March
14,
2006
1
Response
to
Comments
Description
of
Collaboration
with
the
Environmental
Council
of
the
States
Regarding
National
Environmental
Performance
Track
and
State
Performance­
Based
Environmental
Leadership
Programs
Reference:
70
FR
44921,
August
4,
2005.
Docket
number
EPA­
HQ­
OA­
2005­
0003
March
14,
2006
2
OVERVIEW
The
following
summary
provides
EPA's
response
to
comments
received
on
its
August
4,
2005,
Federal
Register
Notice
entitled
"
Description
of
Collaboration
with
the
Environmental
Council
of
the
States
Regarding
National
Environmental
Performance
Track
and
State
Performance­
Based
Environmental
Leadership
Programs"
(
70
FR
44921).
The
notice
presented
initial
recommendations
resulting
from
a
collaborative
effort
between
the
Environmental
Council
of
the
States
(
ECOS)
and
EPA
to
improve
the
value
and
effectiveness
of
performance­
based
environmental
programs.
The
recommendations
included
approaches
to
increase
state
support
for
these
programs,
mechanisms
for
integrating
them
into
EPA's
strategic
planning
process,
and
proposals
for
developing
better
incentives
for
facilities
that
are
members
of
Performance
Track
and
state
performance­
based
environmental
programs.

The
Agency
received
many
comments
that
address
the
Performance
Track
program
as
a
general
matter,
as
well
as
comments
on
the
specific
recommendations
from
the
workgroups.
This
document
reflects
the
Agency's
response
to
both
types
of
comments.

SECOND
ROUND
OF
PUBLIC
COMMENT
Several
commenters
stated
that
the
time
to
review
the
Federal
Register
documents
and
submit
comments
to
the
public
docket
was
too
short
and
that
the
ideas
described
were
too
vague
to
adequately
comment
upon.
As
originally
intended,
EPA
has
developed
a
report
that
responds
to
the
public
comments.
EPA
did
not
originally
intend
to
submit
this
revised
report
for
public
comment
a
second
time,
but
after
considering
public
comment,
EPA
has
decided
to
publish
the
revised
report
in
the
Federal
Register.
The
revised
report
clarifies
proposed
actions,
and
provides
additional
detail
on
approaches
to
improve
performance­
based
environmental
programs
as
part
of
the
ECOS­
EPA
collaborative
effort.
The
Federal
Register
Notice
will
provide
60
days
for
public
comment.
EPA
encourages
all
interested
parties
to
review
the
report
and
provide
comment
to
the
Agency
on
these
important
ideas.

CLARIFICATION
OF
INTENT
FOR
INCENTIVES
SELECTION
AND
DEVELOPMENT
Based
on
comments
received,
it
is
apparent
that
the
criteria
that
EPA
and
states
use
in
selecting
incentives
for
performance­
based
environmental
programs
were
not
clear
to
some
commenters.
In
particular,
several
commenters
stated
that
some
of
the
incentives
being
considered
would
potentially
result
in
more
releases
to
the
environment
than
allowed
under
existing
environmental
laws
and
regulations.
It
is
a
bedrock
principle
of
Performance
Track
and
similar
state
programs
that
members
are
expected
to
perform
better
than
required
under
existing
laws
and
regulations
and
that
they
commit
to
continuously
improve
their
performance
above
and
beyond
compliance.
Any
incentives
ultimately
selected
would
not
result
in
a
net
increase
in
releases
to
the
environment.

The
primary
benefit
that
members
currently
receive
from
EPA
in
the
Performance
Track
program
and
many
state
programs
is
public
recognition.
The
charge
to
EPA
from
the
ECOS
Report
to
March
14,
2006
3
develop
"
better
incentives
faster"
was
in
direct
response
to
the
fact
that
these
programs
offer
few
incentives
beyond
recognition
to
reward
and
recognize
members
for
their
commitment
to
effective
environmental
management,
a
sustained
record
of
compliance,
commitment
to
measurable
goals,
and
transparency
to
the
public.
Therefore,
as
outlined
in
the
workgroup
recommendations,
EPA
and
states
are
considering
additional,
specific
benefits
that
will
reduce
some
of
the
routine
transaction
costs
of
regulation
and
allow
these
facilities
to
focus
more
on
environmental
results.
These
incentives
will
be
carefully
designed
and
implemented
to
reduce
regulatory
burdens
and
transaction
costs
while
not
resulting
in
any
net
decrease
in
performance.
At
the
same
time,
members
are
expected
to
provide
more
information
than
non­
members
on
their
overall
environmental
performance
and
management
to
EPA,
states,
and
the
public.
Again,
neither
EPA
nor
any
state
is
considering
regulatory
changes
that
will
reduce
regulatory
standards
or
expected
environmental
performance
for
program
members.

GENERAL
COMMENTS
ON
THE
PERFORMANCE
TRACK
PROGRAM
Support
for
Base
Concepts
EPA
received
a
number
of
comments
in
support
of
the
base
concepts
underlying
Performance
Track
and
state
performance­
based
environmental
programs.
Those
concepts
are
that:
(
1)
good
performers
who
go
beyond
compliance
should
be
recognized
and
supported,
and
(
2)
these
good
performers
should
have
a
different
relationship
with
their
oversight
agencies
than
organizations
that
are
not
good
performers.

