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National Environmental Performance Track Program
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: August 13, 2002 (Volume 67, Number 156)]
[Proposed Rules]
[Page 52674-52696]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13au02-21]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 63, 262 and 403
[FRL-7255-8]
RIN 2090-AA13
National Environmental Performance Track Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: Available only to members in EPA's National Environmental
Performance Track program, this action proposes: a provision that would
allow hazardous waste generators who are members in Performance Track
up to 180 days to accumulate their hazardous waste without a RCRA
permit or interim status; simplifications to reporting requirements for
facilities governed by Maximum Available Control Technology (MACT)
provisions of the Clean Air Act (CAA); and specific reporting
modifications for Publicly Owned Treatment Works (POTWs) regulated by
the Clean Water Act (CWA). Additionally, this action solicits comments
on a potential pilot of consolidated reporting that would allow
Performance Track facilities to submit a single report that would
contain data routinely required under the CAA, the CWA, the Emergency
Planning and Community Right-to-know Act (EPCRA), and the Resource
Conservation and Recovery Act (RCRA). These provisions are intended to
serve as incentives for facility membership in the National
Environmental Performance Track, and as demonstrations of the concept
for reporting streamlining.
DATES: Submit comments on or before November 12, 2002. A public hearing
on this proposed rule will be held on September 27, 2002. Submit
requests to present oral testimony on or before September 25, 2002.
ADDRESSES: Comments. Submit comments (in duplicate if possible) to:
Docket No. A-2000-47, U.S. Environmental Protection Agency, Mailcode
6102, 1200 Pennsylvania Avenue NW., Washington, DC 20460.
Public Hearing will be located at 1200 Pennsylvania Avenue,
Washington, DC 20460.
Electronic Access and Filing. Comments and data may be submitted by
electronic mail (e-mail) to: a-and-r-docket@epa.gov.
Electronic comments must be submitted as an ASCII file to avoid the
use of special characters and encryption problems and will also be
accepted on disks in WordPerfect version 5.1, 6.1 or Corel 8 file
format. All comments and data submitted in electronic form must note
the docket number: A-2000-47. No confidential business information
(CBI) should be submitted by e-mail. Electronic comments may be filed
online at many Federal Depository Libraries.
Documents related to this rulemaking may be viewed at: U.S. EPA Air
Docket, Room M-1500, 401 M Street, SW, Washington, DC 20460 (on the
ground floor in Waterside Mall) from 8 a.m. to 5:30 p.m., Monday
through Friday, except on government holidays. Submit electronic
comments and other data to a-and-r-docket@epa.gov. See SUPPLEMENTARY
INFORMATION for file formats and other information about electronic
filing.
FOR FURTHER INFORMATION CONTACT: Technical information: Robert D.
Sachs, 202-260-2765, sachs.robert@epa.gov. Public Hearing information:
Robert D. Sachs, 202-260-2765, sachs.robert@epa.gov.
SUPPLEMENTARY INFORMATION: In addition to being available in the
docket, an electronic copy of today's proposed rule will be available
on the World Wide Web through the Technology Transfer Network (TTN).
Following the Administrator's signature, a copy of the rule will be
posted on the TTN's policy and guidance page for newly proposed or
promulgated rules http://www.epa.gov/ttn/oarpg. The TTN provides
information and technology exchange in various areas of air pollution
control. If more information regarding the TTN is needed, call the TTN
HELP line at (919) 541-5384.
Docket. The docket is an organized and complete file of all the
information considered by us in the development of this rulemaking. The
docket is a dynamic file because material is added throughout the
rulemaking process. The docketing system is intended to allow members
of the public and industries involved to readily identify and locate
documents so that they can effectively participate in the rulemaking
process. Along with the proposed and promulgated standards and their
preambles, the contents of the docket will serve as the record in the
case of judicial review. The regulatory text and other materials
related to this rulemaking are available for review in the Air Docket
under Docket Number A-2000-47 (see ADDRESSES above) or copies may be
mailed on request by calling the Air Docket at (202) 260-7548 or by
facsimile at (202) 260-4400. We may charge a reasonable fee for copying
docket materials, as provided in 40 CFR part 2.
Regulated Entities. Categories and entities potentially regulated
by this action include those listed in the following table.
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Examples of
Category NAICS
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Utilities.................................................. 221
Textile mills.............................................. 313
Wood product manufacturing................................. 321
Chemical manufacturing..................................... 325
Plastics and rubber products manufacturing................. 326
Primary metal manufacturing................................ 331
Fabricated metal products.................................. 332
Machinery manufacturing.................................... 333
Computer and electronic product manufacturing.............. 334
[[Page 52675]]
Transportation equipment manufacturing..................... 336
Miscellaneous manufacturing................................ 339
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action.
Outline. The information presented in the text that follows is
organized as below:
I. Overview
A. What is the history of this action?
B. How have stakeholders been involved?
C. What incentives for members are envisioned?
D. What is EPA's rationale for this rule?
1. What Environmental Benefits will the Performance Track
Program Bring to Society?
2. How will these Incentives Maximize the Benefits of the
Performance Track Program?
3. Will these incentives undercut existing environmental
protections?
4. How does the Program Design Limit Membership to a Uniquely
Appropriate set of Facilities?
II. The proposed rulemaking changes
A. Maximum Achievable Control Technology (MACT)
1. Reduced frequency of required MACT reporting for all eligible
Performance Track facilities
2. Reporting reductions for Performance Track facilities that
achieve MACT or better emission levels through pollution prevention
methods such as process changes
B. Alternative Environmental Performance-based Incentives for
POTWs in the Performance Track
1. Electronic Web Posting for SNC Notification
2. Oversight of Significant Industrial Users
3. Program Modifications
4. Revisions to the Requirements for the Pretreatment Program
Annual Report
C. 180-Day Accumulation Time for Performance Track Hazardous
Waste Generators
1. Background
2. What are the current Requirements for Large Quantity
Generator Accumulation?
3. What is in Today's Proposal?
4. How will today's Proposal Affect Applicability of RCRA Rules
in Authorized States?
III. Other potential incentives: consolidated reporting
IV. Summary of Environmental, Energy and Economic Impacts
A. What are the cost and economic impacts?
B. What are the health, environmental and energy impacts?
V. Solicitation of Comments and Public Participation
VI. Administrative Requirements
A. Executive Order 12866, Regulatory Planning and Review
B. Executive Order 13132, Federalism
C. Executive Order 13175, Consultation and Coordination with
Indian Tribal Governments
D. Executive Order 13045, Protection of Children from
Environmental Health Risks and Safety Risks
E. Executive Order 13211, Energy Effects
F. Unfunded Mandates Reform Act of 1995
G. Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1966 (SBREFA), 5
U.S.C. 601 et. seq.
H. Paperwork Reduction Act
I. National Technology Transfer and Advancement Act of 1995
I. Overview
A. What Is the History of This Action?
EPA announced the National Environmental Performance Track
(Performance Track) program on June 26, 2000. The program is designed
to recognize and encourage top environmental performers--those who go
beyond compliance with regulatory requirements to attain levels of
environmental performance and management that provide greater benefit
to people, communities, and the environment. The program is based upon
the experiences of EPA, states, businesses, and community and
environmental groups with new approaches that achieve high levels of
environmental protection with greater efficiency. This experience
includes: EPA's Common Sense Initiative, designed to improve
environmental results by tailoring strategies for six industry sectors;
the national Environmental Leadership Program and EPA Region I's Star
Track program, designed as new ways to encourage businesses to do
better than required; and many performance track-type programs in
states such as Oregon, Wisconsin, New Jersey and Virginia.
EPA currently is implementing the National Environmental
Performance Track (Performance Track), formerly known as the
Achievement Track. The program is designed to recognize facilities that
consistently meet their legal requirements, that have implemented
management systems to monitor and improve performance, that have
voluntarily achieved environmental improvements beyond compliance, and
that publicly commit to specific environmental improvements and report
on progress. A complete description of the Performance Track program,
its requirements, and other program materials are available on EPA's
Web site (www.epa.gov/performancetrack) or by calling the Performance
Track Information Center toll free at 1-888-339-PTRK (7875).
EPA has held three Performance Track application periods--between
July 2000 and September 2000, between February 2001 and April 2001, and
between August 2001 and October 2001. In the future, EPA plans to hold
two entry periods each year. A total of 279 facilities have been
accepted into the program. The National Environmental Performance Track
is a voluntary program. Decisions to accept and remove facilities is
wholly discretionary to EPA, and applicants or potential applicants
have no legal right to challenge EPA's decision.
Today's proposal creates several regulatory provisions that
constitute enforceable legal requirements for facilities that are
members of the Performance Track program and have taken all other
necessary steps required for the applicability or implementation of the
individual regulatory incentive provisions. Full eligibility and other
program requirements can be found at the Performance Track Web site
(www.epa.gov/performancetrack). The Agency believes that, because of
the stringency of the program criteria, facilities in the Performance
Track should receive the non-regulatory and regulatory benefits
outlined in the Program Description (and summarized below).
Specifically, for acceptance in the Performance Track, facilities must:
Have adopted and implemented an environmental management
system (EMS) that includes specific elements;
Be able to demonstrate environmental achievements and
commit to continued improvement in particular environmental categories;
Engage the public and report publicly on their
performance; and
Have a record of sustained compliance with environmental
requirements.
In addition, the Performance Track is designed so that EPA and
other stakeholders can monitor and track the implementation of the
benefits currently being offered to program members, as well as those
being considered. Member facilities commit to providing annual reports
on the status of their efforts to achieve their commitments to
improvements in specific environmental categories. This reporting plus
additional activities to engage the public result in a high level of
scrutiny that will aid in monitoring the activities of the Performance
Track program. Lastly, facilities are accepted into the Performance
Track for a period of three years. To continue receiving the benefits
associated with the program, facilities will reapply, which will
include developing additional, ongoing
[[Page 52676]]
commitments to environmental performance improvements.
In its efforts to promote improved environmental performance
through the National Environmental Performance Track, EPA is evaluating
further regulatory incentives that could be applied to qualifying
facilities. This rulemaking is the first in what are expected to be
several steps in developing incentives that will promote participation
in the program and the associated environmental benefits. These
incentives will include both those that will be implemented through
rulemaking (such as the regulatory changes proposed today) and those
that may be accomplished through administrative action by EPA or the
states. EPA encourages interested parties to submit comments on
additional incentives that are consistent with the design and goals of
the Performance Track.
B. How Have Stakeholders Been Involved?
During the development of the Performance Track Program and
subsequent to its announcement in June 2000, EPA has had many meetings
with a wide array of stakeholders. Stakeholders included companies,
non-governmental organizations, states, associations, and others. Over
the course of these meetings, EPA has discussed many issues including
any incentives that would reward Performance Track members, as well as
those incentives that would motivate non Performance Track facilities
to implement environmental improvements that would qualify them for
membership in the program.
This proposed rulemaking grew out of the stakeholders' collective
interest in promoting incentives for participating facilities. Since
the inception of the program, EPA has held three meetings with state
regulators: May 2000 in Denver, February 2001 in Chicago, and November
2001 in Charleston. At each of these meetings, break-out sessions were
held to solicit feedback from state personnel on potential incentives
to be offered to Performance Track members.
On December 12, 2000, EPA held a ``Charter Event'' for the first
round of Performance Track members. At this meeting EPA held a series
of breakout discussions. During these sessions, ideas about incentives
that could become part of the regulatory framework were discussed.
Similarly, on October 30, 2001 EPA met with a variety stakeholders
including associations, non-governmental organizations and states to
discuss EPA's ``Innovations Strategy.'' During this meeting EPA held a
specific breakout session on incentives that could be made available
for performance track members.
In addition, EPA has consulted regularly with individual
Performance Track participants and the Performance Track Participants
Association (PTPA), which is composed of 141 members. The PTPA is a
nonprofit organization that provides a forum for corporations, trade
associations and public entities dedicated to improving their
environmental performance through the vehicle of the Performance Track
program. The PTPA met twice, in June and November of 2001, and is
convening its first annual conference in April, 2002. The PTPA also has
an Incentives workgroup that focuses on identifying and advocating for
incentives for Performance Track members.
Furthermore, EPA is working with nine trade organizations through
the Performance Track network to further enhance participation in the
program. Network Partners include the following organizations: American
Chemistry Council, American Textile Manufacturers Institute, Cement
Kiln Recycling Coalition, National Association of Chemical
Distributors, National Paint and Coatings Association, National Stone,
Sand and Gravel Association, NORA (an Association of Responsible
Recyclers), North American Die Casting Association, and Screenprinting
and Graphic Imaging Association International.
C. What Incentives for Members Are Envisioned?
The Performance Track Program Description provides a list of
incentives the Agency intended to make available to member facilities.
EPA currently offers several incentives that are available to members
when they enter the program (e.g., recognition, networking
opportunities, discretionary inspection benefits). EPA is also in the
process of making other incentives available through taking
administrative action (other than rulemaking) and by issuing or
amending guidance documents (e.g., reduced reporting under Discharge
Monitoring Reports). These incentives will be available when those
steps have been completed. In some cases, other steps also must be
taken before a facility may take advantage of an incentive. For
example, states are responsible for implementing parts of many federal
environmental programs. In such cases, states may need to revise
regulations, seek EPA approval of a revised program, re-issue permits,
or take other actions. EPA has made funds available to approximately 20
states to identify where existing state laws may need to be revised to
support the National Environmental Performance Track. See the National
Environmental Performance Track Program Description for a fuller
discussion of these incentives.
In the Program Description, EPA also committed to propose specific
regulatory changes as incentives for membership in the Performance
Track. The proposed changes in this rulemaking follow up on this
commitment. EPA believes the modest regulatory changes proposed here
are appropriate for facilities that are members of the program.
EPA is proposing the following regulatory changes to promote
membership in the program and to realize the environmental and other
benefits resulting from the actions of member facilities. EPA excluded
incentives that would involve a relaxation of substantive standards of
performance or that would require statutory change. EPA identified
incentives that would apply broadly to different types of facilities;
that reduce the reporting and other operating costs of the current
system; and that can be implemented nationally.
EPA believes it is important to offer the kinds of incentives
described here for several reasons. First, the achievements of these
facilities deserve public recognition. Second, some of the reporting
and other administrative requirements that apply generally to
facilities may not be needed for facilities that have met the entry
criteria for the Performance Track because these facilities have
implemented appropriate environmental management systems, have
consistently met their regulatory commitments, and have agreed to make
information regarding their performance publicly available. Third,
these incentives may offer the opportunity for qualifying facilities to
apply their resources to achieving even better environmental
performance. And finally, the availability of these incentives should
encourage other facilities to make environmental improvements that will
enable them to qualify for membership.
