United States
Environmental Protection
Agency
Office of
Public Affairs (A-107)
Washington DC 20460
Volume 14
Number 2
March 1988
EPA: A Regulatory Agency
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EPA: A Regulatory Agency
Pigeon River, Waupaca
County, Wisconsin. Mike
Brisson photo.
The national environmental
policies called for in
Earth Day 18 years ago are
being implemented in
regulations in that
governmental bible, the
Federal Register. This issue
of EPA Journal explores tin:
nature of EPA as a regulatory
agency on the firing line in
the controversial world of
environmental protection.
In the first article, the
Agency's Administrator, Lee
M. Thomas, discusses the job
of environmental regulation
now and does some
forecasting about future
challenges. Then William D.
Ruckelshaus, EPA's
Administrator from 1970 to
1973 and 1983 to 1985, talks
about the regulatory job in
the early days of the Agency,
when the nation's
commitment to
environmental quality was
just getting into full swing.
The next three articles
focus on regulations
themselves. The first takes a
look at how an
environmental regulation
comes about, in this case, the
asbestos-in-schools rule. The
second explains cost-benefit
analysis, a widely used
technique in the preparation
by EPA of its regulations.
The third addresses the role
of science in the making of a
modern-day clean-up rule.
In the current arena of
intense controversy about
how to protect the
environment, many of EPA's
rules stir disagreement.
Challenges in the courts are
one common result, and an
article from the U.S.
Department of Justice
describes this aspect of EPA
regulations. Negotiation and
mediation are also a way to
handle environmental
disputes, the subject of
another article.
The next articles concern
those affected by EPA's
regulations. One piece
reports on the impact of
regulatory requirements on
small businesses, how it is
felt, and how it is considered
as the Agency develops
clean-up rules. In another
piece, an official with a large
chemical company, Du Pont,
looks at EPA—the
rulemaker—from the point of
view of a regulatee. A third
piece looks at EPA from the
vantage point of a state
(states are responsible for
carrying out many of EPA's
regulations).
Next is a feature that puts
environmental regulation in
the context of government
rulemaking from 1787 to the
present, from (he. drafting of
the Constitution to U.S.
government today.
One of the most hotly
debated topics—the
deadlines by which EPA
must issue its regulations and
take other steps—is
addressed in an EPA Journal
Forum. In this feature, six
experienced observers with
different interests comment
on the question. "Are
deadlines good or bad for
cleaning up the
environment?"
EPA Journal often includes
some so-called non-theme
articles after the main focus
of the issue. In this case, an
article from an KPA specialist
in the Office of Solid Waste;
describes waste
minimization—the idea of
preventing pollution rather
than trying to manage it.
Another article, reprinted
from the Header's Di'gesf and
not necessarily representing
EPA's views, asserts that the
nation still does not have
control of its sewage
treatment problem.
This issue of the Journal
concludes with a regular
feature—Appointments. Q
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United States
Environmental Protection
Agency
Office of
Public Affairs (A-107)
Washington DC 20460
Volume 14
Number 2
March 1988
«>EPA JOURNAL
Lee M. Thomas, Administrator
Jennifer Joy Wilson, Assistant Administrator for External Affairs
Linda Wilson Reed, Director, Office of Public Affairs
John Heritage, Editor
Ruth Barker, Assistant Editor
Karen Flagstad, Assistant Editor
Jack Lewis, Assistant Editor
James Ballentine, Circulation Manager
EPA is charged by Congress to
protect the nation's land, air, and
water systems. Under a mandate of
national environmental laws, the
agency strives to formulate and
implement actions which lead to a
compatible balance between
human activities and the ability of
natural systems to support and
nurture life.
The EPA Journal is published by
the U.S. Environmental Protection
Agency. The Administrator of EPA
has determined that the
publication of this periodical is
necessary in the transaction of the
public business required by law of
this agency. Use of funds for
printing this periodical has been
approved by the Director of the
Office of Management and budget.
Views expressed by authors do not
necessarily reflect EPA policy.
Contributions and inquiries should
be addressed to the Editor (A-107),
Waterside Mall, 401 M St.. S.W.,
Washington, DC 20460. No
permission necessary to reproduce
contents except copyrighted photos
and other materials.
Environmental Regulation:
Challenges We Face
by Lee M. Thomas 2
Environmental Regulation:
The Early Days at EPA
by William D.
Ruckelshaus 4
Asbestos: The Birth of
a Regulation
by Don Bronkema 6
Weighing the Benefits of
Clean-up Rules
Against Their Costs
by Ralph A. Luken 9
Science and
the Regulatory Process
by Erich W. Bretthauer and
Peter R. Jutro 13
Disagreeing About the
Rules: To the Courtroom
by Mark R. Haag 15
Disagreeing about the Rules:
Negotiation
and Mediation
by Gail Bingham and
James Laue 17
Handling the Punches:
Clean-up Regulations
and Small Business
by Karen V. Brown 20
The Regulator as Seen
by a Regulatee
by John A. Krol 22
It Has to Be
a Partnership!
by Fred Hansen 24
Looking Backward: A
Historical Perspective on
Environmental
Regulations
by Jack Lewis 26
Speaking about Deadlines:
A Forum 30
Heading Off Waste
Before It Starts
by James Lounsbury 34
Swamped by
Our Own Sewage
by Wesley Marx 37
Appointments 40
Fronl Cover: A cartoon rendition
of how it seems as EPA does its-
job amidst Ihe swirl of debate in
Washington, across the country,
and internationally over the best
ways to address environmental
problems. The problems are many:
the debate is inevitable; and EPA
operates in a "fishbowl." It may be
uncom/ortable, but never dull.
Drawing by Robert Flanagan.
Correction: In the January/February
issue of EPA Journal, the roots
pictured on the back cover were
identified as being of black
mangrove trees. In fact, the trees
are red mangroves, known as
Rhizophora. —the Editor.
Design Credits:
Donna Wasylkiwskvj:
Ron Farrah;
/ames R. Ingram.
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-------
Environmental Regulation:
Challenges We Face
Lee M. Thomas
In many ways, the Environmental
Protection Agency is the most
far-reaching regulatory agency in the
federal government because its authority
is so broad. It touches every aspect of
American life. Our impact is felt by all
segments of society—industry, state and
local governments, and individuals.
When the Agency was created, our
regulatory mission was clear. We were
to address the air pollution that we
could see, smell, and even feel in many
cities. We were to put an end to the
discharge of untreated sewage and
industrial effluents that fouled our
rivers and streams.
As our Agency grow, our mission
evolved to include new challenges
about which we had been unaware in
the beginning. We added programs to
change the way we managed hazardous
wastes and toxic chemicals. And we
initiated a massive effort to clean up the
contamination created through the
improper disposal of dangerous
substances in the past.
The record shows that we went about
all of these difficult tasks aggressively.
And we achieved significant results.
Today, EPA's regulatory mission is
broader than ever. We have about a
dozen major laws to implement. Many
have very strict regulatory requirements,
tight statutory deadlines, and other
stringent provisions.
At the same time, however, the nature
of EPA's regulatory business is
changing. As we work to continue
implementing our traditional
environmental programs, we are also
confronting the need to modify our
approach in order to deal with new
challenges coming over the horizon.
It is those future challenges that I
would like to address in this brief
article. There is a whole new generation
of issues before us that will require a
new approach to environmental
management.
I classify the challenges of the future
into three categories: those that involve
widely dispersed but very small sources
of pollution; those that address
problems of global consequence; and
those that carry with them substantial
impacts for individual citizens. To one
degree or another, we have begun to
address all three, but in the years ahead,
I believe these new challenges will
demand increasing attention from EPA.
The first of these challenges relates to
pollution from an ever-increasing
number of smaller and smaller sources.
During the past 20 years, we have made
substantial progress in regulating large,
visible sources of air, water, and land
pollution. Most major facilities must
obtain complex permits and live up to
stringent limits on the discharge of
contaminants. Yet these facilities do not
represent all pollution sources.
Trace amounts of toxic substances
continue to find their way into the
environment. And although some of
those contaminants still come from
large, regulated facilities, most are
emitted by small, widely dispersed
One environmental issue of global
import is the greenhouse effect, which
could raise temperatures, change
precipitation patterns, and cause ocean
levels to rise. A one-foot rise in sea level
would cause some beaches to erode
100 to 200 feet, leaving areas looking
like this shorefront scene in
Westhampton, Long Island, New York.
Rameshua Das photo, NYT Pictures.
F
< I
i it 11
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sources. Today's emissions of toxics
come from such sources as gasoline
stations, dry cleaners, and
home-operated woodstoves.
Congress recognized the fact that
small sources were an important future
challenge when it enacted amendments
to the Resource Conservation and
Recovery Act (RCRA) in 1984. These
amendments extended EPA's regulatory
reach to include generators of relatively
small volumes of hazardous waste. The
new statutory requirements expanded
the universe of RCRA-regulated facilities
from about 15,000 to about 200,000.
Our underground storage tank
program is another example. Literally
millions of tanks are located throughout
our country, in every imaginable setting.
Regulating them requires us to consider
new approaches in light of the fact that
many owners and operators of these
tanks may never have had to comply
with federal regulations in the past.
Woodstoves are yet another example
of the kinds of sources we will confront
in the future as we move to achieve the
next increment in pollution control. In
some cities, they are the largest single
source of toxic air pollutants. Yet
controlling their emissions will have to
be done in ways that are different from
the approaches we have traditionally
used for large factories and powerplants.
A second category of future
challenges consists of those that require
a global approach. These issues come in
two principal forms: those that are
caused by the worldwide production
and use of pollutants that may have
planetary impacts; and those that may
be linked to a single geographic area,
but carry worldwide implications.
Depletion of the stratospheric ozone
layer is the best-known example of this
type of challenge. Production and use of
ozone-depleting chemicals, including
chlorofluorocarbons (CFCs) and halons,
is a worldwide phenomenon. Thus,
developing the scientific basis for
characterizing the problem and
recommending solutions also has to be a
worldwide activity. Last September, 24
nations—including the United States
and all other major producers of
CFCs—met in Montreal and signed an
international protocol that will
significantly reduce the use of these
substances over a relatively short period
of time.
A similar challenge confronts us with
respect to the phenomenon of global
warming. We are in the early stages of
understanding climatic change and its
consequences. But our experience with
CFCs and ozone depletion should serve
as an excellent model for work in this
new area. Again, scientists from around
the world will have to work together to
gain understanding of the problem and
to devise solutions that will be both
acceptable to the world community and
effective in reducing the threat.
Finally, the third set of new
challenges has to do with issues whose
solutions will be felt, for the first time,
by large numbers of individual
Americans. For a long time, polls have
indicated that citizens of this country
are willing to pay more for pollution
control. And they have. As a society, we
estimate that more than $70 billion is
spent annually in the United States
alone to reduce pollution. But these
costs generally are hidden from the
public as small increments in the
overall prices of products and services.
In the future, those costs will be more
visible. People will feel them directly.
And, for the first time, we will be
testing our willingness to pay for more
environmental protection. In many
cases, it will come down to a series of
choices.
Individuals will confront choices
between the convenience of new
shopping malls and the luxury of
waterfront homes on the one hand,
versus wetlands protection and
enhancement of coastal resources on the
other. They will have the choice
between further reductions of smog in
their cities on the one hand, versus the
inconvenience of inspection and
maintenance programs and the
awkwardness of mechanical controls on
gasoline pumps on the other. Where air
pollution is a particularly serious
problem, they may have to change their
driving habits and alter their lifestyles
significantly. And.they will have a
choice between new requirements for
drinking water filtration and monitoring
systems and advanced wastewater
treatment requirements on the one
hand, versus substantially higher water
and sewer bills on the other.
