welfare by the pollutant In the ambient air.
Sulfur dioxide (SO2) is one of the original six pollutants for which NAAQS were set in 1971. SO2 occurs
in the atmosphere with a variety of particles and other gases, and undergoes chemical and physical
interactions that form sulfuric acid droplets, sulfate particles, and other transformation products. At
elevated concentrations, SO2 can adversely affect human health and welfare. SO2, largely through its
transformation products. Is widely recognized as a major contributor to the acidic deposition problem
and regional scale visibility degradation, particularly In the eastern United States. The principal focus
of the sulfur oxides standards review is, however, on the health and welfare effects of gaseous SO2.
alone and in combination with other pollutants.
The highest short-term SO2 values are found in the vicinity (<20 km) of major point sources such as
power plants and smelters. SO2 air quality is generally good with respect to the current standards,
with only a small fraction (two percent) of the nation's counties designated as nonattainment. hi most
cases, these designations apply to the immediate vicinity of certain major point sources.
Based on a wide variety of studies, many of which addressed high levels of both SO2 and particulate
matter, the major human health effects of concern include effects on breathing and the respiratory
system, aggravation of existing respiratory and cardiovascular disease, alterations in the body's
defense system against foreign materials, and premature mortality. It is difficult to evaluate which,
if any, of these effects might occur today given the much lower concentrations now prevalent. The maj or
welfare effects considered directly in the current review Include damage to vegetation and materials.
The original SO2 standards were based upon the then available scientific criteria. The primary
standards are 0.14 parts per million (ppm) (365 mlcrograms per cubic meter (ug/m3)}. averaged over
a period of 24 hours and not to be exceeded more than once per year, and 0.03 ppm (80 ug/m3) annual
arithmetic mean. The secondary standard is 0.5 ppm (1300 ug/m3) averaged over a period of 3 hours
and not to be exceeded more than once per year.
The 1977 Amendments to the Clean Air Act required that EPA review and, where appropriate, revise
the air quality criteria and ambient standards every 5 years. Work on a combined revised criteria
document for sulfur oxides and particulate matter (PM) was Initiated in 1978, completed in 1982, and
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Page 8 - 16 Office of Air and Radiation Major National Issues
Issued on March 20.1984 in conjunction with the proposed revisions to the PM standards. (EPA again
updated and revised these criteria in an addendum to the criteria document Issued on July 1.1987.)
By 1983, EPA's review of the SO2 standards had identified two major alternatives: (1) add a one-hour
standard in the range of 0.25 to 0.5 ppm and modify the other standards; and 2) reaffirm the current
standards. These options grew out of a body of new data that showed 5 minute to 1-hour exposures
to 0.4 ppm SO2 or more produced measurable changes in respiratory function and symptoms in
exercising asthmatics. At lower concentrations (<0.75 ppm) and exercise levels, these effects are
generally within the range of day-to-day variations that most asthmatics typically experience from
exercise or other stimuli They are. in general, not equivalent to more severe responses that accompany
an asthma "attack."
EPA's exposure analyses around power plants indicate that the current standards markedly limit the
frequency and extent of short-term concentrations of concern. Day-to-day activity patterns further
reduce the chance that such levels will result in exposure conditions similar to those in the health
studies. EPA estimates that approximately 100,000 individual asthmatics or about 1 percent of the
national asthmatic population will experience at least 1 such exposure per year. Of these, fewer than
25 percent are likely to experience even moderate pulmonary function changes and symptoms.
DISCUSSION AND CURRENT STATUS: Administrator Ruckelshaus considered the results of the the
review in 1984. and made a provisional decision to retain the current standards. Administrator
Thomas conducted his own review, considering the additional scientific information in the criteria
document addendum.
On April 26, 1988, EPA announced its provisional conclusion that the current standards provide
adequate protection and that a 1-hour standard is not needed. However, in light of the uncertainties
In the scientific evidence and EPA's exposure analysis, and the diversity of opinion as to the significance
of potential short-term exposures and the degree of protection needed, the Agency proposal called for
broad comment on the alternative of adding a new 1-hour standard of 0.4 ppm (1050 ug/m3). The
notice also stated that if EPA were to promulgate a 1-hour standard, it would consider replacing the
3- hour secondary standard with a 1-hour standard identical to the primary standard and changing
the technical form of the SO2 standards. With respect to effects on vegetation and material issues, EPA
proposed to retain the current secondary standard.
As to acidic deposition and the sulfur oxide standards, EPA concluded that it would be premature to
prescribe any regulatory program at this time based on the current scientific understanding of the acid
deposition problem. The Agency indicated that appropriate control measures could be developed after
the fundamental scientific uncertainties are reduced through ongoing research efforts. This issue will
be subject to public comment and potential litigation that may lead to additional pressure for both
legislative and regulatory action.
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Major National Issues Office of Air and Radiation Page 8 - 17
EPA also proposed to revise the Significant Harm Levels and associated episode plan guidance, which
are intended to protect against "imminent and substantial endangerment to public health of persons"
as required by Section 303 of the CAA.
Information on the remaining health and welfare effects of the principal atmospheric transformation
products of SO2 (sulfuric add and sulfates) was considered in the review of the PM standards.
The public comment period on the SO2 proposal is now scheduled to close on November 22, 1988. It
is clear that environmental groups, as well as some knowledgeable health experts, will vigorously argue
that short-term SO2 peaks pose a significant public health problem, that EPA's exposure estimates are
significantly understated and that EPA should set a new short-term standard. At least one
environmental group will also argue that a secondary standard is needed to address acid deposition
and visibility effects. Industry generally expresses support for the proposed decision, but has raised
some concern over the proposed short-term significant harm level.
The issues of the need for a short-term health based standard, and a secondary standard for acid
deposition are likely to be litigated regardless of the final positions taken by EPA.
Pending the close of the public comment period, staff activities are focused on selected Issues: 1)
Implementation of the short-term significant harm level and episode criteria; 2) the environmental
groups' allegations that the exposure estimates were significantly understated: and 3) issues related
to acid deposition.
MAJOR PLATERS IN ORGANIZATIONS:
Robert Yuhnke . Environmental Defense Fund
David Hawkins, Natural Resources Defense Council
Ronald White, American Lung Association
Michael Teague, Utility Air Regulatory Group
James R Bieke, Shea and Gardner (representing American Mining Congress)
ACTION DATES OR MILESTONES:
Comment Period Ends 11/22/88
Options Selection Meeting 6/1/89
Publish Final Rules 12/20/89
KEY EPA CONTACTS:
Don R. Clay - Acting Assistant Administrator, Office of Air and Radiation
Gerald A. Emison - Director, Office of Air Quality Planning and Standards
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Page 8-18 Office of Air and Radiation Major National Issues
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Major National Issues Office of Air and Radiation Page 8 - 19
AIR TOXICS
(COURT DEADLINES AND POLICY DECISION)
BACKGROUND: Air toxics can Include any airborne substance of concern to human health, but the
term is generally used to describe airborne carcinogens and other trace toxicants. Much air toxics
control is provided by reductions in emissions of volatile organics and particles through controls on
new stationary and mobile sources to meet the national ambient air quality standards. The EPA's air
toxics strategy relies on several Clean Air Act (CAA) provisions, as well as on other statutes (e.g. TSCA,
RCRA) and on assisting State-directed toxics programs.
The most recognized authority for direct Federal regulation of toxic or hazardous air pollutants is
Section 112 of the CAA, first enacted in 1970. Section 112 requires the Administrator to publish (and
from time to time revise) a list of hazardous air pollutants for which he intends to establish emission
standards and to promulgate emission standards for those pollutants. The standards, commonly
referred to as "NESHAP" (National Emission Standards for Hazardous Air Pollutants), must be set at
a level that provides an "ample margin of safety to protect the public health." Although the magnitude
of the air toxics problem is subject to debate, over the past several years, substantial concern has been
expressed by some members of Congress, environmental groups, and the public concerning the EPA's
lack of progress In regulating toxic air pollutants under the Section 112. Debate has centered on the
appropriate degree of control and the role of cost In the decision-making. Since 1970 NESHAP have
been promulgated for seven pollutants: asbestos, beryllium, mercury, vinyl chloride, inorganic
arsenic, radlonuclldes, and benzene. In addition, coke oven emissions have been listed as a hazardous
air pollutant under Section 112. Emission standards for coke ovens have been proposed but not
promulgated.
The slow pace of standard development under Section 112 has led to various Congressional efforts to
mandate speedier action by EPA. Most recently. Senator George Mitchell introduced air toxics
provisions as part of his proposed amendments to the CAA. These provisions would have required EPA
to regulate a large number of pollutants over a 10- year timeframe. The EPA staff developed an
alternative bill which incorporated some of the major features of the Mitchell bill, but attempted to
balance more effectively protection of public health and economic objectives. The EPA staff language
was introduced as a bill by Congressman John Dingell in the closing days of the 100th Congressional
session. EPA's draft may serve in part as the basis for legislative debate on air toxics amendments in
1989.
A. History of Implementing Section 112: The major issue in the NESHAP program has been the
regulation of carcinogens. Because carcinogens have no threshold of effects, any level of emissions.
regardless of how small, will produce some quantifiable measure of risk to public health. Consequently,
determining an emission standard that represents an "ample margin of safety to protect public health"
has been the source of wide debate and disagreement. EPA's initial NESHAP for carcinogens (asbestos.
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Page 8-20 Office of Air and Radiation Major National Issues
vinyl chloride) were based on a best available technology (BAT) approach which considered costs and
technical feasibility in setting the level of the standards.
The Agency In 1979 proposed an airborne carcinogen policy which would have required as a minimum
the application of BAT to control emissions and the elimination of "unreasonable residual risk" through
more stringent control "beyond BAT." However, the policy was never promulgated, and in its place the
Agency adopted a "risk management" approach in 1984. This approach employs quantitative risk
assessment of control options and examines the incremental costs, public health, and all other relevant
factors in the selection of the appropriate control level. Under this approach, in 1984, three previously
proposed emission standards for benzene sources were withdrawn on the basis that the risks were too
small to warrant Federal regulation.
B. Recent Developments: In June 1987. the D. C. Circuit Court of Appeals issued a landmark ruling
on the vinyl chloride NESHAP. The ruling invalidated EPA's approach to setting emission standards
under Section 112. In setting and reviewing the vinyl chloride standard, the Agency had considered
control costs and technical feasibility and set the standard at a level that reflected BAT. The Court held
that the Agency had not shown that the vinyl chloride standard protects the public health within the
meaning of Section 112. The court required the Administrator to first select an emission level that will
provide a "safe" or "acceptable" level of risk to the public based on health considerations alone. The
Agency could consider costs and technical feasibility only in the second step which set an "ample
margin of safety" at or below the "acceptable" level.
Following the Court's decision on vinyl chloride, the Agency requested a voluntary remand of the
benzene NESHAP, which was pending before the Court (December 8, 1987). The Agency's proposed
response to the remand was published on July 28, 1988. According to the Court's order, final action
on the remand (including promuglatlon of appropriate NESHAP) is required by December 2.1988. fThe
Agency expects to request additional time).
DISCUSSION AND CURRENT STATUS: In the benzene case, the Agency faces a major, precedent-
setting decision on how to regulate air toxics under Section 112. Certain options can result in
potentially high costs and severe economic consequences to affected source categories. At the same
time, the public health risks remaining after the application of even the most stringent known emission
control technology are higher than those which have been regarded as acceptable under other EPA
programs.
In the July benzene proposal, the Agency proposed four alternative approaches for controlling benzene
from five source categories which emit benzene. Alternative approaches were proposed because of the
broad Implications and widespread public interest in the rule. They represent different ways of
determining "acceptable risks."
