United States .April 1978
Environmental Protection 33/8
4972 Agency
On the OOOR78108
Threshold
of a New
Environmental
Era
icy
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On the Threshold of a
New Environmental Era
Remarks by
Barbara Blum
Deputy Administrator
United States Environmental Protection Agency
before the
Eighth Annual Course of Study on Environmental Law
sponsored by
The American Bar Association
The American Law Institute
The Environmental Law Institute
February 9, 1978
Washington, D.C.
It is a pleasure to be here this morning and to have
this opportunity to make a few remarks on the
occasion of your Eighth Annual Course of Study on
Environmental Law. I note from some of the materials
I received from Dave Sive that your First Course
of Study on Environmental Law was offered in
January 1971. At that time environmental law was
a very new field. Few could have understood that it
would become and would remain today, as your
newsletter describes it, "one of the most swiftly and
dramatically expanding fields of law practice."
You moved quickly. The Earth Day celebrations
were less than a year old in January 1971. Yet,
lawyers along with all the rest of our society were
actually quite late in realizing that our Nation and
indeed the world had very seriously neglected
environmental values since the very dawn of the
Industrial Revolution.
We were all terribly certain that through the random
use of science and technology—through automation,
through nuclear power, and through chemistry—we
were moving automatically toward a better life for
everyone. It was not until 1970 that any
appreciable number of us really understood that in
the process of achieving wondrous advances in
science, technology and industrial growth, we had
inadvertently created a complex fabric of interwoven
by-product problems potentially capable of smothering
all of our accomplishments.
JENV iiiCA' • •-,.,,. , .- . • • ^ - 0 J AGENCY*
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by industry, and for meaningful public awareness
and participation in all the major activities mandated
by environmental legislation.
The times call also for an acceptance of the truth
that machines are as much a part of our lives as
muscles and mountains. We can no more do away
with technology than we can let it do us in. We
have to learn to live with it—to use it to shape a
world that will sustain us without, at the same time,
threatening life in subtle and insidious ways.
To do so we have no choice but to make the best
estimates we can on how much pollution or crowding
or noise or chemical contamination is permissible,
or tolerable, for human health and well-being.
The single major piece of environmental
legislation—what I have called a new era in
environmental protection—is the Toxic Substances
Control Act of 1976. This Act, clearly and for the
first time, fully and directly acknowledges that
cleaning up environmental residues after they have
been produced is only a part of the job that lies
before us. The other, and in the long run the most
difficult part, is to prevent or avert harmful residues
in the first place. Under the Toxic Substances Control
Act the Environmental Protection Agency is required
to insure the safe manufacture, use and distribution
of potentially dangerous chemicals. TSCA is the
beginning of a long, difficult journey during which
our society will learn how to prevent the introduction
of harmful substances into our air, our water, our
land and our bodies. I hope it does not take too long
but it will be difficult in any case, for we must
do it without sacrificing the enormous benefits that
science and chemistry have given us and without
jeopardizing the creative diversity of decision-making
which has characterized and enriched our open
society.
When we have gone farther down the road toward
the foresighted use of science and technology, the
proliferation of after-the-fact regulations should
begin to diminish. And none too soon.
The first year that the Federal Register was
published back in 1936, it consisted of 2,411 pages.
By 1967 it had grown to 21,087 pages, and a mere
ten years later, by 1977, had reached 64,000 pages.
Expressing a popular sentiment about this, President
Carter said in his State of the Union message, "The
American people are still sick and tired of Federal
paperwork and red tape."
The Environmental Protection Agency, I assure
you, takes very seriously the public's and the
President's desire that we "chop down the thicket
of unneccesary regulations and turn the gobbledygook
of Federal regulations into plain English." One
measure we are taking to lighten the burden on those
who must comply with Federal regulations is a new
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cooperative interagency approach under the Toxic
Substances Control Act.
The Environmental Protection Agency, the
Consumer Product Safety Commission, the Food
and Drug Administration, and the Occupational
Safety and Health Administration all focus on various
aspects of the toxic substances issue. Obviously, the
problems of toxic substances, whether in consumer
products, in drugs, in the work place, or in the
environment, are in many ways similar.
Although each Agency administers different
statutes and has differing regulatory objectives, we
have many common goals and functions under TSCA.