I believe we should pursue a systems
approach to these issues. At the heart of
EPA's programs in the future should be
a risk-based approach to setting
priorities; a concerted effort to involve
all levels of government in
problem-solving (including the
international community where
appropriate); an awareness that
pollution can inadvertently be moved
from one medium to another; and a
willingness to take innovative
approaches to regulation, including
negotiated rulemaking in certain
instances.
We will also have to spend more time
educating the public to understand
more fully the nature of environmental
risk and the role of the individual in
solving pollution problems. At the same
time, we will need to listen carefully to
public views about the best
environmental approaches. Finally, as
we move to include smaller and smaller
sources of pollution in our regulatory
domain, we will need to pay more
attention to development and
implementation of programs to train
environmental managers, to certify those
providing specialized services, and to
implement new control technology.
As has always been the case, we will
rely on even better systems for
collecting, managing, and assuring the
quality of scientific data. We will also
need to integrate our data management
systems with those of the states so that
we are all working from the same
knowledge base.
And finally, we must continue to
implement aggressive enforcement
actions against those who choose to
violate environmental laws and
regulations for the sake of economic
advantage. Here, too, in addition to
using traditional judicial and
administrative tools, we should look for
opportunities to employ innovative new
approaches to enforcement that will
yield better environmental results more
quickly and efficiently. One approach is
the use of alternative dispute resolution.
Clearly, the future holds new
challenges for EPA and the American
people. I believe we can meet those
challenges by recognizing that the issues
of tomorrow will be different from those
we have so far confronted. We're
confronting the challenges posed by
ever smaller sources of pollution
dispersed widely throughout the nation.
We're confronting global challenges as
well. And, in the future, our actions
will challenge individuals as never
before to renew their commitment to
environmental progress.
We can meet those challenges, as well
as make continued progress in our
traditional programs, by using risk to
determine our priorities; working closer
than ever with other levels of
government to implement and enforce
control programs; educating the public;
expanding training and technology
transfer programs; and developing
appropriate innovative approaches that
yield greater environmental progress
more efficiently.
Taken together, these elements can
serve as a framework for addressing the
environmental challenges of the 1990s
and beyond, o
(Thomas is Administrator of EPA.)
MARCH 1988
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Environmental Regulation:
The Early Days at EPA
by William D. Ruckelshaus
The creation of the EPA in 1970
brought together a patchwork of
federal programs concerned with
various aspects of the environment
under the control of a single regulatory
agency. In the same year, Congress
passed one of our nation's most
complex and ambitious statutes, the
Clean Air Act, directing EPA to set and
America to achieve national air
standards.
The challenges facing this new
Agency were many. And while a
regulatory framework was important,
initially, it was not the most crucial
challenge.
From a management point of view,
the task was daunting: how to form a
cohesive, integrated, functioning entity
out of 15 different agencies and parts of
agencies from throughout the federal
government, two of which, in the case
of pesticides, had conflicting missions.
The initial structure reflected the
gross nature of the pollution problems
as they were then perceived. Air and
water programs were under one
Assistant Administrator. The Assistant
Administrator for Categorical Programs
had responsibility for almost everything
else: pesticides, radiation, and solid
waste.
As we began, our most important
mission was to establish the credibility
of this new Agency, to ensure that the
public and the regulated community
realized that the government was
serious about its charge to protect the
environment.
One way to do that was through
enforcement. Shortly after opening
EPA's doors, we filed suit against the
cities of Detroit, Cleveland, and Atlanta
for polluting their rivers with sewage.
Similar actions against industry
followed.
The result of these actions, years later,
has been demonstrable improvement in
water quality in these cities and massive
progress in alleviating industrial
pollution. Those actions established
EPA foresquare in front of the American
people as an Agency committed to
doing its job.
Equally important was the goal of
educating and working with the public.
EPA was, essentially, a response to
many expressions of concern by the
public about the quality of their
environment. At the outset it rapidly
became clear that the Agency would be
able to carry out its mission only if the
public understood these problems as
well as EPA's mandate to address them.
The second immediate challenge to
the Agency was to create awareness of
and support for EPA. An aggressive
public affairs program was undertaken
at headquarters and in all the regional
offices. Every senior agency official had
a heavy schedule of speaking
engagements to rally understanding and
support for EPA.
Against this backdrop of aggressive
enforcement and education, the
regulatory efforts of the Agency began to
play out. The Agency was already
beginning to wrestle with
Congressionally imposed deadlines as it
began to implement the requirements of
the Clean Air Act of 1970.
EPA was required to set criteria for
national ambient air quality standards
120 days after the Clean Air Act passed
and 150 days after EPA opened its
doors. What was, in retrospect, so
striking about that process was the
paucity of sophisticated scientific data
upon which to make sound regulatory
judgments. To my dismay, in reviewing
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the National Ambient Air Quality
Standard for particulate matter during
my second tour at EPA, I noted that
much of the health effects data base for
the new PMU, standard (for airborne
particles that are 10 micrometers or
smaller) consisted of the same studies
we used to set the first standard!
In addition, there was almost a total
lack of economic analysis of the impacts
of such standards and regulations. We
rapidly corrected that situation and
created what I believe to this day is the
most sophisticated regulatory impact
analysis staff anywhere.
EPA, in those early days, spent much
of its time creatively interpreting the
statutes it had to administer. Prior to the
passage of the Clean Water Act in 1972,
EPA began implementing a discharge
permit program under the 1899 Rivers
and Harbors Act. That effort led to such
savage logic as defining hot water
discharges from power plants as refuse.
One of the highlights of EPA's early
water pollution control efforts was the
signing of the Great Lakes Water Quality
Agreement in 1972. This historic
agreement, driven by a mutual
cross-boundary decision to save a world
treasure, has, over its lifetime, resulted
in substantial improvement in the water
quality of the Lakes.
It is a measure of how much we have
learned today about the problems
associated with the disposal of solid
waste that in 1971, EPA's answer to the
dumping of wastes was to initiate
"Operation 5000." That was a
program to close 5,000 open dumps
and replace them with, or convert them
to, sanitary landfills—requiring a 6-inch
soil cover the end of each day!
With the mid-1970s, EPA began to
assume its massive regulatory stance.
The Clean Water Act and the
reauthorization of the Federal
Insecticide, Fungicide, and Rodenticide
Act in 1972, the passage of the Resource
Conservation and Recovery Act in 1970,
and the reauthorization of the Clean Air
Act in 1977 all set in motion the
regulatory machinery we see in
operation today.
What defined EPA in its earliest days
was less the need to define a regulatory
agenda than a need to convey a sense of
mission and purpose to the public, the
states, and the regulated community.
The Agency set out to create a federal
environmental presence, to set a
uniform level of expectation that would
end state-shopping by industry, and to
ensure that people knew EPA meant
business. I believe the achievement of
those goals set the stage for the more
sophisticated regulatory posture the
Agency assumes today. o
(Ruckelshaus, who has twice served as
EPA's Administrator, is President of
William D. RuckeJshaus Associates.)
In the 1960s, air pollution scenes like
this were common in some American
cities. Here, in New York City in 1963,
the Empire State Building's spire is
barely visible at top center. One of
EPA's first mandates was to set national
ambient air quality standards 150 days
after the Agency's" 1970 opening. New
York Journal American photo.
MARCH 1988
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Asbestos:
The Birth of a
Regulation
by Don Bronkema
Technicians must wear protective
clothing when removing asbestos.
Asbestos consists of naturally
occurring minerals that
separate into fibers. This
photograph of chrysotile
asbestos is from a school air
sample examined by
transmission electron
microscopy magnified 20,000
times.
EPA JOURNAL
-------
Once upon a time there was a miracle
fiber. It was cheap, easy to work
with, and effective in preventing fires.
The wonder fiber—which first became
widely available during the early 1900s
and which was used throughout the 20s
30s, 40s, and 50s—was asbestos. This
naturally occurring mineral was formed
into flame-retardant insulation for
merchant ships during the Second
World War. After the conflict ended,
asbestos was used as an ingredient in
floor tiles, drapes, and wall coverings,
as heating-system pipe or boiler
insulation, and in fire-resistant pads in
kitchens. It was applied liberally in
thousands of homes, offices, factories,
and schools across the nation. It was
even used to make movies: the snow in
The Wizard of Oz and White Christmas
was made with white, fluffy asbestos.
Then we came to know a darker side
to the miracle: some but not all uses
could result in high exposures that could
present serious health risks. Medical
research, such as that begun by Irving
Selikoff at Mt. Sinai Hospital in New
York City more than four decades ago,
gradually established that exposure to
high levels of asbestos could cause a
respiratory disorder known as
asbestosis, lung cancer, and
mesothelioma (a rare cancer of the
lung-cavity lining). These cancers could
take from 20 to 40 years to develop.
Today there are large numbers of
buildings around the country that
contain asbestos building material of
some kind. Most of this "in-place"
asbestos does not present a health
hazard; however, asbestos can present
serious health risks in certain cases
where there is real or potential human
exposure. For this reason, efforts are in
motion under various laws to manage it
properly or have it removed by experts
who can do the job safely.
So where does EPA come in? The
Asbestos Hazard Emergency Response
Act (AHERA), which became law on
October 22, 1986, requires EPA to
regulate the inspection of schools to
identify asbestos-containing materials,
monitor the development of asbestos
management plans by schools, and
oversee corrective measures. The Act
also requires EPA to develop a model
program for training and accrediting
personnel who inspect school buildings
and develop management plans, and
who take remedial action if that is
necessary.
In 1984 an EPA survey had revealed
that about 34,800 of the nation's schools
contained some form of "friable"
MARCH 1988
(capable of being reduced to powder by
hand pressure) asbestos, and that
approximately 15 million students and
1.4 million school employees were
potentially at risk from these materials.
To develop the detailed regulations
needed to put AHERA into action, EPA
convened a regulatory negotiating
committee of 24 people representing
groups and interests affected by the new
law. The committee was convened
through the combined efforts of The
Conservation Foundation staff and
contractors and the Agency's Regulatory
Negotiation Project staff. EPA had used
negotiated.rulemaking only six times
before.
The committee members represented
public school boards and
administrators, teachers, service and
maintenance employees, private
schools, asbestos-abatement contractors
and consultants, state attorneys general
and asbestos program directors, former
asbestos product manufacturers, and
EPA staff. Needless to say, the interests
and commitments of these parties were
highly diverse, and sometimes
conflicting.
There was also the problem of time
pressure. The committee had to
complete its work by the statutory
deadline of April 30, 1987. That was
just six months after AHERA was signed
by the President. So from February 1 to
April 3, the committee met five times
for two- to three-day meetings, virtually
around the clock. The participants
sacrificed their evenings and weekends
to make sure they could finish in time.
During these conclaves, the committee
divided into work groups on specific
issues, then reassembled in plenary
sessions to review progress and approve
proposals of the work groups. All
sessions were marked by thorough
analysis and spirited debate as members
attempted to narrow disagreements and
find common ground on substantive
issues. At the end of this marathon, 20
of the 24 negotiating committee
members agreed that the draft document
should serve as the basis for the
proposed AHERA regulations. EPA
published these proposed regulations in
the Federal Register of April 30, 1987,
within the legislated time limit.
What accounts for such signal success
in a regulatory arena fraught with
potential for disappointment? EPA
participants, looking back on the
process a year later, cite a number of
considerations:
• First of all, the panelists seemed to
realize that EPA was determined to
propose a rule on schedule, that they
each, individually, had something to
gain from participating with the Agency,
that friable asbestos was not a moot
hazard, and that the country expected
statesmanship of each of them, not
partisan bickering, delays, and
maneuvers. So they played the role
expected of them.
