SUBJECT: "Regulatory Basics Initiative"

Directive on Review of Existing Regulations

and Technical Guidance Documents

TO: Deputies and Directors

FROM: James M. Seif

Secretary

Department of Environmental Protection

The departments existing regulations and technical guidance documents are the foundation of our effort to provide for a safe and clean environment consistent with the mandates of the General Assembly. The way in which we go about developing and implementing our regulations and guidance will substantially determine the costs of compliance, ease of compliance, and our overall ability to achieve the desired environmental results

One of the major priorities of this Administration is to create a new environmental partnership which allows the Commonwealth to succeed both environmentally and economically. Our regulations and guidance should achieve better compliance by emphasizing cooperation, prevention, innovation and education. We want to see that our regulations and guidance documents are clear and understandable and provide ample flexibility to accomplish the intended environmental result in a cost effective manner. And we intend to create a level playing field where there are federal requirements so that the costs of doing business in Pennsylvania are competitive with other states unless there is a compelling public interest to be tougher than federal standards

For these reasons, I am directing that an overall review of agency regulations and guidance be conducted. The purpose of this review is to assure that agency requirements are no more stringent than standards imposed by Federal law; to minimize costs upon the regulated community; to eliminate requirements which are no longer necessary or redundant; to encourage performance or outcome based requirements; to facilitate the use of new green technologies; to eliminate barriers to recycling and pollution prevention; and to assure information is prepared in clear and concise language. In addition, existing regulations and technical guidance will be evaluated to facilitate compliance, including the adequacy of related educational, technical and financial assistance programs.

Another major goal of this review is to make agency policies more available to the public by making single copies free and making them available in electronic formats

The attached Directive on Regulations and Guidance Review describes how this review is to be performed and when your recommendations are to be submitted. The review of regulations is to be completed by the end of February 1956 and the guidance reviewed by August 1996.

Deputies and Directors - 2 - August 4, 1995

The three program Deputies will have the lead responsibility for implementation of this Directive. There should be extensive consultation with the Deputy for Field Operations and Chief Counsel, and we must utilize our advisory committees to assist in this review. Overall coordination of this effort will be provided by the Executive Deputy Secretary for Policy and Communications

As part of this review, we will give the regulated community, local governments, environmental interests and the general public the opportunity to identify specific regulations and guidance which is either more stringent than federal standards, serves as barriers to innovation, is obsolete or unnecessary or which imposes costs beyond reasonable environmental benefits, serves as barriers to adopting new environmental technologies, recycling and pollution prevention. I anticipate this formal public comment period will last 90 days and be coordinated through the Office of Policy and Communications.

Any questions regarding implementation of this Directive should be discussed with the Executive Deputy for Policy and Communications.

Attachment

DOCUMENT NUMBER: 012-0900-002

TITLE: Secretary's Directive on Review of Existing Regulations

and Technical Guidance Documents

AUTHORITY: Section 1901-A, Administrative Code 1929

POLICY: DEP will review existing regulations by February 1996 and technical

guidance documents by August 1996.

PURPOSE: The purpose of this review is to assure that agency requirements are no

more stringent than standards imposed by Federal law unless authorized by

State law; to minimize costs upon the regulated community; to eliminate

requirements which are no longer necessary or redundant; to encourage

performance based requirements; and to assure information is prepared in

plain, simple, clear and concise language. In addition, existing regulations

and technical guidance will be evaluated to facilitate compliance including

reviewing the adequacy of related educational, technical and financial

assistance programs.

APPLICABILITY: These guidelines describe the procedures for the review of existing

regulations and policies by agency managers. All regulations published as

final and all technical guidance approved prior to the effective date of this

directive are to be included in this review. Part I of the attached guidance

contains instructions for the review of existing regulations and Part II

addresses the review of technical guidance documents.