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Major National Issues Office of Air and Radiation Page 8 - 21
The first approach (termed "case-by-case approach") considers collectively all health Information, risk
measures (such as maximum Individual risk, risk distribution, and annual cancer incidence),
underlying assumptions, technical limitations, and uncertainties In determining acceptable risk. The
three remaining approaches employ single measures of risk, and set a "bright line" threshold for the
acceptable-risk decision. The second approach considers only the annual cancer Incidence In making
the acceptable-risk decision. (The annual cancer incidence is defined as the average number of excess
cancer cases expected annually In the exposed population residing in the vicinity of industrial sources
of benzene.) Anything greater than one predicted case of cancer per year would be considered
unacceptable, and regulatory action would be required to achieve this level. The third approach
considers the maximum individual lifetime cancer risk as the only parameter in determining acceptable
risk. Exposure of any Individual to risks of one in ten thousand or greater over a lifetime would be
considered unacceptable. The fourth and, under most circumstances, most stringent approach
defines acceptable risk as a maximum Individual risk of one in one million or greater.
Because of the fundamental policy Implications Involved in the benzene case, the NESHAP program has
been virtually suspended pending the final benzene decision. These projects affected include coke oven
emissions, ethylene oxide (commercial and hospital sterilizers), perchloroethylene (dry cleaning),
trichloroethylene (solvent cleaning), asbestos (revised standard for demolition, renovation, fabrication,
and waste disposal), and the hazardous organic NESHAP (eight organic chemicals from chemical pro-
duction processes). Following determination of the appropriate control level for benzene, the next issue
will be to set priorities for making decisions on the individual rules listed above.
hi a related court decision Issued on September 14,1988, theD.C. District Court ordered that by March
13, 1989, EPA publish In the Federal Register either proposed benzene NESHAP or a decision not to
regulate benzene for eleven additional source categories. Promulgation of final rules is required within
180 days of proposal. The Agency has filed a motion to alter the judgment In the case or at a minimum
to modify the March 13,1989 deadline. If this motion Is denied, it is likely that an appeal will be filed.
MAJOR PLAYERS IN ORGANIZATIONS
American Petroleum Institute
Chemical Manufacturers Association
Natural Resources Defense Council
American Iron and Steel Institute
American Coke and Coal Chemicals Institute
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Page 8 - 22
Office of Air and Radiation
Major National Issues
Final Benzene Rule
ACTION DATES OR MILESTONES:
December 2, 1988
(Agency will request extension of Court-
ordered date for final rule.)
Propose rules or negative
determinations for additional
benzene sources
Final rules for additional
benzene sources (if required)
Decision on 8 other
NESHAPs (including coke ovens)
March 13. 1989
(Agency has filed a motion
requesting modification)
180 days from proposal
Following benzene decision
KEY EPA CONTACTS:
Don Clay. Assistant Administrator, Office of Air and Radiation
> Jerry Emison, Director. Office of Air Quality Planning and Standards
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Major National Issues Office of Air and Radiation Page 8-23
STRATOSPHERIC OZONE PROTECTION
BACKGROUND: Chlorofluorocarbons (CFCs) are widely used Industrial chemicals found In refriger-
ants and used as solvents In manufacturing electronic components and as a foamblowing agent in
many plastics. Concentrations of CFCs tend to build for over a hundred years. In 1974 a theory linking
CFCs to ozone depletion was first proposed. This theory stated that emissions of CFCs would slowly
migrate to the upper atmosphere where the chlorine molecules would be released and act as a catalyst
in destroying ozone through a series of chemical reactions. Ozone in the upper atmosphere plays a
critical role in preventing most of the damaging ultraviolet radiation from penetrating to the earth's
surface. If some portion of the ozone layer were lost, the resulting Increase in exposure to damaging
ultraviolet radiation would result in increases in the number of skin cancer cases and fatalities, damage
to the human immune response system, and damage to plant and aquatic systems. In addition, greater
amounts of ultraviolet radiation would increase ground-level ozone formation and accelerate damage
to outdoor polymers.
Sections 151-59 of the Clean Air Act authorize EPA and other agencies to conduct and coordinate
t
research related to ozone depletion and to pursue international efforts to address this problem. Section
157(b) specifically authorizes EPA to regulate ozone-depleting chemicals.
In response to Initial concerns about ozone depletion. In 1978 EPA prohibited the use of CFCs in most
aerosol propellants. While several nations followed our lead, other uses of CFCs (e.g.. as a refrigerant.
solvent and foamblowing agent) continued to grow substantially both here and abroad.
Recognizing that protecting the ozone layer is a global issue, in 1982 the United Nations Environment
Programme (UNEP) initiated negotiations for an international response to this problem. Following
extended negotiations, the Vienna Convention for the Protection of the Ozone Layer (a framework
agreement calling for international cooperation) was signed in March 1985 and the Montreal Protocol
on Substances that Deplete the Ozone Layer was agreed to in September 1987.
The Montreal Protocol calls for a 50 percent reduction in CFCs from 1986 baseline levels phased in over
ten years and a freeze on halons. which are used as a fire extlnguishant, beginning In 1992. Recognizing
that substantial scientific uncertainties remain, the Protocol also requires the Parties to undertake
periodic assessments to determine if a change in its control measures Is warranted.
As of October 1. 1988. the Protocol had been signed by 46 nations of which 10 had completed their
ratification process including the United States. The Protocol will enter into force following ratification
by 11 nations representing two-thirds of global consumption of CFCs and halons. Based on progress
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Page 8 - 24 Office of Air and Radiation Major National Issues
to date. It appears that these conditions for entry Into force will be satisfied by the January 1, 1989
target date contained In the Protocol.
In March 1988, several months after the Protocol was signed, the summary report of the "Ozone Trends
Panel" was released with information which suggested that past assessments of risks underestimated
the threat of ozone depletion. The panel consisted of an international collection of more than 100 of
the world's leading experts on ozone measurements, modelling and theory, and was chaired by NASA
and NOAA. The summary report concluded that CFCs could be conclusively linked to the large seasonal
losses of ozone recently experienced over Antarctica (the so-called ozone hole) and that ozone depletion
of around 2 percent had already occurred over the northern hemisphere. The latter finding suggested
that current atmospheric models, which had been relied on in defining the Protocol's requirements but
which suggest that no depletion should have yet occurred, underestimate the actual risks of depletion.
In response to this new information many of the world's leading CFC producers (e.g.. DuPont, ICI) and
the trade association representing U.S. producers and user industries (the Alliance for Responsible
CFC Policy) have called for using the Protocol's review process to modify its requirements to require a
phase-out of these chemicals. Other governments including Canada, the Nordic Countries, West
Germany and Great Britain have also responded to this new evidence by calling for strengthening the
Protocol's control requirements. In September 1988, in response to a new EPA analysis showing that
under the terms of Montreal Protocol atmospheric chlorine levels would still increase substantially. Lee
Thomas called upon all nations to ratify the Protocol and then to use Its review process to move toward
phasing-out the regulated chemicals.
DISCUSSION AND CURRENT STATUS: On the international front, EPA is actively participating with
the Department of State and other agencies in the Protocol's assessments and implementation. These
activities include efforts to expand the scope of participation particularly among developing countries
including India and China.
The current UNEP schedule calls for the Parties to hold their first meeting in April, 1989 and for the
negotiations on possible changes to the control provisions to conclude by April 1990.
Final domestic regulations implementing the Montreal Protocol were published on August 12, 1988.
This regulation allows current CFC producers to continue production but at reduced levels based on
the Protocol's phase-down schedule. By limiting the supply of CFCs at the point of production, EPA's
rule directly affects only the seven firms that produce CFCs and halons. This regulatory approach
based on "allocated quotas" for producers allows the marketplace to determine which firms continue
to use CFCs and how much they pay. As supply is limited by regulation, continued demand for CFCs
should result in higher prices for firms seeking to continue to use these chemicals. In turn, higher CFC
prices should provide an economic incentive for firms to increase their recovery and recycling and to
develop alternative chemicals that can substitute for CFCs.
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Major National Issues Office of Air and Radiation Page 8 - 25
One issue which results from this regulatory approach Is the large "windfall profits" that are likely to
accrue to the seven CFC and halon producers. These windfalls result from the higher CFC prices paid
by firms buying these chemicals from the producers who can only produce a limited supply due to EPA
regulations. The windfall Is the difference between the higher CFC market price in future years minus
the costs of production which are not likely to change over time. As a means of considering possible
ways to address this issue. EPA published an advance notice of proposed rulemaklng (ANPRM) on
August 12,1988 asking for public comment on the use of "auctions" as a substitute for the current
allocated quota system or adding a regulatory fee to allocated quotas as a means of capturing the
windfall profits. Under the auction system, instead of allocating production rights to past CFC and
halon producers, EPA would periodically conduct an auction and any interested firm could bid on the
right to produce these chemicals. Strong industry objections (e.g., fear that big firms or speculators
will hoard CFCs limiting the access to CFCs for small firms) have been voiced concerning the use of
an auction system and legal issues related to EPA's statutory authority have been raised concerning
both a fee and auction.
EPA is also participating in several technical assistance pro] ects with private industry which are aimed
at facilitating the transition away from CFCs and halons. For example, we are participating in efforts
by the Defense Department to allow for use of alternative solvents (e.g.. aqueous cleaners and blends).
We are also providing technical support for efforts by the auto industry to develop a purity standard
which will allow CFCs in car air conditioners to be recycled at the time of servicing. While significant
efforts have been initiated by the private sector on a voluntary basis to reduce its use of these chemicals.
as part of Its ANPRM EPA stated that if unwarranted delays involuntary reductions occur, the Agency
may impose specification requirements on user industries where reduction technologies are already
available but are not being aggressively adopted.
ACTION DATES OR MILESTONES:
EPA will have to decide whether or not to modify its existing regulation (e.g., change to an auction
or add a regulatory fee) following the close of its public comment period on November 1. It will also
be actively engaged in the Protocol's assessments and the initial meeting of the Parties scheduled
for April 1989. Negotiations of tighter controls are scheduled to conclude by April 1990.
KEY EPA CONTACTS:
Eileen Claussen, Acting Deputy Assistant Administrator, Office of Air and Radiation
David Dull, Acting Office Director, Office of Atmospheric and Indoor Air Programs,
Office of Air and Radiation
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Major National Issues Office of Air and Radiation Page 8 - 27
ACID DEPOSITION (ACID RAIN)
BACKGROUND: Acid deposition refers to the acidic compounds formed In the atmosphere that are
deposited on the land and water surfaces of the earth. The acids are primarily sulfur and nitrogen-
containing compounds that are formed when sulfur and nitrogen emissions are oxidized in the
atmosphere. Acid deposition can be either in the form of dry deposition (gases, particles) or wet
deposition (fog, rain. snow). The precursors of these atmospheric acids are sulfur dioxide (SO2) and
nitrogen oxides (NQx), both of which have natural origins (volcanoes, lightning), and are produced
through human activity. The contributions from human activity at the regional scale outweigh those
from natural causes by a wide margin in areas where acidic deposition is high. The primary source
of man-made sulfur dioxide emissions are coal-burning electric utility power plants (60-70% of
emissions); other major sources are industrial boilers used to generate steam. The primary sources
of nitrogen oxide emissions are motor vehicles and electric power generating plants. NQx emissions
occur whenever fuel is combusted at high temperatures (the high temperatures lead to the combination
of atmospheric nitrogen and oxygen). Emissions of sulfur dioxide and nitrogen oxides in the U.S. from
human activity total approximately 20 million tons each on an annual basis.
In the late 1960's and early 1970's scientists began to make a connection between acid deposition and
acidification of lakes and loss of sport fisheries. The Acid Precipitation Act of 1980 called for a ten-
year research effort into the causes and effects of acid deposition to reduce scientific uncertainties.
