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Massachusetts Dept. of Environmental Protection
Letter from Massachusetts Dept. of Environmental Protection to Thomas D'Avanzo
Commonwealth of Massachusetts
Executive Office of Environmental Affairs
Department of Environmental Protection
one winter street, Boston, Ma 02108 617-292-5500
william f. weld trudy coxe
Governor Secretary
argeo paul cellucci david b. struhs
Lt. Governor Commissioner
June 11, 1996
Thomas D'Avanzo Deputy Director Assistance and Pollution Prevention
Office New England Regional Office US Environmental Protection Agency
John F. Kennedy Federal Building
Boston, MA 02108
re: EPA comments on the Massachusetts DEP XL proposal
Dear Tom:
We have received your letter dated May 16, 1996 containing EPA comments on the Commonwealth's Excellence and Leadership (XL) Proposal for our Environmental Results Program (ERP) and One-Stop Reporting initiative. We understand that your letter is the outcome of EPA's first stage in its XL review. As you mentioned in your letter, the purpose of this first stage is to screen XL submittals before they move on to a more comprehensive review by EPA.
Your letter asked for additional information in three general areas:
1. the regulations affected by our proposal,
2. the environmental benefits achieved by our initiatives, and
3. some assurance that our initiatives will not shift the risk burden to other communities.
The remainder of this letter responds to EPA's request for supplemental information needed to complete your "triage" stage of the XL review process. It is our understanding that you will send this letter to EPA's national XL office and the official XL docket to complete EPA's first stage review of the Commonwealth's XL proposal.
FEDERAL REGULATIONS AFFECTED BY OUR PROPOSAL
The Environmental Results Program (ERP) ERP will develop performance-based environmental standards, to which companies will self-certify compliance. ERP has been designed for those facilities that do not need permits under federal statutes. Although ERP is not presently focused on facilities holding so-called "federal permits," the Commonwealth's XL proposal seeks EPA's flexibility in the agency's application of requirements that are federally enforceable or otherwise required. Massachusetts is seeking this flexibility for companies participating in the ERP demonstration project as well as for those companies that will eventually participate in ERP state-wide implementation.
In general, our XL proposal asks EPA to waive -- for companies that do not need federal permits -- federally enforceable requirements like those found in the State Implantation Plan (SIP). In place of these federally enforceable requirements, companies will comply with ERP performance standards and will certify their compliance with those standards. In addition, we'd like EPA to be flexible in its interpretation and enforcement of certain components of federal programs (e.g., a flexible interpretation of "totally enclosed treatment" under EPA's RCRA program; New Source Performance Standards [NSPS]; or Maximum Available Control Technology standards (MACT).
Presently, the Department has an operating Enforcement Forbearance with the facilities in the ERP demonstration project (enclosed). Initially, through its XL application, the Department asks that EPA adhere to the enforcement forbearance for the ERP demonstration companies.
The Department is using the ERP demonstration project and its industry technical workshops to identify specific requirements in state regulations that will need to be changed in order to make ERP enforceable. Once the work of the technical teams is complete, we will then make those changes to our regulations under the normal regulatory promulgation process. Our technical workgroups are still in the process of developing the ERP certification and will help identify specific areas where the Commonwealth will need flexibility from EPA. Obviously, the key to ERP's success will be a certification statement that is fully enforceable.
We want to emphasize that although the performance standards developed in ERP may differ from current DEP or federal requirements, the Environmental Results Program will result in at least the current degree of environmental protection. In fact, as explained in more detail later in this letter, we are confident that it will result in better environmental protection for the Commonwealth.
One-Stop Facility Reporting In order to develop the Commonwealth's One-Stop Facility Report, the Department -- under Project XL -- is initially seeking a "waiver" from federal annual facility reporting requirements for 10 to 25 pilot companies in the following areas:
1. Facility Emissions (AIRS reporting),
2. NPDES Annual Industrial Waste Water summary reports,
3. National Biennial RCRA Hazardous Waste Reports, and,
4. Toxic Release Inventory (EPCRA 313).
Beyond the One-Stop pilot phase, the Department is seeking under this XL application a waiver from the above federal reporting requirements for all Massachusetts companies that may ultimately use our One-Stop report. We also seek, under this XL application, the flexibility to extend EPA's waiver to other Massachusetts companies and other federal reporting requirements as we expand the program over time.
It is important for EPA to understand that Massachusetts wants to consolidate federally-mandated reports so that DEP can improve the quality of environmental information we receive. One-Stop is designed to eliminate needless duplication, overlap and data requirements that are not critical to the protection of human health and the environment. Under no circumstances is Massachusetts either planning to eliminate environmental reporting, or decrease accessibility to environmental performance reports.