In this rulemaking, EPA is proposing changes to certain regulatory
programs to offer incentives exclusively to Performance Track
facilities. They include:
Reducing the frequency of reports required under the air
toxics provisions of Section 112 of the Clean Air Act (air toxics
standards promulgated under this section of the CAA are often referred
to
[[Page 52677]]
as MACT Standards or Maximum Achievable Control Technology Standards).
In this incentive, EPA proposes to reduce the frequency of required
MACT reporting for all eligible Performance Track facilities to an
interval that is twice the length of the regular reporting period, but
not less frequently than once every six months. Second, if Performance
Track facilities reduce their emissions through pollution prevention or
process changes to below MACT levels, and below the major source
threshold, required reporting elements in the periodic report may be
met through an annual certification. Performance Track facilities must
continue to meet all relevant monitoring and recordkeeping
requirements. For major sources, reports must still be submitted at
least semi-annually in order to meet Title V permitting requirements.
Reducing the reporting costs for POTWs in the Performance
Track that must publish notices of violations by facilities that use
their services. These POTWs would be allowed to use the Internet rather
than paid newspaper notices. POTWs would also be allowed to reduce
their oversight of some smaller industrial users; they would be allowed
the discretion to determine that some of these users are
``nonsignificant.'' Also proposed are other alternative environmental
performance-based incentives for POTWs in the Performance Track.
Allowing large quantity hazardous waste generators who are
members of the Performance Track up to 180 days (and 270 days if the
waste must be transported 200 miles or more) to accumulate hazardous
waste without a RCRA permit or interim status, provided that these
generators meet certain conditions. This incentive would also assist
EPA in learning more about appropriate hazardous waste generator
accumulation times.
In this notice, EPA solicits comments on another potential
incentive--the opportunity for Performance Track facilities to
consolidate reporting under various environmental statutes into a
single report. The incentives in this notice--both those for which we
propose rulemaking changes and the opportunity for participating in a
consolidated reporting pilot--are just a part of an overall package of
incentives that EPA intends to provide for Performance Track members.
We noted above that the National Environmental Performance Track
Program Description lists several other incentives that EPA intends to
make available through administrative action not requiring rulemaking
changes. That same document notes that EPA is considering another
potential incentive--the opportunity for expedited review for companies
that submit Premanufacturing Notifications (PMNs) under the Toxic
Substances Control Act, if the substance is manufactured in a
Performance Track facility and the applicant uses EPA's Pollution
Prevention Framework in preparing the PMN submission. If EPA decides to
make the TSCA incentive a part of the Performance Track Program, we
would propose rulemaking to do so at a later time.
We solicit comments on whether EPA should add other incentives
beyond the ones in this notice and in the Program Description, and what
they might be. EPA will consider at least three criteria in devising
and selecting additional incentives. One is the make-up of the current
set of Performance Track facilities and the potential applicant pool.
Another is the extent to which the characteristics of Performance Track
facilities (including their use of effective EMSs and their commitment
to public reporting beyond that required by regulations) may be
appropriate substitutes for some aspects of existing regulatory and
other requirements. The third criterion is that incentives do not
represent a reduction in protectiveness when compared to current
requirements. We solicit comments on these criteria and suggestions of
others.
D. What Is EPA's Rationale for This Rule?
EPA is proposing to modify reporting and other requirements that
affect facilities that are subject to various environmental statutes
and regulations. The proposed rulemaking would make these modifications
available only to those facilities that successfully achieve the status
of members in the National Environmental Performance Track Program and
continue to meet the conditions of the program.
The environmental benefits that will be generated by Performance
Track member facilities are related to the criteria for membership in
the Performance Track. These were enumerated and fully described in
EPA's announcement of this program (www.epa.gov/performancetrack), and
are summarized below:
Facilities must satisfy the following four entry criteria to be
accepted into the Performance Track:
(1) Facilities must be in compliance with Federal, State, Local and
Tribal environmental regulations.
(2) They must operate a well-designed environmental management
system (EMS) as part of their overall management system.
(3) They must demonstrate a record of environmental improvements
for the previous two years beyond the minimums required of them. They
also must take additional future actions and commit to further
improvements in the succeeding three years.
(4) Facilities must engage the public and each year they must
report publicly on their progress toward meeting the goals that they
have chosen, as well as summarize their compliance and the performance
of their EMS. EPA will also make the applications of each facility
member available to the public.
These criteria are the key to generating the incremental
environmental improvements; they were designed to work together as an
integrated approach. No single criterion, standing alone, would provide
EPA with the necessary assurance that the changes proposed here would
lead to increased compliance or performance. However, in combination
the Agency believes that these criteria ensure that the facilities
eligible for these proposed changes are both capable of and committed
to maintaining beyond-compliance environmental performance and that any
lapses will be rare and quickly corrected by facility management.
Further, the Agency and the public will continue to receive information
on facility compliance and performance. Nothing in this proposal would
compromise the ability of the Agency to investigate and sanction
suspected environmental violations.
Compliance with environmental regulations: Although the first
criterion merely re-iterates the existing obligation of all facilities
to comply with relevant policies and regulations, the other criteria go
beyond the environmental problems addressed under existing regulations
and focus on the unique set of environmental challenges faced by each
individual facility. EPA believes that a strong compliance history is
an important factor in defining performance in the Performance Track.
EPA, in cooperation with State and local authorities to the extent
possible, reviews the compliance history of applicants.
Environmental management systems: To satisfy the second program
criterion, a Performance Track member facility must have a mature
environmental management system. These systems integrate environmental
considerations into routine decision-making at facilities, establish
work practices that consistently reduce environmental risks and
releases, evaluate environmental performance, and set management
[[Page 52678]]
priorities based on the environmental impacts of individual facilities.
Because they organize and consolidate information on a facility's
environmental obligations and potential weaknesses for management, an
EMS often improves the facility's compliance record and reduces
accidents. However, many EMS frameworks address unregulated
environmental impacts as well as regulated impacts. Thus, an EMS
provides a facility with the ability to assess and mitigate impacts
that are most significant for the facility or that pose the most risk
to the ecosystem and community surrounding the facility. An EMS allows
a facility to take additional environmental mitigation actions that are
highly effective and appropriate, providing better environmental
results as well as more flexibility than the existing regulatory
structure alone.
EMSs are being used increasingly by organizations around the world
to help integrate environmental considerations into day-to-day
decisions and practices and to address environmental issues more
consistently and effectively. The increasing use of EMSs has resulted
in the development of an international EMS standard (ISO 14001). In
light of their growing use and potential for improving environmental
results, especially in the area of unregulated impacts, EPA has focused
more attention on EMSs in recent years. The Agency has a research
program underway with the States to pilot test and evaluate the
effectiveness of EMSs in several industry settings. The Agency has
developed and tested EMSs for specific sectors, including local
governments and metal finishing and screen printing firms. We have
promoted EMSs through several voluntary partnership programs, such as
Design for the Environment (DfE), and we have incorporated EMS
requirements in enforcement settlement agreements. In June 2000, the
Administrator supported the North American Commission for Environmental
Cooperation (CEC) document ``Improving Environmental Compliance: 10
Elements of Effective Environmental Management Systems.''
The EMS provisions in the Performance Track are designed to ensure
that member facilities will continue to not only meet their regulatory
obligations but also to perform better than required by regulation. The
Performance Track specifies that a qualifying facility must have an EMS
that includes detailed elements in the following categories:
environmental policy (including compliance with both legal requirements
and voluntary commitments), planning, implementation and operation,
checking and corrective action, and management review. Additionally,
the EMS must have been in full operation for at least one review cycle
(generally one year) and must have been audited (may be a self-audit).
The EMS requirements are described in more detail in EPA's National
Environmental Performance Track Program description at www.epa.gov/
performancetrack.
Past and future environmental improvements: Facilities must
demonstrate their commitment to continuous environmental performance.
To do this, facilities must identify accomplishments in specific
categories. The categories are: energy use, water use, materials use,
air emissions (including greenhouse gases), waste, discharges to water,
accidental releases, habitat preservation/restoration, and product
performance. Past improvements must have been beyond regulatory
requirements. In addition, Performance Track facilities must make use
of their EMSs to set and commit to achieving environmental performance
goals that go beyond regulatory requirements and that mitigate some
facility-selected significant environmental impacts. These performance
goals must be chosen among the specific categories identified above
including both regulated and unregulated environmental impacts.
Because these performance goals and accomplishments go beyond
requirements and in some cases, well beyond areas covered by existing
environmental regulations, EPA believes that facilities that qualify
for the Performance Track have demonstrated a serious commitment to
real environmental improvement. By their willingness to undertake
greater environmental responsibilities, these facilities have earned
the confidence that they will maintain compliance with regulatory
requirements under the streamlined procedures proposed in this Notice.
Public commitments: To satisfy the fourth program criterion, all
Performance Track facilities publicly disclose progress toward their
commitments and other performance information each year, including
summary information regarding their EMS and compliance with legal
requirements. Because these commitments and the performance reporting
go beyond those required by current regulation, communities will have
access to more information about the performance of local facilities.
This public scrutiny also will provide an incentive for firms to make
meaningful commitments and achieve them.
We believe that facilities that make the choice to apply and to
demonstrate their commitments to environmental improvements in the
public spotlight will be imposing upon themselves a unique and
particularly strong set of pressures to deliver this heightened level
of performance.
In time, we expect the Performance Track program to produce
additional environmental gains as a result of the more efficient use of
the resources of federal, state, and local environmental authorities.
Because we expect the entry criteria to result in member facilities
that are carrying out their environmental obligations in a manner
beyond what is required of them, we believe that EPA and the other
authorities will be able to shift enforcement and compliance activities
to other facilities in the regulated community. We believe that this
resource reallocation may bring further environmental improvements, as
limited compliance resources are applied more effectively.
Each of the regulatory changes we are proposing today would enable
some Performance Track members to reduce their reporting or other
compliance costs.
1. What Environmental Benefits Will the Performance Track Program Bring
to Society?
EPA believes that its refocus of resources may lead to additional
environmental compliance. Public recognition and reporting requirement
relief, to the extent that they affect companies bottom lines, may
influence company decisions to undertake regulatory projects that go
beyond regulatory requirements. The public will be able to judge the
nature and magnitude of these environmental benefits by examining the
annual reports that Performance Track facilities are required to
prepare and make public.
2. How Will Incentives Maximize the Benefits of the Performance Track
Program?
Incentives play a crucial role in maximizing the environmental
benefits of any voluntary program. Facilities must perceive a benefit
to themselves that is at least equal to their perceived costs of
membership in a voluntary program. These costs include the
administrative burden of membership as well as any costs incurred in
meeting the substantive requirements of the program. Facility members
of the Performance Track Program also face
[[Page 52679]]
the additional risk of adverse public reaction if they fail to meet
their environmental goals or if their internal audits of compliance or
EMS performance reveal problems. These public risks are unique to
Performance Track facilities. Facilities participating in other EPA
voluntary programs as well as facilities that do not participate in any
voluntary program may and do keep audit information confidential.
Improved public information about the environmental performance of
facilities is an important component and public benefit of the
Performance Track program and it significantly raises the costs
perceived by facility managers for internal oversights or lapses.
The greater the benefits to facility members in the Performance
Track program, the more facilities will participate. Increased program
incentives may also generate environmental benefits from non-members.
If facilities that do not currently meet the Performance Track program
criteria believe that membership would benefit them, they may work to
improve their management systems and environmental performance to
become eligible.
3. Will These Incentives Undercut Existing Environmental Protections?
EPA believes that the proposed 180-day accumulation period for
hazardous waste and the changes proposed in reporting for MACT
facilities and for POTWs will have no direct deleterious effects on the
environmental performance of those facilities. We believe that,
although EPA and other regulatory bodies will receive compliance
information from these facilities less frequently, the facilities'
demonstrated strong environmental performance and the presence of their
EMSs more than compensate for reduced reporting. As a safeguard, EPA
and the other governmental authorities will not be giving up their
ability to take enforcement actions against any facility that fails to
comply with permits or other obligations. The risk of a very public
removal from this program for failure to comply adds an extra incentive
to comply with program requirements. EPA believes that this, plus the
incentives that facilities have to be perceived by the public and by
governmental offices as better environment performers than their
competitors, reduces the risk that any environmental damages will
result from this program or the regulatory changes we are proposing.
We believe that the changes proposed here for POTWs' public
reporting will not decrease the public's ability to learn about
violations by the POTWs' permittees. Rather, EPA believes that these
changes may actually enhance the public's ability to learn about these
violations and thus to participate in ensuring compliance by
dischargers.
4. How Does the Program Design Limit Membership to a Uniquely
Appropriate Set of Facilities?
EPA designed the Performance Track program to generate improvements
in environmental performance of facilities. EPA believes that the entry
criteria and the ongoing obligations for continued membership in
Performance Track as described above will bring about benefits to the
environment such as decreased releases of pollutants to the air, water,
and land, of greater efficiency in energy and raw material usage, and
of decreased risks of accidental releases of hazardous substances.
These incremental environmental benefits will flow from the facilities'
activities that are tied to their membership in Performance Track, and
this justifies making available to this category of facilities the
benefits of the modified requirements that we propose today.
Further, EPA believes that there are controls and safeguards built
into the Performance Track program that reduce the possibility a
facility would receive the benefits of the modified requirements we
propose today without the facility delivering improved environmental
performance.
EPA's announcement of this program (www.epa.gov/performancetrack)
describes how we review the applications and make selections of
facilities that meet the entry criteria. It also summarizes other steps
we will take to run the program, including conducting site visits at up
to 20 percent of the member facilities and the possible removal of
facilities if they are found not to be meeting the commitments they
have taken on. We believe that this approach is generally capable of
identifying those facilities, among the tens of thousands of facilities
subject to environmental regulations, which have and will continue to
comply with and exceed regulatory requirements. We also believe that
the combination of the administrative controls of the Performance Track
program and the public reporting voluntarily accepted by program
members will, as a rule, be effective in limiting membership to only
such facilities.
II. The Proposed Rulemaking Changes
A. Maximum Achievable Control Technology (MACT)
1. Reduced Frequency of Required MACT Reporting for All Eligible
Performance Track Facilities
Facilities covered by the MACT provisions of the Clean Air Act must
meet a variety of recordkeeping, monitoring, and reporting requirements
as specified in 40 CFR part 63--National Emission Standards for
Hazardous Air Pollutants for Source Categories. For facility members in
the Performance Track, EPA proposes to reduce the reporting frequency
while assuring the availability of information required for compliance
with MACT standards.
