x>EPA
United StaU.'S
Environmental Piotection
Agency
Office of
fox ( Substances
Was-vn-jton DC 20460
July 1980
Toxic Substances
State Administrative
Models for Toxic
Substances Management
Toxics Integration
Policy Series
-------
Toxics Integration Policy Series EPA 560/13-80-018
State Administrative Models for
Toxic Substances Management
Written by
Barbara Faust
-! and
Murray Newton
Edited by Helen Ketcham
Toxics Integration Staff
July 1980
-------
Publications in Toxics Integration Information Series:
EPA Chemical Activities Status Report—First Edition—EPA 560/13-79-003
Directory of Federal Coordinative Groups for Toxic Substances - First Ed.
(June 1979), Second Ed. (March 1980)
Federal Activities in Toxic Substances — EPA 560/13-80-008
(June 1980)
perspectives on the Top 50 Production Volume Chemicals — EPA 560/13-80-8OQ
(June 1980)
For further information or to order copies contact;
Industry Assistance Office (TS-799)
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Telephone Toll-free 800-424-9065
or in Washington, D.C. 554-1404
-------
FOREWORD
This paper describes examples of State administrative responses
to toxic substances problems. It is an initial effort in a
continuing exploration of Federal-State cooperation for
toxic substances control. We hope the products of this new
focus will provide useful information to States about State
problems and programs. Through continued information exchange
and legislative policy analysis, the Program Integration
Division XPID) plans to assist States to develop their own
toxic substances strategies. These strategies when implemented
in cooperation with EPA's Regional Offices enhance the
probability of successful, nationwide toxic substances
management. For more information on this project contact:
Director, Program Integration Division, Office of Pesticides
and Toxic Substances CTS-7931, U.S. Environmental Protection
Agency, 401 M Street, S.W., Washington, D.C. 20460.
Walter W. Kovalick, Jr.
Director
Program Integration Division
-------
Table of Contents
A, Background/Summary 1
1. Sources, background
B. Problems and Constraints 2
1. Political
2. Administrative
C. State Administrative Responses 6
1. Commissions
2. Task forces
3. Staff models
D. Conclusions 17
E. Selected bibliography 19
F. Appendices 20
-------
-1-
A. Background/Summary
The Toxic Substances Control Act (TSCA) of 1976, unlike
the Clean Air Act and the Clean Water Act which provide
funds to State/local agencies to administer and implement
specific environmental programs, does not expressly delegate
authority to State or local officals. However, State
involvement and implementation efforts are crucial to
the success of TSCA.
Currently, control efforts under TSCA necessarily focus on
national problems (e.g., the widespread use of asbestos in
schools) because of limited resources in EPA. The Federal
government (EPA) both promulgates and enforces these
regulations under TSCA. Thus, local chemical problems will
continue to be the concern of State government.
Are States equipped to deal with chemical problems and crises?
This broad question was discussed by EPA staff with State
executive and legislative branch people. The interviews
were conducted during the summer of 1979 and in early 1980,
and ranged from a few minutes to over two hours.
Persons interviewed included gubernatorial assistants,
environmental management agency staff, legislators, and
legislative staff. They represented 17 States in all
-------
-2-
10 EPA Regions,, as well as:
b The Great Lakes Regional Commission;
o The President's Office of Science and Technology
Policy;
o The National Conference of State Legislatures;
o The National Governors' Association; and,
o The University of Michigan/Ford Foundation
While many people explained their programs in detail,
others directed us to better sources of information, or
confirmed that their States were not actively interested
in general chemical issues or TSCA.
This paper discusses part of the findings about State
chemical management. It describes several State administrative
models that have been developed to manage chemicals and
analyzes trends in State program development.
B. The Problems
z Developing an effective approach for dealing with chemical
problems presents a difficult challenge to States. One
-------
-3-
of the principal reasons for this is that many States
— like the Federal government — have many agencies or
departments dealing with toxic substances. This
is because chemicals are everywhere — in the workplace,
in food, in consumer products, in all media of the
environment, and in human beings and animals. They
are, therefore, not easily classified under the
jurisdiction of any one department. They involve
authorities and issues corresponding to those
administered at the Federal level by such agencies as
the Food and Drug Administration (FDA), the Occupational
Safety and Health Administration (OSHA), the Consumer Product
Safety Commission (CPSC), the Departments of Agriculture
and Transportation, and EPA. This complexity has meant
that the States have been quicker to identify the need
for some kind of toxics program than they have been
to attempt solutions. They continue to explore methods
of responding to the problems (usually perceived as
episodic) posed by toxic substances, but only a few
have defined their responses well enough to act.
