Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Earlier this week, the Massachusetts DEP issued a package of regulatory reforms. While the focus of the package was on finding ways for MassDEP to implement its mission with fewer resources, a number of the reforms are specifically targeted at facilitating the development of renewable energy. If you want to see more about that angle, you can take a look at our client alert about the reforms.

On the non-energy side, my personal favorite is MassDEP’s expressed willingness to review the role of its hazard ranking system in the state Superfund, or Chapter 21E, program. Given the way the 21E program now operates, the HRS has outlived its usefulness and could be eliminated completely without any adverse impacts to human health or the environment.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

When EPA issued its preliminary plan in May for review of its regulations, I said that the proof would be in the pudding. Well, EPA has now issued its final plan. My review? The pudding tastes ok, but it doesn’t taste as good and it’s not as filling as it could be.

My major complaint with the preliminary plan was its failure to target the single biggest area for reform – those areas where EPA still relies on command and control regulation. Obviously, statutes dictate EPA’s approach in many cases, but not all. There is much more friendly generic language on this score in the final plan. For example, EPA now states that:

To supplement traditional compliance approaches, EPA plans to routinely structure federal regulations and permits as effectively as possible to achieve compliance, through adequate monitoring requirements, public disclosure, information and reporting mechanisms, and other structural flexibilities, including self-certification, and third-party verification.

Unfortunately, specific example of proposed changes to rely on self-certification and third-party verification are few and far between in either EPA’s “early action” or “longer term” lists of potential reforms. Why couldn’t EPA have included one simple bullet? Why couldn’t EPA simply have directed each program to review its statutory authority to shift from technology-based or other command and control approaches to performance standards and market based approaches?

It is telling that only 1 of 35 specific proposals relates to Superfund, which remains purely a command and control program – and even that item concerns only National Priorities List rules, not how cleanups are selected and overseen. I don’t see any provisions in CERCLA that would prevent EPA from revising the NCP to identify risk-based standards for different media and allow PRPs to meet those standards in whatever cost-efficient manner they can identify.

True regulatory reform is clearly not going to happen overnight. EPA’s current plan probably qualifies as a step in the right direction, but it’s not much more than a baby step.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

When President Obama issued Executive Order 13,563, on Improving Regulation and Regulatory Review, it was not obvious whether the Order was simply an attempt to protect the President’s right flank or whether the agencies would respond substantively. Yesterday, EPA released its Preliminary Plan for Periodic Retrospective Reviews of Existing Regulations. Initial review of the Plan suggests that EPA has taken the task seriously and has made some constructive suggestions. To me, however, they missed the elephant in the room and therefore cannot be given better than a B grade at this point.

There is a lot of good stuff in the plan, which is certainly too long to summarize here. The highlights from where I sit include the following:

• Increased use of electronic reporting. This falls in the category of “now why didn’t I think of that?” Telling point? EPA has put use of e-manifests under RCRA in the long-term action, rather than early action, category, while acknowledging that this was proposed in 2004. How hard is some of this stuff?

• Improved transparency, i.e., increased public disclosure of compliance and other regulatory information. Cynical translation? If we can provide more information to the public, citizen suits will be easier and we can do less government enforcement. Still, hard to argue with.

• Coordination of emission reduction regulations across multiple pollutants. Interestingly, EPA has put this in the early action category. Although EPA identified the pulp and paper industry specifically, this has to be thought of mainly as a longer-term project. Well worth it, however long it takes.

• Encouraging innovative technology. Who could be against it? This is probably the most important issue, precisely because it is here that the Plan is the weakest. I think that EPA has largely missed the point, because it has not correctly defined the problem. The single action EPA could take that would have the most impact on encouraging innovative technology would be to get out of the command and control business once and for all. The highest priority of this regulatory review should be for EPA to identify areas where it can move from command and control regulation to performance-based standards. A fruitful initial target? CERCLA and the NCP. EPA does not have to privatize Superfund cleanups as several states have done; that would require legislation. Even without privatization, it could simply set standards for what constitutes a significant risk and require PRPs to eliminate such risks. I promise, innovation will follow. Not only that, but EPA could eliminate a significant percentage of its existing CERCLA staff, or redirect that staff to more productive uses. 

EPA is taking comment on the proposed plan, at least through June 27, 2011. Get your comments in here. I am the eternal optimist, though the 7-year delay in implementing an e-manifest program should probably give me some pause as to how quickly EPA can really reform.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

New MassDEP Commissioner Ken Kimmell has launched a regulatory reform effort at DEP. As everyone knows, Ken did an outstanding job as EEA General Counsel and I expect he will be an outstanding DEP Commissioner. I hope he succeeds and I fully support the regulatory reform initiative. However, he does have one major problem – his staff, other than his senior staff, doesn’t believe in it. Street level bureaucracy is not an abstract intellectual concept; it’s something the regulated community deals with every day. When the Commissioner starts rolling out reform initiatives, even if they are protective of the environment, will his staff be on board? I’m skeptical, as everyone who represents clients before DEP has reason to be.

For today’s cautionary tale about how DEP really operates, I’m going to have to disguise a few facts in order to protect the innocent; reprisals against my clients are not good for business. However, here are the basics.  The client has a 21E site, a state superfund site. They are operating a small treatment system in a residence to ensure that the residence is not impacted by a source area plume. The site has a temporary solution and as recently as 2008 DEP agreed that the site posed no significant risk. Notwithstanding the review in 2008 and the absence of any changes since then, DEP conducted an audit in 2011.