Because of the high-level environmental performance of Performance
Track facilities, EPA believes it is appropriate to provide these
facilities the opportunity to reduce their reporting frequency under
part 63. Since the underlying data required from these facilities would
still be gathered, the Agency would still receive the information
needed to ascertain any lapses in compliance.
MACT reporting requirements differentiate between facilities, based
on facility performance, with respect to reporting frequency. For
example, reporting frequency may be increased from semi-annually to
quarterly for some reports based on the frequency of excursions outside
of required performance parameters. The approach the Agency is
proposing today applies a similar concept by reducing reporting
frequency for the best performers.
EPA is proposing to reduce the frequency of certain required
periodic MACT reports for eligible Performance Track facilities.
Periodic reports include a range of reports that are required to be
sent in to the Permit Authority on intervals that range from quarterly,
or more frequently if required by special circumstances, to semi-
annually. The reports are different from records, which must be kept on
site and incorporated into the periodic reports and other reports.
There are general reporting requirements in 40 CFR part 63, subpart A,
and additional reporting requirements under subparts applying to
specific categories of stationary sources that emit (or have the
potential to emit) one or more hazardous air pollutants.
EPA is proposing to double the reporting intervals for these
reports by amending Secs. 63.2 and 63.10, and adding a new Sec. 63.16.
For major sources, however, reports must still be submitted at least
semi-annually to meet Title V
[[Page 52680]]
permitting requirements specified in section 504(a) of the Clean Air
Act.
This proposed rulemaking would not revise other requirements
concerning event reporting, record keeping, and monitoring. EPA is
seeking comment, however, on whether there are also opportunities to
reduce these burdens for Performance Track facilities while still
providing the information required to assure protection of health and
the environment.
2. Reporting Reductions for Performance Track Facilities That Achieve
MACT or Better Emission Levels Through Pollution Prevention Methods
Such as Process Changes
EPA is also proposing to reduce the level of detail of the required
reporting, under some circumstances, for those facilities which reduce
emissions below 25 tons per year of aggregate hazardous air pollutant
(HAP) emissions and 10 tons per year of any individual HAP, and which
have reduced emissions to a level which is fully in compliance with the
applicable MACT standard.
For those Performance Track facilities which are below the
thresholds for major sources of HAPs (25 tons per year aggregate or 10
tons per year for an individual HAP), and which have reduced the levels
of all HAP emissions to at least the level required by full compliance
with the applicable standard, additional reductions in reporting
requirements would be available, depending on the nature of the
requirement and the means the facility is using to meet the
requirement. As above, however, for major sources, reports would still
be submitted at least semi-annually to meet Title V permitting
requirements.
Once again, the objective is to reduce the reporting burden for the
best performing facilities, without compromising the Agency's ability
to ensure compliance.
For those facilities using pollution prevention technologies or
techniques to meet MACT standards, reductions in reporting burden would
depend on the requirements of the Part 63 standard and facility
performance. The term ``source reduction'' is defined in the Pollution
Prevention Act (PPA) section 6603. Members in this program should refer
to this statutory definition and any subsequent rulemakings and
interpretations pursuant to PPA section 6607. The specific incentives
are listed below:
(1) If the standard calls for control technology and the facility
complies using control technology: The facility can substitute a
simplified annual report, to meet all required reporting elements in
the applicable part 63 periodic report, certifying that they are
continuing to use the control technology to meet the emission standard,
and are running it properly. The facility would still have all
monitoring and recordkeeping requirements.
(2) If the standard calls for control technology and the facility
complies using pollution prevention (P2):
The facility can substitute a simplified annual report, to meet all
required reporting elements in the applicable part 63 periodic report,
certifying that they are continuing to use P2 to reduce HAP emissions
to levels at or below the MACT standard requirements. The facility
would have to maintain records demonstrating the veracity of the
certification.
(3) If the standard calls for pollution prevention and the facility
complies using pollution prevention:
There is no reduction in the requirements unless the facility is
achieving performance 50% better than the standard. If the facility is
achieving that level of performance or better, then the facility can
substitute a simplified annual report, to meet all required reporting
elements in the applicable part 63 periodic report, certifying that
they are continuing to use P2 to reduce HAP emissions to levels below
the MACT standard. The facility would have to maintain records
demonstrating the veracity of the certification.
For each of the above alternatives, EPA is proposing that if the
facility no longer meets the criteria for continued membership in the
program, the incentive would no longer apply. In addition, the facility
may be removed from the program.
EPA solicits comments on the proposed changes described above.
B. Alternative Environmental Performance-Based Incentives for POTWs in
the Performance Track
Publicly Owned Treatment Works (POTWs) regulated under the National
Pretreatment Program (General Pretreatment Regulations for Existing and
New Sources of Pollution) are required to identify industrial users
discharging to their systems, issue permits to these users, monitor
industrial user activities through on-site sampling and inspections,
and carry out other administrative functions involving extensive
recordkeeping and reporting.
In order to become a member in the National Environmental
Performance Track program, a POTW must demonstrate a historical record
of meeting legal requirements associated with its operation, implement
an Environmental Management System, and achieve environmental
improvements that go beyond compliance with their basic NPDES permit
conditions. For those POTWs, EPA has concluded that it is reasonable to
provide administrative relief from certain requirements. EPA considers
that the proposed reporting and other programmatic and administrative
changes proposed today are particularly appropriate for Performance
Track POTWs. Such facilities, because of their EMSs and their
commitment to continued environmental improvements, can implement these
changes with less risk of adverse environmental effect.
1. Electronic Web posting for SNC notification.
a. What Are the Existing Requirements?
POTWs are currently required to publish a list of industrial users
which, at any time during the preceding 12 months, were in significant
noncompliance. ``Significant Noncompliance'' (SNC) is defined in 40 CFR
403.8(f)(2)(vii) to include violations that meet one or more of eight
criteria. The criteria are: (1) Chronic violations of discharge limits
(where 66 percent of all measurements taken during a six-month period
exceed the daily maximum limit or the average limit for the same
pollutant parameter); (2) technical review criteria (TRC) violations
(where 33 percent or more of all measurements for each pollutant
parameter taken during a six-month period equal or exceed the product
of the daily maximum limit or the average limit multiplied by the
applicable TRC (TRC equals 1.4 for Biological Oxygen Demand (BOD),
Total Suspended Solids (TSS), fats, oil and grease and 1.2 for all
other pollutants except pH)); (3) any other violation of a pretreatment
effluent limit that the Control Authority determines has caused, alone
or in combination with other discharges, interference or pass through;
(4) any discharge of a pollutant that has caused imminent endangerment
to human health, welfare or to the environment or has resulted in the
Control Authority's exercise of its emergency authority to halt or
prevent such a discharge; (5) failure to meet, within 90 days after the
schedule date, a compliance schedule milestone contained in a local
control mechanism or enforcement order for certain activities; (6)
failure to provide required reports within 30 days after the due date;
(7) failure to accurately report noncompliance; and (8) any other
violation or group of violations which the Control Authority determines
will adversely affect the operation or
[[Page 52681]]
implementation of the local Pretreatment Program.
On July 24, 1990, EPA modified 40 CFR 403.8(f)(2)(vii) to include
the existing definition of SNC (55 FR 30082). The purpose of that
modification was to provide some certainty and consistency among
Control Authorities for publishing their lists of Industrial Users in
noncompliance. Currently, Control Authorities are required to annually
publish a list of Industrial Users (IUs) in SNC at any time during the
previous twelve months. The Control Authority must publish this list in
the largest daily newspaper published in the municipality in which the
POTW is located. Independent of this publication requirement, Control
Authorities are required to develop and implement Enforcement Response
Plans, which describe the range of enforcement responses they will use
in addressing various types of IU Noncompliance. Where an IU is
identified as being in SNC, EPA guidance recommends that the Control
Authority respond with some type of formal enforcement action such as
an enforceable order (``Guidance for Developing Control Authority
Enforcement Response Plans,'' EPA 832-B-89-102, September 1989.)
b. What Is in Today's Proposal?
Under today's proposed rule, a Performance Track POTW would have
the discretion to not publish certain instances of SNC in a newspaper.
The POTW would be allowed, in lieu of a newspaper publication, to
provide information on all instances of SNC on its Web site for a
designated 30-day period. EPA believes that this change would provide
faster public notice of SNC and would reserve additional newspaper
publication of SNC for cases where this format is needed for its
potentially greater effect. Importantly, the Performance Track POTW
would continue to be required to provide newspaper publication of any
violation which is not corrected within thirty (30) calendar days, or
which results in pass through or interference. This would ensure that
members of the community without access to a computer would still have
notice of a subset of the significant and/or ongoing violations. The
POTW must keep historic compliance data for each Industrial User in SNC
as part of its web page beginning with the first web publication.
Historic compliance data must be easy to access and well documented as
part of the web page and must be continual. The POTW must certify as
part of its annual report that it has posted the significant
noncompliance information and historic compliance data on the web site.
Furthermore, a hard copy of the web page listing the significant
noncompliance data must be sent to the Approval Authority as part of
the annual report and must be made available to EPA, State, and the
public upon request. All SNC violations, whether published in a
newspaper or not would be published as soon as is practicable or
annually on a schedule determined by the Control Authority's permit on
the Control Authority Web site. The Web site must contain an
explanation of how SNC is determined, as well as a contact name and
phone number for additional information. The SNC information will be
added to the historic compliance data at the end of the 30 day notice
period.
The purpose of the current provision is to comply with the public
participation requirements of 40 CFR part 25, while also serving as a
deterrent to violators because of the public notification of
noncompliance. Allowing POTWs to report such violators on their Web
sites would reduce the printing costs incurred by municipalities to
publish the list, while potentially providing increased public
visibility and access to the information. Typically, newspaper notices
are published once per week for two succeeding weeks; the Web site
would include the information every day for at least 30 days. The
Internet provides an entirely new mechanism for access to information,
and provides for the information to be available on a longer-term basis
than in a single edition of a newspaper. Moreover, posting on the
POTW's Web site is likely to provide better and more focused access for
members of the public particularly interested in the activities of the
POTW. Given the wide availability of access to electronic information
at public facilities, such as libraries, this information may be, in
fact, more readily available to all members of the public than that
obtained through newspaper publication. It is also likely that local
newspapers would utilize this information in their reporting on
environmental issues.
The Agency solicits comment on whether it is necessary to require
public notice of a subset of SNC, or for ongoing instances of SNC to be
published in a newspaper. In particular, the Agency seeks comment on
how it might dispense with newspaper publication of SNC in its entirety
for Performance Track POTWs while still providing equal and permanent
access to this important information to all members of the community,
regardless of socioeconomic status, race, or physical ability. How
would a substitution affect the availability of this information to the
public? Is the publication of this information on the internet an
adequate substitute for newspaper publication? Is a 30-day listing,
followed by availability of a historic listing of all listed SNC
violations on the Control Authority's Web site an adequate substitute
for the current practice? What are the cost and other resource
implications for the POTWs of taking advantage of this alternative
approach? Is access to the Internet readily available in all
communities, through the use of personal computers, libraries and
schools? What would be adequate notice of this kind of a change in the
public notice procedures?
2. Oversight of Significant Industrial Users
a. What Are the Existing Requirements?
Why does it matter which industrial users are considered
significant?
POTWs with Approved Pretreatment Programs and States acting as
Pretreatment Control Authorities are required to provide certain
minimum oversight of Significant Industrial Users (SIUs). The required
minimum oversight includes inspection and sampling of each SIU
annually, reviewing the need for a slug control plan every two years,
and issuing a permit or equivalent control mechanism every five years
(40 CFR 403.8(f)(1)(iii) and (f)(2)(v) and 403.10(f)(2)(i)).
Control Authorities have expressed concern with the rigidity of the
oversight requirements, especially with respect to smaller facilities
that are subject to categorical Pretreatment Standards and facilities
that have no potential to cause pass through or interference problems
at their plants. If these facilities were excluded from the definition
of SIU, Control Authorities could, on a case-by-case basis, determine
adequate sampling and inspection frequencies and whether individual
permits are necessary for the facilities.
What facilities are currently defined as Significant Industrial
Users?
``Significant Industrial User'' is defined in 40 CFR 403.3(t) to
include two types of facilities. The first includes all industrial
users that are subject to a Pretreatment Standard for New or Existing
Sources. These standards are often referred to as national categorical
pretreatment standards and facilities subject to the standards are
referred to as categorical industrial users (CIUs).
The second category of facilities included in the definition of SIU
includes those which are not categorical
[[Page 52682]]
industrial users. All non-categorical facilities that discharge over
25,000 gallons per day of process wastewater are considered SIUs unless
a Control Authority excludes a facility based upon a finding that it
does not have a reasonable potential of adversely affecting the
operation of the plant or of causing a violation of any pretreatment
standard or requirement. Control Authorities may also consider smaller
facilities to be SIUs if the facilities have the potential to cause
problems with a POTW's operations or violate pretreatment standards or
requirements.
What is the history of the definition of SIU?
The definition of SIU and related requirements was established in
July 1990 by the rule to implement the Domestic Sewage Study (``the DSS
Rule''). 55 FR 30082, July 24, 1990. Before this regulatory revision,
sampling and inspection frequency were only recommended in EPA
guidance. Pretreatment Compliance Monitoring and Enforcement Guidance
(1986). The proposed DSS Rule would have required Control Authorities
to inspect and sample SIUs at least once every two years. The DSS
proposal requested comment on whether to require annual inspections and
sampling. 53 FR 47649, November 23, 1988. The preambles to the proposed
and final rule did not specifically address whether to adopt a
different requirement for oversight of smaller SIUs.
The proposed Metal Products and Machinery rule (60 FR 28269, May
21, 1995) solicited comment on whether, as an alternative to exempting
low discharge industrial users from the rule, EPA should revise part
403 to reduce monitoring, reporting and inspection requirements
applicable to small-flow facilities. Today's proposal elaborates on the
issue of categorical industrial users that may be considered
nonsignificant.
What changes to the definition of Significant Industrial User has
EPA considered in the past?
In 1996, the Water Environment Federation (WEF) and the Association
of Metropolitan Sewerage Authorities (AMSA) convened a workshop to
discuss potential opportunities to streamline the pretreatment
regulations. One of the recommendations from the Pretreatment
Streamlining Workshop was to exclude facilities under 100 Gallons Per
Day (GPD) from the definition of Significant Industrial User. The
Workshop also presented recommendations for additional streamlining.