In choosing management structure to cope with chemical
problems, States have to determine the best way to put
together all the pieces of the toxic substances puzzle —
within political and administrative constraints.
-------
-4-
Political Constraints
c
Because improper management of chemicals can endanger public
health, toxic substances management can be, and often is,
a controversial and emotional issue. Many interest groups
— including industry, labor unions, private citizens
and public health officials — have a vested interest
in ensuring that toxic substances are managed to their
best advantage. Thus, there can be strong pressure
for States to develop an organization that is responsive
to, and often with representatives from, special
interest groups. Identifying and responding to all
special interests is a formidable task, and one which
gives many States (and the Federal government) great
difficulty.
Public responsiveness must often be balanced with
the need for "economy and efficiency." A Governor,
for example, must be concerned with keeping within the
budget and minimizing conflicts with existing programs
and organizational patterns. Taxing policies must
also be considered in this political equation. Favorable
tax environments have long been used to encourage business
and industries to locate in a particular State. Harsh
or unfavorable chemical management policies might offset
these economic advantages for some industries. Lack of
State uniformity on either taxing or chemical control
policies may favor industry relocation. Every State must
simultaneously balance the needs for public protection
against protection of the economic base of the State.
-------
-5-
Administrative Constraints
Expertise and the need for coordination also has an
impact on the type of organizational structure chosen.
Because the issues are complicated and technical,
and cut across traditional organizations, it is
necessary to gather together scientific professionals
from different State agencies and non-government groups
involved in toxic substances.
Almost without exception, these needs were discovered
while in the midst of trying to cope with a specific
incident, chemical or problem. Most of these are well
known: PBB's in Michigan; Love Canal; PCB's in New York
(Hudson River), Montana, Alabama, and North Carolina;
and kepone in Virginia, to name only a few. Other States
demonstrating interest in toxic substances also had
identifiable "spurs," although less obvious or publicized:
DBCP in Arkansas (also mentioned by California) and the
publication of the "cancer atlas" identifying New Jersey as
showing an extremely high incidence of many kinds of cancer,
for example. Only in Maryland could State staff not
identify the existence of a problem-specific moving force
behind their program.
The significance of this finding is that these emergencies
demonstrated to the States the difficulties in mobilizing
-------
-6-
their resources to respond to a multi-media toxic
n
substances problem. The presence of PBB's in Michigan
cattle, for example, was described as the first
"non-disease food problem11 the State Department of
Agriculture had faced. It involved the Departments of
Agriculture, Health, and Natural Resources, and
showed that those agencies had responsibility overlaps,
duplications, and gaps. The State agencies, according
to one Michigan interviewee, "didn't know how to cope with
it." Arkansas staff commented on the tendency of media
representatives to have a "segmented" view and to not see
the "larger picture" in toxics management. Interviewees in
Michigan, Minnesota, New Jersey, and Wisconsin stated that
the various State agencies were not communicating adequately
with one another on toxic substances problems.
C. State Administrative Responses
Three state administrative models are considered below.
Some of the criteria for analyzing these models include:
institutional viability, whether the system has a political
or a technical focus, whether it provides for flexibility
and involvement of many interests, and visibility for toxic
substances issues.
State Toxic Substances Commission
This approach is now being taken in at least Maryland,
-------
-7-
Michigan, and Virginia. (California and Wisconsin have
also evinced interest in this approach, although
neither had done so at the time of these discussions.)
The authorizing legislation for these States enables
or directs the governor to include representatives of
industry and the public among the commission members, along
with the heads of the appropriate State agencies.
Our example is the Michigan Toxic Substances Control
Commission (see Appendix 1) , which has several unique
aspects. It is staffed by seven full-time employees,
including an Executive Director, and has its own budget
for contracting and research. The Executive Director
summarized the mandatory and optional responsibilities
of the Commission as follows:
1. Declaring "toxic substances emergencies;11
2. "Alerting the Governor and the legislature to
potential problems" based upon trend data and the
like; and,
3. Overseeing and monitoring the way "anyone does anything
with toxic substances" in Michigan.
The first of these directly responds to the lessons
learned from the PBB contamination of Michigan cattle. The
Chairman of the Senate Natural Resources Committee, who
wrote the act creating the Commission, believed that the
-------
-8-
State agencies were not working effectively together to
TV
combat the PBB problem. The Commission therefore includes
the Directors of Agriculture, Health, and Natural Resources
as non-voting members, in order to "make them
talk to each other publicly." However, it "can do
most anything" in case of a toxic substances emergency.
Section 6(d)(i) of the enabling legislation, in fact,
allows the Commission, in such emergencies, to
"make all decisions regarding the sale, use, and
method of disposal of the identified toxic substances...."