Information,
Education
and
Communication
on
Performance
Track
EPA
received
a
number
of
comments
stating
that
sufficient
outreach
efforts
have
not
been
undertaken
to
adequately
inform
and
educate
EPA
staff,
state
staff,
and
the
general
public
about
the
Performance
Track
program.
Commenters
stated
that
EPA
Headquarters
and
Regional
Offices
act
independently
and
are
not
all
aligned
around
Performance
Track
goals.

The
Agency
considers
outreach
to
stakeholders
a
critical
component
to
successful
program
implementation.
Before
the
program
was
established
in
2000,
a
large
outreach
effort
was
conducted
with
Federal
Register
notices
and
public
meetings
held
across
the
country
to
receive
input
from
interested
parties,
including
the
States
and
general
public,
regarding
the
program's
elements
and
design.
In
addition,
each
regulatory
incentive
provision
specific
to
the
program
has
been
published
as
both
a
proposed
and
final
rule
in
the
Federal
Register,
along
with
information
about
the
program
itself.
EPA
has
also
conducted
outreach
campaigns
about
Performance
Track
and
its
benefits.

EPA
believes
that
improvements
can
and
should
be
made
in
informing,
educating,
communicating
and
coordinating
with
individual
programs
and
offices,
both
at
EPA
and
the
states,
to
ensure
that
EPA
and
state
staff
are
more
knowledgeable
about
the
program
and
its
goals.
Specifically,
EPA
has
taken
the
following
steps:
March
14,
2006
4
 
EPA's
Innovation
Action
Council
(
IAC),
comprised
of
career
executives
with
responsibility
for
the
Agency's
innovation
agenda,
determined
that
Performance
Track
would
be
one
of
the
priority
innovation
programs
designated
for
"
scale
up."
Scale
up
has
included
additional
outreach
and
education
for
EPA
Headquarters
and
Regional
staff.

 
Representative
from
the
Performance
Track
Program
have
met
with
each
media
program
office
(
managers
and
staff)
individually
to
discuss
priorities
and
ways
to
collaborate
more
closely
to
achieve
environmental
goals.

 
EPA
has
engaged
with
outside
state
organizations,
such
as
ECOS,
specifically
on
Performance
Track
issues.

 
EPA
has
held
bi­
annual
national
conferences
with
state
agencies
as
well
as
an
annual
national
conference
with
the
Pollution
Prevention
Round
Table,
the
Performance
Track
Participants
Association,
and
EPA's
Office
of
Enforcement
and
Compliance
Assurance
to
better
educate
EPA
staff,
state
staff,
and
members
of
the
general
public
about
Performance
Track.

 
State
Innovation
Grants
will
continue
to
be
awarded
by
EPA
to
help
promote
state
performance­
based
environmental
programs
to
the
extent
funding
is
available.

 
EPA
has,
and
will
continue
to
enter
into
a
number
of
Memoranda
of
Agreements
(
MOAs)
with
individual
states
to
help
promote
and
coordinate
Performance
Track
and
state­
based
programs.
All
MOAs
are
coordinated
with
EPA
Regional
Offices.

 
EPA
has
made
Performance
Track
documents
and
brochures
available
on
its
website,
holds
regular
scheduled
conference
calls
with
EPA
Regions
and
states,
and
advertises
Performance
Track
whenever
opportunities
arise.

 
Numerous
articles
on
Performance
Track
have
been
published
in
trade
publications,
including
the
ECOS
Journal.

 
The
Agency's
National
Program
Manager
Guidances
now
include
references
to
the
program
(
see
discussion
below
on
Program
Objectives
Included
in
National
Program
Guidance.)

 
EPA
officials
make
numerous
speaking
engagements
every
year
about
Performance
Track
at
state
meetings,
association
meetings,
and
other
events.
The
Agency
welcomes
opportunities
and
suggestions
to
speak
with
additional
groups.

 
EPA
conducts
site
visits
at
up
to
10%
of
Performance
Track
facilities
each
year;
some
of
these
visits
have
been
attended
by
state
and
local
community
representatives.
March
14,
2006
5
One
commenter
stated
that
some
state
and
local
agencies
do
not
know
the
identities
of
member
facilities
within
their
jurisdictions.
The
commenter
further
stated
that
state
and
local
agencies
should
be
aware
of
those
facilities
proposed
to
be
admitted
and
should
be
consulted
to
provide
answers
to
questions
about
compliance
history
and
the
environmental
achievements
claimed
by
the
applicant.
The
commenter
also
suggested
providing
training
to
states
to
implement
the
program.

While
the
Agency
recognizes
that
there
may
be
instances
where
some
individuals
in
a
state
or
local
agency
may
not
be
aware
of
the
member
facilities
in
their
jurisdiction,
the
Agency
has
a
multi­
faceted
approach
in
place
to
engage
states
(
with
states
in
turn
directly
engaging
local
agencies)
and
is
striving
to
educate
and
inform
the
rank
and
file
staff
of
those
organizations
about
the
program.
For
example,
EPA
communicates
directly
with
a
network
of
designated
Performance
Track
contacts
in
virtually
all
states
in
which
there
is
a
PT
member­
nearly
40.
Such
information
exchange
has
been
an
important
program
component
since
the
inception
of
Performance
Track.
First,
a
thorough
consultation
and
review
process
is
conducted
for
every
proposed
facility
applicant
at
EPA
Headquarters,
Regional
Offices,
states,
the
Department
of
Justice,
and
local
governments
to
the
extent
they
are
responsible
for
regulatory
implementation
within
the
state.
For
a
complete
list
of
potential
contacts
involved
in
this
process,
see
the
Performance
Track
website
at
www.
epa.
gov/
performancetrack/
sitemap.
htm.
Second,
EPA
communicates
regularly
with
states
on
program
development
and
implementation.
EPA
conducts
monthly
conference
calls
with
states,
and
conducts
a
bi­
annual
state
conference
(
for
a
listing
of
members
by
state
see
the
Performance
Track
website).
Third,
EPA
does
provide
some
select
training
to
states
on
implementing
Performance
Track
and
more
recently
is
providing
training
on
the
Performance
Track
site
visit
protocol.
Fourth,
states
are
invited
to
accompany
EPA
on
site
visits
at
Performance
Track
facilities.
Any
state
interested
in
training
opportunities
is
encouraged
to
contact
the
EPA
Performance
Track
coordinator
in
their
Region.