• Second, EPA already had pretty good
relations with many of the major players
based on their testimony before
Congress and other contacts.
• It was also clear that the various
interests, though nominally in conflict,
had a great deal in common behind the
blaring headlines. The labor unions,
manufacturers, and school districts may
have been strange bedfellows, but they
were bedfellows nevertheless.
• The EPA rule-writers included
generalists and liberal-arts people who
had no previous experience in
writing regulations—and that gave them
a fresh perspective. They weren't
constrained by biases or expectations
from the past, and they kept open minds.
• There was that looming deadline that
everyone knew Congress would not
extend.
• Participating groups were willing
to have partial loaves instead of
going away hungry from (he table.
• There was, throughout, a spirit of
tolerance and willingness to see the
other guy's point of view.
• The panel members developed, with
the facilitator's constant nudging, a
capacity to keep the big picture in mind.
Finally, the EPA employees involved
say they were fascinated by the
dynamics of the group process and by
the give-and-take among groups of such
varied background. One said, "It was
like a doctoral seminar in
conflict-resolution or a summit
conference on arms control." Another
added, "With so much personal sacrifice
of time, no one wanted to be accused of
sabotaging the process." And another
declared, "Everybody knew perfectly
well what was being put into the
sausage, so no one could easily refuse to
consume the final product."
The EPA members were unanimous in
believing that the whole process won
friends for the Agency and gave it
much-needed additional credibility with
broad sectors of the public; the word
would spread that EPA "is willing to
listen" and "knows how to deal." They
admit that the process wasn't perfect.
The Safe Buildings Alliance, a group of
former asbestos products makers, is
suing the agency on the merits of the
-------
rule. But many of the other groups have
taken up the cudgels for EPA in
court—and that is remarkable, if not
unprecedented.
In any event, the outcome of all the
heroic labor was that EPA wound up
with a very sound set of regulations.
During the 60-day public comment
period, EPA received more than 170
responses, ranging from a one-page
letter to volumes of hundreds of pages
from various interest groups. EPA held a
public hearing in August and took
testimony from 30 witnesses. State
officials were briefed in EPA regional
offices.
After the comments were received
and the hearings concluded, EPA staff
analyzed the comments and revised the
text as necessary. EPA Administrator
Lee M. Thomas signed the final AHERA
regulations on October ,17, 1987, again
in accordance with the statutory
deadline. They boast four major
provisions.
First, all public and private
elementary and secondary school
authorities must inspect all areas of
their buildings for friable and
non-friable asbestos. The inspection
must include all interior areas and
certain exterior portions. It must include
an assessment of the condition of the
asbestos materials so areas can be
classified according to the degree of
damage.
Second, schools must develop
management plans that include the
results of inspections and descriptions
of any completed or planned abatement
actions. These plans must be submitted
to state governors by October 12, 1988
(a deadline set by the statute], released
to the public, and presented to parents
and employee organizations in writing.
Third, school authorities must take
concrete steps to deal with any friable
asbestos in their buildings, ranging from
monitoring to encapsulation or removal
in the most extreme circumstances.
Responses must be based on the
condition of the asbestos and must
protect human health and the
environment.
Fourth, only those accredited either
through state programs or EPA-approved
training courses can conduct
inspections, develop management plans,
or carry out remedial action. Of course,
the effectiveness of these regulations
depends upon school personnel, state
officials, parents, abatement
professionals, and EPA. Each of these
groups plays a vital role. School
personnel must conduct building
inspections and develop management
plans at once to meet the statutory
deadline of October 12. 1988, for
submission of management plans.
Schools must embark on asbestos
management prograjns that comply with
AHERA regulations, though they have
substantial leeway in choosing specific
options. State officials must then review
the management plans submitted by
schools and compel necessary
modifications. States should also adopt
the Model Accreditation Plan (or a more
stringent plan of their own) to ensure
"Everybody knew perfectly
well what was being put into
the sausage, so no one could
easily refuse to consume the
final product."
that schools have an adequate supply of
trained, accredited people who can
inspect buildings, develop management
plans, and make repairs.
Parents have the duty to exert their
influence on school officials to ensure
that tough control programs are put in
place. They can read overall
management plans. Abatement
professionals must take steps to receive
adequate training, become accredited,
and take periodic refresher courses as
required by the Model Accreditation
Plan. Such training will ensure that all
abatement activities will be carried out
competently and in a manner that does
not aggravate the problem. Any action
by untrained amateurs could be
hazardous.
EPA's task is to provide
technical assistance to schools as well
as vigorously enforce full compliance
with the regulations. We were
concerned that there might not be
enough accredited inspectors to meet
the nationwide demand, so we stepped
up our efforts to approve courses for
accreditation of inspectors and
management planners. More that 50
such courses have been approved so far.
In fact, as of December, eight EPA
university centers had trained about
1,500 inspectors and management
planners. The combination of the
centers and the new courses should
mean about 20,000 inspectors and
planners trained and available by the
end of 1988.
EPA also awarded cooperative
agreements totaling more than $1
million to 17 states to support the
development of state-accredited training
courses, and the number of available
inspectors and planners is rising
rapidly.
EPA has taken a number of other
actions to help school districts and
private schools deal with their asbestos
problems as well. We have given $5
million in grants to states for inspection
and management plan assistance. The
money is used to reimburse local
education authorities for hiring
inspectors and/or management planners,
to purchase the services of
inspectors/planners, or to pay accredited
state employees to conduct inspections.
We have also provided technical
assistance in thousands of schools,
provided written rules and guidance
materials, given out a total of $157
million in grants and loans to help
schools clean up asbestos, and made
available model contractor and
inspector certification programs for
adoption by the states. To help protect
maintenance and custodial workers,
EPA has extended coverage of its
worker protection rule to school district
employees who are not protected by
other federal or state standards.
Finally, EPA has conducted a study of
the extent and condition of asbestos in
public and commercial buildings, and
sent its study conclusions to Congress.
We found that friable asbestos is present
in about one fifth of the nation's public
and commercial buildings. EPA is not
recommending a comprehensive
AHERA-type regulatory program for
such buildings at this time because
there just isn't enough trained
manpower to do the job right. We also
need to gain some experience with the
schools program and other federal, state,
and private efforts to control asbestos
and then determine what, if any,
additional programs are needed.
What is learned from the effort to
carry out the AHERA program will
doubtless be valuable in dealing with
asbestos hazards in other types of
buildings. EPA developed the AHERA
regulations in the open, but they are
only a first step. The real work of
compliance still lies ahead. With the
commitment and cooperation of school
personnel, state officials, abatement
professionals, service workers, parents,
and EPA—those who cooperated to
develop the rule in the first place—we'll
get there, o
(Bronkema is Editor of EPA Times, the
monthly newsletter of EPA.)
EPA JOURNAL
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Weighing the Benefits
of Clean-up Rules Against Their Costs
by Ralph A. Luken
II \/our money or your life": If you've
T ever heard those words spoken
over the barrel of a gun, you know that
sometimes the benefits and the costs of
alternative responses can be very easy to
calculate, and the optimal response very
clear. But when applied to
environmental regulations, the
equations are rarely so simple. Like
apples and oranges, benefits and costs
are not always expressed in the same
terms. To compare them, we need a
cSmmon factor, and that factor is
usually dollars. But while estimating the
dollar cost of control is routine, putting
a dollar value on the benefits of
environmental improvements is more
complex.
In EPA's lexicon, benefit-cost analysis
simply means comparing the benefits
from a proposed regulation with the
costs. This seems neutral enough, but,
surprisingly, such analyses are often the
subject of considerable debate.
Proponents argue that benefit-cost
analyses promote efficient
decision-making by laying out the
economic pros and cons of regulatory
alternatives. Critics argue that they cost
too much, delay rule-making, and
over-simplify complex decisions—and
wind up favoring relaxation of
environmental standards in order to
reduce costs.
These debates are not new. EPA has
been analyzing environmental
regulations since 1971, when the Office
of Management and Budget established
a formal review procedure for economic
analyses. Known as the "Quality of
Life" review, the procedure required for
every significant regulation a summary
of the principal objectives, alternatives,
benefits, costs, and reasons for going
forward with the regulation as the best
available option. Under President
Carter's Executive Order 12044, this
review was expanded to require
consideration of the direct and indirect
effects of a regulation and to force
selection of the least burdensome
alternative.
Despite a 10-year history of economic
analyses, the debate heightened in
February 1981 when President Reagan
signed Executive Order 12291 requiring
EPA and other federal agencies to
prepare regulatory impact analyses
(RIAs) for all major regulations. (Major
regulations are those imposing annual
costs of $100 million or more.)
Consistent with other legal
requirements, each RIA must analyze
benefits and costs for each regulatory
alternative so that the one chosen
maximizes net benefits to society. (Net
benefits are the total benefits minus
total costs.) Thus, Executive Order
12291 not only made benefit-cost
analyses a required part of the
regulatory process, it also established
net benefits as the criterion for choosing
among regulatory alternatives.
These benefit-cost analyses
are not simply paper
exercises. Environmental
regulations can cost billions of
dollars.
These benefit-cost analyses are not
simply paper exercises. Environmental
regulations can cost billions of dollars.
The analyses in the RIAs are intended
to ensure that these dollars are spent
wisely. If successful, they can help
realize billions of dollars in additional
benefits or reduced costs.
One way to evaluate the efficacy of
benefit-cost analyses is to subject them
to a taste of their own medicine—to
compare the net social benefits derived
from conducting RIAs to the net cost of
preparing them. The Office of Policy
Analysis (OPA), within EPA's Office of
Policy, Planning, and Evaluation,
recently reviewed 15 RIAs prepared
between January 1981 and January 1986.
(For more background on this review,
see the Agency's 1987 report entitled
"EPA's Use of Benefit-Cost Analysis:
1981-1986," which includes a more
detailed discussion of the role of
benefit-cost analysis in regulatory
decision-making and a useful summary
of the 15 RIAs reviewed.)
The results of this OPA review
suggest that, in spite of the problems
frequently raised by critics, the
benefit-cost analyses in these RIAs were
well worth their cost, time, and effort.
For example, the dollar benefits accrued
to society as the result of the
implementation of regulatory
alternatives proposed in just three
benefit-cost analyses (for lead in
gasoline, used motor oil, and
premanufacture review under the Toxic
Substances Control Act, or TSCA) add
up to more than $10 billion over a
10-year period. On the other
hand, the 15 RIAs altogether have cost
only about $10 million, hi other words,
a $10 million investment in benefit-cost
analysis has generated benefits of over
$10 billion—a return of 1.000 to l!
In addition to showing purely
monetized benefits, the benefit-cost
analyses have helped to improve
regulations by identifying issues for
regulatory development, offering
regulatory options, and supporting
regulatory decisions in areas where
costs are not permitted to be considered.
In fact, the formal consideration of
benefits for each proposal has led to
increased awareness of the
improvements, both to human health
and to the environment, that result from
environmental regulation.
Identifying Issues
Benefit-cost analyses played an
important part in the 1985 revision of
lead standards for gasoline. EPA had
already tightened these standards in
MARCH 1988
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1982, and there was no legislative or
other pressure to revise them further. In
1984, however, new data convinced the
Agency that reducing lead content in
gasoline still further might produce
substantial environmental and health
benefits.
A benefit-cost analysis confirmed that
reducing the lead in gasoline from 1.1
gram per gallon to 0.1 gram per gallon
would achieve multiple results:
• Slash adverse health effects, medical
care, and educational costs for children
with high lead levels in their blood;
• Cut deaths, illnesses, and lost wages
from cardiovascular and other diseases;
• Reduce emissions of other pollutants
from cars;
• Boost fuel economy and lower motor
vehicle maintenance costs.