The Act directs that the Commission include seven citizens
as voting members, but does not require, that they represent
any particular mix of industrial, academic, consumer, or
other interests.
The Maryland and Virginia approaches are similar to each
other; both differ from Michigan's in several important
respects. Neither Maryland nor Virginia gives its commission
a full-time staff or director; each is staffed by toxic
substances personnel assigned to the line Departments
in the course of their normal duties. The Maryland and
-•.v
Virginia commissions report to their respective executive
branch health officials, while the Michigan Commission
reports directly to the Governor and to the legislature.
Neither the powers nor the responsibilities of the Maryland
and Virginia commissions has the apparent reach of the
-------
-9-
Michigan Commission. The contrast is especially sharp
with respect to toxic substances emergencies: the
thrust of the Maryland and Virginia legislation is clearly
toward information and advice; neither law allows for the
activist, directive role available to the Michigan Commission,
At least five benefits from the Commission approach
emerge from these experiences: (1) it institutionalizes
interest in toxic chemical.0; (2) it de-politicizes chemical
management; (3) it gives greater visibility to the chemicals
problem, (4) it offers a way to recognize and consider the
views of many interest groups in managing toxic substances,
(5) the commission approach (except the Michigan
independent type body) does not require that money be
appropriated by the State for its livelihood.
The Commission approach institutionalizes chemical management
in the sense that the loss of principal sponsors through
A-
a change of Governor need not mean the end of the State's
program where there is a statutorily-constituted body. A
change in Governor, even of party in power, will probably
not entail a loss of momentum. Even the accession
of a new Governor having no interest in the issue of
toxic substances would leave a staff and mechanism in
place for addressing such problems. (That will not last
\ ,
indefinitely; the Michigan Act includes a "sunset" provision
giving the Commission a four-year life.)
-------
-10-
Bstablishing a commission de-politicizes toxics management
by isolating the Governor. A Governor's actions, or
failure to act, may be questioned on bases that divert
attention from the scientific aspects of the problem
itself. A toxic substances commission is able to make
investigations, draw conclusions, and offer public
recommendations that do not require the Governor's
signature. The Governor may oppose the commission, but
at least the decision to support or oppose the commission
can be seen as a political decision independent of the
technical aspects of the problem at hand. The toxic substances
commission can also be required to report to both the
executive and legislative branches, thereby de-politicizing
toxic substances management further in that the commission
would not be a creature of either branch. This may
be contrasted with the Maryland approach (the Council is
"to advise the Secretary of Health and Mental Hygiene")
or Virginia's ("...make recommendations to the
(State) Board (of Health)."
The last strength of the commission concept is that it
formally acknowledges the necessity for working with a
variety of experts. The enabling legislation may direct
that members of the commission include representatives
of specific interests. The Maryland law includes,
in addition to a number of State agencies, the
-------
-11-
AFL-CIO; the Maryland Chamber of Commerce; and "any other
private or governmental entity that the governor deems
appropriate." The Virginia law directs the Governor to
appoint one representative from each of "the fields of
agriculture, medicine, labor, industry, and local government."
Among these three laws, only Michigan's fails to specify the
interests commission members should represent. Instead, it
directs the governor to appoint citizens trained in one
or more of several listed natural sciences. As noted
earlier, the Michigan Commission does include an industry
representative in its membership.
The most serious weakness of the commission approach is
perhaps also the most obvious: it usually requires a
new governmental agency, with new staff and new budget.
In today's political climate. Governors are understandably
loath to do anything that appears to expand government,
no matter the purported merits of the new agency. Commissions
are often politically difficult to manage. As noted
earlier, the Michigan Act includes a "sunset" provision
that limits the Toxic Substances Cont-.ro! Commission
to a four-year life, which can address both expansion and
management problems.
A second weakness to this approach is that it probably
requires new legislation. This means, in part, that the
-------
-12-
process may be slow, and that the final product may be very
different from the initial proposal. This is a weakness
in the sense that the other approaches, described below,
offer an administrative simplicity and directness not
possible if new legislation is required.
The last weakness is the possibility that any newly-created
commission may be opposed by the existing toxic substances
staffs in the State's agencies. Many States already have
''J;,
toxicologists, epidemiologists, and other environmental
health professionals working on pieces of the toxic
substances puzzle. The need for a new, interagency
toxic substances group may r>e less obvious to them.
State Toxic Substances Task Force
This approach (see Appendix 2) is now being taken
in at least Arkansas, New Jersey, and North Carolina.
New York has shown interest in the approach, although
it had not been implemented at the time of the discussions.