Another
commenter
suggested
that
EPA
confront
the
possibility
that
Performance
Track
could
convey
a
perception
that
industry­
sought
incentives
and
Agency
agendas
have
displaced
superior
environmental
performance
(
and
the
need
to
verify
it)
as
the
priority
concerns
of
these
programs.
The
priority
concern
and
focus
of
the
Performance
Track
program
and
State
programs
is
improving
environmental
performance.
In
its
communications,
publication
and
general
messages,
EPA
places
performance
of
member
facilities
as
its
top
priority.
While
some
incentives
ideas
may
come
from
member
facilities
initially,
the
vast
majority
do
not.
The
development
of
incentives
is
a
very
long
process,
typically
taking
years,
and
during
that
time
there
are
myriad
opportunities
for
input
from
stakeholders
to
shape
the
design
and
function
of
an
incentive.
Incentives
with
the
greatest
potential
opportunities
for
improving
environmental
performance
are
often
regulatory
in
nature,
and
would
go
through
standard
agency
rulemaking
procedures
in
accordance
with
the
Administrative
Procedures
Act.

A
commenter
recommended
that
emphasis
be
placed
on
organizational
benefits
that
will
appeal
to
employees
not
involved
with
environmental
issues.
Such
benefits
would
include
decreased
costs,
risk,
work
safety,
and
increased
product
quality.
The
Agency
will
continue
to
focus
on
the
March
14,
2006
6
environmental
benefits
of
the
program,
but
agrees
that
program
membership
can
result
in
important
non­
environmental
benefits
as
well.

Another
commenter
recommended
that
the
concept
of
"
good
performer"
needs
to
be
better
communicated
to
Agency
staff
and
to
the
public.
Many
organizations
go
far
beyond
the
statutorily­
based
minimum
standards
and
to
meet
true
environmental
goals
we
need
a
higher
level
of
performance.
EPA
agrees
with
the
commenter
and
will
strive
to
highlight
this
concept
in
our
outreach
efforts.

Branding
Commenters
suggested
that
Performance
Track
should
become
a
recognized
designation
of
excellence
and
universally
accepted
measure
of
environmental
performance
in
the
United
States.
EPA
refers
to
this
concept
as
"
branding."
Commenters
suggested
that
as
part
of
a
branding
effort,
EPA
should
create
channels
of
communication
nationally
among
states
and
EPA
Regions
on
incentives
and
innovation
successes
and
challenges.
Commenters
also
suggest
that
EPA
senior
leadership
drive
additional
outreach
to
show
EPA's
commitment
to
Performance
Track
and
state
programs,
including
leadership
from
the
media
and
enforcement
programs
as
well
as
the
National
Center
for
Environmental
Innovation.
EPA
agrees
with
the
comments
and
has
begun
preliminary
efforts
in
these
areas.

Program
Objectives
Included
in
National
Program
Guidance
A
commenter
noted
that
after
five
years
of
the
program's
existence,
Performance
Track's
goals
and
objectives
are
not
mentioned
in
all
of
the
Agency's
National
Program
Manager's
Guidances
and
related
documents.
Where
the
program
is
mentioned,
conditional
language
may
be
used.
While
EPA
understands
the
commenter's
concerns,
the
Agency
believes
it
has
made
progress
in
this
area
by
including
Performance
Track
references
in
many
of
the
NPM
Guidances.
Also,
EPA
realizes
that
ultimately,
inclusion
of
Performance
Track
activities,
commitments,
and
performance
standards
is
within
the
discretion
of
individual
media
and
enforcement
program
managers.
Current
guidance
containing
Performance
Track
language
includes
the
following:

 
http://
www.
epa.
gov/
ocfo/
npmguidance/
oar/
2005/
oar_
finalnpmguide.
pdf
 
http://
www.
epa.
gov/
ocfo/
npmguidance/
owater/
2005/
ow_
npg_
narrative.
pdf
 
http://
www.
epa.
gov/
ocfo/
npmguidance/
oswer/
2005/
oswer_
npmguide.
pdf
 
http://
www.
epa.
gov/
ocfo/
npmguidance/
oppts/
2005/
oppts_
guidanceapr5.
pdf
 
http://
epa.
gov/
compliance/
resources/
policies/
data/
planning/
npmguidance2006.
pdf
 
http://
www.
epa.
gov/
ocfo/
npmguidance/
ocir/
2005/
ocir_
guidance06.
pdf
Statutory
Authority
One
commenter
discussed
the
need
for
federal
statutory
backing
for
the
goals
of
the
program
and
suggested
that
without
unequivocal
statutory
language
for
Performance
Track,
its
policy
statements
may
continue
to
be
unheeded
by
the
traditional
core
programs'
managers
and
staff.
March
14,
2006
7
The
Agency's
role
is
not
to
lobby
for
legislation.
Although
Performance
Track
is
not
based
on
statute,
the
program
complements
the
existing
regulatory
programs
with
new
flexible
tools
and
strategies
that
produce
real
environmental
results.
EPA
management
and
staff
are
committed
to
ensuring
successful
implementation
through
Performance
Track
policies
and
coordination
with
Agency
Program
Guidances
and
individual
media
offices.