One of the Workshop's recommendations was that Control Authorities be
able to exempt from the definition of SIU any categorical industrial
user that has no reasonable potential to adversely affect the POTW's
operation.
The Workshop also recommended that EPA allow Control Authorities
more flexibility in the oversight of facilities that would continue to
be defined as SIUs. Specifically, the Workshop recommended that EPA
allow Control Authorities more flexibility in sampling SIUs, while
perhaps keeping the annual inspection requirement.
In 1997, EPA sent a letter to stakeholders that solicited comment
on revising the current definition of Significant Industrial User to
exclude certain ``de minimis'' (now referred to as ``nonsignificant'')
facilities that are subject to national categorical pretreatment
standards. The draft suggested a definition of nonsignificant that
included (1) facilities that never discharge concentrated wastes such
as solvents, spent plating baths, filter backwash, and sludges, or more
than 100 GPD of other process wastewater, and (2) facilities subject
only to certification requirements after having met Baseline Monitoring
Report requirements (e.g., pharmaceutical manufacturers). EPA's letter
sought comment on the recommendations from the WEF/AMSA Workshop and
also on whether to allow POTWs more flexibility in sampling SIUs that
had been in consistent compliance.
In 1999, EPA proposed changes to the Pretreatment regulations in
the Federal Register. Included in the proposed changes is a new
definition for Significant Industrial User.
Did the stakeholders agree with EPA's suggestion?
Most of the commenters in the 1999 proposal supported the concept
of allowing POTWs to reduce some oversight of nonsignificant
categorical industrial users. However, no clear consensus exists for
what the definition of nonsignificant should be.
Several commenters thought that the definition of SIU should not be
changed. Some commenters opposed a definition based on flow and
preferred one based on total mass or on potential to impact the POTW.
One made a specific recommendation that SIU status be determined by
considering both the flow and its toxicity using the Toxic Weighting
Factors used by EPA in guideline development.
A few commenters addressed whether facilities that are in
consistent compliance should be allowed to be excluded from oversight
as SIUs. One commented that, regardless of consistent compliance, any
SIU with the potential to adversely impact the POTW should be an SIU.
Approval Authority commenters generally opposed and POTW commenters
generally supported not requiring Control Authorities to regulate as an
SIU any industrial user that did not present a potential to adversely
impact the facility.
b. What Is in Today's Proposal?
What changes to the SIU definition is EPA proposing today?
EPA is proposing to authorize Control Authorities that have been
approved as National Environmental Performance Track facilities to
designate certain categorical industrial users as ``nonsignificant.''
Today's proposal would keep the existing definition of significant
industrial user, but allow Control Authorities to exempt certain
Categorical Industrial Users (CIUs) from the definition if the
appropriate Control Authority determines the CIU is ``nonsignificant.''
In making the determination that a CIU is ``nonsignificant,'' the
Control Authority will be required to consider the potential for the
CIU to violate any pretreatment standard and the potential impact of
the facility on the POTW, alone and in combination with other
discharges. The Control Authority will be required to document the
decision and demonstrate the CIU has no reasonable potential to
adversely impact the POTW and no reasonable potential to violate any
applicable Pretreatment Standard established by EPA, the State, or the
local Control Authority. Additionally, the CIU must have been in
compliance for 3 years preceding the determination.
Regardless of whether they are considered SIUs, all CIUs would
still be required to comply with applicable categorical pretreatment
standards and the related reporting requirements in 40 CFR 403.12.
Control Authorities would still be required to perform the same
oversight of ``nonsignificant'' CIUs that is required for other
facilities that are not SIUs, including notifying the CIU of its status
and requirements (Sec. 403.8(f)(2)(iii)); receiving and reviewing
required reports (Sec. 403.8(f)(2)(iv) and Sec. 403.12(b), (d), and
(e)); random sampling and inspection (Sec. 403.8(f)(2)(v)) and taking
enforcement action as necessary (Sec. 403.8(f)(2)(vi)).
The POTW's annual Performance Track report to EPA would provide a
list of the facilities that are being regulated as nonsignificant CIUs.
After an initial list is provided, deletions and additions may be keyed
to the previously submitted list.
[[Page 52683]]
Will EPA consider other criteria for designating a CIU as
``nonsignificant''?
Yes. Various stakeholders in the past have suggested different flow
cut-off criteria for ``nonsignificant'' CIUs. EPA recognizes that any
numeric flow cut off is likely to be somewhat arbitrary. For instance,
the 100 GPD criterion was supported by the stakeholders at the WEF/AMSA
meeting, and EPA included this criterion in its 1999 proposal. EPA is
interested in other ideas specific to Performance Track facilities, and
therefore, is requesting comment on other criteria.
3. Program Modifications
a. What Are the Existing Requirements?
What are the current requirements addressing Program Modifications?
40 CFR 403.18 States, in part;
(a) General. Either the Approval Authority or a POTW with an
approved POTW Pretreatment Program may initiate program modification at
any time to reflect changing conditions at the POTW. Program
modification is necessary whenever there is a significant change in the
operation of a POTW Pretreatment Program that differs from the
information in the POTW's submission, as approved under Sec. 403.11.
(b) Substantial modifications defined. Substantial modifications
include:
(1) Modifications that relax POTW legal authorities (as described
in Sec. 403.8(f)(1)), except for modifications that directly reflect a
revision to this Part 403 or to 40 CFR chapter I, subchapter N, and are
reported pursuant to paragraph (d) of this section;
(2) Modifications that relax local limits, except for the
modifications to local limits for pH and reallocations of the Maximum
Allowable Industrial Loading of a pollutant that do not increase the
total industrial loadings for the pollutant, which are reported
pursuant to paragraph (d) of this section. Maximum Allowable Industrial
Loading means the total mass of a pollutant that all Industrial Users
of a POTW (or a subgroup of Industrial Users identified by the POTW)
may discharge pursuant to limits developed under Sec. 403.5(c);
(3) Changes to the POTW's control mechanism, as described in
Sec. 403.8(f)(1)(iii);
(4) A decrease in the frequency of self-monitoring or reporting
required of industrial users;
(5) A decrease in the frequency of industrial user inspections or
sampling by the POTW;
(6) Changes to the POTW's confidentiality procedures; and
(7) Other modifications designated as substantial modifications by
the Approval Authority on the basis that the modification could have a
significant impact on the operation of the POTW's Pretreatment Program;
could result in an increase in pollutant loadings at the POTW; or could
result in less stringent requirements being imposed on Industrial Users
of the POTW.
(c) Approval procedures for substantial modifications.
(1) The POTW shall submit to the Approval Authority a statement of
the basis for the desired program modification, a modified program
description (see Sec. 403.9(b)), or such other documents the Approval
Authority determines to be necessary under the circumstances.
(2) The Approval Authority shall approve or disapprove the
modification based on the requirements of Sec. 403.8(f) and using the
procedures in Sec. 403.11(b) through (f), except as provided in
paragraphs (c)(3) and (4) of this section. The modification shall
become effective upon approval by the Approval Authority.
(3) The Approval Authority need not publish a notice of decision
under Sec. 403.11(e) provided: The notice of request for approval under
Sec. 403.11(b)(1) states that the request will be approved if no
comments are received by a date specified in the notice; no substantive
comments are received; and the request is approved without change
(4) Notices required by Sec. 403.11 may be performed by the POTW
provided that the Approval Authority finds that the POTW notice
otherwise satisfies the requirements of Sec. 403.11.
(d) Approval procedures for non-substantial modifications.
(1) The POTW shall notify the Approval Authority of any non-
substantial modification at least 45 days prior to implementation by
the POTW, in a statement similar to that provided for in paragraph
(c)(1) of this section.
(2) Within 45 days after the submission of the POTW's statement,
the Approval Authority shall notify the POTW of its decision to approve
or disapprove the non-substantial modification.
(3) If the Approval Authority does not notify the POTW within 45
days of its decision to approve or deny the modification, or to treat
the modification as substantial under paragraph (b)(7) of this section,
the POTW may implement the modification.
(e) Incorporation in permit. All modifications shall be
incorporated into the POTW's NPDES permit upon approval. The permit
will be modified to incorporate the approved modification in accordance
with 40 CFR 122.63(g).
Many of these requirements are a result of the revisions to the
Program Modification regulations made in 1997. The 1997 revision
streamlined the procedures for modifying approved POTW Pretreatment
Programs in several ways. First, fewer categories of modifications are
considered ``substantial'' and, therefore, automatically subject to the
detailed public notice procedures. Modifications that will no longer
automatically be considered ``substantial'' include: changes that
result in more prescriptive POTW legal authority; changes to legal
authority that reflect changes to the Federal regulations; changes to
local limits for pH; reallocations of local limits that do not increase
the authorized discharge of the pollutant from the POTW; and other
changes discussed below. 40 CFR 403.18(b). Second, the rule no longer
requires the Approval Authority to issue a public notice of its final
approval of a modification if it received no comments on its proposed
approval of the modification and the modification is approved as
proposed. 403.18(c)(3). Third, public notice provided by a POTW will
satisfy the Approval Authority's obligation to provide notice in
certain circumstances. 40 CFR 403.18(c)(4). Fourth, the rule allows a
POTW to report changes to its list of industrial users in the POTW's
annual reports, rather than being required to obtain advance approval.
40 CFR 403.8(f)(6) and 403.12(i)(1). Fifth, the period of notice that
POTWs must provide for non-substantial modifications and the time for
review by Approval Authorities will both be 45 days; POTWs may
implement a non-substantial modification if the Approval Authority does
not disapprove it within that time. 40 CFR 403.18(d). Sixth, the rule
grants additional flexibility regarding the type of newspaper that may
publish the notices and the government agencies that receive individual
notice of all modifications. 40 CFR 403.11(b)(1) (A) and (B).
b. What Additional Flexibility Is Being Considered as Part of the
National Environmental Performance Track Program?
For POTWs with approved Pretreatment Programs that are part of the
National Environmental Performance Track Program, EPA is proposing
additional flexibility in the manner notice is provided of a request to
modify the pretreatment program. This is similar to the flexibility
being proposed for the publication of
[[Page 52684]]
industries in significant noncompliance (SNC).
Under today's proposed rule, a Performance Track POTW would have
the discretion to either provide public notice of their Program
Modification request through newspaper publication or by posting the
request on a Web site. Today's proposal does not change the substantive
requirements of any modification notification requirements. EPA
believes that public notice through use of a Web site would provide
faster public notice of Program Modifications and allow a more open
process with greater opportunity for stakeholders to be involved.
Importantly, the Performance Track POTW would continue to be required
to provide individual notice to stakeholders that have requested
individual notice. This would ensure that members of the community
without access to a computer would still have notice of substantial
program modifications.
The purpose of the current provision is to comply with the public
participation requirements of the pretreatment program. Allowing POTWs
to post modification requests on their Web sites would reduce the
printing costs incurred by municipalities to publish the proposed
change, while potentially providing increased public visibility and
access to the information. Typically, newspaper notices are published
once per week for two succeeding weeks; the Web site would include the
information every day for the time necessary to finalize the
modification. Also, the Web site will contain detailed information
about the modification and the program in general. This will allow the
public to more easily review and make decisions about the merit of the
modification. As explained in the discussion of SNC, the internet
provides an entirely new mechanism for access to information, and
provides for the information to be available on a longer-term basis
than in a single edition of a newspaper. It is also likely that local
newspapers would utilize this information in their reporting on
environmental issues.
The Agency solicits comment on whether it is necessary to require
certain program modifications to be published in a newspaper. In
particular, the Agency seeks comment on how it might dispense with
newspaper publication of Program Modifications entirely for Performance
Track POTWs while still providing equal and permanent access to this
important information to all members of the community, regardless of
socioeconomic status, race, or physical ability.
Under the existing rule, Approval Authorities may consider local
notice by the POTW to constitute a program modification request and
notice of decision under Sec. 403.11(b)-(f). This issue is also
addressed under Sec. 403.18(c)(4). Under the existing rule, Approval
Authorities also remain ultimately responsible for assuring the
publication of the notice. POTWs are not required to provide the notice
described in Sec. 403.11. The existing rule leaves POTWs and Approval
Authorities free to negotiate arrangements for the publication of the
required notice. In the absence of voluntary and adequate notice by the
POTW, the Approval Authority would still be required to provide the
notice. In order for a local POTW public notice to substitute for an
Approval Authority notice, the local notice must meet the requirements
of Sec. 403.11(b)(1). The existing rule acknowledges that Approval
Authorities may find the notice provided by POTWs to be legally
adequate. 40 CFR 403.18(c)(4).
In the preamble to the 1997 revisions to the regulations, EPA noted
that one industry trade association argued that local procedures were
not adequate.
The commenter noted that there was no record that most
significant changes are worked out in advance at the local level.
The commenter asserted that a more objective forum is needed than
the local forums, where decisions are diverse and not always based
on environmental considerations. Because local participation varies,
the commenter asserted that Sec. 403.18 is needed to level the
playing field. EPA agrees that Approval Authority review of
modifications helps assure their consistency with state and federal
regulations. State and EPA Approval Authorities retain the right to
review modifications under today's rule regardless of who issues the
notices. The lack of comments on State and EPA issued notices
suggests that many issues are resolved at the local level. Approval
Authorities must assure that notice provided at the local level is
adequate and includes an opportunity to request a hearing from the
Approval Authority.
Also in the 1997 revisions, EPA solicited comment on how the public
might be educated as to the importance of Pretreatment Program
requirements, so that public input will occur in response to notice of
program modifications.
``One industry commenter stated that the content of public
notices is not adequate for business to know what is being proposed.
The commenter recommended that POTWs be required to directly notify
businesses and to hold seminars to educate the businesses. One POTW
supported allowing POTWs to provide notice but specifically opposed
requiring POTWs to educate the public on the importance of the
program.'' Also, ``An environmental group commented that public
participation would be improved if POTWs were required to maintain a
mailing list, with annual solicitation to be on the list, of parties
wanting notice of non-substantial modifications. A similar procedure
is already in place for substantial modifications.''
With today's action, EPA is soliciting comment on alternative
methods for Public Notice to achieve the intent of Sec. 403.11(b).
Today, EPA is proposing to allow approved Pretreatment Programs
that are part of the National Environmental Performance Track Program
to Public Notice all Program Modifications on a Web site in lieu of
publication in the newspaper. Further, this Public Notice may be used
by the Approval Authority to meet the requirements under 40 CFR 403.11.
The information provided on the Web site would be more detailed than a
notice of availability. The information would need to include an
explanation of current requirements, a detailed description of the
modification, and an explanation of the need for the modification.
