MassDEP Commissioner Ken Kimmell Wants Regulatory Reform: Do the DEP Employees Want It?

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.








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