Coordination
With
Programs
Outside
of
EPA
Commenters
suggested
an
effort
be
made
to
ensure
coordination
with
programs
outside
of
EPA,
such
as
OSHA's
Voluntary
Protection
Program,
American
Chemistry
Council's
Responsible
Care
Program,
as
well
as
with
other
programs
within
EPA.
EPA
agrees
with
these
comments
and
has
made
significant
progress
in
establishing
these
important
inter­
and
intra­
government
relationships.
EPA
signed
a
Memorandum
of
Agreement
(
MOA)
with
OSHA
on
April
24,
2002,
that
commits
the
two
agencies
to
coordinate
the
Performance
Track
and
Voluntary
Protection
programs.
The
EPA/
OSHA
MOA
can
be
found
at:
www.
epa.
gov/
performancetrack/
partners/
federal.
htm.
Similarly,
the
Agency
signed
an
MOA
on
June
30th,
2004
with
the
American
Chemistry
Council
and
the
Synthetic
Organic
Chemical
Manufacturers
Association
that
establishes
a
partnership
between
Responsible
Care
and
Performance
Track
with
regard
to
the
kind
of
Environmental
Management
System
acceptable
to
both
programs.
Information
on
the
ACC/
SOCMA
MOA
can
be
found
at
http://
www.
epa.
gov/
performancetrack/
events/
accsocma.
Another
intra­
governmental
MOA
is
currently
under
development
with
EPA's
Chesapeake
Bay
Program.

Better
State
 
EPA
Program
Alignment
A
commenter
stated
a
desire
for
one
set
of
program
requirements
to
count
toward
the
full
qualification
of
both
Performance
Track
and
state
performance­
based
programs,
so
that
entry
to
one
program
would
automatically
allow
entry
into
the
other.
The
Agency
believes
that
while
the
proposal
would
create
a
uniform
system
across
the
country,
EPA
and
state
programs
have
different
reasons
for
choosing
their
requirements,
and
different
capacities
to
administer
each
program.
Some
states
may
not
wish
to
raise
or
lower
their
standards
to
meet
EPA's
criteria,
and
other
states
may
not
have
the
legal
authorities
to
implement
certain
federal
incentives.

Nevertheless,
EPA
is
continuing
to
encourage
better
alignment
between
state
environmental
programs
and
the
Performance
Track
program.
For
example,
high
performing
facilities
applying
to
both
Virginia's
Environmental
Excellence
Program
and
Performance
Track
may
do
so
by
filling
out
one
application.
Similarly,
Virginia
has
committed
to
implement
federal
Performance
Track
incentives
for
facilities
in
Virginia,
and
EPA
has
committed
to
encourage
facilities
to
join
Virginia's
program.
Internally,
EPA
is
aligning
its
staff
to
better
support
Performance
Track
and
state
performance­
based
programs.
Refer
to
the
section
above
titled
"
Information,
Education
and
Communication
on
Performance
Track,"
for
more
information
on
these
efforts.
March
14,
2006
8
Compliance
and
Inspections
EPA
received
comments
both
for
and
against
the
Agency's
current
policy
on
low
inspection
priority
for
member
facilities.
One
commenter
noted
that
although
facilities
are
in
compliance
when
admitted
into
the
Performance
Track
program,
these
facilities
may
not
necessarily
stay
in
compliance.
The
commenter
urged
EPA
to
set
and
enforce
standards
for
determining
the
continuing
compliance
of
members
through
inspections
and
promptly
removing
noncomplying
facilities
from
the
program.

The
Agency
believes
that
the
Performance
Track
compliance
screening
criteria
provide
a
high
level
of
confidence
that
a
facility
has
shown,
and
will
maintain,
a
strong
compliance
record.
To
expect
no
violations
would
be
unrealistic
for
facilities
of
any
size
or
complexity.
A
record
of
sustained
compliance
is
a
starting
point;
the
larger
purpose
is
to
create
conditions
under
which
program
members
will
achieve
measurable
environmental
results
that
go
beyond
compliance.

The
low
inspection
priority
policy
does
not
mean
"
no
inspections,"
but
recognizes
that
facilities
that
have
demonstrated
good
compliance
records,
adopted
an
Environmental
Management
System
(
EMS),
committed
to
good
faith
efforts
to
achieve
measurable
results
beyond
compliance,
and
are
being
more
transparent
about
their
environmental
performance,
should
require
fewer
inspection
resources
than
others.
When
there
is
cause,
Performance
Track
members
are
subject
to
inspections.
In
addition,
states
currently
are
inspecting
Performance
Track
members
at
a
high
rate.
However,
many
states
are
interested
in
using
their
own
performance­
based
programs
to
shift
at
least
some
of
their
inspection
resources
from
the
proven
high
performers
to
facilities
in
whom
regulators
have
little
confidence
and
who
rarely,
if
ever,
receive
any
inspection
attention.
The
low
inspection
priority
simply
suggests
that
at
least
some
of
these
inspection
resources
could
be
redirected
to
facilities
that
rarely
or
never
receive
attention
and
that
could
be
far
higher
compliance
risks.