This led to the establishment of the National Acid Precipitation Assessment Program (NAPAP). The
NAPAP is composed of twelve federal agencies , and four national laboratories. NAPAP has spent
nearly $400 million funding research into various areas, including atmospheric chemistry and
transport, and aquatic, forest, materials, and crop effects. EPA has provided over 50 percent of
NAPAP's funding, and is heavily involved in various analytical efforts associated with the program.
In 1985, President Reagan and Prime Minister Mulroney of Canada appointed Special Envoys to review
the issue. Their report was issued in 1986. The key feature of the report was the call for a $5 billion
U.S. government/industry program to demonstrate innovative pollution control technology, and for
the two countries to conduct ongoing bilateral consultations and cooperative research projects.
President Reagan subsequently lent his support to the government/industry clean coal technology
program, which is directed by the Department of Energy.
EPA has participated in various acid deposition activities related to research and policy Issues. These
activities, besides participation in the NAPAP and DOE's Innovative Coal Technology Advisory Panel,
include the funding and participation in the State Acid Rain (STAR) program, analyzing and
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commenting on legislative initiatives, and meeting with various groups interested in the acid
deposition problem.
DISCUSSION AND CURRENT STATUS:
1.) Scientific Uncertainties/NAPAP While NAPAP's research program has made substantial progress
in some areas (e.g., the documentation of the current chemical status of lakes and streams In the
United States), some answers will not be available In the assessment (e.g., contributions of individual
emitting sources to deposition at specific receptors, effects on forests). The 1990 Assessment will
evaluate the effects of various strategies to control sulfur dioxide emissions on the acidity of lakes and
streams in the northeastern part of the U. S. Some important policy issues related to NAPAP's activities
are: the basic characterization of what is known about the science of acid deposition and the policy
implications of the science e.g. should we support a certain amount of control on sulfur dioxide and/
or nitrogen oxides; how fast should controls be put in place; and, what will controls cost ?
MAJOR PLATERS IN NAPAP
Jim Mahoney, Executive Director of NAPAP
EPA, DOE. DOI, NOAA, USDA (Forest Service)
ACTION DATES/MILESTONES
Summer 1989:
Mid-course review of final assessment
September 1990:
Publish Integrated Assessment
Key EPA contacts
Don Clay, Acting Assistant Administrator, Office of Air and Radiation
Eileen Claussen, Acting Deputy assistant Administrator, Office of Air and Radiation
David Dull, Acting Director, Office of Atmospheric and Indoor Air Programs
Courtney Riordan, Director, Office of Environmental Processes and Effects Research
2).Legislative Initiatives: Despite numerous scientific uncertainties related to acid deposition, there
is a growing consensus in Congress that: 1) acid deposition is a real problem that needs legislative
action; and, 2) the control of sulfur dioxide emissions from existing fossil fuel-fired electric power
generating plants lies at the heart of any add deposition control program. Less consensus has
developed on the need to implement major new control of nitrogen oxide emissions.
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Major National Issues Office of Air and Radiation Page 8 - 29
Over 60 bills In recent years have proposed acid deposition control programs. One common feature
of most of these bills is the call for reduction in sulfur dioxide emissions from electric power generating
plants. Beyond that, consensus is lacking on a number of critical Issues, including: the size of
reductions (although a 10 million ton annual reduction in sulfur dioxide emissions is popular), the
timing (5-15 year phase-in of controls is the focus), control options (force utilities to build "scrubbers"
[flue gas desulfurization units] to protect the high-sulfur coal industry or allow "freedom of choice",
which would increase the use of low sulfur coal and simultaneously reduce markets for high sulfur
coal), financing of control costs (tax on energy consumption, subsidies for utilities which have to build
scrubbers), and the need to further control the emissions of nitrogen oxides from motor vehicles and/
or other sources.
EPA has to decide the degree to which it wants to be involved in the legislative debates. Control options
for sulfur dioxide emissions contained in the various bills have large economic impacts associated with
them, for both capital costs (e.g.. construction of scrubbers), and annual costs (e.g., operation.
transportation, waste disposal). These costs could be billions of dollars per year. If Congress does enact
acid deposition control legislation, decisions will have to be made regarding who will direct the
program, and the levels of staffing and funding.
MAJOR PLAYERS
Senator Mitchell. Senator Byrd
Representative Dingell, Representative Waxman
Natural Resources Defense Council. Clean Air Coalition United Mine Workers
Electric utilities, including
The Edison Electric Institute and the
Electric Power Research Institute
ACTION DATES/MILESTONES
January 1989: 101st Congress convenes.
KEY EPA CONTACTS
Don Clay, Acting Assistant Administrator, Office of Air and Radiation
Eileen Claussen. Acting Deputy assistant Administrator, Office of Air and Radiation
Rob Brenner. Director, Office of Policy Analysis and Review, OAR
3.) Sections 115 of the Clean Air Act: EPA has both been sued and petitioned to act on acid
deposition under Section 115 of the Clean Air Act. Under section 115, if the Administrator has reason
to believe that pollutants from the U.S. contribute to air pollution which may endanger the public
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health or welfare in another country, he Is supposed to give formal notification of this determination
to the governor of the state in which such emissions originate. This notification is intended to lead
to a revision of the State Implementation Plan to prevent or eliminate the endangerment.
EPA was sued in 1984 on the 115 issue, with plaintiffs ( including eight states, four environmental
groups, the Province of Ontario, one Congressman, and several individuals) arguing that the Agency
had a non-discretionary duty to act under the section. The Agency was ordered by one court to come
up with a timetable for implementing section 115, based on the court's finding that EPA action under
Section 115 was nondiscretionary. The Agency appealed this ruling, and won. EPA has consistently
maintained that action under Section 115 would be difficult due to scientific uncertainties and the
many findings to be made relative to multiple source-receptor relationships.
Two petitions under section 115 were filed In April 1988 by many of the same groups and that were
plaintiffs in the 1984 court case. EPA has neither granted nor denied these two petitions (as of
November, 1988). If we deny the current petitions, EPA is likely to be sued.
MAJOR PLATERS
Province of Ontario
State of New York
ACTION DATES/MILESTONES
Ongoing.
KEY EPA CONTACTS
Don Clay, Assistant Administrator, Office of Air and Radiation
Eileen Claussen, Acting Deputy Assistant Administrator, Office of Air and Radiation
David Dull, Acting Director, Office of Atmospheric and Indoor Air Programs, OAR
Scott Hajost, Office of International Activities
Larry Jensen, Acting General Counsel
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Major National Issues Office of Air and Radiation Page 8 - 31
RADIONUCLIDE STANDARD
(RESPONSE TO COURT-ORDERED DEADLINE)
BACKGROUND: Radlonuclides, radioactive Isotopes of an element, are emitted from a variety of
sources, including components of the earth in which radioactivity occurs naturally as well as from
hospitals and nuclear power facilities. EPA has conducted numerous studies and has determined that
exposure to radiation causes two major types of long-term health effects: cancer and genetic damage.
Because of the nature of their hazard to human health, EPA determined to regulate radionuclides under
Section 112 of the CleanAirAct, which provides for the establishment of National Emission Standards
for Hazardous Air Pollutants (NESHAPs).
The Agency first proposed a radionuclides NESHAP In April 1983 for regulating radionuclides from four
sources: (1) elemental phosphorous plants; (2) Department of Energy (DOE) facilities; (3) facilities
licensed by the Nuclear Regulatory Commission (NRC) and non-DOE federal facilities and (4)
underground uranium mines. The Agency stated its intention not to regulate radlonuclide emissions
from these other sources because of low risks: (1) coal-fired boilers; (2) the phosphate Industry; (3) other
extraction industries; and (4) low energy accelerators. EPA also stated its intention not to regulate the
following sources because they were controlled by other regulatory authorities: (5) uranium fuel cycle
facilities (6) uranium mill tailings and (7) high-level waste facilities. After being ordered by the U.S.
District Court for the Northern District of California to take final action on the proposed standard. EPA
withdrew the proposed standard finding that the control practices already In effect for those categories
except underground uranium mines already protected the public from exposure to radionuclides. EPA
later published an Advanced Notice of Proposed Rulemaking (ANPRM) for underground uranium mines
to solicit additional information on control methods and an ANPRM for licensed uranium mills. On
December 11,1984, the U.S. District Court for the Northern District of California found EPAin contempt
of its order to promulgate final standards and again directed EPA to issue final radlonuclide emission
standards for the original four categories or make a finding that radionuclides are not hazardous air
pollutants. On February 6, 1985, EPA promulgated standards for radionuclide emissions from
elemental phosphorous plants, DOE facilities, NRC-llcensed facilities and non-DOE federal facilities.
EPA later promulgated a work practice standard for underground uranium mines and licensed
uranium mill processing sites.
DISCUSSION AND CURRENT STATUS: EPA is presently involved in a voluntary remand of several NE-
SHAPs. including the radionuclides NESHAPs, in light of the vinyl chloride decision (This decision is
discussed in the Air Toxics Paper). Pursuant to a court-ordered schedule, the Agency must repropose
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Page 8 - 32 Office of Air and Radiation Major National Issues
the NESHAPs or make a decision not to regulate radionuclides for twelve source categories by the end
of February 1989. If a rule is proposed, it must be promulgated by the end of August 1989.
Section 112 of the Clean Air Act requires EPA to promulgate NESHAPs to "protect the public health"
"with an ample margin of safety." While these terms are not defined in the statute, the vinyl chloride
court court construed this language to require a two-step analysis: (1) determination of what Is
"acceptable" based exclusively on health considerations and (2) determination of what level of exposure
provides an "ample margin" of safety based on health and other factors.
In developing the radionuclides NESHAPs proposal, EPA has adopted the approach recently employed
in the proposed benzene NESHAP for making the initial safety determination. EPA is considering four
alternative policy approaches which it announced in the proposed benzene decision (discussed In the
Air Toxics Paper), and will determine which of these alternatives will be appropriate to propose. Each
alternative deals identically with the second stage of analysis, the ample margin of safety step, by
considering all relevant factors: health information, cost, technological feasibility, estimation of
uncertainties, etc. Since the deadline for promulgation of the final benzene decision is presently under
negotiation and may be extended, there is a possibility that the radionuclides schedule may also be
affected. The framework adopted for the benzene and radionuclides NESHAPs will become the
framework for future NESHAP decisions as well.
ORGANIZATIONS INVOLVED
American Mining Congress
Natural Resources Defense Counsel
Environmental Defense Fund
Fertilizer Institute
NRC
DOE
MILESTONES
NPRM Signature by Administrator February 28, 1989
Public Hearing April 3. 1989
Close Public Comment May 8, 1989
FRM Signature by Administrator August 31. 1989
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Major National Issues Office of Air and Radiation Page 8 - 33
KEY EPA CONTACTS
Don Clay, Acting Assistant Administrator. Office of Air and Radiation
Richard Gulmond. Director. Office of Radiation Programs. OAR
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Major National Issues Office of Air and Radiation Page 8 - 35
RADON LEGISLATION
BACKGROUND: In 1984, extremely high levels of radon, a naturally-occurring radioactive gas that
causes lung cancer, were discovered In residences In Pennsylvania, New York, and New Jersey. Since
then, elevated levels have been found in almost every State. EPA estimates that about 20,000 lung
cancer deaths each year are attributable to indoor radon, and that as many as eight million (about 10
percent of homes) in this country may have radon levels over EPA's guidance level of 4 picocuries per
liter.
When high levels of indoor radon were first identified, there were no Federal, State or local programs
to address this serious problem. The Agency determined that the best way to reduce risks was action
at the State and local level, so EPA established a partnership with the States and the private sector to
develop necessary programs.
In September 1985, EPA established the Radon Action Program. It is a non-regulatory technical
assistance program, consisting of both research and operational components including sector
capability development, public Information, and federal coordination activities.