EPA's benefit-cost analysis projected
that, between 1985 and 1992, monetized
net benefits to the nation would reach
$6.7 billion, even without taking into
account the benefits of anticipated
reductions in blood pressure. In large
part, it was these calculations that
convinced EPA in 1985 to tighten the
leaded gasoline standard.
Offering Regulatory Options
In addition to initiating regulatory
actions, benefit-cost analysis can suggest
alternative regulatory approaches. For
example, in establishing requirements
for EPA review of new chemicals under
TSCA, a major issue was how much
information the Agency should require
on application forms. There was
concern that high costs to comply with
EPA review requirements might
discourage innovation in the chemical
industry. With the help of a benefit-cost
analysis, EPA's Office of Toxic
Substances developed an alternative
reporting format that provided sufficient
information to protect public health, yet
cost less than half as much as the
original. Total savings were estimated at
approximately $4 million per year, or
$40 million over 10 years.
EPA's benefit-cost analysis of
proposed rules for the disposal and
treatment of used oil is another example
of how these analyses can improve
environmental regulations.
Most used oil is generated when
people drain their automobile
crankcases. There are various ways to
dispose of it, but it is usually collected
from service stations and taken to
Continued on page 12.
FEDERAL LAW PROHIBITS
THE INTRODUCTION OF
ANY GASOLINE CONTAINING
LEAD. OR PH&SPHORUS
INTO ANY MOTOR LABELED
UNLEADED GASOLINE ONLY"
NO SMOKING
STOP MOTOR
Although EPA had tightened lead standards for gasoline in 1982, new data in 1984 suggested that further lead reduction
would provide additional environmental and health benefits. Benefit-cost analysis confirmed this.
10
EPA JOURNAL
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Economic Analysis at EPA
EPA has been preparing analyses
of environmental regulations since
its inception, both to provide
information essential to fulfill its
statutory responsibilities and also
to comply with executive orders.
Over the years, the scope of these
regulatory analyses has gradually
broadened to include not only
costs incurred by industries
affected by regulation, but also
inflation and other economic
impacts, effects on small
businesses, cost-effectiveness
benefits and net benefits. All of
these components must be
included in the "regulatory impact
analyses" (RIAs) required by
Executive Order 12291 to be
conducted for major regulations. A
variety of economic analysis
techniques have been used to
measure these different regulatory
effects.
The most common form of
economic analysis performed in
EPA's early days was the
"economic impact analysis,"
which encompasses measures of
changes in prices, in production,
industry profitability, capital
availability (including plant
closures), and employment,
resulting from regulatory action. A
subset of economic impact analysis
called closure analysis uses
simplified assumptions
representing the costs and
revenues generated by various
plants in a given industry. The
purpose of the analysis is to
determine the point at which the
incremental costs of new pollution
control would force production
lines or plants to close. The water
program used this form of analysis
in the 1970s in the process of
developing effluent guidelines.
When used along with other
types of economic analysis, closure
analysis can be a valuable tool. For
instance, the regulatory analysis
completed last year for the effluent
guidelines for the organic
chemicals, plastics, and synthetic
fibers industry included a closure
analysis of the affected plants; this
analysis produced an estimate that
66 small plants would close if full
"Best Available Technology"
guidelines were followed in
regulating the industry. As a result
of these findings, EPA mitigated
the stringency of BAT guidelines
for small direct discharging plants,
estimating that these exemptions
would provide relief for 19 plants
and save 162 jobs. (Exemptions
were not, however, given to any of
the small "indirect-discharging"
plants—that is, plants that
discharge into publicly owned
treatment works, such as
municipal treatment
systems—because the aggregate
amount of pollution discharged by
these plants is significantly greater
than that discharged by the direct
dischargers.)
Closure analysis, however,
provides no information about
effects on the economy as a whole,
or about the cost to society of
health and environmental
improvements. If used alone to set
standards, this information can
lead to undercontrolling pollution
from marginally profitable
industries and overcontrolling
pollution from profitable
industries, regardless of the
amount of pollution each industry
emits or the risk posed.
Beginning in the mid 1970s,
EPA programs began using
cost-effectiveness analyses to
evaluate its regulatory decision-
making. Cost-effectiveness analysis
compares the costs to industry of
pollution reduction with the
amount of pollution reduced. This
type of analysis provides a
decision-maker with a proxy of the
expected environmental results of
a regulation in terms of pollution
reduced, whereas closure analysis
provides no such measure. EPA
first used cost-effectiveness
analysis in the effluent guideline
program, where it remains one of
the types of economic analyses
used today. Cost-effectiveness
analysis is also among the types of
economic analyses currently used
by the air program in setting new
source performance standards and
hazardous air-emission standards,
by the drinking water program in
setting maximum contaminant
levels, and by the toxics program
as well.
From an environmental
standpoint, a pound of one
pollutant is not necessarily as
significant as a pound of another.
Yet cost-effectiveness analysis
treats all pollutants as if they were
alike. It provides no basis to judge
what is an appropriate amount to
"pay" for the unit of pollution
reduced, so historic precedent
became the benchmark in the past
for individual programs in EPA.
For example, the air program often
considered $1200 per ton to be an
acceptable amount to pay to avoid
certain pollutants through a new
source performance standard,
whereas the water program often
considered $300 per pound to be
appropriate for toxics reduced
through an effluent guideline.
Cost-effectiveness analysis can in
fact result in some pollutants being
underregulated and others
overregulated. To account for this
limitation, the current water
program, for example, in setting
effluent guidelines, weights
pollutants according to their
toxicity to health and the
environment.
Benefit-cost analysis, discussed
in the adjoining article, has
become Institutionalized as a tool
of regulatory analysis by the
issuance of Executive Order 12291.
Although it addresses many of the
problems found in other types of
economic: analyses, it cannot serve
as a substitute for them. Regulatory
decision-making today lakes into
consideration economic
information generated by a variety
of analytical techniques,
depending on the unique nature of
each regulatory problem.
MARCH 1988
11
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(Innlinnatl from pu
refineries for purification and recycling.
The questions before EPA were whether
to regulate used oil as a hazardous
waste under the Resource Conservation
and Recovery Act, and if so, whether
such regulation would interfere with
beneficial recycling.
The benefit-cost analysis for the
rule-making showed that the cost of
complying with full hazardous waste
regulations would be very large for
small businesses such as service
stations, discouraging them from
participating in recycling activities.
Instead of enhancing environmental
protection, the regulations just might
increase illegal dumping. By proposing
different standards for small, medium,
and large generators of used oil,
however—and by relaxing standards for
some used-oil transporters—it would be
possible to reduce environmental risks
and regulatory costs, with annual
savings estimated at $358 million and
10-year savings at $3.6 billion.
Supporting Decisions
In some cases, environmental statutes
specifically prohibit consideration of
certain factors in setting standards.
Under the Clean Water Act, for
example, EPA must consider the
economic feasibility of effluent
guidelines, but may not consider the
site-specific benefits of water-quality
improvements. Even so, benefit-cost
analyses can be helpful in supporting
decisions reached under other criteria.
The positive benefits of regulations
developed for the iron and steel
industry, for example, were confirmed
by a benefit-cost analysis performed as
part of a total RIA.
Limitations of Benefit-Cost Analysis
Despite these very clear-cut examples of
the effectiveness of benefit-cost
analyses, EPA is the first to admit their
shortcomings. EPA's guidelines, in fact,
specify that each RIA must point out the
limits of benefit-cost analyses and
consider them in the context of other
relevant factors.
Three major limitations in particular
affect the validity of benefit-cost
analyses:
• Limitations inherent in the nature of
economic analyses in general. Such
analyses can tell only part of the story
where people's health and values are
involved. The facts and figures
produced by even the best analyses
must always be tempered by real-world
considerations.
• Limitations due to gaps in available
information and deficiencies in analytic
techniques. Benefit-cost analyses
involve collecting large amounts of
scientific data, modeling complex
environmental phenomena, calculating
human exposures, and estimating
resulting diseases and deaths. When
data are poor or analytic techniques
deficient, the reliability of benefit-cost
analysis deteriorates. To protect the
soundness of environmental decisions
based on such analyses, EPA's RIA
guidelines call for full consideration of
all analytical uncertainties.
• Limitation due to errors and
omissions.
In light of the many complex analyses
required for each regulation, it is not
surprising that not all benefit-cost
analyses are performed correctly. EPA's
RIA guidelines provide guidance on
how to perform benefit-cost analyses
properly. If these guidelines are
followed, the analyses will be as good
as the underlying data and analytical
techniques permit. But because time,
budget, and other considerations do not
always allow complete analyses, the
guidelines also require that, at the very
least, decision-makers be informed of
the deficiencies in the data.
In spite of these acknowledged
limitations, however, the Agency's
review of RIAs has concluded that:
• Analysis pays. The benefit-cost
analyses performed over the last five
years have dramatically increased the
net benefits to society from
environmental regulations. Three of the
RIAs showed potential net benefits of
more than $10 billion from
recommended improvements.
• Benefit-cost analysis often results in
stricter environmental regulations.
Environmentalists often fear that
economic analysis will lead to less strict
environmental regulations in an effort to
save money. OPA's study reveals that
the opposite is just as often the case. For
example, the most dramatic increase in
net benefits—$6.7 billion in
savings—resulted from the
recommendation to virtually eliminate
lead in motor fuels, rather than simply
reduce it.
• Benefit-cost analysis may reveal
regulatory alternatives that achieve
desired environmental benefits at lower
cost. Three of the analyses studied by
OPA (used oil, TSCA premanufacture
review, and FIFRA data requirements)
showed that less costly regulations
could achieve the same results as more
expensive alternatives. And in at least
one case (used oil), the analysis showed
that the less costly alternative would
also achieve greater reductions in
environmental risk.
• The cost of benefit-cost analysis is
low. The average cost of EPA's RIAs
was $685,000. This amounts to about
0.1 percent of the minimum cost of a
major rule over five years.
Over the years since EPA was created,
the Agency's use of benefit-cost analysis
in environmental rule-making has risen
considerably. Though recognizing the
limitations of such analysis, EPA is
finding it increasingly useful in helping
to provide the balance needed in
making complex regulatory decisions. Q
(Luken is Chief, Economic Analysis
Branch, Office of Policy Analysis,
within EPA's Office of Policy, Planning,
and Evaluation.)
12
EPA JOURNAL
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Science and
the Regulatory Process
by Erich W. Bretthauer and Peter R. Jutro
EPA, as one of the world's largest
regulatory agencies, exercises its
enormous influence on our lives
through its administration of about a
dozen laws that give it authority over a
broad range of our activities. These laws
deal with emissions of pollutants into
the air and water, disposal of material
into landfills and the ocean, the
management of toxic substances, and
the use of pesticides—to name just a
few of EPA's concerns.
Regulatory agencies were developed
as a way to deal with social problems
based on arcane technical information
that required expertise for its
understanding and interpretation. These
agencies had as their charge to acquire
information, update it, and apply it with
discretion in a flexible fashion to
achieve specified goals.
As a regulatory agency, EPA shares
with its sister agencies certain
obligations that have evolved in the
American legal system. The
Constitution, Congress, and the courts
have, over the years, allowed enormous
executive power to be placed in the
hands of the administrators of executive
agencies, but one tenet of law has
remained firm and has been constantly
reinforced: the decisions of Agency
administrators may be neither arbitrary
nor capricious. This legal concept,
developed to protect the people from
abuse at the hands of their own
government, has in its own way become
the foundation of EPA's operating
philosophy. For it reinforces the notion
that all EPA's decisions must be based
on sound science.
This is not a recent concept at EPA.