Another
commenter
questioned
the
policy
of
granting
membership
to
a
facility
if
other
facilities
owned
by
that
company
have
experienced
significant
violations
over
that
same
(
or
some
earlier)
period.
The
Agency
understands
the
commenter's
concerns,
and
notes
that
members
apply
and
are
admitted
to
the
program
on
an
individual
facility
basis,
not
corporate­
wide.
The
Performance
Track
compliance
screening
criteria,
developed
in
coordination
with
EPA's
enforcement
office,
states
that
"
participation
in
the
Performance
Track
[
program]
will
not
be
appropriate
if
the
compliance
screen
shows
any
of
the
following,
under
federal
or
state
law:

Criminal
Activity

Corporate
criminal
conviction
or
plea
for
environmentally­
related
violations
of
criminal
laws
involving
the
corporation
or
a
corporate
officer
within
the
past
5
years.


Criminal
conviction
or
plea
of
employee
at
the
same
facility
for
environmentally­
related
violations
of
criminal
laws
within
the
past
5
years.
March
14,
2006
9

Ongoing
criminal
investigation/
prosecution
of
corporation,
corporate
officer,
or
employee
at
the
same
facility
for
violations
of
environmental
law.

Civil
Activity
 
Three
or
more
significant
violations
at
the
facility
in
the
past
3
years.

 
Unresolved,
unaddressed
Significant
Non­
Compliance
(
SNC)
or
Significant
Violations
(
SV)
at
the
facility.

 
Planned
but
not
yet
filed
judicial
or
administrative
action
at
the
facility.

 
Ongoing
EPA­
or
state­
initiated
litigation
at
the
facility.

 
Situation
where
a
facility
is
not
in
compliance
with
the
schedule
and
terms
of
an
order
or
decree.

In
addition
to
the
above
criteria,
EPA
may
also
consider
whether
there
are
significant
problems
or
a
pattern
of
noncompliance
in
an
applicant's
overall
civil
or
criminal
compliance
history."
One
commenter
raised
the
concern
that
becoming
a
member
of
Performance
Track
draws
additional
scrutiny
to
their
operations
and
perhaps
creates
greater
liability.
Another
commenter
similarly
noted
that
Performance
Track
may
make
facilities
a
higher
visibility
target,
and
that
a
true
partnership
should
be
built
on
trust
instead.
Agency
policy
is
to
not
subject
Performance
Track
applicants
or
members
to
greater
enforcement
scrutiny
than
they
would
otherwise
receive.
EPA's
intention
is
to
work
collaboratively
with
members
who
routinely
do
more
than
is
required
by
law.

Product
Environmental
Performance
One
commenter
questioned
whether
resource
consumption
by
manufacturing
processes
is
the
only
measure
valued
by
the
EPA
and
how
product
environmental
performance
is
considered
when
participating
in
Performance
Track.
The
commenter
stated
that
facilities
that
choose
to
assure
their
product
is
designed
to
reduce
environmental
impacts
must
be
included
in
this
recognition
program
as
well
as
facilities
that
do
not
manufacture
products.

Resource
consumption
by
manufacturing
processes
is
not
the
only
measure
valued
by
the
EPA.
Downstream
environmental
aspects
and
indicators
can
be
used
as
commitments
under
the
"
products"
category
of
the
Environmental
Performance
Table
for
the
Performance
Track
program.
More
information
on
the
Performance
Track
indicators
and
the
Environmental
Performance
Table
based
on
the
Global
Reporting
Initiative
can
be
found
on
EPA's
web
site
at
http://
www.
epa.
gov/
performancetrack/
members/
downloads/
final_
ept.
pdf.

Application,
Evaluation
and
Membership
EPA
received
comments
referring
to
Performance
Track's
application
and
renewal
process,
the
reporting
framework,
the
eligible
types
of
commitments,
and
the
third­
party
certification
March
14,
2006
10
requirements.
Most
comments
stated
that
these
processes
are
too
burdensome
and
not
streamlined
enough.

EPA
will
take
these
comments
into
consideration
and
look
for
opportunities
to
reduce
the
resource
burden
associated
with
program
membership
that
will
not
impact
the
Agency's
need
for
information
to
measure
the
progress
of
the
facility
and
the
program
as
a
whole.

One
commenter
urged
the
need
for
objective
evaluations
of
environmental
performance
and
pollution
reductions
achieved
from
Performance
Track
and
state
performance­
based
programs.
EPA
is
currently
investigating
the
opportunity
to
secure
an
objective
evaluation
of
the
Performance
Track
program.

EPA
also
received
comments
stating
that
the
admission
requirements
and
screening
criteria
for
joining
Performance
Track
and
remaining
in
the
program
should
be
more
stringent.
One
commenter
recommended
that
the
screening
criteria
should
consider
the
last
five
years
of
an
applicant's
compliance
history;
applicants
with
two
similar
significant
violations
within
that
period
would
not
be
admitted.
Overall,
the
Agency
believes
it
strikes
a
reasonable
balance
between
entry
criteria
and
benefits
of
program
membership.
However,
the
Agency
continues
to
evaluate
the
program
and
will
take
these
comments
into
consideration
as
it
seeks
to
ensure
continued
program
improvement.
EPA
has
recently
developed
more
stringent
entry
criteria
including
requiring
an
independent
EMS
assessment.