As part of this program, EPA has undertaken a broad range of activities:
Issued standardized measurement protocols
developed national and regional geologic maps to help Identify areas with potential radon problems
published the "Citizen's Guide to Radon," a guidance document for the general public
developed cost-effective mitigation techniques
provided classroom and field training In radon mitigation
assisted States with radon surveys
developed guidance for radon reduction in new construction
operated a radon measurement proficiency program.
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The Agency recently released the results of the 1988 State Survey Program, announcing that one In
three homes in the seven states surveyed have screening radon levels above 4 pcl/L. The U.S. Public
Health Service joined in the announcement, issuing a National Health Advisory on indoor radon. EPA
also made a recommendation that most homes across the country should be tested for radon.
DISCUSSION AND CURRENT STATUS:
Legislative History
Inl987, Senator Mitchell (D-ME) introduced the State Radon Program Development Act (S. 744). Soon
after. Congressman Luken (D-OH) introduced a companion bill (H.R 2837) in the House. Both bills
generally dovetailed with EPA's existing program, but added important new activities and authoriza-
tions.
The Administration supported S. 744 which passed the Senate unanimously on July 8.1987.
Congressman Waxman (D-CA) delayed the bill for nearly a year in an effort to include language
requiring EPA to establish a national health-based standard for radon. EPA maintained that a standard
was premature and technologically infeasible. The bill now contains compromise language establish-
ing a national long-term goal that indoor air be as free of radon as the ambient air outside of buildings.
Current Status
The House passed its bill on October 5,1988; the Senate voted to accept the House language and
passed the bill on October 8,1988. The President subsequently signed the legislation
Key Provisions of Radon Legislation
The bill authorizes:
$10 million a year for FY89-91 for EPA to provide grants to help States establish radon programs.
$3 million a year for FY 89-91 for EPA to provide technical assistance to State radon programs.
$1 million for EPA to conduct a study of radon in the nation's schools, and an additional $500.000
to undertake diagnostic and remedial efforts in schools.
$1.5 million for EPA to establish proficiency programs for firms offering radon-related services,
including testing and mitigation. Authorizes a user fee to defray cost of proficiency programs.
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Major National Issues Office of Air and Radiation Page 8-37
$ 1 million a year for FY 89- 91 for EPA grants to universities to establish at least three regional training
centers.
EPA to develop model construction standards and techniques.
EPA to update the Citizen's Guide to Radon
Federal Agencies and Departments to study radon in Federal buildings
MAJOR PLAYERS IN ORGANIZATIONS
Congress
Senate Environment and Public Works Committee
House Energy and Commerce Committee
House Science and Technology Committee
Other Groups
Conference of Radiation Control Program Directors
National Association of Realtors
National Association of Home Builders
ACTION DATES OR MILESTONES
Congress earmarked $1.5 million of our FY 89 appropriation to Implement regional training
centers and a mitigation contractor proficiency program.
We do not expect to receive additional appropriations In FY 89 for other new activities author-
ized in the bill. As a result, only limited implementation of those activities will be possible.
We plan to implement the following activities in FY 89:
Grants: Involve EPA Regional offices and States In developing draft criteria for evaluation of State
application.
Technical Assistance: Continue current activities In radon training, radon measurement proficiency
program, public information, mitigation demonstration programs, assistance with State program
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Page 8-38 Office of Air and Radiation Major National Issues
development and State radon surveys; establish a national radon database; Initiate feasibility study
of radon information clearinghouse; establish a contractor proficiency program.
Schools: Continue work to establish protocols for radon measurements in schools and develop Interim
guidance for mitigation to assist in Implementing the school study. Identify high probability areas and
initiate development of the school survey design.
Model Construction Standards: Continue working with the National Association of Home Builders
to develop model construction standards and techniques.
Update Citizen's Guide: Begin to study the relationship between short and long-term radon
measurements and the health effects at various radon concentrations to Incorporate this information
In the revised Citizen's Guide.
Regional Training Center: Establish 3 regional training centers.
When additional resources become available, we plan to undertake several other activities required by
the legislation. A detailed Implementation plan is being developed, including specific milestones and
deadlines. The plan should be available in early November.
KEY EPA CONTACTS
Don Clay, Acting Assistant Administrator, Office of Air and Radiation
Richard J. Gulmond. Director, Office of Radiation Programs
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PESTICIDES &
TOXIC SUBSTANCES
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Major National Issues Office of Pesticides and Toxic Substances Page 9-1
ASBESTOS IN PUBLIC AND COMMERCIAL BUILDINGS
BACKGROUND: In the 100th Congress three separate bills were introduced which would have re-
quired EPA to regulate the owners of 3.6 million public and commercial buildings. Congressional
hearings are likely as the nation's building owners, managers and workers, as well as Institutional
lenders and property Investors, seek EPA direction and, perhaps. Congressional relief from the
uncertainties associated with exposure to asbestos materials In their buildings. A $4 million research
plan concerning asbestos in public and commercial buildings is due to Congress in spring 1989.
Inhalation of asbestos fibers is known to cause cancer In humans. In 1986, Congress unanimously
passed the Asbestos Hazard Emergency Response Act (AHERA) which mandated that EPA require all
45.000 U.S. public and private school districts to inspect for the presence of asbestos in their buildings,
and If found to manage the material In place or remove it. School districts, required to use trained
and accredited professionals, have until May, 1989 at the latest to Inspect 107,000 schools, develop
management plans, and submit those plans to the state governor.
In addition to asbestos In school districts, EPA estimates that one of every five public and commercial
buildings in the nation contain asbestos which can be easily crumbled. However, limited information
on fiber release in these non-school buildings and on the relative effectiveness of alternative control
and abatement technologies has precluded reliable risk determination by EPA. The presence of
asbestos material in buildings has so significantly affected the acquisition, financing and leasing of
major properties that many large building owners and managers, such as the Government Services
Administration (GSA) and IBM, no longer purchase or rent asbestos-containing buildings; many
Institutional lenders. Including AETNA and Prudential, do not invest in them. Many owners and
managers with asbestos-containing buildings are voluntarily taking management or abatement
actions, driven by public health, liability, tenant demand or property value considerations or by State
and local law. The costs associated with this activity are very high -- a program similar to that In place
for schools could cost potentially $50 billion by EPA estimates. Further, these market pressures may
lead to unnecessary, ill-timed removals, which. If not carefully conducted, may actually create an
exposure problem where one did not previously exist.
As required by AHERA, EPA reported to Congress In February 1988 on the presence and condition of
asbestos in public and commercial buildings, and the need for further regulatory action In non-school
buildings. EPA did not recommend any new rulemaking at this time, due to: IJthe relatively small
number of trained and certified professional inspectors, planners, and abatement contractors; 2)the
need to keep these professionals working in school buildings to assure quality work and meet
Congressional deadlines for that program; and 3) the lack of information on exposures In these
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Page 9 - 2 Office of Pesticides and Toxic Substances Major National Issues
buildings and what appropriate regulatory steps would be. In addition, EPA found that a traditional
approach to chemical regulation - setting an "acceptable level" air standard -- was also not presently
appropriate, due to the episodic nature of fiber release and the expense, limited availability and the
sophistication of new monitoring technology.Instead, the Agency proposed a five-point guidance.
technical assistance and enforcement improvement program over the next three years to:
(1.) Increase support to establish an infrastructure of trained asbestos professionals and improve the
awareness, knowledge and skills of building owners, managers and workers.
(2.) Develop a special training and guidance program for thermal system insulation (TSI) asbestos, pri-
marily pipe wrap, which is most common, more likely to be damaged and generally has a higher
asbestos content than other forms.
(3.) Avoid imminent asbestos hazards by increasing the Agency's enforcement capability in non-school
buildings for existing asbestos rules, such as requirements covering renovation, demolition, and
disposal under the Clean Air Act.
(4.) Evaluate the AHERA schools rule to ascertain its effectiveness if applied to non-school buildings.
(5.) Conduct research to fill the information "gaps" on exposure and efficacy of alternative control
practices and procedures. EPA recommended innovative Joint public/private funding of this research
due to its large cost.
DISCUSSION AND CURRENT STATUS: Most affected groups seem to support this five-point
approach, particularly the major new research initiative. In fact. Congress accepted EPA's recommen-
dation on jointly funded research. The FY1989 EPA Congressional appropriation provided $2 million
to support research on asbestos exposure levels in buildings and on the efficacy of alternative control
options provided that Federal funding can be evenly matched by private sources. EPA, at the direction
of Congress, has engaged the Health Effects Institute (HEI). an independent non-profit research group,
to organize the full range of affected private Interests and to identify appropriate mechanisms, topics
and implementation planning for research. This initial work. Phase I. should be complete by spring
1989, when a status report will be provided to EPA for Congressional review. Phase n, the actual
research, would follow over the next few years. It Is possible, however, that some groups may grow
impatient with extended research and appeal to Congress for more immediate relief, such as an
"acceptable level" standard or even AHERA-type rules, against EPA's recommendation. During the
100th Congress, three bills were introduced which would extend AHERA-like regulations to Federal
buildings and expand EPA Jurisdiction to other public and commercial buildings.
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Major National Issues Office of Pesticides and Toxic Substances Page 9-3
MAJOR PLATERS
Congressman Florio (NJ). and Senators Stafford (VT) and Baucus (MT) have introduced legislation
and held hearings. Hearings have also been held and are anticipated to be called by
Congressmen Luken (OH) and Synar(OK).
ACTION DATES OR MILESTONES
The preliminary HEI report is planned for spring 1989, when Congressional hearings may begin.
KEY EPA CONTACTS
Susan Vogt, Acting Deputy Assistant Administrator,
Office of Pesticides and Toxic Substances
Charles Elkins, Director, Office of Toxic Substances
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Major National Issues Office of Pesticides and Toxic Substances Page 9-5
BIOTECHNOLOGY
BACKGROUND: Biotechnology, broadly defined. Includes any technique that uses living organisms (or
parts of organisms) to make or modify products, to improve plants or animals, or to develop
microorganisms for specific uses. Recently, powerful new techniques have been developed to
manipulate genetic material. Products of these modem biotechnology techniques are expected to
increase in number and to provide great benefit to society in such forms as drugs, pesticides,
agricultural products and pollutant degradants. On the other hand, any technology that so directly
deals with the basic processes of life inevitably raises questions. Living organisms may grow and spread
beyond the site of application and thus may pose risks to humans and the environment. These new
products have sparked significant public and scientific debate regarding their potential risks, while
commercial Interests are concerned that Federal regulation may impact severely on this emerging
industry.
To address these scientific and policy questions, the U.S. government formed a working group under
the White House Cabinet Council on Natural Resources and the Environment. This group determined
that existing laws and regulations were adequate to address the concerns raised about'blotechnology.
EPA developed its Toxic Substances Control Act (TSCA) and Federal Insecticide, Fungicide, and
Rodenticide (FIFRA) policies and committed to future rulemaking to implement these policies as part
of this larger Federal effort to coordinate oversight of biotechnology and ensure adequate protection of
public health and the environment. TSCA and FIFRA apply and are being used to review certain
products of biotechnology before environmental release or commercial development. This was
announced and explained in a proposed policy statement in 1984 and a final policy statement in 1986.
DISCUSSION AND CURRENT STATUS:
A. TSCA In the policy statements, EPA stated that microorganisms would be considered "chemical
substances" and subject to EPA oversight under the provisions of TSCA. TSCA gives EPA jurisdiction
over the manufacturing, processing, distribution, use and disposal of chemicals in commerce (or
intended for entry into commerce) that are not specifically covered by other regulatory authorities (for
example, substances other than foods, drugs, cosmetics and pesticides). EPA has indicated its Intent
to focus on: 1) microorganisms that are "new" (formed by deliberate combination of organisms from
different genera) or that are "new to the environment in which they will be used" since their behavior
is less predictable: and 2) microorganisms that are used in the environment and have the potential for
widespread exposure.