Research has been an integral part of the
Agency since its founding, and
recognition of the importance of
research has increased over the years. In
fact, the well-known development
within the Agency in recent years of a
framework that separates the
management of risk from the assessment
of risk was undertaken in large measure
to improve the scientific foundation of
the Agency's regulatory decisions.
Science, however, cannot solve all of
our problems. In fact, the nature of the
scientific process itself will always
create dilemmas for those who have to
deal with science in a legal context. The
reason is simple: for the most part, the
law deals with certainty, while science
deals with uncertainties. Scientists can
offer information based on their current
understanding of a problem or a
situation, realizing that their knowledge
and predictive power are uncertain.
Senator Ted Kennedy once captured the
spirit of the problem well when he
called for more "one-armed scientists."
He was referring to the fact that
scientists' responses often begin: "On
the one hand...."
This insoluble problem aside, it is
clear that the conduct of science brings
forth new information and new
understanding. Obviously, the more we
know and the better we understand
something, the better we can deal with
it. As one looks at various laws that
EPA administers, one sees different
examples of the various relationships
that can exist between science and law,
or science and regulation. Perhaps the
best introduction to this relationship
can be found in the Clean Air Act
(CAA).
Title 1 of the CAA deals with the
ambient concentrations of certain
pollutants in the air around us. It
establishes what are known as National
Ambient Air Quality Standards, or
NAAQS for a particular set of pollutants
that the framers of the Act considered to
be of great importance as threats to
human health. But of more interest is
the fact that the law required EPA to
periodically reexamine these standards,
and as a result, we have stories to tell.
PM-,0 apportionment studies
are conducted at EPA's Air
and Engineering Research
Laboratory in Research
Triangle Park, North Carolina.
The plume formation of a
plant's smokestack
is simulated, and its
"fingerprint" used to obtain
source data.
D. Bruce Harris photo.
MARCH 1988
13
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One of EPA's early actions was to set
NAAQS for particulate matter. EPA
bases its NAAQS standards on "Criteria
Documents," exhaustive summaries and
assessments of data available on the
health and welfare effects of a particular
pollutant prepared by the Agency's
Office of Research and Development
(ORD). The Act itself requires these
documents to be prepared, reviewed,
modified, and reissued.
EPA established total suspended
particulate, or TSP standards in 1971.
These TSP standard were established to
protect the public against health effects
thought to be associated with a broad
range of sizes of airborne particles. The
specific concentrations and
exposure-averaging times for the
standard were based largely on two data
sources. One dealt with the relationship
measured between particles and health
in Britain based on a technique known
as the British Smoke, or BS method.
The other was based on American
epidemiological studies that associated
health effects with total particle
concentrations measured by high
volume, or "Hi-Vol" samplers.
In the years that followed, as the
Agency and states attempted to comply
with the standard, ORD—working with
the British—determined that the two
sampling methods were not always
yielding the same results when used
together. Subsequent research showed
that the Hi Vol method measured a
much larger range of particle sizes than
the BS method. Other research on
human health and modeling of the
regional deposition of particles in the
respiratory tract suggested that attention
be given to the smaller particles which
made their way deeper into the
respiratory tract, as these seemed to be
more likely to cause adverse health
effects. It appeared, therefore, that it
might be possible to better protect
human health by focusing regulatory
attention on the smaller particles.
As a result, in 1979, ORD decided to
focus its particulate research on
particles less than 15 microns in
diameter. EPA then began a program to
establish an inhalable particle network
to collect the concentration data that
would be needed to support a new
NAAQS. ORD focused its attention on
initiating studies to develop new and
more accurate samplers. As this work
was going on, a reassessment of the
importance of particle size (conducted
in the preparation of the next criteria
document) lowered the size limit of
interest from 15 to 10 microns. This
made it necessary to redesign parts of
what were to become the PM10
samplers, and much of the work was
done so as to make it possible to retrofit
or modify the existing TSP samplers.
This work resulted in the improved
PMio monitors now commercially
available.
Finally, last summer, the TSP
measurement was replaced by a new
indicator that includes only particles 10
microns in size or smaller. This new
PM10 standard will focus regulatory
control in a fundamentally different and
more effective way. It reflects the fact
that science was brought to bear on an
important regulatory decision. Health
scientists came to conclusions about the
implications of the size differences,
engineers designed monitoring
equipment to differentiate
different-sized particles, and others
designed monitoring networks that
allowed collected data to be more
representative.
EPA's scientists work on a far
broader range of issues than air
pollution, but the entire NAAQS
process is a classic example of the
relationship between science and
regulation. Scientists defined and
assessed health effects, created the
models needed to predict human
exposure to pollutants, did the
monitoring, often creating the
equipment themselves, and developed
the necessary control technology. All of
this was done in close collaboration
with the regulators, and each undertook
their half of the partnership in
synchronization with the other. As a
result, and almost by accident, EPA
managed to create an unusually
successful long-term research program
that often anticipated the needs of the
regulators and provided information
that was of use in unexpected areas as
well.
Science can never anticipate all the
needs that may arise. In fact it often
discovers these needs itself. But science
can be, as is the case at EPA, constantly
reevaluating its skill mix, facilities, and
relationship to the scientific community
at large so that it is best positioned to
respond to those needs which were not
anticipated. As such it is best able to
fulfill its peculiar environmental
protection role in which both it and
EPA's program offices are each others'
clients. D
(Bretthauer is EPA's acting Deputy
Assistant Administrator for Research
and Development. Dr. /utro is Special
Assistant to the Assistant Administrator
for Research and Development.]
14
EPA JOURNAL
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Disagreeing About the
Rules: To the Courtroom
by Mark R. Haag
5TATES COURT
The Justice Department's Land
and Natural Resources Division
works closely with EPA on a wide range
of cases, for when EPA goes to court, it
is represented by the Department. Many
of these cases are enforcement actions
against persons accused of violating
clean air, clean water, hazardous waste,
or other environmental laws. Others are
cases where the Agency's
actions—including, occasionally, its
regulations—are challenged. These
defensive cases are probably less
familiar to the public than enforcement
litigation, but they can be extremely
important, because the validity of entire
regulatory programs is sometimes at
issue. It is these cases—cases where a
court determines the validity of EPA
regulations—that are the subject of this
article.
The process that culminates in
judicial review of regulations starts in
Congress. When legislating in areas that
involve complex technical or scientific
judgments, Congress frequently states its
objectives, outlines a basic statutory
scheme, and delegates to a government
agency the task of promulgating
regulations to implement the statutory
scheme. Once promulgated, the
regulations have the full force of law.
As simple and logical as this
delegation concept is, it involves
something quite remarkable: the transfer
of the power to make law from Congress
to the unelected heads of government
agencies. Furthermore, delegation is
often considerably more difficult in
practice than it appears in theory. It is
sometimes quite difficult for the agency
to determine what Congress intended in
a particular statutory provision, and to
realize that intent in a consistent and
workable body of regulations. To ensure
that agencies do not abuse their
delegated authority, misapprehend the
intent of Congress, or violate the
Constitution, regulations promulgated
by federal agencies are subject to review
in federal court. Aggrieved individuals
or groups can file suit challenging
agency actions; it then falls to the court
to decide whether the agency has acted
properly.
A good example of the judicial review
process is the saga of EPA's regulations
governing lead in gasoline. The story
begins in 1970, when Congress enacted
a set of amendments to the Clean Air
Act. Among other things, the
amendments gave the newly created
EPA authority to regulate the sale of any
fuel additive the emission products of
which "will endanger the public health
or welfare."
Under this authority, EPA proposed
regulations in February 1972 limiting
the amount of lead in leaded gasoline
and requiring gasoline retailers to offer
at least one grade of unleaded gas. After
taking public comment, EPA decided
that its original analysis of the health
effects of lead emissions required
modification, and withdrew its
proposal. The provision requiring
retailers to carry unleaded gas was
reproposed in January 1973, but the
limit on lead additives was not.
An environmental group challenged
EPA's failure to impose a limit cm load
additives. In Natural Resources Defense
Council v. EPA, the environmentalists
argued that the Clean Air Act required
EPA to promulgate regulations limiting
lead additives. Without deciding
whether the environmentalists' position
was correct, the court ordered EPA to
decide within 30 days whether it
intended to promulgate such
regulations. The Agency decided that it
would regulate, and in November 1973
MARCH 1988
-------
issued final rules requiring that lead in
all gasoline be reduced over a five-year
period to an average of 0.5 grams per
gallon.
EPA's decision to regulate lead
additives was, at least superficially,
consistent with the intent of Congress.
Although the Clean Air Act
Amendments did not specifically
mention lead—they refer broadly to
"any fuel additive"—several members of
Congress had made remarks during
debate on the amendments indicating
that the fuel additive provision was
specifically intended to enable EPA to
regulate lead. EPA's decision to regulate
was also supported by three key facts:
lead at high concentrations in the body
is toxic; lead can be absorbed into the
body from the air; and lead emissions
from automobile engines accounted at
the time for approximately 90 percent of
the lead in the air.
There was some scientific uncertainty,
however, about the precise connection
between lead in automobile emissions
and lead in people. Lead is a common
element, present in soil, sea water,
plants, animals, and people. While it
can be absorbed from the air, it can also
come from foods, and young children
may ingest it by eating paint chips. The
effects of lead from these various
sources, once lead has been absorbed by
the body, are identical and cumulative,
making it difficult to measure the effect
of any one source of lead on human
health. Nevertheless, EPA concluded on
the basis of the available information
that lead emissions from automobiles
presented a "significant risk of harm to
urban populations." That conclusion
provided the basis for its decision to
regulate lead in gasoline.
The regulations issued in response to
the court's order in Natural Resources
Defense Council were promptly
challenged by a group of gasoline
refiners and lead additive manufacturers
in Ethyl Corp. v. EPA. Among other
things, the challengers claimed that the
EPA Administrator had misinterpreted
the Act's provision allowing EPA to
regulate the sale of fuel additives whose
emission products "will endanger the
public health or welfare." The
challengers read this language to mean
that EPA could only regulate additives
that caused "actual harm." The
"significant risk of harm" found by EPA
was not enough to justify regulation.
Furthermore, they said, the harm must
come from the additives in and of
themselves. The Administrator's
consideration of the cumulative impact
of lead additives together with all other
sources of lead was not permitted under
the Act.
The case was heard by the United
States Court of Appeals for the District
of Columbia—the same court that had
heard Natural Resources Defense
Council. The court .evaluated the lead
regulations under the standard of review
that applies to most challenges to
agency actions—a standard with a
vaguely paradoxical character that is
puzzling to the uninitiated (and
EPA, the Justice Department,
the challengers' attorneys, and
two panels of judges devoted
enormous time and effort to
answer a single question:
What did Congress mean by
the two words "will
endanger"?
sometimes to experienced attorneys as
well). Under this standard, the court
must make a careful review of the
factors considered by EPA, and a
searching and careful inquiry into the
facts. At the same time, it must give
great deference to the Agency's
decision. It may not substitute its
judgment for the Agency's and must
affirm the Agency if a rational basis
exists for its decision. The court must,
however, invalidate Agency action that
is "arbitrary, capricious, an abuse of
discretion, or otherwise not in
accordance with law."
A three-judge panel of the court
applied this standard and struck down
the EPA regulation. The court held that
there was not enough evidence of a
causal connection between lead
emissions from automobiles and harm
to human health to justify the
regulations. Absent such evidence, the
Administrator's decision to regulate was
arbitrary and capricious.
The government asked the court to
reconsider. Such requests are not
usually granted, but in this case the
court agreed. Under a special procedure
used for particularly important legal
questions, the case was reargued before
a panel of nine judges. The new panel
reversed the first panel's determination
and upheld the EPA regulations. The
vote was five to four.