•• >r,v
•i
The task force approach differs from the commission approach
in at least two ways:
-------
-13-
1. The membership of the task force is entirely from
executive branch agencies; and
2. No new budget or staff is assigned. The task force
primarily coordinates and relies on the existing
resources of the participating agencies (The
New Jersey group does have an executive director).
The task force may be created by executive order or by
legislation. The task forces in these three States
are small, involving four (New Jersey), five (Arkansas),
or six (North Carolina) member agencies. The product of the
task force may tend toward the intangible of "better
coordination," or toward a fairly comprehensive strategy
document.
One strength of this approach is the ease with which the
Governor can initiate a task force. North Carolina did
so through legislation, but Arkansas and New Jersey used
an executive order. A change of administration gave
the incoming Governor the opportunity to easily change his
predecessor's course. Deciding to continue, he had only
to write a letter directing the chairman of the task
force to reconvene the group.
A second strength is that the task force does not require
additional staff or funds. It may, therefore, be perceived
by the legislature and the public as a way to get agencies to
-------
-14-
work together, rather than as an expansion of the State
bureaucracy — more efficiency instead of more government.
A third strength is that the task force draws upon the
expertise of the agencies involved. It is, in fact, a device
to foster the efficient use of available talent.
And last, it allows the Governor to "do something" about
toxics and to do it publicly — the two needs that
prompted every State discussed in this paper to get involved.
The principal weakness of this approach is that it does not
ensure either visibility or permanence to the State toxic
substances program. An incoming Governor could just as well
dissolve his predecessor's efforts as endorse them.
Furthermore, a task force constituted to make recommendations
to the Governor can do so and never be heard from again.
The members are, after all, the Governor's employees serving
on the task force as an "additional duty," and all have
been borrowed from their full-time obligations as heads
of agencies or departments. One gubernatorial staffer
i
implied that differences between the old and the new
Governor have left the future of their task force unclear.
Another weakness is that the task force is a part-time
effort without funds or staff. Such work as is done
is squeezed into the schedules and priorities of staffs
already busy with their full-time duties.
-------
-15-
A third weakness is the group's inability to direct State
agencies. The task force is usually by definition advisory,
and is expected to recommend actions to the Governor.
The North Carolina act enumerates seven functions
for the task force, in addition to "incident response," each
of which allows the group to "study and make recommendations."
A fourth weakness is the failure of this approach to
de-politicize the State's action on chemical problems or
incidents. The task force is clearly a creature of the
Governor, including as it does only members who report to
him, and excluding the various interests outside of the
executive branch, many of which may be directly affected by
the State's action or inaction.
Personal Supervision by the Governor
This approach (see Appendix 3) is now being taken
in at least Arkansas and North Carolina. In both cases,
the States are also using the task force approach
discussed above, but neither Governor initiated the task
* :, -
force in his State. The approach is also being used by
California, but apparently as a transitional and planning
device until a more permanent approach is developed.
The principal strength of this approach is also the most
obvious: the Governor's personal interest and attention ensures
-------
-16-
that all those who work for him will attach their own interest
and attention to the problems. They know what the
Governor wants and expects them to do. They also know
that his interest heightens the probability that the policy,
action, or other recommendation they send forward is likely
to be adopted.
Second, the Governor can marshal the State's resources
for those tasks and problems he thinks important.
As a pragmatic matter, then, this approach should
be the most certain to ensure that whatever talent or
expertise is required from the State bureaucuracy will
actually be made available. Stated differently,
there is little chance that needed resources will be
unavailable due to supposedly higher priority assignments
on other problems or issues.
Third, this approach^ does not require any reorganization, new
staff, or new budget. The Governor indeed may not be doing
anything additional or new. He may instead simply
be reordering the priorities of his administration
(if only temporarily) to put toxic substances near
the top of the State's and his personal agenda.
The Governor's interest will certainly not be either
undivided or permanent. A change in his or her interest,
or a change in governors, may quickly slow or stop
-------
-17-
progress. Indeed, the change of Arkansas' governor
early in 1979 seems to have changed — at least briefly —
the pace of development of that State's program. Relying
solely on the continuing attention of the Governor
does not institutionalize the program.
The other notable weakness of this approach is that it
politicizes the issue, if in no other sense because it
may become "his/her issue." The aovernor's action or inaction,
comments, allegations, or recommendation may be
scrutinized differently than might be the case were there
a commission or similar body involved.
•.