PAGE LENGTH: 25 pages

LOCATION: Volume 01, Tab 08

Secretary's Directive on Regulations and Guidance Review

PART I. REVIEW OF REGULATIONS

The three program Deputies will initiate a review of regulations within their areas of responsibility and make recommendations on each of the following:

Regulations Which Contain Standards or Requirements More Stringent than Federal Law

All regulations which contain standards or requirements more stringent than Federal law are to be identified and changed to be no more stringent than Federal requirements unless required by state law. For any regulation where the Deputy has made a preliminary determination that more stringent state requirements are appropriate and necessary, the Deputy will prepare the following information for each regulation:

a) identification of the appropriate federal citation;

b) comparative analysis of the state requirements to the Federal requirements and

benchmarks in other states;

c) explanation of statutory, policy, or technical reasons for imposing regulations more

stringent than Federal requirements; and

d) associated cost/benefit analysis that supports the Deputy's recommendation to

continue the imposition of stricter requirements with supporting documentation that

stricter standards are achievable with current technology, do not impose an

unreasonable burden, and achieve a desired environmental result.

Each Deputy will submit a report identifying all regulations more stringent than Federal requirements. This information is to be reviewed by the Chief Counsel prior to finalizing the report. For those regulations where the Deputy has not made a preliminary determination that more stringent state requirements are appropriate, the report will include a "Memorandum to Request Secretary's Approval to Begin Development of a Regulation" for each regulation where modifications are necessary to be no more stringent than Federal requirements. Regulations requiring changes will be submitted as draft proposed rulemakings to the Secretary for approval no later than May 1, 1996.

Each Deputy's report will be submitted to the Executive Deputy Secretary for Policy and Communications by November 1, 1995.

Regulations Imposing Disproportionate Economic Costs

Regulations imposing highly disproportionate costs in comparison to the intended environmental results will be identified for each program area. Program managers will identify these regulations in consultation with organizations and interests bearing the greatest financial burden. For each regulation identified, the Deputy will prepare the following information:

a) a description of how the regulation achieves the intended environmental result and what costs are imposed on the regulated community to comply with the regulation;

b) a description of nonregulatory compliance which could achieve the intended

environmental result;

c) where less costly approaches were not recommended, a justification of why less

costly approaches were not selected; and

d) a description of existing or proposed programs available to the regulated

community to help minimize the costs of compliance.

Based on this review, each Deputy will submit a report identifying regulations having disproportionate economic costs with recommended changes. Any regulations needing changes will be accompanied by a "Memorandum to Request Secretary's Approval to Begin Development of a Regulation." These regulations will be submitted as draft proposed rulemakings to the Secretary for approval no later than August 1, 1996. This report will also identify any other regulations where less costly approaches are readily available. effective, and easily implemented

Each Deputy's report will be submitted to the Executive Deputy Secretary for Policy and

Communications by February 1. 1996

Regulations With Significant Noncompliance

Regulations having the greatest incidence of noncompliance will be identified within each program area. For each regulation identified, the Deputy will prepare the following information:

a) an analysis describing the reasons for noncompliance and the resultant impact on

public health, safety, and the environment; and

b) an evaluation of options for achieving greater compliance. These options will

address both regulatory and nonregulatory approaches with specific

recommendations for more effective compliance assistance programs.

Each Deputy will submit a report identifying regulations having the greatest incidence of noncompliance, the reasons for noncompliance, the effect of noncompliance, and recommendations for achieving greater compliance. If regulation changes are necessary, the report should include the "Memorandum to Request Secretary's Approval to Begin Development of a Regulation." Deputies will work closely with the Deputy for Field Operations in preparing this report. All such regulations will be submitted as draft proposed rulemakings to the Secretary for approval no later than August 1, 1996.

Each Deputy's report will be submitted to the Executive Deputy Secretary for Policy and Communications by February 1, 1996.

Regulations Which Are Prescriptive or Technology Specific

Regulations should focus on achieving the desired level of environmental performance and provide for the maximum flexibility allowed under the law in achieving this level of performance. For each regulation identified as not meeting this objective. the Deputy will prepare the following information:

a) identification of the appropriate federal or state statutory authority;

b) an explanation of the statutory, policy, or technical reasons for not utilizing or

providing the flexibility to utilize performance based regulatory requirements; and

c) a description of alternative regulatory approaches to provide for the use of results

oriented or performance based standards.