The court's opinion reflects the
tension inherent in any delegation of
authority. The court acknowledged the
need to allow the EPA Administrator
flexibility to deal with scientific
uncertainty:
He must take account of available
facts, of course, but his inquiry
does not end there. The
Administrator may apply his
expertise to draw conclusions from
suspected, but not completely
substantiated relationships
between facts . . . We believe that a
conclusion so drawn . . . may, if
rational, form the basis for
health-based regulations under the
"will endanger" language of [the
Act.]
At the same time, the court was
mindful of the need for Congress to
limit the scope of the delegated
authority:
All of this is not to say that
Congress left the Administrator
free to set policy on his own
terms. To the contrary, the policy
guidelines are largely set, both in
the. statutory term "will endanger"
and in the relationship of that term
to other sections of the Clean Air
Act. These prescriptions direct the
Administrator's actions.
The EthyJ case shows how carefully
the courts scrutinize the exercise of
delegated legislative authority by
government agencies. It also points up
how difficult delegation can be in
practice. EPA, the Justice Department,
the challengers' attorneys, and two
panels of judges devoted enormous time
and effort to answer a single question:
What did Congress mean by the two
words "will endanger"?
The outcome in EthyJ was a success
for the Justice Department and EPA. The
court upheld EPA's lead regulation, and
the lead phasedown went forward. The
government's legal success has turned
out to be an environmental success as
well. In the 10 years since the lead
regulations went into effect, lead in the
ambient air has decreased dramatically.
Moreover, the regulatory process
worked as it is intended to work:
general policy guidance from Congress,
technical expertise applied by the
Agency, and review of the outcome by
the court. As painstaking and
time-consuming as the judicial review
process may be, it is an essential
element of the regulatory process and a
necessary protection against the
improper exercise of legislative
authority by administrative agencies, o
(Haag is an Attorney with the Land
and Natural Resources Division of the
U.S. Department of Justice.}
16
EPA JOURNAL
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Disagreeing About the Rules:
Negotiation and Mediation
by Gail Bingham and James Laue
The clash of environmental conflict is
familiar in nearly every locale. One
such dispute sent a Long Island garbage
scow on a nearly six-month cruise to
seven states and three countries. Along
the way, almost everyone agreed that
something needed to be done with the
waste it contained—as long as it was
done somewhere else. No one wants the
nation's school children exposed to
asbestos fibers either, but the
controversies over what to do when
asbestos is discovered in a school can
tear an individual school district apart.
Although these controversies and
many others make frequent headlines,
increasing numbers have an unusual
ending. Rather than proceeding to the
courtroom, or facing a stalemate, many
individuals and groups have been able
to resolve their disagreements through
direct negotiation, often with the
assistance of a mediator.
Since 1974, mediators have been
involved in hundreds of environmental
disputes—some over large policy issues,
others over local projects. The diversity
of the issues resolved is remarkable, and
the overall success rate is high, with
agreement in 78 percent of the cases
documented.
The U.S. Environmental Protection
Agency has been among the leaders in
initiating the resolution of
environmental disputes through
negotiation and mediation. Dramatic
examples of successful negotiation have
occurred in rulemaking, permitting, and
enforcement disputes.
Negotiating Regulations
EPA has convened seven negotiated
rulemaking efforts, known in the
blossoming field of conflict resolution
as "reg-negs." Most of them have been
conducted under the auspices of the
Agency's Office of Policy, Planning, and
Evaluation's Regulatory Negotiation
Project, directed by Chris Kirtz.
A notable example of the "reg-neg"
process resulted in the proposed
Environmental conflicts have become
familiar all over the United States.
One notorious example was the
half-year voyage of a wandering
garbage barge. Here, in a photo taken
last summer, two tugs hold it in
position in New York Harbor. Some
environmental disputes now end up
being resolved through mediators,
rather than being fought out in the
courts. AP Wide World photos.
MARCH 1988
17
-------
regulations governing new source
performance standards for residential
woodstoves. This negotiated rulemaking
effort has been analyzed by Philip J.
Harter, an independent mediator, in a
January 1988 report prepared for EPA.
Woodstoves have become a popular
source of heating, particularly in areas
of the country with plentiful wood
supplies. (Sales of residential
woodstoves increased from 220,000 per
year in the early 1970s to over 2,000,000
per year by the end of that decade.)
With increased use, residential
woodstoves became the largest
unregulated source of particulate matter
and carbon monoxide. Woodstoves also
accounted for nearly half of all
polycyclic organic emissions
nationwide. Following legal challenges
by the Natural Resources Defense
Council (NRDC) and the state of New
York, EPA agreed to develop new
source performance standards for
residential woodstoves.
The NRDC, representing
environmental concerns, and the Wood
Heating Alliance, representing
manufacturers, retailers, and others in
the industry, approached EPA with the
suggestion that thesp new standards be
developed through negotiations
involving EPA, environmental groups,
industry, and states that had begun to
implement their own regulations. They
felt that such a process might be more
likely to result in a regulation that met
the environmentalists' interest in a
stringent standard implemented quickly
and the industry's interest in
establishing test methods using
independent testing laboratories and in
avoiding inconsistent state regulations.
EPA worked closely with Philip J.
Harter during the convening phase to
identify who could best represent the
diverse interests in this regulation. (Mr.
Harter continued as facilitator
throughout the process.) An initial
organizational meeting, with notice
published in the Federal Register, was
held in February 1986. At this meeting,
attendees recommended that EPA
proceed with the negotiated rulemaking,
discussed procedural issues concerning
the negotiation process, and developed
a list of issues for future meetings.
The negotiation committee originally
planned to meet for five two-day
meetings from March through July 1986,
but added a final meeting in August
when it became apparent that additional
time was needed. The issues were
complex, and technical papers were
prepared both by EPA and by other
parties prior to each meeting. After a
series of tough negotiations and caucus
sessions, the participants reached an
agreement in principle on the
regulations at the last meeting.
A drafting committee continued to
meet intensively following the August
meeting to develop final regulatory
language. Because the drafting process
surfaced many specific issues,
representatives consulted frequently
with the other members of the full
committee. Several versions of the draft
rule were circulated over a period of
two and a half months. Each member of
the committee signed the agreement,
and a Notice of Proposed Rulemaking
was published by EPA in February
1987.
Negotiating the Management and
Cleanup of Waste Sites
Management of the nation's solid and
hazardous waste also generates intense
controversy in hundreds of
communities. Many municipal landfills
are reaching their capacity, pointing to
an impending escalation of siting
conflicts. Although the public wants
improved, environmentally sound, and
economically viable ways to manage
wastes (including waste reduction),
individual communities are naturally
reluctant to bear the impacts associated
with new facilities. In an effort to allow
concerns to be raised and resolved more
effectively, 11 states now authorize or
require negotiation of disputes over
Eleven states now authorize or
require negotiation of disputes
over siting and permitting of
waste facilities.
siting and permitting of waste facilities,
either in statutes or regulations. They
are California, Connecticut,
Massachusetts, Minnesota, New
Hampshire, North Carolina, Rhode
Island, Texas, Virginia, Washington, and
Wisconsin.
In Rhode Island, the city of Warwick
reached a negotiated agreement in
August 1986 with the ETICAM company
over the operation of a hazardous waste
treatment facility for the electroplating
industry. These negotiations were
mediated with support from EPA by
Wendy Emrich of PennACCORD and
Thomas Colosi of the American
Arbitration Association.
ETICAM and the local assessment
committee met jointly with the mediator
four times during a period of 15 weeks,
with numerous intervening technical
meetings. The agreement reached
addressed many issues, among them the
types of wastes to be accepted by the
facility, the establishment of a trust
fund to ensure adequate closure,
acceptable truck routes, public access to
the facility, training for municipal
employees, and liability insurance
requirements.
Negotiation and mediation of disputes
over the cleanup of hazardous waste
sites are also showing promising results.
For example, Clean Sites, Inc. has
assisted EPA and private parties to
reach settlement agreements in at least
seven remedial and removal actions
worth over $80 million, with additional
agreements reached on remedial
investigations and feasibility studies.
EPA Administrator Lee Thomas
further strengthened the Agency's
support for cooperative dispute
resolution when he issued "Final
Guidance on Use of Alternative Dispute
Resolution Techniques in EPA
Enforcement Actions" on August 14,
1987. The Guidance encourages use of
four major approaches to resolution of
enforcement disputes (fact-finding,
mediation, arbitration, and mini-trials),
and asks each regional office to
recommend at least one case in which
these techniques could be applied in the
current fiscal year.
Mediating Resource Management
The Missouri River drains a watershed
covering 10 states and more than
500,000 square miles in the United
States alone, as it flows 2,315 miles
from Three Forks, Montana, to the
Mississippi River just above St. Louis.
18
EPA JOURNAL
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Many parties have a stake in
management of the river: the 10 states,
the U.S. Army Corps of Engineers, the
U.S. Bureau of Reclamation, Indian
tribes, and a wide variety of groups
representing agriculture, navigation, fish
and wildlife, conservation, recreation,
and railroads.
In the absence of interstate or
state/federal guidelines to resolve
questions that regularly arise concerning
conflicting uses of the water, such
disputes traditionally have been dealt
with on an ad hoc basis, often involving
lengthy and costly litigation. In 1983,
South Dakota's proposal to sell water
from the Oahe federal reservoir to the
ETSI Corporation stimulated a law suit
filed against the U.S. Bureau of
Recreation by three downstream states:
Iowa, Missouri, and Nebraska. John
Murray of the Conflict Clinic, Inc.,
brought the four states and ETSI to the
table to explore mediation of their
dispute. They held six joint meetings in
1983 and 1984 which, all the parties
agreed, were moving them toward a
resolution until ETSI reluctantly
dropped its proposed pipeline project
because of financial infeasibility.
This experience led the 10-state
Missouri Basin States Association
(MBSA) to enlist the Clinic to help
MBSA play fact-finding and convenor
roles in identifying, analyzing, and
providing mediation assistance for
interstate water conflicts. The
Association added these functions to its
bylaws in 1985; completed an analysis
and recommendations on eight types of
major water issues in 1985-86; convened
representatives of the 10 governors for a
still-to-be-completed effort to develop a
consensus on interstate guidelines or a
compact for managing conflicts; and
developed, with Conflict Clinic staff
James Laue and Miranda Salkoff as
mediators, a 10-state consensus on a
proposed Corps of Engineers
water-pricing policy.
Not every dispute in the Missouri
Basin has been resolved—and there will
be more. But the MBSA has
demonstrated the utility of viewing its
work in a conflict resolution framework,
and of applying negotiation and
mediation to specific conflicts in the
Basin.
What Have We Learned?
These and numerous other examples
over the past decade have demonstrated
that negotiation and mediation
approaches offer useful opportunities
for those affected by environmental
problems to reach mutually acceptable
decisions that can satisfy their interests
and their sense of the public interest.
However, the path to resolving conflicts
may not be easy, and several clear
lessons have been learned.
• Conflict makes some people
uncomfortable. Effective conflict
resolution does not allow the illusory
benefits of avoiding differences,
however. It is only by acknowledging
and learning how to deal with
differences that adversaries can
challenge themselves and one another to
invent more creative solutions to
problems.
• Attention must be given to the
assumptions on which conflict
resolution processes are based. How the
scope of an agenda for negotiation is
defined, who gets to play, and what
rules of the game are set are decisions
crucial to whether the interests of all
parties truly will be met. For example,
negotiations over waste facility siting
disputes will never get off the ground if
the parties can't agree about whether the
negotiations will be about how a facility
will be sited or whether it should be
sited.