We all regulate chemicals and other toxic substances
and the industries that produce them. We all collect
and store large amounts of data on chemicals, much
of which is similar. We all do risk assessments on
chemicals, and develop guidelines and standards,
and we all have enforcement staffs to ensure that our
regulations are carried out.
We have recently set up a structure for real
interagency cooperation. Through it we intend to
make headway in eliminating overlapping or
inconsistent regulatory actions and unnecessary
duplication of paperwork. We will develop compatible
testing standards and toxicity guidelines. We will
develop a common approach to the problem of
assessing health risks posed by hazardous chemicals,
as well as coordinated information systems. We are
working toward parallel and coordinated development
of standards and regulations, whenever appropriate.
We will be able to cut down on paperwork and
time in review. We will plan our research efforts
together to ensure that the best use of our collective
research capacity is being made, to reduce overlap
and prevent those "toxic chemical-of-the-week"
crises, which are so destructive to industry and
regulations alike. And we will coordinate our public
information activities, in recognition of our joint
responsibility to inform and alert the public to the
hazards of health and safety we find throughout the
environment.
In this cooperative effort, we are striving toward
a more consistent regulatory policy, better sharing
of information and resources, a more coherent
approach to the whole spectrum of problems
confronting us, and the balancing of risks and
benefits which must lead ultimately to improved
protection of public health and safety. I am
encouraged by this cooperation. I hope that we will
be able to learn a great deal from each other in
this effort, not just about toxic substances, but
about improved approaches to regulation, research,
and enforcement.
To chop down the thicket throughout EPA, we
announced last month a comprehensive 40-point
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regulatory reform program. Some of the major
initiatives we propose include:
• Seriously studying a number of economic
incentives that could be used to encourage and speed
up compliance while removing the competitive
advantages that delays can offer. The incentives
include a mix of carrots and sticks—improvements
in federal procurement practices, civil noncompliance
penalties, and special exemptions for technological
innovation,
• Strengthening participation by State and local
officials and the genral public in agency decision-
making. We are inviting participation in the Agency
work groups that develop regulations. Three to five
State environmental agencies will also share in our
next zero-base budget cycle on a test basis. We are
jointly looking for ways to reduce both the number
of individual permits required and the time it takes
to obtain them.
• Revising our adjudicatory procedures to create
a better fit to the nature of the decision without
endangering due process rights. The system now in
use is modeled after formal court proceedings and
has proved to be too lengthy and expensive for all
concerned.
• Finding a functional method of including a
"sunset policy" for reporting provisions in all new
regulations. Under such a policy, unless specifically
prohibited by law, regulations requiring record-
keeping or reporting will automatically be reviewed
• on a five-year cycle. This will allow a systematic
rooting out of duplicative or avoidable information
requests.
There are many others, of course, including a very
serious effort to ensure that our regulations are
written in "plain English." We are not simply locking
a group of our lawyers in a room with a bad
£?> regulation and hiding the key until they come out
f; with a good one. We are establishing a program and
JV a structure throughout the Agency to make it as
r< ~,'- difficult as possible to produce regulations which are
>1 : not clearly and lucidly written.
v I am sure I do not need to remind this audience
-; that some of the criticism of the way regulations are
f written is not entirely justified. There are always
7 competing considerations in drafting a regulation.
While it is essential to write clear, concise,
; straightforward regulations and to avoid jargon, it
is also necessary to prevent unnecessary litigation
; | ' and to provide for those contingencies that might be
K challenged. There is an unavoidable tension between
pq (.., clarity and coverage, between innovation and security.
We are determined to find the proper point on the
spectrum in full awareness that a rule book cannot
be used as a substitute for commonsense judgment.
At the very least, we hope that our program will
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have been saying that the mechanisms of
government—designed perhaps for an earlier and
simpler time—must be made responsive to the needs
of contemporary life.
It is fashionable in some quarters to suggest that
in our zeal to erase the environmental mistakes of
the past our society has over-regulated the sources
of pollution and we must now back off and let
nature take its course. Those who hold this point
of view miss the point entirely. It is not nature but
man who has been off course.