ENVIRONMENTAL BENEFITS ACHIEVED BY OUR PROPOSAL
The Environmental Results Program The ERP program will provide state-wide environmental benefits by improving the compliance of Massachusetts companies through increased inspections, enforcement, compliance assistance and corporate accountability.
First, DEP's ability to redirect permitting staff to facility inspections will improve compliance in the Commonwealth. Increased numbers of compliance assurance staff will lead to increased inspections and enforcement actions. Increased DEP field presence and better protocols will also allow us to find the "scofflaws" who have been ignoring their environmental obligations and exerting an unfair competitive advantage over responsible companies. In addition, we will have more flexibility to target our compliance and enforcement efforts toward the most significant health and environmental threats in the Commonwealth. Program development staff will help in the design of inspection protocols aimed at building a more versatile compliance strategy for DEP.
Second, ERP, will improve compliance through compliance assistance material developed to support the ERP program. These materials will improve compliance rates by helping facilities clearly understand what is expected of them, the standards they need to meet and various options for compliance. The compliance assistance material will also help DEP develop appropriate incentives for pollution prevention and for performance beyond compliance.
Third, ERP will improve compliance through the periodic self-certification of compliance by senior corporate management. Periodic self-certification will make company managers both directly aware of compliance requirements and accountable for publicly acknowledging their compliance status.
One-Stop Facility Reporting
The One-Stop Facility Report will consolidate disparate reporting
requirements by focusing on critical information needs, eliminating
redundant requirements and getting away from reporting data that is
better kept as on-site records. The quality of data submitted -- and
the quality of compliance information received -- will improve.
The goal of One-Stop Reporting is to improve the information we receive from companies to better target our state-wide protection priorities and compliance and enforcement efforts. Streamlined, consistent information will cost less and provide DEP with a more accurate picture of the environmental threats posed by different sources. This will enable DEP to better target its compliance and enforcement resources to address the highest-risk health and environmental threats.
AVOIDING SHIFTS IN RISK
Both the One-Stop Facility Report and the Environmental Results Program
will not shift the risk burden between communities in the Commonwealth.
ERP is designed to prevent shifting risk among environmental media
or between communities. The One-Stop Report will increase public awareness
by improving the quality of information available on corporate environmental
performance.
STAKEHOLDER INPUT ON OUR PROPOSAL
Beyond the three questions EPA has asked of the Department, there is one other point that should be addressed. We are aware that EPA is quite anxious about "Stakeholder Input" on XL projects. We want to emphasize that DEP has had significant and extensive input from "stakeholders" on ERP and One-Stop. Obviously, these interactions are all in addition and in advance to the normal public review process DEP conducts for new regulations. Specifically:
ERP: DEP has made a significant investment in involving stakeholders from the beginning in the development of ERP. In September 1995, we established an ERP Design Team of state environmental and industry leaders who met weekly for several months to develop the ERP concept. We still conduct monthly Design Team meetings now that DEP is in the demonstration phase of ERP development. The technical teams developing the ERP certification have been open and accessible to the participation of DEP constituents. In addition, DEP has held numerous briefings with organizations and individuals on ERP. We also recently surveyed 500 randomly selected Commonwealth citizens on their attitudes about environmental regulatory reform and self-certification.
One-Stop: While not as far along in development as ERP, the One-Stop Reporting Initiative has already sought extensive stakeholder input on the One-Stop concept. DEP has received advice from focus groups, conducted a survey on the One-Stop concept and led follow-up workshops. First, we conducted discussions between 10-15 registered voters in six focus groups on One-Stop Reporting. Two focus groups were from the Western Metro Boston area; one group was from the low-income, economically disadvantaged cities of Dorchester and Roxbury; and three groups were representative of business, government and third-party/community advocates. Our survey on the One-Stop concept and environmental reporting priorities was sent to 250 individuals with approximately 135 responses received. DEP then held three follow-up workshops (two external and one internal) to discuss the survey results.
With this type of track record, DEP is committed to ongoing input from our constituents in the design and development of both programs.
I am pleased that EPA has consolidated all its XL questions in one communiqué to DEP. Streamlining regulations starts with streamlining internal review processes. DEP wants to help expedite review of the Commonwealth's XL proposal. We want to finalize the XL Project Agreement as quickly as possible so DEP can get to work on delivering improved environmental protection and regulatory flexibility.
Thank you in advance for your cooperation on the Commonwealth's XL proposal.