Another
commenter
suggested
the
need
to
foster
membership
and
create
program
value
for
small
and
medium­
sized
business.
EPA
has
held
numerous
discussions
with
representatives
of
small
business
interests
and
is
encouraging
participation
by
qualified
small
businesses
and
their
facilities.
The
Performance
Track
website
at
EPA
www.
epa.
gov/
perftrac/
program/
sm­
bus.
htm
outlines
specific
program
entry
criteria
designed
to
meet
the
needs
of
these
facilities.
The
Agency
will
continue
to
seek
opportunities
to
encourage
further
participation.

Public
Notice
and
Comment
EPA
received
comments
that
the
programmatic
details
of
Performance
Track
and
the
specific
regulatory
incentives
offered
through
the
program
have
not
adequately
been
made
available
for
public
review
and
comment.
As
noted
above,
EPA
agrees
that
the
materials
included
in
the
docket
did
not
provide
extensive
details
regarding
Performance
Track;
the
documents
referred
readers
to
the
program
website,
www.
epa.
gov/
performancetrack
for
information.

As
discussed
above,
a
large
outreach
effort
was
conducted
at
program
inception
with
Federal
Register
notices
and
public
meetings
held
at
various
locations
across
the
country
to
receive
input
from
interested
parties
regarding
the
program's
elements
and
design.
In
addition,
each
regulatory
incentive
provision
specific
to
the
program
has
been
published
as
both
a
proposed
and
final
rule
in
the
Federal
Register,
along
with
information
about
the
program
itself.
EPA
has
also
conducted
outreach
campaigns
about
Performance
Track
and
its
benefits.
Performance
Track
has
and
will
continue
to
meet
legal
notice
requirements
along
with
continuing
outreach
about
this
program,
March
14,
2006
11
and
opportunity
for
public
comment.
EPA's
cooperative
effort
with
ECOS
as
outlined
in
the
current
and
upcoming
Federal
Register
notice
is
just
one
more
example
of
this
commitment
to
proactive
outreach
and
transparency.

PUBLIC
COMMENTS
ON
ECOS­
EPA
WORKGROUPS
RECOMMENDATIONS
Measures
and
Evaluation
One
commenter
noted
a
reluctance
of
those
charged
with
tracking
the
performance
of
states'
programs
under
EPA­
State
environmental
agreements
(
established
under
the
National
Environmental
Performance
Partnership
Agreements
(
NEPPS))
to
properly
credit
work
done
under
National
Performance
Track
or
other
performance­
based
programs.
The
commenter
noted
that
a
redeployment
of
resources
to
those
performance­
based
programs
is
not
being
allowed
under
NEPPS.

While
the
Agency
understands
the
commenter's
concerns,
EPA
believes
that
Regions
and
their
respective
states
are
moving
toward
a
more
flexible
use
of
resources
under
NEPPS
agreements.
One
of
the
main
goals
of
NEPPS
is
to
give
states
more
flexibility
to
direct
resources
to
the
most
pressing
environmental
problems
when
and
where
such
programs
are
in
keeping
with
state
priorities
and
strategic
goals,
and
where
such
programs
have
been
fully
designed
to
ensure
that
all
participants
are
in
compliance
with
all
applicable
state
or
federal
environmental
laws.
EPA
recognizes
that
every
state
has
different
priorities
and
encourages
states
to
recommend
new
ideas
and
approaches
during
the
EPA­
state
grant
negotiation
process.

A
commenter
stated
that
core
programs
and
performance­
based
programs
often
use
inconsistent
measures
when
describing
their
performance.
The
core
programs
use
number
of
inspections,
permits
issued,
or
enforcement
actions
(
i.
e.,
output
measures),
while
performance­
based
environmental
programs
use
tons
of
waste
reduced,
or
millions
of
gallons
of
water
use
reduced
(
i.
e.,
performance
or
outcome
measures).
The
commenter
recommended
that
this
language
gap
be
bridged.

To
date,
the
Performance
Track
program
has
focused
on
measures
that
are
performance­
based
and
outcome­
oriented
rather
than
output­
oriented
to
achieve
program
goals.
Concurrently,
the
Agency's
program
offices
have
been
developing
outcome
measures
to
better
measure
the
actual
environmental
impact
of
their
activities
rather
than
counting
the
number
of
permits
or
amount
of
fines.
Development
of
outcome
measures
is
also
being
driven
in
response
to
the
Performance
Assessment
Rating
Tool
(
PART)
process
for
evaluation
of
Agency
programs
by
OMB.

Another
commenter
questioned
whether
EPA
and
states
have
objectively
and
systematically
evaluated
the
actual
environmental
gains
from
devoting
resources
to
Performance
Track
programs.
Specifically,
the
commenter
questioned
whether
the
environmental
opportunity
costs
March
14,
2006
12
from
directing
those
same
resources
toward
stronger
standard­
setting
under
the
core
programs
and
broader
compliance
assurance
or
enforcement
activities
have
been
evaluated.
The
Agency
agrees
that
EPA
and
state
environmental
agencies
should
assign
resources
to
the
most
effective
and
efficient
ways
to
protect
the
environment.
The
Agency
has
systematically
evaluated
the
environmental
gains
as
a
result
of
the
Performance
Track
program,
and
publishes
an
annual
report
that
provides
this
in
formation
in
detail.
For
some
of
the
latest
environmental
results
that
have
been
produced
by
the
Performance
Track
program
and
its
members,
see
the
third
annual
progress
report
at
http://
www.
epa.
gov/
performancetrack/
pubs.
htm.
Performance
Track
has
also
commissioned
the
Harvard
Regulatory
Policy
Program
to
evaluate
several
aspects
of
the
program,
including
program
effectiveness
and
efficiency.