Historically, we have extracted, processed and
consumed resources as if the supplies were endless
and we have discarded the residual so-called "wastes"
into the air and water and onto the land as if the
environment's capacity for safely absorbing them
were infinite. The legislation we now have to cope
with the residues must be employed to the full. What
we have learned about the complexity and pervasive
nature of pollution does not indicate that we should
back off. It indicates, instead, that placing stoppers
on air polluting stacks and water polluting outfall
pipes is only part of what is needed to save us from
burgeoning environmental problems we have neglected
during two centuries of technological and economic
achievement.
Environmental legislation passed in the past few
years, as well as the most recent amendments to the
original air and water laws, ask that we now get to
the root of environmental and related public health
problems without diminishing our efforts to prune
the most noxious branches. We are on the threshold
of accepting the fact that the manner in which
our society conducts its private and its public
business has far-reaching health, economic and social
implications and bears fundamentally on the essential
integrity of ecological systems upon which we depend
for life itself. We are beginning to understand that
how we do things is as important as what we do.
We are beginning to acknowledge that it is
environmental and public health folly to continue to
think that we can deal adequately with toxic
substances after they have been produced, and
economic folly to continue to consign valuable
natural resources to the trash heap of environmental
mismanagement while the world's supplies continue
to dwindle.
We are on the threshold of a new era in
environmental protection. An era in which the
after-the-fact economic and environmental folly
that has too often characterized our handling of
environmental problems until now must give way to
an emerging imperative for before-the-fact resource
management and public health protection. The times
call for new patterns of interaction among all levels
of government, the assumption of key responsibilities
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We discovered that society has to make difficult
choices that require careful measurement of public
benefit against public risk—that raise difficult
questions about conflicting private and public rights.
We realized for the first time that we make decisions
every day and every year in the social and economic
spheres of our lives on the basis of scientific data
which at worst are non-existent and at best, by the
very nature of science, are usually incomplete.
In an unprecedented effort to stem the tide of
environmental ills that we had so long neglected,
Congress passed the National Environmental Policy
Act which set forth the remarkable notion that man
and nature must exist in productive harmony.
The few environmental control laws which already
existed were greatly strengthened and a variety of
new environmental and related consumer protection
acts followed. State and local governments greatly
improved their environmental laws and regulations
^ and there began a growing acceptance of corporate
f responsibility with regard to environmental and
related consumer matters.
Nineteen hundred seventy, then, in an important
sense, marked the beginning of what can be called
_w., a worldwide revolution in environmental awareness,
^ understanding and action.
i Perhaps now in 1978, aware of how complicated
'"& and difficult environmental reform is and having
•""$ succeeded in erecting new institutional structures to
.7** curb the excesses of the past, we may flinch at use
«-v of the term "revolution." In our newly acquired
sophistication we may even regard Earth Day
"^ celebrations as something less than stylish. If so, I
submit that we must not deny the roots of our
original passionate awareness and concern. They
are just as valid now when so many strive to be
cool about environmental issues as they were at the
beginning of this decade when we first discovered
them.
Since then the law profession has assumed a more
prominent role in the environmental field with each
year that has passed. It is not surprising. Yours,
after all, is the profession that attempts to find the
just and the right amid a confusing and complex
array of conflicting claims, facts, ideas and attitudes
and to integrate the dictates of science into the social
and cultural fabric of society. We have also
witnessed an increasing demand among citizens for
the right to play a part in the decisions which
determine the kind of life they live and the kind of
world their children will live in. The people have been
saying that the science, industry and technology that
have given us affluence in abundance beyond our
ancestors' wildest dreams are surely equal to the
task of dealing with the unwelcome by-product
problems that have been created in the process. They
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obviate the possibility of our ever resembling the
lawyer, about whom Abraham Lincoln said, "I
never met a man who could compress so many words
into such a small idea."
We believe that the EPA regulatory package, all
40 initiatives, are very much in consonance with the
President's goal of making the government workable.
It will open this Agency still further to public
participation—and public accountability. The principle
of allowing the greatest possible degree of flexibility
in environmental problem-solving is the cornerstone
of our efforts to reshape EPA's regulatory system.
As I said earlier, however, the problem of how to
live creatively and freely and responsibly with the
great power for good or for ill that science and
technology have given us is the basic challenge of
this era and it confronts our whole society. Meeting
this challenge will require a strong creative effort on
the part of every segment of our Nation.
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