As with the SNC issue, EPA is interested in views on how a
substitution would affect the availability of this information to the
public. Is the publication of this information on the Internet an
adequate substitute for newspaper publication? Is access to the
Internet readily available to all communities, for example via personal
computers, libraries and schools? What would be adequate notice of this
kind of a change in the public notice procedures? For example, back
issues of newspapers are commonly available in the library.
4. Revisions to the Requirements for the Pretreatment Program Annual
Report
a. What Are the Current Requirements?
For any POTW with an approved pretreatment program, a condition of
the NPDES permit [see 40 CFR 403.12(i)]
is that the POTW provide the
Approval Authority (either the State or EPA, as applicable) with an
annual report that briefly describes the POTW's program activities.
These requirements must, at a minimum, include:
A. An updated list of all Industrial Users discharging to the POTW
and, more specifically, a list of those IUs that are classified as
Significant Industrial Users (SIUs) that are subject to categorical
pretreatment standards and a description of what standards apply to
each facility;
B. A summary of the status of each IU's compliance during the
reporting period;
[[Page 52685]]
C. A summary of the compliance and enforcement activities conducted
by the POTW during the reporting period; and
D. Any other specific information requested by the Approval
Authority.
This information is critical for the Approval Authority to oversee
both the industrial users and the POTW. The annual report provides the
Approval Authority with information on the compliance of the industrial
users that discharge into the POTW. It also provides information on the
enforcement responses and activities that the POTW has undertaken.
b. What Additional Flexibility Is Being Proposed as Part of the
National Environmental Performance Track Program?
EPA is proposing to modify the submission procedures for the annual
report, as well as streamline one part of the annual report. Instead of
annually submitting the report, the POTW must annually post the report
on the POTW's website and provide written certification to the Approval
Authority when the information has been posted. The information must
remain accessible as part of the website for at least three years.
The POTW will be required to submit written copies of the annual
reports every two years to the Approval Authority. The written report
no longer needs to include compliance data for all IUs, although the
website posting must still contain compliance data for all IUs. The
written report need only include specific information for only those
SIUs found to be in significant noncompliance (SNC) during the
reporting period (2 years) instead of a summary of the status of all IU
compliance over the reporting period. The submission every two years
will contain reports for each of the two preceding years. The POTW's
permit will be modified to incorporate this requirement and will
require that the POTW post the annual report on the website and that
all information posted must be accurate and truthful. If the annual
report is not posted annually, or if it contains inaccurate
information, it will be a violation of the NPDES permit. The POTW must
provide a copy of the annual report to EPA, the State, or the public
upon request.
EPA believes allowing a POTW to post the annual report on the
website would reduce printing costs to the POTW and provide the public
greater access to information about the POTW's program. The Agency is
seeking comment on whether this is an appropriate option for the annual
reports. There is no national database that tracks information on
individual indirect dischargers, so the Agency relies upon the annual
reports to oversee the compliance of these indirect dischargers.
Furthermore, the States or EPA would still input summary information
from the annual reports into EPA's national database (Permit Compliance
System-PCS). EPA is seeking comment on how the extended time period for
submitting the annual reports will impact programmatic and enforcement
oversight overall.
C. 180-Day Accumulation Time for Performance Track Hazardous Waste
Generators
1. Background
EPA is proposing to allow large quantity hazardous waste generators
who are members in the Performance Track program up to 180 days (or up
to 270 days if the generator must transport its waste, or offer its
waste for transportation, a distance of 200 miles or more) to
accumulate hazardous waste without a RCRA permit or interim status.
This RCRA regulatory flexibility is intended to provide an additional
incentive for membership in the Performance Track program, and should
provide the Agency with useful information on the environmental,
economic and other implications of extended accumulation times for
hazardous waste generators. As discussed below, we believe that the
regulatory flexibility provided in this rulemaking will also serve to
ensure protection of human health and the environment at Performance
Track facilities.
Including this RCRA incentive as part of the Performance Track
program is consistent with the general objectives of the program, as
discussed in Section IV of this preamble. In addition, this aspect of
the proposal may assist EPA in learning more about how accumulation
times for hazardous waste generators may affect the ultimate
disposition of hazardous wastes (e.g., recycling vs. disposal), the
economics of hazardous waste generation and accumulation, and the
overall environmental performance of hazardous waste generator
facilities. More specifically, EPA believes that additional
accumulation time may allow generators to accumulate enough waste to
make transportation to waste management facilities more cost-effective
and efficient for the generator. In particular, EPA is interested in
learning whether additional accumulation time may result in increased
recycling of generator waste (EPA has found this to be the case with
F006 (metal finishing) hazardous waste, see 65 FR 12377). EPA also
believes that additional accumulation time may result in environmental
benefits related to the reduction in the movement and handling of
hazardous waste on-site, as well as reduced off-site shipments.
The Performance Track program presents a good opportunity for EPA,
the States and the regulated community to experiment with this type of
regulatory flexibility in a way that should pose negligible incremental
risks to human health or the environment. We believe that the criteria
for membership in the Performance Track--strong past performance,
effective EMSs, promised specific future improvements in environmental
performance, and additional public reporting of environmental
information--should ensure that this regulatory flexibility will be
provided only to companies who will use it responsibly. This, combined
with the safeguards built into the proposal and the relatively modest
regulatory relief that the rule would provide (i.e., additional time to
accumulate waste), should ensure that this rulemaking is fully
protective of human health and the environment.
2. What Are the Current Requirements for Large Quantity Generator
Accumulation?
The current standards under 40 CFR part 262 for generators of
hazardous waste who generate greater than 1,000 kilograms of hazardous
waste per month (or one kilogram or more of acute hazardous waste),
known as large quantity generators (LQGs), limit the amount of time
hazardous waste can be accumulated at the generator's facility without
a RCRA permit. According to Sec. 262.34, LQGs may accumulate hazardous
waste on-site for up to 90 days without having to obtain a RCRA permit.
The generator must comply with certain unit-specific standards (e.g.,
tank, container, containment building, and drip pad standards) for
accumulation units, and certain general facility requirements such as
for marking and labeling of containers, preparedness and prevention,
and emergency response procedures. Generators may also petition the EPA
Regional Administrator to grant an extension of up to 30 days to the
90-day accumulation time limit due to unforeseen, temporary, and
uncontrollable circumstances, on a case-by-case basis (see
Sec. 262.34(b)).
Today's proposed rule would not make any changes to the existing
regulations that apply generally to 90-day accumulation by LQGs, and
EPA is not soliciting comment on those provisions or any other existing
[[Page 52686]]
provision of Sec. 262.34. This includes the provisions for extended
accumulation times for F006 wastes, which are specified at
Sec. 262.34(g). Those provisions, which apply only to generators who
accumulate F006 wastes, allow for extended accumulation times that are
similar in many respects (including the time limits) to those being
proposed today for Performance Track members. It is therefore possible
that, once today's rule is promulgated, a generator of F006 waste who
is also a member in Performance Track could take advantage of extended
accumulation times under either regulatory scheme (i.e., under
Sec. 262.34(g), (h) and (i), or under Sec. 262.34(j), (k) and (l)).
3. What is in Today's Proposal?
Today's proposed rule would allow LQGs of hazardous waste that are
members of the Performance Track program to accumulate hazardous waste
at their facilities for longer than the 90 days currently specified in
Sec. 262.34, subject to certain limitations and conditions. The
proposal would not affect other existing generator requirements; for
example, Performance Track members would still have to manifest their
hazardous waste shipments (see Subpart B of part 262) and comply with
other generator requirements in part 262 (e.g., packaging and labeling
of waste shipments).
The requirements for Performance Track extended accumulation times
would be added as new paragraphs (j), (k) and (l) to subpart C of part
262. The following is a discussion of each proposed provision.
Time Limits. Proposed Sec. 262.34(j)(1) specifies that hazardous
waste generators who are Performance Track members may accumulate
hazardous wastes for an extended period of time--up to 180 days, or up
to 270 days if the generator must transport waste, or offer waste for
transportation, over a distance of 200 miles or more. Such generators
would not need RCRA permits or interim status if they stay within these
limits. Note that these extended accumulation time limits would be
consistent with the current limits for generators of F006 wastes (see
Sec. 262.34(g)).
Initial Notice. Under proposed Sec. 262.34(j)(2), Performance Track
generators would need to give prior notice to EPA or the authorized
state agency of their intent to accumulate hazardous waste in excess of
90 days in accordance with these regulations. These notices will assist
EPA and state agencies in monitoring implementation of this element of
the Performance Track program. Such notices would need to identify the
generator and facility, specify when extended accumulation at the
facility will begin, and include a description of the wastes that will
be accumulated for extended time periods and the units that will be
used for that purpose.
The initial notice would also need to include a statement that the
facility has made all changes to its operations, procedures and
equipment necessary to accommodate extended time periods for
accumulating hazardous wastes (Sec. 262.34(j)(2)(ii)). This is to
address situations in which longer accumulation times may involve, for
example, changing the design, location, or capacity of the unit(s) in
which the wastes are accumulated. Such changes could affect how the
facility addresses other generator requirements, such as those for
personnel training or emergency response procedures. This statement in
the notice should help ensure in advance that Performance Track members
are aware of and have implemented any changes at the facility that may
be needed to accommodate extended accumulation times.
For generators who intend to accumulate hazardous waste for as long
as 270 days (because the waste must be transported, or offered for
transport, more than 200 miles from the generating facility), the
notice submitted by the generator would also need to contain a
certification that an appropriate off-site hazardous waste management
facility for the waste is not available within 200 miles of the
facility. The provision for accumulation up to 270 days is intended
primarily to address situations where wastes must be transported for
considerable distances to off-site facilities, and where extended
accumulation time may enable the facility to more efficiently ship
fewer (but larger) loads of wastes to those facilities.
Today's proposal does not specify any particular criteria or
restrictions as to what may be considered an ``appropriate'' hazardous
waste management facility in this context. At a minimum, any such
facility would need to be operating in compliance with applicable
environmental regulations. However, EPA is concerned that the 270-day
limit could conceivably be abused unless there is some further
definition in the final rule as to what is meant by ``appropriate''
facility. The provision for accumulation of up to 270 days by
Performance Track facilities is primarily intended by EPA to address
situations where hazardous waste generators are located in areas remote
from commercial hazardous waste facilities, or where the additional
accumulation time is needed to facilitate beneficial, legitimate reuse
or recycling of the wastes. The 270-day limit was not intended simply
to provide additional convenience or cost savings for the generator. In
any case, EPA requests comment as to whether the 270-day limit should
be available under Performance Track only when the additional
accumulation time allows the generator to achieve some specific
environmental objective (e.g., increased recycling rates), or whether
other types of restrictions or limits should be placed on its
availability to Performance Track members.
Standards for Accumulation Units. Another proposed condition
((262.34(j)(3)) would require Performance Track generators to
accumulate hazardous wastes in storage units (such as containers,
tanks, drip pads and containment buildings) that meet the standards for
storing hazardous wastes at RCRA interim status facilities (see
subparts I, J, W and DD of 40 CFR part 265, respectively). These are
standard requirements for large quantity generators.
If Performance Track facilities use containers for extended
accumulation of hazardous wastes, today's proposal would additionally
require secondary containment systems for containers to prevent
releases into the environment that might be caused by handling
accidents, deterioration, or other circumstances. Secondary containment
is a standard requirement for RCRA permitted facilities that use
containers to store hazardous wastes containing free liquids and
certain listed hazardous wastes (i.e., F020, F021, F023, F026, and
F027). It is not, however, typically required for hazardous waste
generators or interim status facilities. We believe that requiring
secondary containment in the context of this rulemaking is a
reasonable, common-sense precaution to take in exchange for extending
accumulation time limits.
EPA is also requesting comment on an option that would not require
secondary containment for accumulation of hazardous wastes in
containers. Specifically, we seek comment as to what type of
containment is appropriate for Performance Track facilities, given that
the containment requirements for permitted RCRA facilities are intended
to ensure protections for what may essentially be indefinite storage of
hazardous wastes, while accumulation at Performance Track generator
facilities will be limited to 180 (or in some cases 270) days.
Because secondary containment involves the use of devices such as
[[Page 52687]]
berms or walls to prevent releases (see Sec. 264.175), which are
generally consistent with normal industry practices for handling and
storage of hazardous materials, we believe that this secondary
containment requirement will impose only minimal costs on Performance
Track facilities. EPA solicits information regarding incremental
compliance costs and benefits associated with the secondary containment
requirement in this proposed rule.
There is currently an upper bound estimate of 43 facilities in the
Performance Track program to which secondary containment provisions
could apply. Cost estimates for installing secondary containment, if
necessary, are based on the costs of installing secondary containment
for tanks. Estimated installation costs range from $1,200 for 275-
gallon tanks to $55,000 for 125,000 gallon tanks.\1\ These estimates,
however, are likely to represent an upper bound cost for containers,
since construction of a secondary containment system for containers,
such as a berm, is likely to be less than that required for tanks. The
extent of total costs depends on how many Performance Track generators
use containers holding solid hazardous wastes that would not presently
have secondary containment units. Notable however, is anecdotal
information that many of these facilities already have secondary
containment installed at their facilities. EPA solicits comment on how
many Performance Track facilities currently have secondary containment
installed for containers.
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\1\ DPRA, Incorporated, ``Unit Cost Compendium'' prepared for
U.S. EPA's Office of Solid Waste, Economics, Methods, and Risk
Analysis Division, September 30, 2000 presents formulas for
estimating the capital costs of installing secondary containment
units for above ground storage tanks.
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Volume Limit. Under proposed Sec. 262.34(j)(4), member generators
would be allowed to accumulate no more than 30,000 kilograms of
hazardous waste at the facility at any one time. The Agency has
information that the typical capacity for a hazardous waste truck
transport vehicle ranges from an average of approximately 16,400 kg to
a maximum of approximately 27,300 kg.\2\ In addition, generators
shipping hazardous waste by rail may have capacities of approximately
50,000 kg.\3\ Based on this preliminary information, EPA believes that
a 30,000 kg waste accumulation limit is reasonable and appropriate in
ensuring economical shipments of wastes in a wide range of transport
vehicle sizes. We seek comment on this provision of today's proposal,
as well as relevant information on: (a) The capacities of vehicles
involved in hazardous waste shipping; (b) the likely impacts of less
frequent shipments on the risks of spills and leaks at hazardous waste
generating facilities and in the transport process; (c) the cost
impacts of such changes--both transportation-related and other
operational costs; and (d) other pros and cons of quantity limits
larger or smaller than the 30,000 kilograms that we are proposing
today.