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Currently, commercial uses of "new" microorganisms subject to TSCA are being reported to EPA.
Reports are received, for example, on organisms used In applications such as enzyme production,
pollutant degradation, and enhanced nitrogen fixation for plants.
EPA has developed a proposed rule to clarify its requirements for "new" microorganisms and to cover
other aspects of its regulatory policy for organisms subject to TSCA. hi the proposed rule, EPA describes
how it would use two regulatory authorities, the Premanufacture Notice (PMN) authority and the
Significant New Use Rule (SNUR) authority of Section 5 of TSCA. to review these microorganisms prior
to their release In to the environment.
In developing the proposed rule the Agency distinguished between activities directed towards research
and development and other commercial activities. In general, fewer requirements are proposed for
research and development activities and more flexible review procedures would be available.
Under the PMN authority, most "new" microorganisms would be reviewed by EPA at both the R&D and
commercial stage of development. Under the SNUR authority, the Agency would review microorgan-
isms only at the commercial stage when the organism is released in to the environment and the use
is "new" because of the potential for widespread exposure.
The Office of Toxic Substances (OTS) sent the proposed rule to OMB in May 1988. Since that time there
have been considerable discussions with OMB and other Federal agencies regarding the degree of
oversight needed for these organisms and the best methods to provide that oversight. OTS has
incorporated some of the suggestions of OMB and the other agencies into the proposed rule and Is
currently waiting for clearance of the document by OMB. When released to the public, the proposed
rule Is likely to be controversial with strongly held opinions on both sides of the Issue.
B. FIFRA -- Under FIFRA, EPA regulates the sale, distribution, and use of pesticides regardless of how
they are made or their mode of action. Because there is a pre-existing regulatory framework for
pesticides, the focus of the FIFRA biotechnology Initiative Is small-scale environmental releases for
research and development purposes. In previous policy statements, EPA has explained that the usual
presumption that a FIFRA Experimental Use Permit (EUP) is not required for small-scale field testing
of pesticides would not apply to use of certain genetically- engineered pesticides. Therefore, EPA would
have to receive prior notification of such uses for a case-by-case determination of whether EUPs would
be required. The Office of Pesticide Programs (OPP) has developed a proposed amendment to its EUP
regulations to clarify this position and to ensure that environmental releases of certain biotechnology
products developed for pesticldal purposes are reviewed.
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Major National Issues Office of Pesticides and Toxic Substances Page 9-7
In accordance with section 25 of FIFRA, OPP's proposed rule was sent In July 1988 to Congress and
the U.S. Department of Agriculture (USDA) for their review and comment. The proposed rule was also
sent to OMB and the Food and Drug Administration (FDA) for their review. Recently, OPP revised the
proposed rule to address the USDA comments and, as required by FIFRA Section 25, scheduled the
FIFRA Scientific Advisory Panel's review of the document for November 22. 1988.
In addition, OPP is currently developing its regulatory program to address plants that have been
genetically-engineered to produce a pestlcidal substance. OPP plans to publish a policy statement on
these genetically-engineered plants in 1989.
To insure the development of credible regulations in this area, the Agency has, and continues to invest
in a biotechnology research program to support activities under TSCA and FIFRA. This research
focuses on various aspects of risk assessment relevant to determining potential risks from the release
of these microbes into the environment. The areas being investigated are effects (health and ecological),
exposure and risk control (engineering technologies).
MAJOR PLATERS IN ORGANIZATION
Federal Agencies
Food & Drug Administration
Department of Agriculture
National Institutes of Health
National Science Foundation
Trade Associations
Industrial Biotechnology Association
Association of Biotechnology Companies
Environmental Groups
Foundation on Economic Trends (Jeremy Rlfkin)
Environmental Defense Fund
National Wildlife Federation
Environmental Policy Institute
ACTION DATES OR MILESTONES
TSCA: Proposed Rule published in FR November 1988
Final Rule published in FR Summer/Fall 1989
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FIFRA: Scientific Advisory Panel Meeting November 1988
Proposed EUP Rule published in FR December 1988
Final EUP Rule published In FR Summer/Fall 1989
KEY EPA CONTACTS
Jack Moore, Acting Deputy Administrator
Victor Klmm, Acting Assistant Administrator for Pesticides and Toxic Substances
Chuck Elkins, Director, Office of Toxic Substances
Douglas Campt. Director, Office of Pesticide Programs
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Major National Issues Office of Pesticides and Toxic Substances Page 9-9
DISSEMINATION AND STATE/LOCAL AND EPA USE OF
SARA SECTION 313 DATA
BACKGROUND: Title m of the Superfund Amendments and Reauthorization Act (SARA) is a
freestanding statute called the Emergency Planning and Community Right-to-Know Act of 1986.
Under Section 313 of the Act, beginning July 1,1988 and every year thereafter, certain manufactur-
ers must report releases of specific toxic chemicals to air, water, and land. Congress specified over 300
toxic chemicals for which chemical-specific reports are to be submitted.
Under Section 313 of SARA Title HI, EPA is responsible for compiling the reports into a National Toxic
Release Inventory (TRI), and for making the data available to the public through computer telecommu-
nications (on-line service) and through "othermeans" (microfiche, etc.). This will occur for the first time
in the spring of 1989. The plant-by-plant inventory will be a new tool by which EPA, the States,
localities, and the public can understand possible risks from toxic chemicals and can act independently
or Jointly as they see fit.
The Office of Solid Waste and Emergency Response's (OSWER) Preparedness Staff is responsible for
most of the Title in provisions*Those provisions are primarily focused on emergency planning for
chemical accidents and for the provision of information on the hazards of chemicals. The Office of
Pesticides and Toxic Substances (OPTS) is responsible for Implementing the Toxic Release Inventory
and for providing technical support to OSWER in other areas of Title ffl. A Title HI Implementation
workgroup chaired Jointly by OPTS and OSWER provides a mechanism for Agency-wide coordination
of Title m activities.
DISCUSSION AND CURRENT STATUS: While Implementing the reporting requirement and data
processing components of TRI, EPA also researched ways to make these data available to the public
in order to ensure the quality of the data, to communicate information relating to the use and
interpretation of these data, and to plan for EPA's own use of the information. These tasks were
particularly challenging because of Congress' desire that the data be accessible to anyone who may
have trouble interpreting the data's significance. In addition, because the data pertain to air, water,
and land, the TRI cuts across traditional EPA and State organizational responsibilities. OPTS expects
data quality will be a continuing problem and that it may take several reporting iterations and
assistance from State officials before confidence In the data is high. Also, since the data are of a general
nature, they are most suited for screening or priority setting rather than detailed risk assessment.
However, EPA will have no control over how the data are used by the public.
Initial Response. Forthe July 1 deadline, EPAcreated a network of Federal and State staff who could
be available to answer questions about the significance of TRI data. In addition a packet of
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Informational materials was sent out to this network. However, the difficulty of dealing with the
individual reporting forms has kept the public's use of the data to a minimum. We expect a slow growing
interest by public groups once the data are computerized and made available by home computer where
they can be sorted and analyzed as the user wishes. For example, in Silicon Valley. California, a local
environmental group published a compilation of the reports, highlighting the "dirty dozen" facilities in
that area. In Maryland, the National Resources Defense Council computerized the State's data and
published a lengthy report on the Maryland facilities which also garnered significant attention.
Data Availability. EPA Is required to make the data available through computer telecommunica-
tions and "other means" at a reasonable cost. OPTS has entered Into an inter-agency agreement with
the National Library of Medicine (NLM) to provide the on-line TRI public database. EPA chose NLM
because they also house other chemical-related files to which TRI emissions data can be linked, and
because of the low access cost of $25.00 per hour. The NLM-TRI database system is expected to be
available for public access In the spring of 1989. The system will be very "user-friendly."
To make the data available through "other means" as required by the statute, OPTS will distribute
microfiche to county libraries and explore other non-computer technologies. EPA will also operate a
pilot program to provide basic searches on the NLM computer database for public users without
computer access.
m
Interpreting the Data. One of the major concerns of EPA and the States has been the need to explain
to citizens the meaning of the TRI information. EPA believes that the value of these data is to screen
for potential problems and cannot be used in the absence of other data as the basis for regulatory action.
We are field testing a "risk screening guide." which is intended to enable State and local officials to
quickly review the TRI data and make decisions on priorities for further analysis. This supports EPA's
basic strategy to encourage health and environmental officials at the State level who now deal with
toxics Issues to voluntarily assume the primary role of answering the public's questions. EPA will
provide generic materials (e.g., health fact sheets on each of the chemicals) and serve as backup to try
to answer the more complex questions.
EPA Use of the TRI Data. Lee Thomas created an inter-office task force chaired by Office of Toxic
Substances (OTS) Director Charles Elkins to examine the use of the TRI database by other EPA
programs. The task force has members from all the major offices. The Office of Air Quality. Planning
and Standards, the Office of Solid Waste, and the Office ofWater have developed detailed plans for using
the TRI data In their programs. These plans Include use of TRI data as an additional data source for
their existing review and screening processes, as a screening tool for finding problem geographic areas.
and as a method of identifying regulatory and enforcement problems. The offices believe that the data
will help not only In identifying areas in need of Federal regulations, but those which can best be
handled at the State and local levels. The offices also expect many questions about why the data differ
from other EPA data (e.g., water permits) and why EPA has not controlled these toxic emissions In the
past.
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Major National Issues Office of Pesticides and Toxic Substances Page 9-11
MAJOR PLATERS IN ORGANIZATIONS
Congress
Representative Florio
Senator Lautenberg
Environmental/Public Interest Groups
OMB Watch
National Resources Defense Council
Environmental Policy Institute
National Wildlife Federation
American Civil Liberties Union
Industry Associations
Chemical Manufacturers Association
Synthetic Organic Chemical Manufacturers Association
National Association of Manufacturers
Industry
Monsanto, Dow. Dupont
National Governors' Association, the Association of State and Local Air Pollution Control Officials,
and the National Water Pollution Federation.
Quality Control Projects Initiated October 1988
Initial TRI Forms Entered , November 1988
Internal EPA Database Complete January 1989
Risk Screening Guide Complete February 1989
Public Database On-Line at NLM April 1989
National Report on TRI Data May 1989
Other Means Available Spring/Summer 1989
KEY EPA CONTACTS
Susan F. Vogt, Acting Deputy Assistant Administrator,
Office of Pesticides and Toxic Substances
Charles L. Elkins, Director, Office of Toxic Substances
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Major National Issues Office of Pesticides and Toxic Substances Page 9-13
ENDANGERED SPECIES PROTECTION PROGRAM
BACKGROUND: In 1973, Congress passed the Endangered Species Act (ESA) to protect America's
threatened and endangered plants and wildlife. The ESA requires all federal agencies to ensure that
their actions do not jeopardize endangered species. The Fish and Wildlife Service (FWS) of the U.S.
Department of Interior is responsible for administering the provisions of the ESA.
The ESA prohibits federal agencies from authorizing or engaging in conduct which causes Jeopardy to
endangered species. Thus, EPA must assure that pesticide use does not jeopardize any endangered
species. At the same time, EPA wants to avoid placing any unnecessary limitations of the use of many
important pesticides. Balancing these responsibilities has led to the development of the Endangered
Species Protection Program.
EPA, in cooperation with the FWS, has developed a procedure to avoid the risks to endangered species
posed by pesticides. If EPA finds that the estimated maximum environmental concentration of a
pesticide may affect an endangered species, the pesticide is referred to the FWS for a formal
consultation to determine whether specific uses of that pesticide are likely to j eopardize the endangered
species. A formal ruling from the FWS. called a "Biological Opinion", indicates whether the pesticide
in question jeopardizes the continued existence of the endangered species. If the FWS finds that the
uses may cause jeopardy, they Identify reasonable and prudent alternatives to preclude the jeopardy
to endangered species. The alternatives recommended by FWS usually prohibit or limit the use of the
pesticide within the current habitat of the affected species.