• The choice of participants also can
substantially affect the outcome of
negotiations. What satisfies one set of
parties may not protect the interests of
others who are not at the table. Shaping
the table and getting the necessary
parties there is often a time-consuming
and highly complex process. Who has a
stake? Who doesn't? Is it possible to
represent "the public interest" in any
useful way at multi-party negotiations?
Should those who oppose any
settlement, but could snap off any
agreement reached, be there?
• Environmental disputes can be
significantly more complicated than the
negotiations with which most parties
Environmental disputes can be
significantly more complicated
than the negotiations with
which most parties are
familiar.
are familiar. Often environmental
negotiations involve multiple parties
(organizations not individuals), multiple
issues with a high degree of technical
and scientific complexity, and parties
with greatly different resources to deal
with the complexity. These problems
can be handled; they just make
resolving conflicts more difficult.
Conclusion
The interest in "alternative" approaches
for resolving environmental disputes
seems to stem largely from
dissatisfaction with the ability of
traditional decision-making processes to
deal satisfactorily with the real issues in
dispute and the costs of delay in
protracted conflicts. Rather than
viewing negotiation and mediations as
"alternatives," however—with the
presumption that the traditional
recourse to the courts is bad—voluntary
dispute resolution processes are better
viewed as additional toois that may or
may not be more effective or more
efficient in particular circumstances. It
could be argued that informal
negotiation has been the central,
ongoing process in resolving differences
in this multi-interest, decentralized
society, and that litigation is the
"alternative" when the ongoing
processes of problem-solving break
down.
Negotiation and mediation have
demonstrated remarkably positive
results, but litigation and other
traditional decision-making processes
remain important options.
Environmental disputes are so diverse
that no single dispute-resolution process
is likely to be successful in all
situations. With the growing
sophistication and success of
negotiation and mediation, there now is
a broader array of effective options for
resolving environmental conflicts, o
(Bingham is the Director of the Program
on Environmental Dispute Resolution at
The Conservation Foundation and the
author of Resolving Environmental
Disputes: A Decade of Experience
(Washington, DC, 1986J. Dr. Laue is the
Lynch Professor of Conflict Resolution
at George Mason University and Senior
Consultant to the Conflict Clinic, Inc.)
MARCH 1988
19
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Handling the Punches:
Clean-up Regulations and Small Business
by Karen V. Brown
The classification of the dry-cleaning
industry and automotive service
shops as potential generators of
hazardous waste profoundly shocked
thousands of small "mainstreet"
business proprietors, many of whom
represent second and third generation
owners of family-operated businesses.
For the most part they grew up in the
business, learning their trade from
fathers, relatives, or friends. They work
long hours doing everything from
sweeping the floor to bookkeeping.
A typical owner of a dry-cleaning
establishment must not only operate the
huge cleaning and drying machines, the
washer/driers and finishing equipment,
but also does the tagging, garment
spotting, garment repair, and/or
alterations along with cash accounting,
tax reporting, buying, hiring, firing,
deliveries, etc. The typical proprietor
works 10 to 12 hours a day, grosses
$150,000 per year, employs six people,
and (after salaries and expenses) makes
a profit of $5,000 to $7,000 annually.
Automotive repair shops and
service-stations boast an even greater
range of diverse responsibilities that
occupy the owner/operator from dawn
to dusk and often beyond. Their profit
margin is usually less than $6,000 per
year, and the average workday exceeds
12 hours.
It is against this backdrop of long
hours of labor and marginal profits that
the small business community received
the news that some of them might now
be subject to new federal environmental
regulations. One can well appreciate
their reluctance to assume another
reporting responsibility along with the
higher costs of liability insurance that
follow the designation "generator of
hazardous waste"—albeit small in
quantity. Any new and unforeseen
expenditure to comply with
environmental regulations would have
to come from current revenues or
directly out of the owner's pocket.
These and other business entities
falling under the new regulatory
umbrella began to seek out answers to
their questions and help with their
problems. The Small Business
Ombudsman's toll-free hotline began to
JUS®?
Reprinted by permission, Tribune Media
Service.
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EPA JOURNAL
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ring and ring and it's been ringing
ever since! The small businessman
wants to know: Is my company a small
quantity generator? What wastes are
hazardous? What regulations apply to
me? What must I do to comply? Where
can I get help and more information?
Of course, the Resource Conservation
and Recovery Act (RCRA) isn't the only
federal environmental legislation
affecting small business. The
Ombudsman's Office has provided
assistance to hundreds of businesses
and industries affected by water quality
standards under the Clean Water Act,
drinking water testing requirements
authorized by the Safe Drinking Water
Act, and automotive-import
emission-control requirements and
conversions under the Clean Air Act, to
name a few.
Considering the Impacts
The Regulatory Flexibility Act of
1980 requires federal agency
decision-makers to take into
account the effect of regulations
upon small businesses before
choosing among regulatory
alternatives. "Regulatory impact
analyses," which are performed for
most major regulations, often
include a discussion of effects on
small businesses, and arguments
for or against relaxing controls for
some or all categories within the
affected industries. However,
impacts on small business are
almost always weighed against
estimates of the environmental
benefits that would result from
imposing controls on these
entities. Consequently, small
businesses in different industries
can end up being treated
differently. For instance, when the
effluent guidelines for metal
foundries were promulgated,
magnesium foundries were
exempted from regulations and
some iron foundries received
reduced controls. On the other
hand, the effluent guidelines
formulated for the electroplating
industry did not include any
exemptions, even though most of
this industry is composed of small
plants.
During a week, the Small Business
Ombudsman (SBO) may receive requests
for information and assistance from
placer gold mines, photo finishing
companies, metal finishing companies.
pesticide formulators, waste recyclers,
laundries, dry cleaners, service stations,
muffler installers, meat packing houses,
chicken farms, poultry processors, hot
springs, mineral spas, paint stores.
chemical plants, hospitals, and drug
stores. A number of these enterprises
are required to comply with several
environmental acts and numerous
federal regulations.
For example, one such enterprise is
agribusiness—which often includes
formulation and application of farm
chemicals, grain warehousing, storage
and sale of petroleum products,
livestock buying stations, and general
farm-related commercial sales. A typical
agribusiness could be regulated under
RCRA as a generator of hazardous waste
and as an operator of underground
storage tanks for petroleum and
chemical products; the Superfund
Amendments and Reauthorization Act
(SARA) of 1986, which requires
community Right-To-Know reporting;
the Clean Water Act, which regulates
liquid wastes, livestock feed lots,
organic chemical production, etc.; the
Clean Air Act regulating atmospheric
emissions from chemical and fertilizer
production, grain drying (blowers) etc.;
the Toxic Substance Control Act (TSCA)
requiring compliance with reporting
toxic chemicals and premanufacturing
product notices; and the Federal
Insecticide, Fungicide, and Rodenticide
Act (FIFRA) requiring pesticide
registration and approval, applicator
training and certification, and worker
protection standards for commercial
farmers.
In addition, agribusinesses would be
subject to any future Agency regulation
on used oil, fuel additives, "user
charges" for pesticide registrations, and
waste-minimization requirements among
others. The agribusiness sector is not
atypical. Hundreds of small businesses
and industries are subject to multiple
environmental acts and regulations. The
typical "mainstreet" dry cleaner may be
impacted by provisions of RCRA, CWA,
and CAA while the vehicle repair shops
are subject to the same Acts along with
guidance on brake asbestos exposure
under the authority of the TSCA. The
list goes on.
Considering that only a handful of
these tens of thousands of business
entities has ever heard of the Federal
Register, the government's traditional
means of outreach, and that fewer than
half of them belong to national trade
associations, EPA must greatly expand
its efforts to get the word out. Effective
educational outreach is imperative
because, with the numbers of entities
involved, voluntary compliance is an
absolute necessity if the Agency is to
achieve its environmental goals!
Though environmental considerations
maybe a burden on the entrepreneurial
spirit, EPA pledges to work with small
businesses to make the nation—and the
small business workplace—safer and
more salubrious than ever, o
(Brown is EPA's Small Business
Ombudsman.)
Small Business
Ombudsman
Since its creation in 1983, EPA's
Small Business Ombudsman (SBO)
office has handled more than
45,000 telephone hotline and mail
requests for advice, information,
and assistance on compliance with
Agency regulations. It has mailed
hundreds of thousands of
brochures and pamphlets to small
businesses in search of
information, and SBO staff have
personally spoken to thousands of
small business people in
appearances before trade
associations and organizations
across the nation. Additionally,
trade publications widely
disseminate the SBO toll-free
hotline number to the extent that it
has become a standard listing in
the directories of small business
people.
MARCH 1988
21
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The Regulator
as Seen by a Regulatee
by John A. Krol
In 18 years, EPA's scope and
function have expanded from dealing
with concerns about car exhaust,
smokestack emissions, raw sewage, and
chemicals in wastewater to
administering major programs under
about a dozen environmental statutes.
These address a host of environmental
concerns that have resulted from our
growing industrial society.
In that expanding role, the Agency
has had the difficult task of consistently
operating as an objective scientific
entity in a public, highly political
environment. It has often found itself
caught among the varying needs and
agendas of the public, Congress,
environmentalists, and industry. And,
although EPA has had its ups and
downs in publicity, credibility, and
effectiveness, no one would deny that it
has become a world-class organization,
the standard for other nations.
How has the Agency earned this
distinction?
• By making substantial progress in
controlling the more visible
environmental concerns.
• By striving to balance human health
and environmental protection with
political, economic, and other social
needs.
• By setting near-term and long-term
goals and priorities to better plan for
and deal with issues.
• By giving attention to newer issues
while dealing with older ones.
• By peering over the horizon for future
concerns of local, national,
international, and global importance.
In spite of good progress, important
business remains unfinished. In the
agricultural arena, for example,
pesticide registration and reregistration,
development of health-based pesticide
Cartoon by artist Virgil Armstrong of Wilmington, Delaware, commissioned
by The Du Pont Company.
EPA JOURNAL
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standards for food and water, and the
design and implementation of
comprehensive protection programs for
soil, water, and endangered species are
among the programs under way. Other
federal and state agencies, lawmakers,
agribusinesses, and the public are
involved in these programs. Since each
group has different perceptions and
needs, regulatory effectiveness is
dependent in part upon communication
among these groups. Feedback is
important, and the Agency asked us to
comment from our point of view.
In this spirit, I'd like to look at
industry's perceptions of the issues with
respect to agricultural chemicals.
Several of these comments may apply to
other Agency activities as well.
Pesticide Registration
• Agricultural Experience: To the
extent resources permit, Agency
scientists and regulators should visit
agricultural sites, meet farmers, custom
applicators, and other ag representatives
to gain a personal understanding of
pesticide risks and benefits and the
societal implications of their decisions.
This is true whether they're dealing
with risk assessment or risk
management, ground water, or
endangered species.
• Seeing the Big Picture: It is important
that the Agency carry its strategic focus
throughout the organization. Staff
scientists and regulators with a highly
technical orientation need to have a
clear view of the "big picture" of the
Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) as a balancing
of acceptable risk to obtain desirable
benefits. Scientific rigor must be
tempered with common sense. An
example is repeated and costly requests
for additional, often insignificant, data
to further quantify potential hazard,
without an appreciation that the risk per
se may be negligible due to negligible
exposure.
• Outside Communications: Technical
balance should be achieved by frequent
checks with scientific advisory panels
and peer review scientists early in a
given decision-making process.
• Timeliness: Should the Agency base
its actions on timeliness or certainty?
This question is raised here in the
context of the improved timeliness that
the above measures could achieve.