Overall,
Performance
Track
and
similar
state
programs
are
a
valuable
complement
to
the
existing
regulatory
system
in
achieving
environmental
goals,
but
are
not
meant
to
displace
conventional
regulatory
programs
and
resources.
Performance
Track
adds
to
the
range
of
strategies
that
government
and
others
can
use
to
achieve
better
environmental
results,
especially
with
respect
to
problems
and
situations
for
which
conventional,
deterrence­
based
regulation
may
be
less
effective.

The
program
was
designed
to
respond
to
widespread
concern
about
the
limits
of
the
conventional
regulatory
system
on
its
own
to
address
a
newer
set
of
environmental
problems.
A
number
of
influential
organizations,
among
them
the
National
Academy
of
Public
Administration,
the
Aspen
Institute,
the
President's
Council
for
Sustainable
Development,
and
the
Enterprise
for
the
Environment
have
called
for
more
collaborative,
flexible,
and
performance­
based
environmental
protection
strategies.
In
particular,
there
has
been
interest
in
changes
that
recognize
different
levels
of
performance
among
facilities,
an
interest
which
Performance
Track
was
designed
to
promote.

One
commenter
stated
that
there
was
little
discussion
and
evidence
of
actual
superior
environmental
performance
or
demonstrated
performance
that
goes
beyond
compliance
as
part
of
Performance
Track
Membership.
Member
facilities
voluntarily
report
on
a
comprehensive
set
of
environmental
indicators
that
go
beyond
reporting
required
by
law
including
greenhouse
gas
emissions
and
materials
use.
These
reports
indicate
that
members
have
cut
their
generation
of
solid
waste
by
nearly
600,000
tons
and
have
decreased
their
energy
use
by
more
than
8.4
trillion
British
Thermal
Units
(
BTUs).

Another
commenter
recommended
that
an
additional
measure
be
included
in
evaluating
the
effectiveness
of
incentives
that
will
ensure
that
no
compliance
issues
or
environmental
degradation
will
be
created
by
the
incentive.
The
Agency
agrees
with
the
commenter
and
will
include
such
a
measure
as
the
revitalized
incentives
system
is
further
developed
and
implemented.

A
commenter
also
stated
that
EPA
must
conduct
the
systematic
evaluations
called
for
by
the
Office
of
Inspector
General
report
before
expanding
the
program
or
making
it
a
core
element
of
current
regulatory
programs.
This
February
2005
report
examined
EPA
voluntary
programs
in
March
14,
2006
13
general,
and
its
findings
did
not
specifically
refer
to
Performance
Track.
The
report,
however,
recommended
that
voluntary
programs
have
better
ways
of
measuring
results
and
holding
participants
accountable.
In
fact,
Performance
Track
was
designed
with
these
very
issues
in
mind.
It
holds
members
accountable,
and
requires
them
to
file
an
Annual
Environmental
Performance
Report,
documenting
their
activities
in
a
format
specified
by
EPA.
It
requires
them
to
show
how
they
use
their
EMS
to
maintain
compliance
and
improve
their
performance,
discuss
corrective
actions
they
have
taken,
report
their
progress
in
achieving
their
performance
goals,
and
discuss
their
community
outreach
Incentives
Many
commenters
emphasized
the
need
for
more
and
better
incentives
that
provide
more
than
recognition,
reduce
burden
and
transaction
costs,
and
are
market­
based,
meaningful,
and
timely.
Another
commenter
suggested
that
incentives
and
recognition
be
developed
for
any
facility
impacting
the
environment,
not
just
facilities
with
water
or
air
permits.
In
addition,
a
recent
survey
of
Performance
Track
members
showed
that
while
most
facilities
highlighted
the
changed
relationship
with
their
regulatory
authorities
as
the
greatest
benefit
of
the
program,
the
second
most
important
benefit
was
the
potential
to
take
advantage
of
incentives
that
reduce
the
transaction
costs
of
regulation.

EPA
recognizes
that
incentives
are
needed
to
allow
the
Performance
Track
program
to
retain
and
recruit
new
members
and
achieve
greater
environmental
results.
The
joint
ECOS
 
EPA
workgroups
and
the
revitalized
strategy
for
development
of
incentives
discussed
in
this
Federal
Register
notice
are
a
direct
result
of
this
effort.
Some
commenters
noted
the
incentives
strategy
should
manage
and
track
the
number
of
incentives.
Commenters
also
noted
that
many
individuals
outside
of
Performance
Track
have
reviewed
the
types
of
incentives
described
in
these
workgroup
documents
and
that
a
reasonable
justification
of
the
value
of
the
incentives
should
be
supplied
and
discussed
by
all
involved
in
the
review
process.
EPA
agrees
and
will
make
diligent
efforts
to
involve
and
encourage
interested
parties
in
discussions
about
incentives
development,
including
opportunity
for
public
notice
and
comment
on
any
new
regulatory
provisions.
EPA
will
continue
to
proactively
engage
states,
non­
governmental
organizations
and
others
in
these
discussions
as
appropriate.

One
commenter
noted
that
several
of
the
proposed
incentives
discussed,
such
as
customized
incentives
and
improved
SIP
approval
processes,
are
too
vague
and
undefined
to
offer
thorough
comments.
These
incentives
were
not
described
in
detail
because
EPA
was
more
interested
in
receiving
comments
on
the
overall
appropriateness
of
the
proposals.
A
more
specific
proposal
with
greater
detail
will
be
provided
for
public
notice
and
comment
.
The
commenter
also
suggested
not
using
the
terms
"
chit"
and
"
certificates"
for
describing
some
of
the
incentive­
related
ideas.
EPA
agrees
with
this
comment
and
has
eliminated
such
language.