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\2\ Unit Cost Compendium, prepared by DPRA Incorporated, for
USEPA, Office of Solid Waste, September 30, 2000 and personal
communication with DPRA.
\3\ Rail car capacities vary depending on whether the transport
unit is a rail box car (from 160 cubic yards to 370-cubic yards), a
rail gondola (from 15 cubic yards to 262 cubic yards), or a rail
tanker (22,000 gallons), R.S. Means, Environmental Remediation
Estimating Methods, 1997. In general, one cubic yard of solid equals
1.5 tons and one cubic yard of liquid equals 1 ton.
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Recordkeeping, Labeling and Marking. Proposed Sec. 262.34(j)(5)
specifies the types of records that program members would need to
maintain at their facilities as a condition for extended accumulation
times. These records are primarily intended to document that the
accumulation time limits are not exceeded. Retaining these records is a
standard requirement for all LQGs of hazardous waste.
Similarly, Sec. 262.24(j)(6) would require that tanks and container
units used for extended accumulation be marked or labeled with the
words ``Hazardous Waste'', and containers would have to be marked to
indicate when the accumulation period began. These are also standard
conditions for hazardous waste generators, and are specified in this
rule mainly for the sake of clarity.
General Facility Standards. Under current regulations, all
hazardous waste generators are subject to certain general facility
standards relating to personnel training, preparedness and prevention,
and contingency plans and emergency procedures. These general facility
requirements would also apply to Performance Track generators, and have
been included in this rule for the sake of clarity.
Pollution Prevention. Under today's proposal Performance Track
facilities would have to implement pollution prevention practices as a
condition for using extended accumulation times. This condition is
consistent with the Agency's general policy of encouraging waste
minimization and pollution prevention as alternatives to disposal. It
is also consistent with our goal of using Performance Track to
recognize and encourage outstanding environmental performance. We seek
comment on this condition. We also request comments on whether extended
accumulation times for Performance Track generators should in some way
be linked to achieving reductions of certain types of high-risk
chemicals (e.g., RCRA Waste Minimization Priority Chemicals that are
known to be highly persistent, bioaccumulative, and toxic). For a list
of these priority chemicals, see http://www.epa.gov/epaoswer/hazwaste/
minimize/chemlist/pdt-fact.pdf.
Annual Report. Under proposed Sec. 262.34(j)(9), Performance Track
generators accumulating their hazardous waste for more than 90 days
would be required to provide information regarding the impact of the
additional accumulation time. This information would be submitted in
the Annual Performance Report which is required of all Performance
Track members (see www.epa.gov/performancetrack, or the document
entitled ``National Environmental Performance Track Program Guide,''
EPA 240-F-01-002). Specifically, the report would need to include for
the previous year information on the quantity of each hazardous waste
that was accumulated for extended time periods, the number of off-site
waste shipments, identification of destination facilities and how the
wastes were managed at those facilities, information on the impact of
extended accumulation time limits on the facility's operations
(including any cost savings that may have occurred), and information on
any on-site or off-site spills or other environmental problems
associated with handling these wastes. The information submitted in
these reports will assist the Agency in evaluating the success of this
Performance Track program incentive, and may inform future Agency
decisions pertaining to hazardous waste accumulation.
In accordance with today's rule, if in the past year a Performance
Track generator accumulated hazardous waste for more than 180 days (but
no more than 270 days), the generator would have to include in its
Annual Performance Report a statement affirming that an appropriate
off-site hazardous waste management facility was at the time (or is
still) not available within 200 miles of the generating facility. This
condition is intended to help ensure against any potential abuse of the
provision that allows accumulation beyond 180 days under certain
circumstances.
EPA believes that these annual reporting requirements are
reasonable, and should not create undue burdens for Performance Track
members. We solicit comments on these requirements of the proposed
rule, including
[[Page 52688]]
comments on how burdensome such reporting might be to program members,
and whether there may be other means of obtaining the information EPA
will need for monitoring the success of the Performance Track program.
Accumulation Time Extensions. Today's proposal would also add a new
paragraph (k) to Sec. 262.34, to address extensions of accumulation
time limits in certain situations. This provision is consistent with
the current regulations that apply generally to LQGs (see
Sec. 262.34(b)), and has been included in today's proposal for the sake
of clarity. Specifically, it would allow the overseeing agency the
option of granting a Performance Track generator an additional 30 days
of accumulation time, if such extra time is needed due to unforseen,
temporary and uncontrollable circumstances. We expect that requests for
such time extensions would be reviewed and approved (or disapproved) in
the same manner as they currently are for non-Performance Track LQGs.
Withdrawal/Termination from Program. Proposed Sec. 262.34(l) would
address situations in which a Performance Track facility that has been
accumulating hazardous wastes for extended periods of time under these
regulations decides to withdraw from the program, or when the
overseeing agency has for some reason decided to terminate the
generator's membership in the program. In such cases the generator
would need to return to compliance as soon as possible, but no later
than six months after withdrawal or termination, with the standard
requirements for less-than-90-day accumulation by large quantity
generators.
4. How Will Today's Proposal Affect Applicability of RCRA Rules in
Authorized States?
Under section 3006 of RCRA, EPA may authorize a qualified State to
administer and enforce a hazardous waste program within the State in
lieu of the federal program, and to issue and enforce permits in the
State. (See 40 CFR part 271 for the standards and requirements for
authorization.) Following authorization, a State continues to have
enforcement responsibilities under its law to pursue violations of its
hazardous waste program. EPA continues to have independent authority
under RCRA sections 3007, 3008, 3013, and 7003.
After authorization, Federal rules written under RCRA provisions
that predate the Hazardous and Solid Waste Amendments of 1984 (HSWA),
no longer apply in the authorized state. New Federal requirements
imposed by those rules that predate HSWA do not take effect in an
authorized State until the State adopts the requirements as State law.
In contrast, under section 3006(g) of RCRA, new requirements and
prohibitions imposed by HSWA take effect in authorized States at the
same time they take effect in non-authorized States. EPA is directed to
carry out HSWA requirements and prohibitions in authorized States until
the State is granted authorization to do so.
Today's proposed rule would not be promulgated under HSWA
authorities. Consequently, the final rule would not amend the
authorized program for states upon promulgation, and EPA would not
implement the rule. The authorized RCRA program would change when EPA
approves a State's application for a revision to its RCRA program.
For the proposed Performance Track Rule, EPA would encourage States
to expeditiously adopt Performance Track regulations and begin program
implementation. To revise the federally-authorized RCRA program, States
would need to seek formal authorization for the Performance Track Rule
after program implementation. EPA encourages states to begin
implementing this incentive as soon as it is allowable under state law,
while the RCRA authorization process proceeds.\4\
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\4\ EPA encourages states to take this approach for less
stringent federal requirements where rapid implementation is
important. For example, EPA encouraged states to implement state
Corrective Action Management Unit Regulations, once adopted as a
matter of state law, prior to authorization (see 58 FR 8677,
February 16, 1993).
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III. Other Potential Incentives: Consolidated Reporting
The program description for Performance Track (www.epa.gov/
performancetrack) announces EPA's intention to initiate a pilot test of
consolidated reporting, to be available for Performance Track
facilities, as an incentive to encourage membership. Consolidated
reporting would allow facilities to reduce the number or scope of
reports submitted to EPA or its delegated authority under current
regulations. It could provide for reductions or revisions in reporting
elements or the submission of a single report in lieu of several
reports now required by regulation. In addition, consolidated reporting
could be designed to increase the extent to which environmental
reporting could be integrated with the data systems facilities use to
manage their manufacturing operations, thus reducing to some extent the
need for environmental reporting data systems entirely separate from
other data systems at the facility. From the public's perspective, such
a revision of reporting requirements could also provide for more
effective and transparent communication of information about a
facility's environmental performance, within the constraints necessary
for protecting confidential business information.
EPA has explored approaches to consolidated reporting with a
variety of stakeholders. For example, under the Common Sense Initiative
(CSI), the Agency made considerable progress in developing options for
consolidated reporting on a multimedia basis for the computer and
electronics industry. Since the Common Sense Initiative, EPA has
continued to work with the petroleum refining industry to develop a
consolidated reporting model focused on air reporting, with the long-
term objective of expanding the approach on a multi-media basis.
EPA believes that the Performance Track provides a special
opportunity to further explore the potential benefits of consolidated
reporting. EPA believes that the Performance Track facilities would be
an appropriate group for piloting an approach to consolidated reporting
because these facilities are required to have well-developed
environmental management systems and excellent compliance records.
These qualifications indicate that a facility has a high level of
organizational competence and a capacity to manage environmental data.
Both of these factors are important because a consolidated reporting
project will touch on several areas of regulation. In addition, a
Performance Track facility's commitment to public reporting indicates
an openness with regard to information sharing that can be expected to
support the extensive EPA-facility coordination that this pilot would
require. A Performance Track facility's commitment to going beyond
regulatory requirements also gives evidence of the facility's ability
to innovate, which is also a necessary quality in pilot projects.
One possible model for a Performance Track consolidated reporting
pilot is the multimedia Consolidated Uniform Report for the Environment
(CURE) initiative developed by the CSI consumer and electronics
subcommittee. Over the course of more than three years, the
subcommittee developed a consolidated reporting approach which would
consolidate twelve federal and state reports in a single reporting
system. The project was a joint effort of EPA and the Texas Natural
Resource Conservation
[[Page 52689]]
Commission (TNRCC). As CSI concluded in 1998, the subcommittee and the
CSI Council recommended that EPA continue the development of CURE.
While CURE specifically focuses on the reports which are required for
facilities in the computer and electronics sector, the stakeholders who
participated saw the application to this sector as a pilot which would
provide the opportunity to test a concept which could be applied more
broadly. They also focused initially on some of the most generally
applicable and broadest types of environmental reports, but the final
report points out the potential--once a CURE pilot is underway--for
exploring consolidation of a far wider array of data than is captured
under the final draft report on CURE. Nonetheless, a system modeled on
CURE would be a dramatic step towards a consolidated multi-media
reporting system. It could potentially both substantially reduce the
reporting burden for member facilities and increase both the
accessibility and comprehensibility of facility information available
to the public.
CURE tried to eliminate redundancies, to use ``smart'' programs to
guide data submission, to create greater context for understanding of
the data, and to provide for electronic submission to reduce and
improve reporting. It reduced more than 800 data elements in current
reports to approximately 400--including new data elements agreed to by
stakeholders to facilitate better interpretation of the data. Five
facilities tested a partial prototype of CURE in 1998. The CURE study
estimated annual total savings of $250,000-$290,000 would be realized
if most of the computer and electronics facilities in Texas could take
advantage of such consolidated reporting.
There are, however, some limitations to the use of CURE as the
model for a consolidated reporting pilot for Performance Track
facilities:
CURE focuses only on those reports of specific interest to
computer and electronics facilities. To expand the CURE model for
applicability to other sectors would require extensive additional
effort, both by EPA and the states.
Since CURE was developed in the context of Texas rules,
additional work would need to be done both by EPA and the states, even
for reports for the computer and electronics industry, to develop the
model more fully for other states.
There were a number of areas in which the CURE working
group failed to reach consensus, which would require additional
decisions. For example, the working group failed to reach agreement as
to whether materials accounting data elements should be included, even
on a voluntary reporting basis, within the CURE reporting system.
While the CURE model covers many environmental reports
commonly required of industrial facilities, it does not cover all
reports. Many facilities would find that the CURE report model would
substitute for several separate standard reports, but that they would
still need to file additional reports to state or EPA offices for
reporting obligations that are not covered by this consolidated report.
We have included additional information in the docket on the CURE
study and how it might function as a pilot program.
EPA seeks comment on how best to establish a pilot consolidated
reporting program for the Performance Track. EPA is particularly
interested in which Performance Track applicants (and the States where
they are located) would be interested in participating in a
Consolidated Reporting Pilot. This would help EPA further define the
scope for such a pilot program and the need for regulatory changes
(both at the Federal and the State levels) necessary to implement
consolidated reporting. In addition, EPA is interested in suggestions
on the elements of a consolidated reporting system that would be most
critical to Performance Track members, and how comprehensive the scope
of such a pilot should be for facilities to benefit from participating
in the pilot.
In order to meet the requirement that the party submitting the
report be in a position to attest to the accuracy of the information
reported, EPA expects that the person submitting the report will be
required to be in a position to have such knowledge, and/ or would be
required to attest to such knowledge in making the report. EPA solicits
comment on how best to accomplish this goal.
EPA believes that it must promulgate at least some regulatory
changes to make it possible for such a pilot program to take place. The
scope and content of such changes would depend on the particular
reports that would be included in such a pilot. We solicit comments on
this. Commenters should also be aware that some States may have to
modify existing regulations to permit facilities to use the
consolidated reporting option. In some jurisdictions, permits may have
to be amended before facilities may take advantage of this option. EPA
is committed to consulting with the States on ways to tailor the
consolidated reports to their needs and requirements. Potential members
should consider how the pilot program would benefit them in spite of
the existence of conflicting statutory or regulatory reporting due
dates. EPA invites comments on this issue.
IV. Summary of Environmental, Energy and Economic Impacts
A. What Are the Cost and Economic Impacts?
The rulemaking changes being proposed today will reduce some
reporting and other compliance costs for the covered facilities. Most
of these cost reductions result from reduced waste management costs or
reduced respondent reporting burden hours, so these proposed changes
also reduce the total number of such hours resulting from EPA's
regulatory programs.
EPA has completed the first three open enrollment periods for the
Performance Track program. This resulted in a total of 281 facilities
(mostly industrial facilities, but also a number of facilities in the
service sector, several federal facilities and POTWs). Because EPA
plans to solicit and to accept additional facilities into the program,
it is not possible to project the cost and burden hour reductions with
complete accuracy. Another factor that hinders such projections is
that, just as membership in Performance Track is voluntary, it is up to
the facilities themselves to decide which incentives apply to them and
which to avail themselves of.
Maximum Achievable Control Technology: We estimate that there are
approximately 12 current Performance Track facilities that may be
eligible for the rule change. For these facilities with emissions of
HAPs that are lower than the 25 ton per year aggregate or the 10 ton
per year limit for an individual HAP, they may be able to submit a
simplified annual report rather than multiple periodic reports. If we
assume an average reduction of one periodic report per year (estimated
to require an average of 25.5 labor hours), the cost savings per
facility equals $1307. In the aggregate, we estimate a total cost
savings for the 12 Performance Track facilities of $15,680 annually and
a total reduction of 306 labor hours.