Each Deputy will submit this information with recommendations for changes to the Executive Deputy Secretary for Policy and Communications by December 31, 1995. A schedule for submitting draft proposed rulemakings to the Secretary for approval is to be included in each report

Regulations Which Inhibit the Application of New Green Technologies

Regulations should encourage the utilization of new green technologies. Review procedures should be streamlined to provide incentives for the consideration and use of these new technologies

Each Deputy will prepare a report identifying regulations which are roadblocks for applying new, less costly methods or technologies that will maintain or improve environmental quality. This report will also include recommendations for changes and a schedule for submitting draft proposed rulemakings to the Secretary for approval. The report is to be submitted to the Executive Deputy secretary for Policy and Communications by December 31. 1995

Regulations Which Do Not support a Pollution Prevention Approach

Regulations should encourage and provide incentives for the regulated community to take a preventive approach to environmental management issues. If pollution is prevented or reduced at the source, it does not have to be managed or regulated resulting in savings to both the regulated community and the Commonwealth.

Each Deputy will review regulations within their area of responsibility and identify regulations where barriers and disincentives exist to source reduction and prevention. Each Deputy will submit a report with this information and recommendations for changes to eliminate these barriers and disincentives to the Executive Deputy Secretary by December 1, 1995.

Regulations Which are Obsolete or are Redundant

Each Deputy will review regulations within their areas of responsibility and identify regulations which are redundant, outdated, or are no longer necessary as a result of new statutory authority or changes to other regulations. This review is intended to reduce paperwork, minimize administrative burdens, save time, and generally change or eliminate regulations which no longer meet the goals for which they were intended.

Each Deputy will submit a report identifying regulations to be changed or eliminated to the Executive Deputy Secretary for Policy and Communications by February 28, 1996. Deputies will work closely with the Chief Counsel during the preparation of this report. A schedule for submitting draft proposed rulemakings to the Secretary for approval is to be included in each report.

Regulations Which Lack Clarity

Each Deputy will review regulations within their area of responsibility and identify regulations where the text has created potential for uncertainty and r4isinterpretation. This review is intended to identify regulations which are not drafted in plain, simple, clear and concise language.

Each Deputy will submit a report identifying unclear regulations and propose a schedule for changing these regulations. This report is to be submitted to the Executive Deputy Secretary for Policy and Communications by February 28, 1996.

PART II. REVIEW OF TECHNICAL GUIDANCE

All technical guidance documents that have been approved in final form prior to the date of this directive will be reviewed to meet the purposes of this directive. Since there are over 11,000 pages of guidance contained in 27 separate binders, the review of technical guidance documents will occur in phases as described below During this review, all existing technical guidance will remain in effect until it is reviewed and revised accordingly, or rescinded. Technical guidance not meeting the review deadlines may be immediately rescinded by the Secretary.

Review Deadlines

The official Index of Guidance Documents classifies all policies into one of the following categories - Permitting, Plan Approvals, Monitoring, Compliance, Enforcement, Comprehensive Guidance, Grants and Contracting. Three separate review deadlines have been established to facilitate the review of guidance and are shown below:

Phase l: Permitting and Plan Approvals - March 1, 1996

Phase II: Monitoring, Compliance and Enforcement- June 1, 1996

Phase III: Comprehensive Guidance, Grants and Contracting -August 1. 1996

The documents in each of these categories are listed in Attachment 3.

Content of Documents

Each technical guidance document will be reviewed to meet the purposes of this directive. Generally, guidance will be no more stringent than federal requirements; minimize costs to the regulated community; eliminate unnecessary requirements; encourage performance or outcome based requirements; and assure that information is clear and concise. Guidance should meet the following criteria to assure consistency with the purpose of this directive

(a) Conformity with State Statutes and Regulations

Technical guidance should explain but not enlarge or diminish the scope of statutory or regulatory provisions. Positions taken in guidance must be consistent with statutes and regulations. The program attorney is to be consulted at this stage and the attorney's concurrence with the outcome of the review is to be noted.

(b) No More Stringent than Federal Requirements

Technical guidance should be no more stringent than applicable federal requirements Guidance which is more stringent than federal requirements that implements "more stringent than" agency regulations will remain in effect until the regulations are changed.

(c) Economic Impacts

Technical guidance should not diminish Pennsylvania's competitive economic advantage The costs to obtain agency approvals and meet compliance requirements on individuals, businesses, and local governments should be minimized and flexibility to employ cost effective alternatives should be provided. Guidance should help promote the use of economic incentives to encourage desired behavior. In addition, agency costs associated with staffing, technical reviews. and compliance assistance should also be minimized.

(d) Compliance Assistance

Technical guidance should clearly identify what is needed to comply with agency regulations including the provision related to educational and informational materials. Guidance should place emphasis on cooperation, innovation and education as a way to achieve higher levels of compliance. Guidance should give special attention to the unique needs of small businesses and local governments as related to educational, technical and other forms of compliance assistance.