In the past, EPA consulted with the FWS on a case-by-case basis, and using this approach received
over 50 biological opinions of jeopardy resulting in modification of a number of individual pesticide
product labels to protect endangered species. However, this process was time-consuming and created
a double standard; new pesticides were automatically evaluated, but existing, competing uses of older
pesticides were not evaluated as quickly. In response to these concerns, EPA adopted in 1982 a new
approach to managing the potential risks to endangered species. Known as the cluster approach, this
method entailed grouping all pesticides registered for similar uses, and asking the FWS to review the
hazards posed by each pesticide In that cluster group. Four clusters were evaluated under this
approach, based on pesticide uses presenting the greatest potential for exposure to endangered
species. Approximately 110 active ingredients, covering 250-300 species in 910 counties In states
throughout the U.S. were affected in the evaluation of these four clusters.
Based on the cluster approach, EPA designed a protection program that relied on pesticide product
labeling and endangered species habitat maps to achieve the goal of preventing harm to endangered
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species. In May 1987, EPAnottfled registrants that theywere to modify the labeling of affected products
to direct pesticide users to obtain additional information concerning endangered species in the
designated local areas before using the pesticide in listed counties. Pesticide users in those counties
were required to obtain Pesticide Use Bulletins from dealers or county extension agents, or to contact
the FWS for further information, depending on the use site. The Bulletins would contain maps and/
or habitat descriptions of the currently occupied habitat of the endangered species, and would specify
limitations on use to protect the species. The labeling requirements were to take effect for the 1988
growing season.
In Fall 1987, public response to the draft maps and to the program in general, indicated a number of
significant concerns, particularly among the user community, the states, and other federal agencies.
It became clear to EPA that Implementing a nationwide program would be far more complex and time-
consuming than originally anticipated and would lack critical Congressional support. Thus, in
January 1988, EPA announced it was deferring implementation of the program. A rider on the EPA
pesticide program appropriation for FY88 effectively deferred enforcement of the program's require-
ments on users through September 15.1988.
In March 1988. EPA published a Federal Register notice inviting public comment on the Issues involved.
In particular, EPA Invited comment on several alternative federal approaches and the feasibility of
»
using state-initiated plans to achieve compliance with the ESA, while also reducing the unnecessary
adverse impact on the user community. State-initiated plans would be subject to FWS approval as well
as EPA concurrence. (The states were in fact Invited in the Fall of 1987 to develop state-Initiated plans
and submit them for approval by EPA and the FWS.)
In April and May 1988, eight public meetings were held by EPA around the country to provide a broad
opportunity for the public to comment. Some EPA Regional Offices held additional public meetings.
The comment period closed in June. 1988. The public hearings aroused considerable interest and
attracted close to 500 interested parties.
DISCUSSION AND CURRENT STATUS: The public comments reflected many constructive sugges-
tions for improvements in the program. EPA plans to publish a second Federal Register notice by the
end of 1988 announcing the current status of its endangered species protection program plans. It will
emphasize that the Agency is still committed to implementing an effective and enforceable program,
as required by the ESA. It will also indicate that labeling will be used to convey information to pesticide
users. But due to the necessary lead time for relabeling affected products, and the many complexities
yet to be resolved, implementation on a nationwide basis will be partial and voluntary during 1989. The
notice will also emphasize that the Agency fully recognizes the desirability of state involvement and
leadership, the need for a high level of coordination among several federal agencies, the need for broad
public involvement, and the need for education and training of users. The notice will emphasize that
a successful program will have to rely heavily on voluntary compliance by pesticide users.
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Major National Issues Office of Pesticides and Toxic Substances Page 9-15
The Office of General Counsel has advised that EPA faces a significant legal risk if challenged for failure
to implement the reasonable and prudent alternatives. Biological opinions have been outstanding for
several years. Given this legal liability and the high level of interest among critics who contend that
the Agency is not complying fully with the ESA, it is critical that some pilot programs go into effect in
1989 so that protection is given to species at risk and so that EPA Is able to Identify the strengths and
weaknesses of different approaches, and to make or recommend further improvements if necessary.
hi particular. It should also be noted that, because the states will be Involved (whether through federal
or state plans) EPA regional staff will need to be augmented to ensure that state plan implementation
is consistent with approved plans, that differential state management does not create regulatory gaps
across state boundaries, and that other technical support functions for the states will be conducted.
Regional staff will serve a critical function in facilitating coordination among the concerned state
offices, conducting outreach programs, providing technical assistance to state personnel and negoti-
ating and monitoring grants to the states. This is likely to be an imminent budget issue for OPTS.
MAJOR PLATERS IN ORGANIZATIONS
Federal and State Agencies
U.S. Fish and Wildlife Service
U.S. Department of Agriculture
California Department of Food and Agriculture (and California Department of Fish and Game)
Florida Department of Agriculture and Consumer Services (and Department of Natural Resources
Dept. of Environmental Regulations, and Game and Freshwater Fish Commission)
National Association of State Departments of Agriculture (South Carolina, Georgia,
Arizona, and New Mexico Ag. Depts. are also fairly active)
Trade Associations
National Agricultural Chemicals Association
American Farm Bureau Federation (and many state Farm Bureaus), American Mosquito Control
Association (the following commodity groups have also expressed an Interest: National Forest
Products Association, American Soybean Association, American Cattlemens Association. National
Association of Conservation Districts, and National Cotton Council
Environmental Groups
Defenders of Wildlife
Center for Environmental Education
National Resources Defense Council
Environmental Defense Fund
Sierra Club
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ACTION DATES OR MILESTONES
Decision on revised program In November, 1988
Information and education in the field in time for 1989 growing season.
KEY EPA CONTACTS
Victor Klmm, Acting Assistant Administrator for
Pesticides and Toxic Substances
Douglas D. Campt, Director, Office of Pesticide Programs
A. E. Conroy, Director, Office of Compliance Monitoring
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Major National Issues Office of Pesticides and Toxic Substances Page 9-17
FINAL RULE FARMWORKER SAFETY
BACKGROUND: In 1974, EPA promulgated "Worker Protection Standards for Agricultural Pesticides"
(40 CFR Part 170). These regulations deal with the occupational safety and health of farmworkers
performing hand labor tasks in fields during and after application of pesticides. They Include 4 basic
provisions: (l)prohibitlon against spraylngworkers Infields; (2) reentry intervals for 12 pesticide active
ingredients and a general minimum reentry interval for all others (until the field was dry and dusts had
settled): (3) minimum protective clothing forworkers entering treated areas before the expiration of the
reentry Interval; and (4) a requirement for "appropriate and timely" warnings to workers. Greenhouse,
soil-incorporated and certain non-agricultural uses of pesticides were specifically excluded from the
Standards.
It is imperative to update these 14-year old standards for the following reasons. The Agency conducted
a review of Part 170 in 1983 and concluded that the existing standards were inadequate to protect
workers occupationally exposed to pesticides and their residues. New data on agricultural worker
exposure demonstrated the need for more worker protection features. Enforcement experience showed
that a dearer exposition of dangers and responsibilities will improve worker protection. Interim
measures are necessary to protect workers pending completion of the reregistratlon process where
worker protection issues are typically addressed. There was an unanticipated shift to increased use
of pesticides that are more acutely toxic to humans than previous pesticides in common use. In
addition, data from California and a few other States indicate that pesticide poisonings are common
enough to be of concern and probably underestimated since many are not reported. In August. 1984,
EPA published an Advance Notice of Proposed Rulemaking to solicit comments on a number of specific
approaches identified as possible means of modifying Part 170. These included expanding the scope.
setting generic reentry Intervals for the most acutely toxic pesticides, requirements for protective
clothing, posting requirements, and other requirements such as medical monitoring and training of
farmworkers. The notice also solicited comment on compliance and enforcement Issues and the role
of the States. EPA received a number of comments from a wide range of Interest groups.
EPA considered several options for proceeding with revised worker protection standards. These
options were discussed with the pesticide industry, and user and environmental groups. Based on
these meetings, the Agency decided that proposed revisions to Part 170 could best be achieved by
regulatory negotiation rather that the traditional rulemaking process. In late 1985, a negotiating
committee of 25 members. Including representatives of industry, user groups, farmworkers or their
representatives, state officials, and federal agencies, was constituted under the Federal Advisory
Committee Act. In February 1986. the farmworker representatives withdrew from negotiations, and
a committee consensus was not reached. EPA continued the regulatory development effort and
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published a Notice of Proposed Rulemaking (NPRM) In July 1988. The Agency also held a series of 15
public meetings in Washington, DC and in agricultural areas around the country to solicit a broad
spectrum of public comment.
The proposed revisions would expand the scope of the worker protection standards to include workers
in nurseries, forests, and greenhouses in addition to persons on farms, and would protect pesticide
handlers (mixers, loaders, applicators, flaggers. and those who clean and repair contaminated
application equipment). The proposal specifies generic interim reentry intervals, requires personal
protective equipment for pesticide handlers and early reentry workers, and expands methods to notify
workers of areas that have been treated with pesticides (oral warnings, information available on
request, and field posting). Proposed requirements include wearing and cleaning personal protective
equipment, training handlers, providing information and transportation in case of medical emergen-
cies, maintaining contact with handlers of highly toxic pesticides working alone, monitoring blood
cholinesterase levels for commercial pesticide handlers, providing water for routine and emergency
decontamination of workers, and providing pesticide safety Information to workers.
The proposed revisions also identify those responsible for carrying out the regulations, including
owners, supervisors, workers, commercial applicators, labor contractors, and other contractors.
States could be permitted to impose more stringent worker protection requirements and may, at their
option, play a role in implementing the training and cholinesterase monitoring requirements. The
proposal specifies Information that must appear on labels of all pesticide products subject to Part 170.
DISCUSSION AND CURRENT STATUS: Initial public reaction to the rule Is mixed. Farmworker
organizations feel that the regulations should require more stringent protective measures. In
particular, they would like to see longer reentry intervals, special protection from chronic health
hazards, training for field workers, and more extensive posting of warnings. Agricultural and other
grower organizations believe that the regulations are too Intrusive, costly, and that the data on pesticide
poisoning incidents do not justify requiring such measures. The agricultural pesticide industry is
concerned about increasing the number and length of statements on the label and the effect of longer
reentry Intervals on product sales. State officials are concerned about the additional resources
required to conduct state educational and enforcement programs.
Successful implementation of worker protection standards and related product label changes will
necessitate extensive communications and training to inform workers and employers about protective
requirements. The complexity of reaching so many entitles and individuals requires a decentralized
Federal program. Training materials and technical assistance are best directed at the local level to
facilitate effective communication, tailored to local crops, practices, and State programs.
EPA is also taking steps to deal with possible conflicts between EPA and OSHA in enforcement actions
since we share with OSHA jurisdiction over the agricultural sector. The Agency has consulted with
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Major National Issues Office of Pesticides and Toxic Substances Page 9 - 19
OSHA to ensure that no duplication or conflict among regulations will occur, especially with regard to
proposed decontamination requirements and the OSHA Field Sanitation Standard. EPA plans a
continuing dialogue with OSHA to clarify these Issues.
MAJOR PLAYERS IN ORGANIZATIONS
Labor/Environmental -- Farm Labor Organizing Committee (OH, FL); United Farm Workers (AFL-
CIO); East Coast Farmworker Support Network; Migrant Legal Action Program; Farmworker Justice
Fund; National Association of Community Health Centers; National Coalition Against the Misuse of
Pesticides; Association of State, County and Municipal Employees; Congress Watch; Public Citizen;
World Resources Institute.