D. Conclusions
1. Is one organizational type more "effective" than
another? There is no simple answer. It is really
too early to compare institutional types since the
oldest toxic substances management organizations
have only been in existence for two years. In
addition, it is difficult to judge what "effective"
means. There are, though, other interesting points
that can be drawn from examining State institutional
management of toxic substances. This is a highly
visible, timely issue. It is a difficult management
problem. In deciding which organizational structure
to use, States are faced with administrative, legal
and political constraints. Because proper management
-------
-18-
of toxic substances cuts across different agencies,
States have created new organizational responses
which cut across different departments. Cross-cutting
authority is required in order to coordinate all the
actions and to get all involved parties talking.
Finally, the approach selected by a State is determined
by the "mood" of the times. One of the most striking
examples of this is the use of the temporary
organization headed by part-time "experts" with a
wide variety of backgrounds. Such an approach
reflects both our society's respect for scientific
expertise and the desire of today's public to limit
government spending.
2. Nearly every State currently active in intermedia,
interagency toxic substances management was spurred
to the effort by a specific incident or chemical.
3. States' institutional responses to the toxic
substances management problem have taken three
forms: (a) A commission or similar body outside
the existing State organization chart; (b) A task
force or similar body within the existing State
organization chart; (c) personal supervision
by the Governor's office.
-------
-19-
F. Selected Bibliography
Adrian, Charles R. State and Local Governments. New York:
McGraw Hill Book Company, 1976.
The Council of State Governments. Reorganizing State Government-
A Report on Administrative Management in the States
and a Review of Recent Trends in Reorganization.Chicago:
The Council of State Governments,1950.
The Council of State Government. Integration and Coordination
of State Environmental Programs. Lexington, KY.,1975.
H^skell, Elizabeth H.f & Price, Victoria S. State Environmental
Management Case Studies of Nine States. New York,
Praeger Publishers, 1973.
Horton, Forest W., Jr. "Organization and Management Techniques
in the Federal Government." S.A.M. Advanced Management
Journal 35 (January, 1970): 66-67-
Michigan. Public Act No. 116 (1978)
The National Conference of State Legislatures. "TOXIC SUBSTANCES
A Survey of Incidents and Government Responses in
Selected States." Denver, Colorado, 1979.
-------
COMMISSION EXAMPLE
REGULATORY
MONITORING
* RESEARCH/STUDY
MANAGEMENT
Declare Emergency
Implement
Emergency Plan
Coordinating State
Agencies, Activities
I
Investigate, Reports,
Problems,
Irregularities
Emergency
Administrative
Functions
Investigate and
Compile Data Not
Otherwise Available
1
Alert Governor and
•*- Legislature of
Potential Problem
-" \
Organize Data on the
Identified Toxic Sub-
stances and make Recommenda-
tions for their Regulation
Recommend State
Agency Undertake
Studies
Investigate and
Compile Data Re:
Product to be Sold
in State
Report Annually
to Government and
Legislature
\
Require Assistance
from State Agencies,
Institutions, Universities
I
Make and Sign Contracts
with Institutions
Foundations or Research
Organi zations
Employ Personnel
I
Appoint Executive
Secretary
to
o
i
Promulgate Rules,
per Act 306
6
H
Make and Sign Any
Agreements and Perform
Any Acts
I
Establish
Advisory Commi'h'hees
Examine State Programs;
Develop and Evaluate
Emergency Plan
~ I ~
Make Necessary Expendi-
tures from Toxic
Substance Fund During
*Permissive function
-------
TASK FORCE EXAMPLE
OFFICE OF COMMISSIONER
Commissioner
First Deputy Commissioner
O
H
to
Asst. Commissioner
for
Natural Resources
Lands and
Forests
Division
Toxics
Coordination
-—I
Fish and
Wildlife
Division
Toxics
Coordination
L-J
Marine
Resources
Division
Toxics
Coordination
"1
Asst. Commissioner
for
Environmental Quality
Toxics Policy and
Coordination
Air
Division
Toxics
Coordination
Asst. Commissioner
for
Regional Affairs
Water
Division
i
to
Regions
1-9
Toxics
Coordination
Toxics
Coordination
Solid Waste
Division
Toxics
Coordination
Construction
Mangement
Division
Toxics|
Coordination J—
-------
GOVERNOR'S COMMISSION EXAMPLE
GOVERNOR
1. Toxic Substances
and Hazardous Mate-
rials Policy
Committee
2 . Information
Management
Committee
- . . 1
3. Toxic Substances
. Assessment
Committee
4. Committee on
Alternative
Methods & Materials
5 . Regulatory
Assessment
Committee
6. Crisis
Response
Committee
ro
M
Elemental Responsibilities
1. Intergovernmental Cooperation and Coordination
2. Information Management
3. Assessment
4. Prevention and Control
5. Prevention and Control
6. Crisis Response
M
x
UJ
------- |