Alternative Environmental Performance-Based Incentives for POTWs in
the Performance Track: Currently there is one POTW in the Performance
Track program. To implement this incentive, it is estimated that a POTW
would incur, on a one-time basis, 47 hours and $1837 in costs to
request the pretreatment program modification required to use this
incentive, publish the public notification of a change in the public
[[Page 52690]]
notice procedures to website posting, and a certification to the
Approving Authority that the pretreatment annual report had been posted
on its website. No net savings or costs are anticipated from the rule
revision that allows POTWs to publish the list of SIUs in SNC annually
on a website instead of in the newspaper, in part because any SNC that
continues past 30 days will still need to be published in the
newspaper. Any cost savings resulting from less newspaper text may be
netted out by the additional costs of preparing the list for website
publication. Similarly, the rule revisions that allow publication of
the annual POTW report on the web and submitting the written report
every other year to EPA or the state agency and the publication of
modifications to pretreatment programs on the web are not likely to
result in any cost savings. Lastly, it is difficult at this point to
quantify the potential cost savings that could result by allowing POTWs
to reclassify as ``nonsignificant'' CIUs which have no reasonable
potential to adversely affect the POTW or to violate any applicable EPA
pretreatment standard, and that have not been in noncompliance for the
past three years. The net effect of this provision depends to a
significant degree on the number and type of CIUs served by the POTW.
We estimate that, for State and local authorities, some such
authorities will need to spend time and money adopting revisions to
their regulations to conform with the rulemaking changes we propose
today and to re-open and re-issue permits to Performance Track
facilities earlier than they would otherwise. However, these are
primarily one-time costs, and we estimate that there will be long-term
benefits from the simplifications we propose for reporting by POTWs and
the reclassification of CIUs determined to be ``nonsignificant.''
180-Day Accumulation Time for Performance Track Hazardous Waste
Generators: Potential aggregate transport cost savings for Performance
Track member facilities that accumulate hazardous waste up to 180 days
range from $14,900 to $77,100 per year, depending on the type of waste
(i.e., liquid or solid) and the distance the waste is transported.\5\
The extent of savings depends on how many Performance Track generators
are likely to take advantage of the provision. It is expected that
Performance Track generators would only take advantage of this
provision if it enables them to accumulate their wastes more
efficiently and at a reduced cost. Although there is likely to be some
reduction in labor hours for the Performance Track facilities, we do
not anticipate it to be significant as most of the labor is included in
the transporter's fees. Additional cost savings that have not been
quantified are likely to result from costs associated with the handling
and/or storage of hazardous waste, reduced pick-up costs, the reduced
need for rush procurements, and a reduction in mobilization fees.
---------------------------------------------------------------------------
\5\ Memorandum dated March 6, 2002 from Industrial Economics,
Incorporated to EPA's Office of Policy, Economics, and Innovation.
---------------------------------------------------------------------------
There may be additional costs for installation of secondary
containment. There is currently an upper bound estimate of 43
facilities in the Performance Track program to which secondary
containment provisions could apply. Cost estimates for installing
secondary containment, if necessary, are based on the costs of
installing secondary containment for tanks. Such costs range from
$1,200 for 275-gallon tanks to $55,000 for 125,000 gallon tanks. The
extent of costs depends on how many Performance Track generators use
containers holding solid hazardous wastes that would not presently have
secondary containment units. These estimates, however, are likely to
represent an upper bound cost for containers, since construction of a
secondary containment area for containers, such as a berm, is likely to
be less than that required for tanks.\6\ The extent of total costs
depends on how many Performance Track generators use containers holding
solid hazardous wastes that would not presently have secondary
containment units.
---------------------------------------------------------------------------
\6\ DPRA, Incorporated, ``Unit Cost Compendium'' prepared for
U.S. EPA's Office of Solid Waste, Economics, Methods, and Risk
Analysis Division, September 30, 2000 presents formulas for
estimating the capital costs of installing secondary containment
units for above ground storage tanks.
---------------------------------------------------------------------------
Total Estimated Impact of Proposed Rule on Costs and Labor Hours
The total economic impact of the proposed rule for Performance
Track facilities is estimated to range between a savings of $18,170 to
$73,780, and between 40 and 119 labor hours on an annual basis
depending on the number of facilities eligible for the rule and whether
such facilities elect to avail themselves of the incentives. This
estimate excludes the cost of secondary containment units because of
the uncertainty associated with how many Performance Track facilities
will need to install such units. Not all of these savings will be
available immediately upon promulgation of this rulemaking because of
the other actions necessary to make these incentives available to
facilities. We estimate that the full resource savings described above
will begin to be realized about two years after this rulemaking's
promulgation or after the relevant state rule revisions are
promulgated. Finally, these rulemaking changes will result in some
increased costs for State/local agencies and EPA.
B. What Are the Health, Environmental and Energy Impacts?
We expect that there will be no adverse effects on the environment
from the direct impacts of these rulemaking changes. As we discussed
above, most of these changes relate to reporting, and do not in any way
loosen the underlying environmental obligations of the Performance
Track facilities. We expect that the reporting changes will not result
in any of these facilities becoming more lax in their diligence.
EPA believes that its refocus of resources may lead to additional
environmental compliance. Public recognition and reporting requirement
relief, to the extent that they affect companies' bottom lines, may
influence company decisions to undertake regulatory projects that go
beyond regulatory requirements. The public will be able to judge the
nature and magnitude of these environmental benefits by examining the
annual reports that Performance Track facilities are required to
prepare and make public.
V. Solicitation of Comments and Public Participation
We would like to have full public participation in arriving at our
final decisions, and we encourage comment on all aspects of this
proposal from all interested parties. Interested parties should submit
supporting data and detailed analyses with their comments so we can
make maximum use of them. Information on where and when to submit
comments is listed in ``Comments'' under the ADDRESSES and DATES
sections. Information on procedures for submitting proprietary
information in the comments is listed in ``Comments'' under the
SUPPLEMENTARY INFORMATION section.
VI. Administrative Requirements
A. Executive Order 12866, Regulatory Planning and Review
The total economic impact of the proposed rule for Performance
Track facilities is estimated to range between a savings of $18,170 to
$73,780, and between 40 and 119 labor hours on an annual basis
depending on the number of facilities eligible for the rule and whether
such facilities elect to avail themselves of the incentives. Not all of
these savings will be available
[[Page 52691]]
immediately upon promulgation of this rulemaking because of the other
actions necessary to make these incentives available to facilities. The
cost savings estimated for this proposed rulemaking could potentially
be impacted (and result in total costs, not savings for the rulemaking)
by any installation costs associated with installation of secondary
containment. As noted in section IV A, secondary containment costs are
not included in total rule cost savings estimate because of the
uncertainty associated with how many Performance Track facilities will
need to install such units.
Under Executive Order 12866, (58 FR 51,735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
This action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
B. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This rule provides incentives
that states can adopt to provide benefits to their state member
facilities in the National Performance Track program. As a voluntary
program, Performance Track allows states the option to adopt the
provisions in this rule. Thus, Executive Order 13132 does not apply to
this rule.
Stakeholders, including many states, were consulted during the
development of the Performance Track Program. Many suggestions and
ideas generated by states and other stakeholders provided the basis for
some of the provisions in this rule. The stakeholder involvement
process undertaken is fully discussed in Section I B of this document.
In the spirit of Executive Order 13132, and consistent with EPA policy
to promote communications between EPA and State and local governments,
EPA specifically solicits comment on this proposed rule from State and
local officials.
C. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Any effects that Tribes may accrue from this rule will result in cost
savings. Thus, Executive Order 13175 does not apply to this rule.
Stakeholder involvement is discussed in Section I B of this document.
In the spirit of Executive Order 13175, and consistent with EPA policy
to promote communications between EPA and tribal governments, EPA
specifically solicits additional comment on this proposed rule from
tribal officials.
D. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to the Executive Order because it
is not economically significant as defined in Executive Order 12866,
and because the Agency does not have reason to believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children. The public is invited to submit or
identify peer-reviewed studies and data, of which the agency may not be
aware, that assessed results of early life exposure to the provisions
of this rulemaking.
E. Executive Order 13211 (Energy Effects)
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. Further, we have
concluded that this rule is not likely to have any adverse energy
effects.
F. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 04-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may
[[Page 52692]]
result in expenditures to State, local, and tribal governments, in the
aggregate, or to the private sector, of $100 million or more in any one
year. Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. Participation by facilities in the Performance
Track is voluntary, and so is participation by state or local
government agencies. There are no significant or unique effects on
State, local, or tribal governments, however there may be some minor
effects incurred by these entities. EPA projects these costs to be very
low. Thus, today's rule is not subject to the requirements of sections
202 and 205 of the UMRA. Nevertheless, as discussed in section I B and
elsewhere, EPA did engage these stakeholders in the process of
developing the National Environmental Performance Track Program.
G. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1966 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business
according to the Small Business Administration definition for the
business's NAICS code; (2) a small governmental jurisdiction that is a
government of a city, county, town, school district or special district
with a population of less than 50,000; and (3) a small organization
that is any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C.
Sections 603 and 604. Thus, an agency may certify that a rule will not
have a significant economic impact on a substantial number of small
entities if the rule relieves regulatory burden, or otherwise has a
positive economic effect on all of the small entities subject to the
rule. Today's rule will relieve regulatory burden and result in cost
savings to entities, including any small entities, that are members of
the Performance Track Program, so there will be no adverse impacts on
small entities. Many small entities (both businesses and governments)
and their association representatives were invited to, and attended,
the public hearings we conducted early in 2000 on the design of the
Performance Track program. We continue to be interested in the
potential impacts of the proposed rule on small entities and welcome
comments on issues related to such impacts.
H. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1922.01), and a copy may be obtained from Susan Auby by mail
at Collection Strategies Division; U.S. Environmental Protection Agency
(2822T); 1200 Pennsylvania Avenue NW., Washington, DC 20460, by email
at auby.susan@epa.gov, or by calling (202) 566-1672. You may also
download a copy from the Internet at http://www.epa.gov/icr.
The total economic impact of the proposed rule for Performance
Track facilities is estimated to range between a savings of $18,170 to
$73,780, and between 40 and 119 labor hours on an annual basis
depending on the number of facilities eligible for the rule and whether
such facilities elect to avail themselves of the incentives. Not all of
these savings will be available immediately upon promulgation of this
rulemaking because of the other actions necessary to make these
incentives available to facilities. Burden means the total time,
effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a
Federal agency. This includes the time needed to: (1) Review
instructions; (2) develop, acquire, install, and utilize technology and
systems for the purposes of collecting, validating, and verifying
information, processing and maintaining information, and disclosing and
providing information; (3) adjust the existing ways to comply with any
previously applicable instructions and requirements; (4) train
personnel to be able to respond to a collection of information; (5)
search data sources; (6) complete and review the collection of
information; and (7) transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, Collection Strategies Division; U.S. Environmental Protection
Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460; and
to the Office of Information and Regulatory Affairs, Office of
Management and Budget, 725 17th St., NW., Washington, DC 20503, marked
``Attention: Desk Officer for
[[Page 52693]]
EPA.'' Include the ICR number in any correspondence. Submit requests to
present oral testimony on or before September 25, 2002. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after August 13, 2002, a comment to OMB is best assured of having its
full effect if OMB receives it by September 12, 2002. The final rule
will respond to any OMB or public comments on the information
collection requirements contained in this proposal.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Pub. L. No. 104-113, section 12(d) (15 U.S.C. 272
note), directs all Federal agencies to use voluntary consensus
standards instead of government-unique standards in their regulatory
and procurement activities, unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (such as materials specifications, test
methods, sampling procedures, business practices) developed or adopted
by one or more voluntary consensus standards bodies. Examples of
organizations generally regarded as voluntary consensus standards
bodies include the American Society for Testing and Materials (ASTM),
the National Fire Protection Association (NFPA), and the Society of
Automotive Engineers (SAE). The NTTAA requires Federal agencies to
provide Congress, through annual reports to OMB, with explanations when
an agency does not use available and applicable voluntary consensus
standards.
This proposed rulemaking does not involve technical standards.
Thus, the provisions of NTTAA do not apply to this rulemaking and EPA
is not considering the use of any voluntary consensus standards. We
welcome comments on this aspect of the proposed rulemaking and,
specifically, invite the public to identify potentially-applicable
voluntary consensus standards and to explain why EPA should use such
standards in this regulation.
List of Subjects
40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
40 CFR Part 262
Environmental protection, Exports, Hazardous materials
transportation, Hazardous waste, Imports, Labeling, Packaging and
containers, Reporting and recordkeeping requirements.
40 CFR Part 403
Environmental protection, Confidential business information,
Reporting and recordkeeping requirements, Waste treatment and disposal,
Water pollution control.
Dated: July 30, 2002.
Christine Todd Whitman,
Administrator.
For the reasons stated in the preamble, parts 63, 262 and 403 of
title 40, chapter I of the Code of the Federal Regulations are proposed
to be amended as follows:
PART 63--[AMENDED]
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A--[Amended]
2. Section 63.2 is amended by adding in alphabetical order
definitions of ``Periodic report,'' ``Pollution prevention,'' ``Source
in the performance track'' and ``Source reduction'' to read as follows:
Sec. 63.2 Definitions.
* * * * *
Periodic report means the report of all information which is
required to be reported on a periodic basis, including, but not limited
to, monitoring information and required recordkeeping, as well as
summaries of event-related reports.
* * * * *
Pollution prevention means ``source reduction,'' as defined under
the Pollution Prevention Act (42 U.S.C. 13102), and other practices
that reduce or eliminate the creation of pollutants through: increased
efficiency in the use of raw materials, energy, water, or other
resources, or protection of natural resources by conservation.
Source reduction, as defined in the Pollution Prevention Act means
any practice which: reduces the amount of any hazardous substance,
pollutant, or contaminant entering any waste stream or otherwise
released into the environment (including fugitive emissions) prior to
recycling, treatment, or disposal; and reduces the hazards to public
health and the environment associated with the release of such
substances, pollutants, or contaminants. The term includes: equipment
or technology modifications, process or procedure modifications,
reformulation or redesign or products, substitution of raw materials,
and improvements in housekeeping, maintenance, training, or inventory
control.
* * * * *
Source in the Performance Track means a source which has been
accepted by EPA for membership in the Performance Track Program (as
described in www.epa.gov/performancetrack, formerly known as the
Achievement Track Program) and is still a member of the program. The
Performance Track program is a voluntary public-private partnership
that encourages continuous environmental improvement through the use of
environmental management systems, local community outreach, and
measurable results.