The treatment system off-gases small amounts of VOCs. DEP guidance – argh, guidance alert – states that off-gas treatment is not required if emissions of VOCs will be less than 100 pounds per year. Analysis of site data indicates that the system here releases less than a tenth of a pound per year – less than a thousandth of the threshold.  DEP’s response? They still want an assessment of the potential risks associated with emissions from the treatment system. The results? Both the non-carcinogenic Hazard Index and the carcinogenic excess lifetime cancer risk are more than four orders of magnitude – that’s a factor of 10,000 – below the no significant risk threshold. 

I love anecdotes; it’s one of the beautiful freedoms of blogging that we get to pick and choose our data. However, I am quite confident that every one of my readers in the private sector will have at least five stories of their own that are equally horrific. Moreover, while this is just one story, it does exemplify several aspects of the street level bureaucracy problem.

Guidance only works one way. Regulated entities are bound by it, but the agency feels free to require additional work, even if what the regulated party has done complies with the guidance.

MassDEP employees don’t trust their own system. Even though there was no hint of a risk here, the agency just couldn’t quite believe it. They are so concerned about being blamed for false negatives that they will do anything to eliminate them, regardless of the cost of false positives or the cost of the additional work that they require.

Which brings me to the last problem – DEP routinely assigns a value of $0 to costs that will be borne by the regulated community. Why not require a little more testing in order to provide an extra level of comfort that things are really, really, really, really (one “really” for each order of magnitude) safe?

Until these issues are addressed – and doing so in the face of civil service requirements is a Sisyphean task – regulatory reform is something of a quixotic ideal – though one still worth pursuing.

Good luck, Ken.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On the be careful what you wish for front, Massachusetts Energy and Environment Secretary Ian Bowles announced yesterday an effort to examine “options for changes in administrative structures and programs to meet environmental goals in light of budget challenges.” The announcement identifies three separate areas of investigation:

Public-Private Partnerships – This makes a lot of sense, but, based on the announcement, seems to be too narrowly focused. The announcement indicates that the review will focus on management of properties owned by the Department of Conservation and Recreation. However, we shouldn’t just be looking at whether to let Disney sponsor the Freedom Trail. For example, I am on the board of the Corporate Wetlands Restoration Partnership, a public-private partnership that leverages private money to assist publicly funded wetlands restoration projects. Surely, there are other, similar opportunities to enlist the private sector in in financing EEA programs.

New Regulatory Models – Here is where the rubber meets the road for most of us attorneys and our clients. The announcement mentions MassDEP’s very successful privatization of our state Superfund program, Chapter 21E, and asks whether there are other opportunities for similar innovations. Some thoughts:

Greater use of general permits.

Other opportunities to privatize, such as inspections and audit functions. Naysayers will raise concerns about the independence of third-party inspections, but it’s a false dichotomy to contrast a world of perfect inspections by DEP with a system of private inspections. Audits and inspections would occur with much greater regularity if regulated facilities were required to pay a third party to audit their facilities every year.  Wouldn't that be a good thing?

Greater consistency in agency decision-making. I don’t think that EEA or DEP realize the costs imposed by their failed efforts to rein in street level bureaucrats who have their own ideas as to what good policy is.

Spend less time writing new guidance and let qualified professionals exercise their professional judgment without wasting precious agency time questioning whether a regulated entity used the proper font in its latest submittal (sorry, rhetorical excess alert).

Reorganization/Consolidation of State Agencies

Secretary Bowles, Commissioner Burt, and others involved should be commended for undertaking this effort. It would be great if the current budget crisis could be turned into a real opportunity for reform. As I’ve said on other occasions, this should be a Nixon-in-China moment for regulatory reform. 

Carpe diem.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

In connection with the nomination of Cass Sunstein to head the Office of Information and Regulatory Affairs at OMB, I noted my hope that the Obama administration would be a Nixon in China moment for regulatory reform. Given the administration’s aggressive early steps to combat global warming and to roll back some of the more extreme moves by the Bush EPA, the new administration could, if it chooses, give regulatory reform back its good name.

So far, the signs are not encouraging. In February, EPA announced that it was deferring until May 18 the effective date of the NSR aggregation amendments that the Bush administration promulgated on their way out the door. Notwithstanding the midnight rulemaking feel to issuance of rules five days before inauguration of a new administration, the aggregation amendments seem to me to be little more than a common sense reform of an often mind-bogglingly complex set of regulations, i.e, the NSR/PSD rules. The aggregation amendments would have clarified EPA’s rules on aggregation of projects for NSR jurisdictional purposes so that only projects that are “substantially related” need be aggregated.

Unfortunately, the NRDC appears to be feeling its collective oats and, not surprisingly, EPA seems to listen the NRDC more than they listen to me. Last week, EPA announced that it was proposing to further defer implementation of the aggregation amendments, until November 18, 2009. 

While EPA has not yet withdrawn the aggregation amendments, this latest move has to mean that they are on life support.  I fear, to mix yet one more metaphor, that the baby of regulatory reform is rapidly going down the drain with the bathwater of the Bush administration.

• Email This
• Print
• Comments
• Trackbacks (3)
• Share Link