User/Industry American Farm Bureau Federation; National Council of Agricultural Employers;
Society of American Florists; American Seed Trade Association; American Association of Nurserymen;
National Forest Products Association; National Cotton Council; United Fruit and Vegetable Associa-
tion; National AgriculturalAvlatlonAssociation; National Agricultural Chemicals Association; National
Pest Control Association.
Government and UniversitiesAmerican Association of Pest Control Officers/ State-FIFRA Research
and Evaluation Group; National Association of State Departments of Agriculture; Association of State
and Territorial Health Officials; Department of Agriculture; Department of Health and Human Services;
Department of Labor. Office of Management and Budget; Small Business Administration; House
Committee on Agriculture; Senate Committee on Agriculture. Nutrition and Forestry, Pesticide Farm
Safety Center (University of California. Davis).
ACTION DATES OR MILESTONES
Final Rule to the Assistant Administrator, OPTS December 1988
Final Rule Starts Internal-Agency Red Border
Review Early January 1989
Final Rule Sent to OMB/USDA/Congress
for Review Late January 1989
Final Rule Sent to Administrator for Signature March 1989
KEY EPA CONTACTS
Susan Vogt, Acting Deputy Assistant Administrator
Office of Pesticides and Toxic Substances
Douglas Campt, Director. Office of Pesticide Programs
A. E. Conroy, Director. Office of Compliance Monitoring
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Major National Issues Office of Pesticides and Toxic Substances Page 9-21
FIFRA AMENDMENTS OF 1988
BACKGROUND: On September 28, 1988 Congress passed the Federal Insecticide. Fungicide and
Rodenticlde Act (FIFRA) Amendments of 1988. This Act requires a substantial acceleration of the
pesticide reregistratlon activity, imposes statutory time limits for processing certain types of pesticide
registration activities, and changes EPA responsibilities and funding requirements for the indemnifi-
cation, storage and disposal of suspended/cancelled pesticides. It also has provisions for fees to
support some of these changes. This is a critical issue to OPTS because of the tight deadlines and
fundamental restructuring of the program required by the new legislation.
The amended bill is sometimes referred to as "FIFRA LITE," because it is pared down from more
complex, earlier versions;.however, it represents a very significant piece of legislation. Implementation
of the 1988 amendments will require major EPA management efforts and substantial resources. The
amendments resulted from a protracted series of attempts for comprehensive revisions to FIFRA,
starting in 1984/85. The initial attempts represented a coordinated effort on the part of industry and
environmental groups to establish an accelerated reregistration program. As negotiations proceeded,
the House and Senate versions of the bill each accumulated a number of controversial amendments.
Although bills were passed in both houses in 1987. they died before the House and Senate could resolve
their differences.
In the Spring of 1988 the Senate Agriculture Committee reported a bill with a large number of
amendments which again proved too controversial for passage and a FIFRA reauthorization bill was
considered unlikely to pass the 100th Congress.
In late Summer however, the bill was resurrected as the "Core" FIFRA bill, concentrating on: (1)
reregistration; (2) the "Fast Track" amendment for expedited processing of certain types of registration
applications; (3) fees; and (4) revised responsibilities for disposal and transportation of pesticides that
the Agency had taken off the market. This bill was passed by both Houses and was signed into law by
the President on October 25, 1988.
DISCUSSION AND CURRENT STATUS: The basic provisions of the FIFRA amendments are:
A. Reregistration -- The bill's most important provision gives EPA the authority and resources needed
to complete in nine years the process of updating the data base on the approximately 600 pesticide
active ingredients registered before 1984 and to conduct a reevaluation of the data on those chemicals.
The bill establishes a schedule for completion of various phases of this "reregistration" process, requires
registrants to evaluate the data previously submitted to determine whether the data meet modern
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requirements of science, to generate and submit any missing data, and to pay substantial fees Into a
special fund available to EPA to conduct rereglstratlon activities. The legislation Is expected to generate
about $150 million in fees over the next nine years to help pay the roughly $250 million cost of
Implementing this requirement.
B. Storage and Disposal of Suspended or Cancelled Pesticides -- The bill expands EPA's authority
to regulate the manner in which pesticides whose registrations have been cancelled or suspended by
the Agency are stored and disposed of. and would authorize EPA to require registrants and distributors
to recall suspended and cancelled pesticide products. The bill also deletes from current law the
requirement that EPA, upon request, accept suspended and cancelled pesticides and dispose of them
at government expense.
C. Indemnity Payments -- Previously, if EPA suspended and canceled a pesticide's registration. EPA
had to Indemnify holders of the pesticide for any loss suffered, up to the cost of the pesticide. The new
bill ends that automatic entitlement to indemnity payments for all persons other than end users, and
in certain limited cases, dealers and distributors, and would provide that any Indemnity payments that
are made would not come from EPA's operating budget but instead from a special fund for the payment
of judgments and settlements of claims against the United States (for end users, dealers or distributors)
or from a specific appropriation for that purpose (for other holders of the subject pesticide).
The bill also contains a number of other amendments to FIFRA designed primarily to make it easier
for EPA to implement the three major provisions just described.
MAJOR PLATERS IN ORGANIZATIONS
House and Senate Agriculture Committees
Pesticide Industry Trade Groups
National Agricultural Chemicals Association (NACA)
Chemical Specialities Manufacturers Association (CSMA)
Environmental Interest Groups
National Resources Defense Council (NRDC)
Audubon Society
Consumers Union
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Major National Issues Office of Pesticides and Toxic Substances Page 9-23
ACTION DATES OR MILESTONES
Reregistration The annual fees required by the Act must be paid by March 1 of each year. A
registration and expedited processing fund and appropriate accounting systems must be in place by
March 1.1989.
Phase 1 - Publication of 4 reregistration lists, from 4 to 12 months after enactment.
Phase 2 - Registrants inform EPA of intent to seek reregistration, comply with data requirements and
pay first portions of reregistration fee, from 9 to 15 months after enactment.
Phase 3 - Registrant submission of required existing studies and payment of final reregistration fee,
from 18 to 24 months after enactment.
Phase 4 - Independent EPA review of registrant submissions and identification and call-in of any
additional data requirements, from 24 to 45 months after enactment.
Phase 5 - EPA conducts reregistration review of each active ingredient and takes appropriate
regulatory action, from 39 to 108 months after enactment.
Expedited Registration ~ The bill requires that the Agency expedite the review of old chemical and
amendment registration applications to:
1) Inform registrants within 45 days of receipt of an application whether or not it is
administratively complete; and
2) Notify a registrant within 90 days of receiving an administratively complete application
whether the application has been granted or denied.
Disposal and Transportation -- Prescribes a cost sharing formula for storage costs for suspended and
cancelled pesticides which is dependent on time lapses between suspension, submission of storage and
disposal plans, cancellation dates and Issuance of state permits for disposal. A report to Congress on
a Pesticide Container Study is required not later than 2 years after the effective date of the Act.
Regulations for pesticide container design and pesticide residue removal must be promulgated not later
than 3 years after the effective date.
KEY EPA CONTACTS
Victor J. Kimm, Acting Assistant Administrator, Office of Pesticides and Toxic Substances
Douglas D. Campt, Director, Office of Pesticide Programs
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Major National Issues Office of Pesticides and Toxic Substances Page 9 - 25
PESTICIDE INDEMNIFICATION AND DISPOSAL
BACKGROUND: EPA's Office of Pesticide Programs (OPP) is responsible for carrying out the legisla-
tive mandates to indemnify and dispose of pesticides which were suspended and cancelled under the
1978 Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Currently, OPP is managing
indemnification, consolidation, storage, and disposal of three pesticide products: 2,4,5-T/slhrex,
ethylene dibromide (EDB). and dlnoseb. This issue is important because of the huge Federal cost (up
to $ 150 million) to complete these activities. (Note: The future responsibilities for indemnification and
disposal of suspended and cancelled pesticides have been significantly reduced by the 1988
Amendments to FIFRA.)
Statutory Provisions Under Section 19 of the unamended FIFRA, if requested. EPA must accept
pesticides for disposal. The holders are responsible for paying transportation costs to an Agency-
designated storage or disposal facility. Once a pesticide is suspended and cancelled, the Agency issues
a stop sale order, which effectively stops all movement of the product in channels of trade. Registrants
can request an administrative hearing to contest the suspension order as well as the cancellation order.
Section 15 of the unamended FIFRA requires EPA to indemnify individuals who are holding
stocks that have been both suspended and cancelled under Section 6. The amount of the payment is
determined by the cost of the product, not to exceed fair market value.
The specific regulatory background on each of the three pesticide products currently in the
Agency's indemnification and disposal process is as follows:
2,4,5-T/Silvex EPA Issued an emergency suspension in 1979 because of the potential health risk
posed by the dioxins contained in these materials. Registrations for all these products were cancelled
by early 1985.
EDB -- hi 1983 and 1984, EPA ordered the emergency suspension of the two largest pesticide uses of
EDB soil and grain fumigation. All registrations of EDB products for these uses were subsequently
cancelled. EPA had determined that EDB posed risks of producing tumors, gene mutations, and
adverse reproductive effects; and that Individuals could be exposed by consuming food or well water
with EDB residues.
Dinoseb ~ EPA Issued a notice of intent to cancel and an emergency suspension of dlnoseb in October
1986. Many registrations have subsequently been cancelled. However, several registrants decided to
appeal and pursued cancellation hearings. In June 1988, EPA issued the final cancellation order for
the appealed products. In July, 1988 the U.S. District Court in Oregon stayed the cancellation order
for products sold by the Cedar and Drexel Chemical Companies. The court lifted its stay in October
1988.
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EPA moved to cancel dinoseb because it has been linked to human lexicological effects (birth defects,
male sterility, cancer, cataracts, and damage to the immune system) and ecological impacts (highly
toxic to mammals, birds, and invertebrates); and properties allowing leaching of dinoseb to ground
water.
DISCUSSION AND CURRENT STATUS:
Indemnification: Based on language in the FY 1988 Appropriations Act and Report, all eligible
claimants could be paid for their existing stocks of these three previously cancelled pesticides from the
government-wide judgment fund administered by the Department of Justice. There was a specific
prohibition on the use of EPA appropriated funds to pay Indemnification claims. The FY 1989
Appropriations Act contains a similar prohibition and the Agency believes the Congressional Intent is
to continue to pay indemnification claims from the Judgment fund. As an example of indemnification,
the Agency is negotiating an agreement with Uniroyal on dinoseb for approximately $9 million in
indemnification costs.
Disposal: EPA remains responsible for paying for storage and disposal of the existing stocks of these
three cancelled pesticides. The storage and disposal situation of each pesticide is as follows:
2.4,5-T/Silvex:
Amounts and Locations: EPA has located about 50.000 gallons of liquid 2,4,5-T/Silvex and 1.23
million pounds of granular Silvex. The Agency divides these stocks into two groups: those stored in
the Byers Warehouse in St. Joseph, Missouri, and all other stocks. About one half of the national stocks
of 2,4,5-T/Silvex is stored in Byers Warehouse. EPA accepted title to these stocks in December 1987,
as a result of a settlement agreement with the owner. Union Carbide.
Of the non-Byers stocks, EPA holds title to a very small amount of Silvex and is storing it under contract
with a commercial facility in Bristol. CT. EPA received these stocks as a result of the agreement with
Union Carbide. Approximately 220 individuals hold the rest.
Storage and Disposal Activities: EPA is treating these stocks as two entitles for storage and disposal
purposes: those at Byers Warehouse. Missouri and all others. EPA is now evaluating four bids received
for interim storage of all non-Byers stocks, and may award a storage contract late in 1988 or early In
1989. One complication to finding appropriate storage is that few commercial facilities have permits
to store dioxin-containing materials. Interim storage is needed for it is unlikely that EPA will have a
disposal contract in the near future for the non-Byers stocks.