(e) Performance or Outcome Oriented

To the extent allowed by regulation, guidance should focus on achieving the desired level of environmental performance. Maximum flexibility to achieve the desired outcome should be encouraged rather than prescribing specific technologies or equipment. The program attorney is to be consulted during this review and the attorney's concurrence with the results of the review is to be noted.

(f) Green Technologies

Guidance should help promote the utilization of new, less costly methods and technologies that will maintain or improve environmental quality. Barriers to using green technologies should be eliminated and review processes should be streamlined to provide incentives for using these technologies.

(g) Pollution Prevention

Guidance should help promote and not be a barrier to the use of pollution prevention technologies and procedures.

Pollution prevention is defined as measures taken to avoid or reduce generation of all types of waste--solid/hazardous waste, wastewater discharges and air emissions--at their points of origin. It does not include activities undertaken to treat, control or dispose of pollution once it is created, e.g. end-of-the-stack or pipe control equipment or procedures.

(h) Necessity

Guidance should be up to date and needed to help implement current laws and regulations. Guidance should not be duplicative of other guidance and generally reduce paperwork, minimize administrative burdens, and save time for both the regulated community and agency staff.

(i) Clarity

Documents should contain plain, simple, clear and concise language. Nontechnical language should be used to the greatest extent possible. Documents should provide clear interpretation of agency requirements while reducing the potential for uncertainty and confusion by agency staff or the regulated community.

Bureau Director's Report to Deputy

When the Bureau Director has completed each phase of the guidance document review for consistency with the above criteria, the Bureau Director is to prepare a report to their Deputy providing the following information:

Guidance that should be substantively revised, listed by Title and Guidance Document Number;

Guidance that should be rescinded, listed by Title, Guidance Document Number, and date on which the rescission will be effective; and

A notation that all guidance not specifically identified in either of the above categories should be retained as it stands, or which needs formatting changes only.

Guidance that must be revised includes all guidance that is not in the proper format If the only change necessary is the format (i.e., the creation of the cover page), the formatting change is to be made before the program's guidance review deadline. The Office of Policy is to receive a copy of the Bureau Director's report.

Deputy Report to Secretary

When the Deputy receives the final report from the Bureau Director, the Deputy is to review it and determine which of the Bureau Director's recommendations can be approved. The Deputy then prepares a memorandum for the Secretary's review (see Attachment 1), through the Executive Deputy Secretary for Policy and Communications, with a copy to the Office of Policy

Secretary's Concurrence

The Secretary will review the memorandum and note his concurrence. The Deputy is to route a copy of the concurrence to all parties that received the original memo.

Implementation

The Policy Office will instruct the parties on the Guidance Document Subscriber List to remove the rescinded guidance from their guidance inventories. The Deputy for Field Operations will instruct the Field staff to disregard all rescinded guidance. Guidance to be revised will be revised according to the "Policy for Development, Approval and Distribution of Program Guidance "

Format of Documents

Documents will be reviewed to assure each guidance has a separate cover sheet containing the following standard information:

A Policy Statement, containing a one-sentence description of the scope of the guidance;

A Statement of Purpose, containing information on the purpose behind the policy;

A statement of Applicability, containing information on when the guidance is to be applied, and by whom;

* A standard Disclaimer (see Attachment 1 for the text of the Disclaimer);

A Page Length listing, which notes the total number of pages in the entire guidance, including appendices and tables of contents; and

A Location, which notes in which Volume and at what Tab Number the guidance document can be found

Attachment 2 shows the appropriate format for the cover page.

All documents are to have a standard cover page by the review deadlines noted previously. Bureau Directors will transmit this information using the standard distribution list contained in the existing "Policy for Development, Approval and Distribution of Program Guidance." At the same time, the Bureau Directors will prepare an electronic copy of each cover page and forward this information to the Policy Office. The following conventions are to apply to the electronic copy:

Information for each guidance document is to be saved to a separate file;

Information for each guidance document is to be exported to ASC11 format test with layout, if using MS Word);

Information is to be saved to double-sided, high density disks;

The information is to be identical to the information found in the original guidance document: and

When changes are made to the guidance that affect this information, a new electronic copy is to be generated for the Policy Office.