Sincerely,
Allan Bedwell
Deputy Commissioner
Environmental Results & Strategic Priorities Enclosure:
ERP Enforcement Forbearance
cc: David Struhs, DEP Lee Dillard, DEP Sue Willis, DEP Marty Suuberg,
DEP Laurel Mackay, DEP ERP Design Group Members
ENFORCEMENT FORBEARANCE
To assist companies which participate in development of the Environmental Results Program, the Department will provide ERP demonstration companies with an enforcement forbearance within the following parameters:
1) Baseline Consultative Inspection ERP demonstration companies must commit to a baseline consultative inspection to verify eligibility for participation in the ERP demonstration project. Such consultative inspection, using the FIRST (Facility-wide Inspections to Reduce Sources of Toxics) Compliance Evaluation Inspection Protocol (see Appendix A), will be targeted at determining (a) current compliance with requirements covered by the Environmental Results Program and (b) opportunities for source reduction. In addition, it will provide the Department with baseline information against which to verify that violations are corrected within applicable time frames as well as to document improvement in the environmental performance and compliance track records of the ERP demonstration companies in the subsequent year.
2) Applicability of Enforcement forbearance DEP will exercise enforcement forbearance for participating companies that do not having particular environmental permits and registrations. These permits are scheduled to be converted to a certification in the Environmental Results Program: air quality plan approvals for facilities that emit more than 1 ton per year of volatile organic compounds, particulate matter, and hazardous air pollutants; air quality plan approvals for New Source Performance Standards for air pollutants, Reasonably Available Control Technology (RACT) requirements for volatile organic compounds and nitrogen oxides, Maximum Achievable Control Technology (MACT) standards for hazardous air pollutants; industrial wastewater holding tank and sewer connection permits and approvals; water supply cross connection permits; and registration requirements for Class A and Class B recycling of hazardous waste. ERP demonstration companies must otherwise comply with all other applicable regulations, permits, registrations, and approvals enforced by the Department. For any violation of other requirements discovered in the course of the consultative inspection or any time during the demonstration project the Department shall issue a deficiency letter with a schedule for correcting the violation(s) as explained in section 3)c) below. The Department reserves its rights under existing statutes to conduct inspections of regulated companies during the ERP demonstration project under standard operating procedures. Companies which are discovered by inspection or by other means to be in violation of any of these other applicable regulations, permits, registrations, and approvals will be required to correct these violations. Should a company fail to correct violations in the specified time frame appropriate enforcement action will be taken by the Department in a manner consistent with existing Department guidelines and the company may become ineligible for the ERP demonstration project.
3) Events of Noncompliance which would result in an ERP demonstration company being or becoming ineligible for the Enforcement Forbearance Triggering any of the cases of noncompliance described below either prior to and/or during the period of the enforcement forbearance would result in an ERP demonstration company being referred to a DEP senior management group for a decision as to continued eligibility for the ERP demonstration project and the forbearance: (a) Each case in which the Department, based on information obtained during an inspection, record review, or from other sources, determines that any of the following exist: I. a substantial and imminent threat to human health, welfare, safety and/or the environment. For example, illegal disposal of hazardous waste by dumping 7 drums of lacquer thinner (toluene) along a dirt road. ii. a release, discharge, or emission that results in serious actual persons human health and/or the environment. For example, handling of ignitable or reactive hazardous waste in a manner that results in explosion and fire and serious bodily injury; substantial discharge of chlorine into a river resulting from an inadequate chlorination system that causes the death of over 1000 fish. (b) Each case in which the Department determines, based on any and all information in its possession, that violations exist, or existed previous to the period of the ERP demonstration project, that should be referred to the Environmental Strike Force and Attorney General for judicial enforcement following existing protocols for such referrals. Examples include violations involving fraud, concealment or high-level condonation of unlawful conduct, intentional or grossly negligent violations, and/or a continuous pattern of violations. The Department reserves all its rights to take enforcement actions as it deems necessary and appropriate to remove or minimize any existing or threatened endangerment and to remedy any harm associated with such activity and/or to prosecute those parties responsible. (c) Each case in which the ERP demonstration company has failed to correct violations cited by the Department either prior to or during the period of the ERP demonstration project within time frames appropriate to the gravity of the violation. For example, if in the course of the consultative inspection or at any other time during the period of the ERP demonstration project, the Department identifies violations which would not render an ERP demonstration company ineligible for the ERP demonstration project, DEP will identify the violation to the company by a deficiency letter and provide a reasonable schedule for correcting the violation. Should the company fail to correct the violation within the specified time frame, DEP will commence an appropriate enforcement action.
4) Term of Enforcement Forbearance Provided that an ERP demonstration company remains eligible for and continues to participate in the demonstration project, the Department anticipates that the enforcement forbearance shall expire at the termination of the ERP demonstration project.