One
commenter
noted
in
a
reference
to
the
Subgroup
2
report
that
"[
S]
ource­
specific
innovation
alternatives
to
conventional
environmental
requirements"
is
again
too
vague
for
meaningful
comment.
But
if
the
coded
implication
is
that
incentives
should
no
longer
"
include
.
.
.
required
March
14,
2006
14
compliance
with
environmental
laws
and
regulations,"
to
quote
the
EPA's
definition
of
environmental
stewardship,
this
obviously
would
be
problematic.
EPA
will
not
develop
any
incentive
that
does
not
require
compliance
with
environmental
laws
and
regulations.

Monitoring
and
Reporting
EPA
received
comments
both
for
and
against
reductions
in
monitoring
and
reporting
frequencies.
One
reason
offered
in
support
focused
on
facilities
with
both
sustained
monitoring
compliance
history
and
consistent
monitoring
results
well
below
their
permit
limits.
The
commenter
stated
that
reduced
monitoring
makes
sense
because
it
provides
incentives
to
reduce
discharge
levels
for
those
sources
not
currently
qualifying
for
the
incentive.
The
incentive
can
drive
environmental
improvements
that
might
not
be
attained
otherwise.
Another
commenter
noted
the
significant
efficiency
improvements
to
be
gained
for
the
regulated
community
and
state
and
federal
agencies
by
reducing
the
amount
of
unnecessary
paperwork
where
there
is
no
apparent
environmental
benefit,
thereby
allowing
resources
to
be
used
for
more
pressing
environmental
issues.

Comments
offered
against
the
idea
of
reduced
monitoring
and
reporting
emphasized
that
reductions
would
limit
the
amount
of
information
available
to
the
public
or
make
it
inaccessible.
Another
commenter
suggested
a
way
to
alleviate
this
concern
is
to
require
facilities
to
submit
an
annual
certification
of
compliance
and
make
previously
reported
information
publicly
available.
This
information
could
be
kept
either
on
site,
on
a
facility's
web
site,
or
available
upon
an
individual's
request.
Agencies
would
still
retain
the
rights
to
inspect.
The
commenter
also
highlighted
the
overall
increase
in
information
that
becomes
publicly
available
on
individual
facilities
via
the
Performance
Track
web
site.

EPA
is
mindful
of
both
points
of
view
and
will
take
these
points
into
consideration
in
the
development
of
any
incentives
regarding
a
reduction
in
monitoring
or
reporting
frequencies.
In
any
event,
if
such
reductions
require
a
modification
to
the
regulations,
the
Agency
will
go
through
notice
and
comment
before
adopting
any
change.
In
all
cases,
the
Agency
will
ensure
that
these
incentives
continue
to
be
protective
of
human
health
and
the
environment.

Available
Program
Flexibility
Commenters
stated
that
clarification
and
documentation
from
EPA
on
current
flexibilities
in
regulatory
programs
would
enable
state
programs
to
utilize
those
options
more
efficiently
and
effectively.
The
commenters
added
that
identification
of
the
provisions
is
not
enough.
EPA
should
provide
clarification
of
intent
and
available
assistance.
Uncertainty
in
the
application
of
innovative
and
alternative
options
can
limit
the
use
of
these
provisions.
EPA
will
provide
written
clarification
and
documentation
where
current
flexibility
exists,
along
with
implementation
assistance
as
appropriate.

Permitting
One
commenter
expressed
concern
that
"
review
differentiation"
might
mean
reduced
review
or
oversight
of
individual
permits.
It
was
not
EPA's
intent
to
suggest
that
a
reduced
standard
of
March
14,
2006
15
completeness
or
review
be
given
to
a
Performance
Track
facility's
permit.
The
intent
was
to
suggest
a
means
to
provide
improved
mechanisms
for
administratively
processing
permit
applications
and
renewals.
For
example,
a
Performance
Track
facility's
application
could
be
placed
"
first
in
line"
for
processing.
Another
comment
warned
against
improperly
delegating
"
inherently
governmental"
functions
to
permittees
such
as
through
self­
drafting
of
permits.
It
is
not
the
Agency's
intent
to
delegate
such
functions
improperly,
and
we
will
be
careful
not
to
do
so.
This
is
an
area
that
will
require
further
examination
by
the
Agency
to
determine
what
measures
along
these
lines
would
be
appropriate.
The
Agency
will
ensure
adequate
opportunity
for
public
comment
on
these
approaches.

Sector
BMPs
Commenters
stated
that
best
management
practices
leading
to
permit
by
rule
and
general
permit
opportunities
within
industry
sectors
could
lead
to
significant
efficiency
improvements
for
both
the
regulated
community
and
state
and
federal
agencies.
Commenters
stated
that
this
potential
should
be
fully
explored
using
exemplary
environmental
performers,
such
as
Performance
Track
members.
EPA
recognizes
that
sector­
based
approaches
are
a
good
way
to
identify
significant
opportunities
for
environmental
improvements.
Information
on
EPA's
sector
based
program
can
be
found
at
http://
www.
epa.
gov/
sectors/.
EPA
is
exploring
new
ideas
for
working
with
industrial
sectors
and
will
take
this
suggestion
into
consideration.