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Major National Issues Office of Pesticides and Toxic Substances Page 9-27
The most environmentally sound method for disposal of 2.4,5-T/Silvex Is incineration. Under the
Resource Conservation and Recovery Act (RCRA), 2,4,5-T/Silvex products containing dioxins are
considered to be hazardous waste and need a permitted facility for disposal. There are currently no
commercial operations permitted to incinerate dioxin. However, two companies have applied for
permits to Incinerate dioxin contaminated materials. As for the disposal of the stocks at Byers
Warehouse, EPA is waiting for a response to Its request for a permit modification from the Missouri
Department of Natural Resources. The modification would allow EPA to dispose of these stocks at the
EPA Mobile Incinerator In Southwest Missouri providing that it could be done before the permit to use
the Incinerator expires.
Ethylene Dibromide (EDB):
Amounts and Locations: All EDB stocks have been consolidated and EPA is in the final stages of
disposal.
Storage and Disposal Activities: Since March 1988. Rollins Environmental Services (under contract
with EPA) has been incinerating EDB at its facility In Deer Park, Texas. As of September 1988,13 of
the 14 rail car shipments of EDB had been incinerated. Incineration of the remaining rail car shipment
should be completed by late In 1988 or early 1989.
Dinoseb:
Amounts and Locations: EPA has received requests for disposal of approximately 2.7 million gallons
of dlnoseb, but anticipates receiving requests for approximately 1.3 million additional gallons. EPA
divides the national stocks into two groups. About 1.7 million gallons of dlnoseb are stored In a Unlroyal
facility at Port Clinton. Ohio. A second group is the non-Unlroyal stocks -located throughout the
country, with large amounts in Mississippi, North Carolina. Georgia, Arkansas, California, and
Washington State. EPA anticipates receiving requests for disposal of about 2.3 million gallons of non-
Unlroyal Stocks.
Storage and Disposal Activities: For purposes of consolidating and storing (but not disposing of]
dinoseb, EPA uses the Unlroyal/non-Uniroyal groupings. Depending on the outcome and timing of
contract awards for dlnoseb disposal, EPA may issue one or more storage contracts late In 1988 or early
in 1989. EPA Is pursuing Incineration as the most appropriate technology for disposal. The Agency's
main concern about this method is the emission of nitrous oxides. EPA conducted two test burns and
incorporated the results in the Request for Proposals for the disposal of all dlnoseb stocks, which was
issued In August 1988. EPA expects to issue one or more contracts for disposal late In 1988 or early
in 1989.
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Page 9 - 28 Office of Pesticides and Toxic Substances Major National Issues
MAJOR PLATERS IN ORGANIZATIONS
Missouri Dept. of Natural Resources
Office of Management and Budget (OMB)
ACTION DATES OR MILESTONES
Late 1988 or early 1989 - Contracts to be awarded for storage and/or disposal of 2,4,5-T/sllvex
and dinoseb.
KEY EPA CONTACTS
Victor Klmm, Acting Assistant Administrator, Office of Pesticides & Toxic Substances
Douglas D. Campt, Director. Office of Pesticide Programs
Sylvia Lowrance, Director, Office of Solid Waste
John Skinner. Director. Office of Environmental Engineering and Technology Demonstration
Timothy Oppelt, Acting Director, Research & Development- Cincinnati
Gerald Yamada, Deputy General Counsel, Office of General Counsel
Morris Kay, Regional Administrator, Region 7
Robert Layton, Regional Administrator, Region 6
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Major National Issues Office of Pesticides and Toxic Substances Page 9 - 29
PESTICIDES IN GROUND-WATER
BACKGROUND: The Issue of pesticides in ground water Is one of the most complex issues currently
facing the Agency. Ground water provides about 45% of the total water use In the U.S., as well as
drinking water for nearly half of the total U.S. population. Forty pesticides have been identified in
ground-water of 19 States. Once widespread contamination of groundwater by pesticides has
occurred, removing the contamination often is not economically or technically feasible. Thus,
preventing contamination must be the primary focus of EPA's regulatory efforts.
The potential vulnerability of groundwater to pesticide contamination depends on a complex set of
factors which vary significantly from area to area. Furthermore, the use and value of ground-waters
vary considerably across the country. This suggests the need for a localized protection approach.
In February 1988, EPA published a draft strategy on pesticides in groundwater. The strategy proposes
that EPA establish reference points that will be used to help determine what levels of ground-water
contamination are unacceptable. The strategy also establishes EPA's goal of preventing ground-water
contamination from reaching these unacceptable levels. EPA would rely on predictive modeling as well
as monitoring data to determine risks.
The strategy also Indicates that states should take the lead role in this effort by tailoring local pesticide
management measures to local ground-water protection needs. However, EPA should set nationwide
standards on Issues that transcend local management issues.
In June 1988, EPA Issued a preliminary decision on whether the registrations of products containing
the widely-used insecticide, aldlcarb. needed to be revised or cancelled because of its acute toxlclty and
its known presence In groundwater. This proposed decision was the first to rely on the February 1988
proposed ground-water strategy, by requiring area-specific control measures, including state manage-
ment plans.
DISCUSSION AND CURRENT STATUS: EPA received many comments on the proposed strategy.
States do not have the technical expertise and resources to carry out the functions EPA proposed. There
is also concern among Agency personnel that the Agency does not have adequate resources to provide
the level of technical guidance and assistance needed to implement the strategy.
The Regions will need to play a significant coordination and oversight role. As a next step, EPA is
holding 10 workshops around the country In November and December 1988 with appropriate state
agencies to develop guidance for state pesticide management plans and to discuss EPA's role in
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Page 9-30 Office of Pesticides and Toxic Substances Major National Issues
developing and implementing these plans. EPA plans to issue a final strategy in early 1989 and another
document proposing detailed guidance for the states by mid-1989.
Comments on EPA's proposed regulatory position on aldicarb similarly questioned whether it is
realistic or practicable to rely primarily on state action to prevent aldicarb from contaminating ground-
water. In the preliminary regulatory decision on aldicarb, the Agency noted that since the issues were
significant and precedent-setting, we may respond to comments by a reproposal of the decision, before
making a final determination. Because many of the issues raised in response to aldicarb also need to
be resolved in the context of the overall groundwater strategy, EPA probably will make a final decision
on aldicarb in roughly the same time period for finalizing the overall strategy.
MAJOR PLATERS IN ORGANIZATIONS
State Agencies (agriculture, water, public health).
Congress and numerous environmental and industry groups.
ACTION DATES OR MILESTONES
February 1989 Final Agriculture Chemical in Groundwater Strategy
April 1989 Proposed Guidance for SMPS
Fall 1989 Decision on Aldicarb Regulatory Position
KEY EPA CONTACTS
Victor J. Kimm, Acting Assistant Administrator,
Office of Pesticides and Toxic Substances
Douglas D. Campt, Director, Office of Pesticide Programs
A. E. Conroy, Director, Office of Compliance Monitoring
Rebecca Hamner, Acting Assistant Administrator, Office of Water
Marian Mlay, Director, Office of Ground Water Protection
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RESEARCH &
DEVELOPMENT
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Major National Issues Office of Research & Development Page 10-1
IMPLEMENTATION OF MAJOR RECOMMENDATIONS OF ERA'S
SCIENCE ADVISORY BOARD
BACKGROUND: Responding to a request from the Administrator In September 1988, EPA's Science
Advisory Board (SAB) Issued the report, "Future Risk: Research Strategies for the 1990's". Based on
the expertise of nearly fifty nationally recognized scientists, engineers, and administrators in
government. Industry, and academia the report emphasizes the fundamental importance of environ-
mental research and EPA's responsibility for national leadership.
To date. 5,000 copies of the executive summary report have been distributed, and additional copies are
now being printed. The report is receiving high visibility from the Office of Management and Budget,
the Congress and the media.
DISCUSSION: The report reflects the SAB's view that EPA Is not just a regulatory agency, but is a multi-
faceted agency, with major research, technology transfer, and educational responsibilities. The SAB
believes that EPA needs to reshape its strategy for addressing environmental prob'lems in light of its
broader responsibilities. Its ten recommendations for achieving this goal are:
1) EPA should shift the focus of its environmental protection strategy from end-of-plpe controls to
preventing the generation of pollution.
2) To support this new strategy, EPA should plan, implement, and sustain a long-term research
program.
3) EPA needs to establish better mechanisms to ensure that a coherent, balanced R&D strategy is
planned and implemented.
4) EPA must improve its capability to anticipate environmental problems.
5) EPA should provide Federal leadership for a national program of ecological research by establish-
ing and funding an Environmental Research Institute.
6) EPA should expand its efforts to understand how and to what extent humans are exposed to pol-
lutants In the real world.
7) EPA should Initiate a strong program of epidemiological research.
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Page 10-2 Office of Research & Development r Major National Issues
8) EPA should expand its efforts to assist all those parts of society that must act to prevent/reduce risk.
,. - . ; . *;.: u : « ' -1-
9) EPA needs to Increase the numbers and sharpen the skills of the scientists and engineers who
conduct environmental research.
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10) EPA's RMyBii^get should be doubled over the next five years.
Implementation of the SAB recommendations will be costly, as reflected In its proposed doubling of
i EPA's R&D budget. The SAB also believes that the Agency should exert greater leadership over Fed-
~<:r. era! ecological research activities. To achieve this would require coordination and agreement among
,-<. other Federal agencies.
8, r-'.-. '-'-' -1"
o In addition to its ten major recommendations, the SAB issued five detailed appendices addressing
research needs and strategies in the following areas: sources, transport and fate; exposure
- ..* * .-!"' ,Ctf-'. T'.ijT -'
assessment; ecological effects; health effects; and risk reduction.
CURRENT STATUS: Two significant FY 1990 budget Initiatives resulted directly from the SAB
-; recommendations:
Establish the National Institute for Ecological Research (recommendation #5); and
i.:-. ...-. ;'. ..) ' ii-
Increase the Investigator-Initiated grants program to approximately 10% of the
" Agency's research aiia development investment (recommendation #9).
In addition to these budgetary initiatives. Administrator Lee Thomas Issued a memorandum on
September 26, 1988, entitled "Steps to Improve Research Support for EPA." The memorandum
described four actions the Agency Is undertaking in response to the SAB report:
.11) The Agency must establish and maintain a commitment to selected core research areas. . Erich
'..: 'Bretthauer, ORD's Deputy Assistant Administrator, has the lead In identifying these core areas.
2) A Research Strategy Council (RSC) is being formed to ensure a balance between short-term and long-
term research. Again, Erich Bretthauer has the lead in developing the RSC charter.
3) the Agency will explore procedures that would permit greater flexibility in its use of R&D for
' intramural research. A memo was sent to OMB on 9/20/88 providing legislative language allowing
appropriations transfers.
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Major National Issues
Office of Research & Development
Page 1CL- 3
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4) The Deputy Administrator will establish a small staff office to anticipate future environmental
problems and flag issues for research.
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Actions implementing other SAB recommendations (e.g., an expanded human exposure assessment
program) were already planned or underway within ORD. One area where the Agency's plartsrare not %-
consistent with the SAB report is in epidemiology (recommendation #7), where the Agency's research
focus and plans are narrower than the "strong program" envisioned by the .SAB. ..,... ^ ... ;;r
MILESTONES
11/30/88
12/1/88
ORD, in consultation with regions and program offices identifies proposed
core areas of research. EPA briefs SAB.. .,.,..,«,.
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Administrator approves charter of Research Strategies Council^.,
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KEY EPA CONTACTS
Erich Bretthauer, Acting Deputy Assistant Administrator,,
'J Office of Research & Development
Clarence Mahari* Director, Office of Research Program Managemeiit,,
"foffiide of Research & Development
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; PageUp-4 . Office of Research Si. D^uelppment Major National Issues
~U s Environmental 'proleotUn
Llbr*rv. Koom 2404 PM-21L-A
401 M Street, S.W.
fashlastoo. DO «>*60
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