* * * * *
3. Section 63.10 is amended by:
a. Revising paragraph (d)(1); and
b. Adding paragraph (e)(3)(i)(D).
The revision and addition read as follows:
Sec. 63.10 Recordkeeping and reporting requirements.
* * * * *
(d) * * *
(1) Notwithstanding the requirements in this paragraph or paragraph
(e) of this section, and except as provided in Sec. 63.16, the owner or
operator of an affected source subject to reporting requirements under
this part shall submit reports to the Administrator in accordance with
the reporting requirements in the relevant standard(s).
* * * * *
(e) * * *
(3) * * *
(i) * * *
(D) The affected source is complying with the Performance Track
provisions of Sec. 63.16, which allows less frequent reporting.
* * * * *
4. Section 63.16 is added to Subpart A and reads as follows:
Sec. 63.16 Performance track provisions.
(a) Notwithstanding any other requirements in this part, an
affected source at any major source or any area source that is a member
of the Performance Track, which is subject to regular periodic
reporting under any subpart of this part, may submit such periodic
reports at an interval that is twice the length of the regular period
specified in the applicable subparts; provided, that for sources
subject to permits under 40 CFR part 70 or 71 no interval so calculated
for any report of the results of any required monitoring may be less
frequent than once in every
[[Page 52694]]
six months. (b) Notwithstanding any other requirements in this part,
the following modifications of reporting requirements apply to any
major source that is a member of Performance Track which is subject to
requirements under any of the subparts of this part and which has: (1)
Reduced its total HAP emissions to less than 25 tons per year;
(2) Reduced its emissions of any individual HAP to less than 10
tons per year; and (3) Reduced emissions of all HAPs covered by each
MACT standard to at least the level required by full compliance with
the applicable emission standard. (c) For affected sources at any area
source member of Performance Track and which meet the requirements of
paragraph (b)(3) of this section, or for affected sources at any major
source that meet the requirements of paragraph (b) of this section:
(1) If the emission standard to which the affected source is
subject is based on add-on control technology, and the affected source
complies by using add-on control technology, then all required
reporting elements in the periodic report may be met through an annual
certification that the affected source is meeting the emission standard
by continuing to use that control technology. The affected source must
continue to meet all relevant monitoring and recordkeeping
requirements. The compliance certification must meet the requirements
delineated in Clean Air Act Section 114(a)(3).
(2) If the emission standard to which the affected source is
subject is based on add-on control technology, and the affected source
complies by using pollution prevention, then all required reporting
elements in the periodic report may be met through an annual
certification that the affected source is continuing to use pollution
prevention to reduce HAP emissions to levels at or below those required
by the applicable emission standard. The affected source must maintain
records of all calculations that demonstrate the level of HAP emissions
required by the emission standard as well as the level of HAP emissions
achieved by the affected source. The affected source must continue to
meet all relevant monitoring and recordkeeping requirements. The
compliance certification must meet the requirements delineated in Clean
Air Act Section 114(a)(3).
(3) If the emission standard to which the affected source is
subject is based on pollution prevention, and the affected source
complies by using pollution prevention and reduces emissions by an
additional 50 percent or greater than required by the applicable
emission standard, then all required reporting elements in the periodic
report may be met through an annual certification that the affected
source is continuing to use pollution prevention to reduce HAP
emissions by an additional 50 percent or greater than required by the
applicable emission standard. The affected source must maintain records
of all calculations that demonstrate the level of HAP emissions
required by the emission standard as well as the level of HAP emissions
achieved by the affected source. The affected source must continue to
meet all relevant monitoring and recordkeeping requirements. The
compliance certification must meet the requirements delineated in Clean
Air Act Section 114(a)(3).
(4) Notwithstanding the provisions of paragraphs (c)(1) through
(3), of this section, for sources subject to permits under 40 CFR part
70 or 71, the results of any required monitoring and recordkeeping must
be reported not less frequently than once in every six months.
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
1. The authority citation for part 262 continues to read as
follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.
2. Section 262.34 is amended by adding paragraphs (j), (k), and (l)
to read as follows:
Sec. 262.34 Accumulation time.
* * * * *
(j) A generator member of the Performance Track Program, a
voluntary public-private partnership that encourages continuous
environmental improvement through the use of environmental management
systems, local community outreach, and measurable results (as described
at www.epa.gov/performancetrack, formerly known as the Achievement
Track Program), who generates 1000 kg or greater of hazardous waste per
month (or one kilogram or more of acute hazardous waste) may accumulate
hazardous waste on-site without a permit or interim status for an
extended period of time, provided that:
(1) The generator accumulates the hazardous waste for no more than
180 days, or for no more than 270 days if the generator must transport
the waste (or offer the waste for transport) more than 200 miles from
the generating facility; and
(2) The generator first notifies the Regional Administrator and the
Director of the authorized State in writing of its intent to begin
accumulation of hazardous waste for extended time periods under the
provisions of this section. Such advance notice must include:
(i) Name and EPA ID number of the facility, and specification of
when the facility will begin accumulation of hazardous wastes for
extended periods of time in accordance with this section; and
(ii) A description of the types of hazardous wastes that will be
accumulated for extended periods of time, and the units that will be
used for such extended accumulation; and
(iii) A statement that the facility has made all changes to its
operations, procedures, including emergency preparedness procedures,
and equipment, including equipment needed for emergency preparedness,
that will be necessary to accommodate extended time periods for
accumulating hazardous wastes; and
(iv) If the generator intends to accumulate hazardous wastes on-
site for up to 270 days, a certification that an appropriate off-site
hazardous waste management facility is not available within 200 miles
of the generating facility; and
(3) The waste is managed in:
(i) Containers, in accordance with the applicable requirements of
subparts I, AA, BB, and CC of 40 CFR part 265 and 40 CFR 264.175; or
(ii) Tanks, in accordance with the applicable requirements of
subparts J, AA, BB, and CC of 40 CFR part 265, except for
Secs. 265.197(c) and 265.200; or
(iii) Drip pads, in accordance with subpart W of 40 CFR part 265;
or
(iv) Containment buildings, in accordance with subpart DD of 40 CFR
part 265; and
(4) The volume of hazardous waste that is accumulated for extended
time periods at the facility does not exceed 30,000 kg; and
(5) The generator maintains the following records at the facility
for each unit used for extended accumulation times:
(i) A written description of procedures to ensure that each waste
volume remains in the unit for no more than 180 days (or 270 days, as
applicable), a description of the waste generation and management
practices at the facility showing that they are consistent with
respecting the extended accumulation time limit, and documentation that
the procedures are complied with; or
(ii) Documentation that the unit is emptied at least once every 180
days (or 270 days, if applicable); and
(6) Each container or tank that is used for extended accumulation
time periods
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is labeled or marked clearly with the words ``Hazardous Waste'', and
for each container the date upon which each period of accumulation
begins is clearly marked and visible for inspection; and
(7) The generator complies with the requirements for owners and
operators in subparts C and D in 40 CFR part 265, with Sec. 265.16, and
with Sec. 268.7(a)(5). In addition, such a generator is exempt from all
the requirements in subparts G and H of part 265 of this chapter,
except for Sec. 265.111 and Sec. 265.114; and
(8) The generator has implemented pollution prevention practices
that reduce the amount of any hazardous substances, pollutants or
contaminants released to the environment prior to its recycling,
treatment or disposal; and
(9) The generator includes the following in its Performance Track
Annual Performance Report, which must be submitted to the Regional
Administrator and the Director of the authorized State:
(i) Information on the total quantity of each hazardous waste
generated at the facility that has been managed in the previous year
according to extended accumulation time periods; and
(ii) Information for the previous year on the number of off-site
shipments of hazardous wastes generated at the facility, the types and
locations of destination facilities, how the wastes were managed at the
destination facilities (e.g., recycling, treatment, storage or
disposal), and what changes in on-site or off-site waste management
practices have occurred as a result of extended accumulation times or
other pollution prevention provisions of this section; and
(iii) Information for the previous year on any hazardous waste
spills or accidents occurring at or from extended accumulation units at
the facility, or during off-site transport of accumulated wastes; and
(iv) If the generator has accumulated hazardous wastes on-site for
more than 180 days but less than 270 days, a certification affirming
that an appropriate off-site hazardous waste management facility is not
available within 200 miles of the generating facility; and
(k) If hazardous wastes must remain on-site at a Performance Track
member facility for longer than 180 days (or 270 days, if applicable)
due to unforseen, temporary and uncontrollable circumstances, an
extension to the extended accumulation time period of up to 30 days may
be granted at the discretion of the Regional Administrator on a case-
by-case basis.
(l) If a generator who is a member of the Performance Track Program
withdraws from the Performance Track Program, or if the Regional
Administrator terminates a generator's membership, the generator must
return to compliance with all otherwise applicable hazardous waste
regulations as soon as possible, but no later than six months after the
date of withdrawal or termination.
PART 403--GENERAL PRETREATMENT REGULATIONS FOR EXISTING AND NEW
SOURCES OF POLLUTION
1. The authority for part 403 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
2. Section 403.3 is amended by revising paragraph (t)(2) to read as
follows:
Sec. 403.3 Definitions.
* * * * *
(t) * * *
(2) Upon a finding that an industrial user meeting the criteria in
paragraph (t)(1)(i) or (t)(1)(ii) of this section has no reasonable
potential for adversely affecting the POTW's operation or for violating
any pretreatment standard or requirement, the Control Authority (as
defined in Sec. 403.12(a)) may at any time, on its own initiative or in
response to a petition received from an industrial user or POTW, and in
accordance with Sec. 403.8(f)(6), determine that such industrial user
is not a significant industrial user. The Control Authority may not
determine that any industrial user meeting the criteria in paragraph
(t)(1)(i) of this section is not a significant industrial user if the
industrial user has been in noncompliance at any point during the 3
years preceding a potential determination.
* * * * *
3. Section 403.21 is added to read as follows:
Sec. 403.21 Pretreatment Program Under National Environmental
Performance Track Program.
The Approval Authority may authorize a POTW that is a member of the
National Environmental Performance Track Program, a voluntary public-
private partnership that encourages continuous environmental
improvement through the use of environmental management systems, local
community outreach, and measurable results (as described at
www.epa.gov/performancetrack, formerly known as the Achievement Track
Program), to adopt legal authorities and requirements that are
different from the requirements otherwise applicable under this part.
The POTW must submit any such alternative requirements as a substantial
program modification for approval by the Approval Authority in
accordance with the procedures outlined in Sec. 403.18. The Approval
Authority must approve the modified program and include it as an
enforceable provision of the POTW's NPDES permit before the POTW can
implement any such modification. The Approval Authority must include a
reopener clause in the POTW's NPDES permit that directs the POTW to
discontinue implementing the approved alternative requirements and
resume implementation of its previously approved pretreatment program,
if the POTW no longer meets the eligibility criteria for the National
Environmental Performance Track Program. The Approval Authority may
authorize adoption of the following alternative requirements:
(a) A POTW that is a member of the National Environmental
Performance Track Program may adopt an alternative approach to the
requirement of Sec. 403.8(f)(2)(vii) for a POTW to publish at least
annually notification of Industrial Users (IUS) which were in
significant noncompliance with pretreatment requirements (SNC) at any
time during the previous twelve months. Under this alternative
approach, the following is required:
(1) The POTW must adequately notify the public of the change in the
public notice procedures;
(2) The POTW must annually public notice all IUS in SNC (as
determined under Sec. 403.8(f)(2)(vii)) on a website maintained and
managed by the Control Authority. Notice of the violation must remain
posted at this site for a period of no less than thirty days. The POTW
must post an explanation of how SNC is determined, along with a contact
name and phone number for information;
(3) The POTW must keep historic compliance data for all IUS on the
website beginning with the first website publication. This historic
compliance data must be easy to access, well-documented, and continual;
(4) If a violation is not corrected within thirty (30) calendar
days, or if a violation results in pass through or interference, the
POTW must also annually provide the newspaper public notice for these
violations in the format specified in Sec. 403.8(f)(2)(vii);
(5) The POTW must certify as part of its annual report required by
Sec. 403.12(i) that it posted the SNC data and the historic compliance
data on the website; and
[[Page 52696]]
(6) The POTW must provide a hard copy of the public notice to the
EPA, State, or public upon request.
(b) A POTW that is a member of the National Environmental
Performance Track Program may take an alternative approach to the
requirements of Secs. 403.11 and 403.18 for public notification of
modifications to approved pretreatment programs. Under this alternative
approach, the following is required:
(1) The POTW must adequately notify the public of the change in
public notice procedures;
(2) The POTW must post its public notice of program modifications
under Secs. 403.11 and 403.18 on a website maintained and managed by
the Control Authority; and
(3) The POTW must provide a hard copy of the public notice to the
EPA, State, or public upon request.
(c) A POTW that is a member of the National Environmental
Performance Track Program may take an alternative approach to
submitting its annual report under Sec. 403.12 (i). Under this
alternative approach, the following is required:
(1) The POTW must annually post their annual report
(Sec. 403.12(i)) on a website maintained and managed by the Control
Authority;
(2) The information must remain accessible as part of the website
for at least three years;
(3) The POTW must provide written notice to the Approval Authority
within five days of posting the annual report on the website. This
notice must include a certification consistent with the certification
language provided in 40 CFR 122.22(d) by an official attesting to the
accuracy of the submitted information;
(4) Every other year, the POTW must submit a written report to the
Approval Authority. The report must include specific information for
only those SIUs found to be in significant noncompliance (SNC) during
the reporting period instead of a summary of the status of all IU
compliance over the reporting period; and
(5) The POTW must provide a written copy of the annual report
containing all information currently required under Sec. 403.12(i) to
the EPA, State, or public upon request.
(d) A POTW that is a member of the National Environmental
Performance Track Program shall prepare and maintain a list of its
industrial users meeting the criteria in paragraph (a) of this section.
The list shall identify the criteria in paragraph (a) of this section
applicable to each industrial user and, where applicable, shall also
indicate whether the POTW has made a determination pursuant to
Sec. 403.3 (t)(2) that such industrial user should not be considered a
significant industrial user. The initial list shall be submitted to the
Approval Authority pursuant to Sec. 403.9 or as a non-substantial
modification pursuant to Sec. 403.18(b)(2). Modifications to the list
shall be submitted to the Approval Authority pursuant to
Sec. 403.12(i)(1).
[FR Doc. 02-20347 Filed 8-12-02; 8:45 am]
BILLING CODE 6560-50-P