Leadership
The Agency has taken an important
leadership step with its Comparative
Risk Project. A team of 75 senior
Agency managers, staff persons, and
experts representing all EPA programs
worked for nine months to identify
priorities for their risk assessment and
risk management efforts. Their report
signals a significant initiative by the
Agency to set its own agenda and
should foster more rational discussion
of environmental priorities by the
public.
We all live in a rapidly
changing society. Industry as
well as EPA must change in
order to keep up.
William A. Butler, former Director of
the National Audubon Society,
commented on the Comparative Risk
Project in a recent issue of the EPA
Journal (May 1987]., "One of the most
troublesome of the study's findings is
that apparently EPA's current priorities
most closely approximate mistaken
public perceptions of comparative
environmental risk, rather than those of
EPA's own and presumably better
informed management and scientific
experts." For example, the report ranked
ground-water concerns relatively
low—clearly not the sentiment of the
media, environmental groups, and
significant portions of the U.S. public.
We support EPA's efforts to protect
ground water, but feel that the Agency
could better set its own regulatory
agenda with the support of an informed
public and Congress. We believe that
the Agency is in a unique position to set
risk-reduction priorities and to
influence societal behavior. But to do so
will require an effective effort to
eliminate mistaken public perceptions
about comparative environmental risks.
Communication
• Informing the Public: We believe that
EPA has a role to play beyond hazard
communication. It should talk about
actual risk under real-life use situations.
Rather than just providing basic
information on pesticide hazards and
benefits and asking those hearing or
reading media reports to fill in the rest
of the picture, for example, the Agency
should communicate objective
information to the public. If this
includes an occasional response to
hyperbole and sensationalistic reporting,
it would go a long way towards
improving the quality of the debate.
• Effective Communication: The
Agency operates in an open, public
forum with many spokespersons,
requiring both consistency and
sensitivity in public comments.
Consistency is needed so that published
statements reflect commonly held
positions, regardless of where in the
Agency the quotation originates. Great
sensitivity is needed as to the probable
impact of public statements and news
releases. For example, either the Agency
believes that health-based dietary
tolerances and margins of safety for
pesticides are based on good science, or
they do not. The Agency should strive
to put their public comments on
reported detections of pesticides into
perspective for the public.
We all live in a rapidly changing
society. Industry as well as EPA must
change in order to keep up. Many of the
pressures and challenges facing EPA are
the same that we face in our own
business. We strive to discover and
bring to the marketplace new, safe, low
use-rate pesticides. We also strive to
address environmental concerns through
product stewardship efforts,
environmental monitoring, and
effective communications with pesticide
users, the public, social leaders, and the
media. We realize that a wide gap exists
between public perception and objective
reality. The misinformation that
presently fills this gap must be replaced
with effective national programs of
environmental protection and credible
health-based scientific information. We
encourage the Agency to continue its
very positive direction, Q
(Krol is Group Vice President,
Agricultural Products Department, at
The Du Pont Company in Wilmington,
Delaware.]
MARCH 1988
23
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tt Has to Be
a Partnership!
by Fred Hansen
Both EPA and state environmental
protection agencies recognize that
their relationship needs to be refined
and improved. This signifies what I
trust will be the beginning of a new era
of cooperation as we move into Phase 2
of the enormous task of preserving the
environment and cleaning up past
mistakes. I don't want to imply that
there aren't major differences of opinion
on such controversial topics as acid
rain, ozone transport, and hazardous
waste reduction, to name just three.
Conflicts between states and EPA on
such substantive issues are, however,
beyond the scope of this article.
My intention here is to address three
challenges: the changing state and
federal relationship; institutionalized
cooperation and a general
acknowledgement at all levels that we
are co-equal management entities; and
why the states must present a unified
front to Congress.
A Changing Relationship
Initially, the states were the only
environmental regulators. Fifty years
ago Oregonians voted to create one of
the first water pollution control
authorities in the nation, launching a
successful cleanup of the nation's 12th
largest river, the Willamette. Similar
stories of pioneer action could be told
by many other states.
But the 1960s saw a growing public
concern for the whole environment,
culminating in Earth Day 1970. EPA
was established because the magnitude
and interstate nature of environmental
problems made it clear that they needed
to be addressed at the federal level too,
not just by the states working
separately.
This shift of focus was a natural
response to the need for a nationally
consistent policy. Congressional action
and executive mandates were not only
necessary but desirable to enhance
existing programs and create tough laws
The states have a major roie in
environmental cleanup. Oregon, site of
Mt. Hood, began working on water
pollution control in the 1930s. Photo by
David Falconer, Folio, Inc.
24
EPA JOURNAL
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to deal with such interstate issues as
clean air and water and for financing
such big-ticket items as construction
grants and the federal Superfund.
With the establishment of a major
federal role, states were seen as the
implementors of rules and programs
financed by EPA. In fact, there was an
unfortunate perception that EPA was
"management" and the states were the
"employees," and that all problems
would be solved if only the states
would attend obedience school. Partly
because EPA was financing the
programs and partly because states were
willing to let EPA take responsibility for
promulgating regulations, states found
that they gradually played a smaller and
smaller role in formulating policy and
setting priorities.
EPA became less willing to delegate
authority and, even when it did, used
scarce resources to closely monitor state
action—trying to ensure that we acted
exactly as EPA would have. This lack of
confidence in the states' commitment
and abilities helped institutionalize a
level of mistrust and over-reporting that
is hamstringing environmental
protection efforts and is proving nearly
impossible to overcome.
This tendency is especially counter-
productive now that states are boosting
their role in financing and managing
comprehensive environmental programs
that not only comply with federal
regulations but address issues that are
state-specific. In addition, amendments
to federal legislation such as the Clean
Water Act, Safe Drinking Water Act,
Clean Air Act, Resource Conservation
and Recovery Act, and Comprehensive
Environmental Response,
Compensation, and Liability Act all
mandate more involvement by state and
local government in the details of
implementation. EPA has not moved
fast enough to recognize these new state
roles and initiatives.
Institutionalizing the Change
In the past few years, the public's
expectations of government have
undergone major revisions. Columnist
David Broder noted recently that as
federal participation in some problem
areas has diminished, the states have
stepped in to fill the void. Now states
and EPA are beginning to agree that
they are co-managers with different but
equal responsibilities.
The importance of building a
partnership based on parity,
cooperation, and communication is
reflected in such forums as the Training
and Technology Transfer Task Force
(TF). Appointed by Lee Thomas, the TF
saw early in its deliberations that the
relationship between the states and EPA
was strained and that steps needed to be
taken to rebuild the state/EPA
partnership before any other
improvements would work. The
groundwork for improving training and
technology transfer had to be built in a
manner that first acknowledged the two
management entities as partners;
without that perspective, attempts to
improve the training and technology
transfer programs would be hindered.
Indeed, there needs to be more of this
type of cooperation at all levels if we
are to institutionalize a more effective
state-federal partnership. Both partners
have strengths. EPA as a larger, national
organization is ideally situated to take
the lead in such areas as major research,
providing technical expertise to states,
and assuring consistency across state
borders. States, on the other hand,
should manage most environmental
programs, coordinating them with
specific state laws and regulations in
the context of national goals and
deadlines.
It is important to recognize this
changing relationship and build it
throughout the nation. EPA needs to
place more operations centers near state
environmental agency headquarters,
thus improving communication by
increasing daily contacts. The number
of personnel exchanges between EPA
and the states should also increase. That
would not only improve communication
but also validate the idea that
competent, trained personnel can be
found at all levels within the
environmental agencies. Successful
problem-solving is a two-way street, and
no single party has all the answers.
The Assertive State
States must be unified to present
Congress a clear statement of what we
need and don't need in environmental
laws and regulations. We must make
clear that we need flexibility, not to be
less stringent but because we are in the
best position to identify priorities and
pursue pressing problems. States
invariably ask for more flexibility to
address a particular geographical
community or political situation. And
yet, when Congress charges that the
flexibility has resulted in environmental
damage or inconsistencies among states,
it is EPA, not the states, that most often
bears the brunt of Congressional wrath.
There are few EPA priorities that do
not make sense if we had unlimited
resources. We do not. Naturally, we
recognize that many of these priorities
have been set by Congress. Congress
hears often from EPA, the regulated
community, and environmental groups.
Congress does not hear a uniform voice
from the states. When it hears from
them it is most often about a state's
individual problems. Exceptions such as
recent work on Clean Air Act revisions
should serve as a model for future
efforts.
On the whole, the states are the most
significant enforcers and regulators of
environmental laws. We directors and
commissioners need to participate more
fully in the formulation of national
policy and then articulate these views to
Congress consistently and forcefully. We
all too often rely on the work of the
Association of State and Interstate Water
Pollution Control Administrators, the
State and Territorial Air Pollution
Program Administrators, the Association
of State and Territorial Solid Waste
Management Officials, and the National
Governors' Association to represent our
views. And though they do a very good
job, we are the ones with the necessary
clout to be heard by our governors and
congressional delegations.
There is no magic formula to make
this all happen, but I know that it will
require a "change of attitude" between
EPA and the states and
"institutionalization" of the partnership.
Conclusion
I see the evolution of a new state and
federal environmental agency
relationship as a positive step. It will
result in more efficient protection and
preservation of our environment.
Attirudinal changes already underway
are the first step. It is important to
continue this process by creating an
institutional atmosphere that recognizes
states as co-equal management entities.
Personnel exchanges, more operational
proximity, and expanding consultative
programs to exchange ideas and
expertise are only a few of the ways we
can accelerate the process.
Lastly and most importantly, the
states must recognize that when we ask
for parity we must be prepared to work
together to present to Congress and EPA
our united approach. In this way, we
will solidify our position as co-equal
managers working together to protect
the environment. D
(Hcmsen is Director, Oregon Department
of Environmenta] Quality.]
MARCH 1988
25
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Looking Backward:
A Historical Perspective
on Environmental Regulations
by Jack Lewis
EPA JOURNAL
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Since EPA's founding in 1970, the
Agency's regulatory powers and
responsibilities have been the subject of
intense debate. Much of that debate has
been specific to EPA and the problems
it handles: protection of public health
and restoration of the natural
environment. There is, however, a larger
context: nothing less than the role of the
federal government at large, and how
that role should be defined and
redefined as the nation's needs change.
Before we examine the major themes
of the regulatory debate as they relate
specifically to EPA, let's take a quick
and very broad look at the historical
context from which modern-day federal
regulation has evolved.
The United States has come a long
way since the drafting of the
Constitution in 1787, a very long way
indeed. The heavily urbanized and
industrialized world power of 1988
would be unrecognizable to the
Founding Fathers. If farmers, bankers,
and merchants of 1787 could be
resuscitated for a debate with today's
presidential candidates, nearly all
would sound libertarian to modern ears:
fiercely hostile to any centralization of
government, and adamantly protective
of the rights of private individuals and
local magistrates. Still fresh in their
minds was the stinging indignity of
enslavement to British rulemaking and
taxation.
A central theme in the writings of
Tom Paine and other firebrands of the
day was the youth of the American
republic and its happy freedom from the
complexities of law and regulation
characteristic of ancient Britain. Two
hundred years later, it is hardly
surprising to see the United States—and
its governmental bodies at all
levels—exhibiting many of the traits of a
polity grown old, the tendency toward
"gridlock" once vilified under other
names by colonial pamphleteers.
Of course, there is a clearcut
difference between federal regulations
and their colonial antecedents of the
1700s: ours are the products of a
democratic process, forms of restraint
that we as a people have chosen to
Theodore Roosevelt National Park,
Medora, North Dakota, includes scenic
badlands along the Little Missouri River
and part of what once was Roosevelt's
Elkhorn Ranch. These sandstone
formations are in the Wind Canyon
South Unit. Roosevelt was instrumental
in saving thousands of acres of land for
parks and wildlife refuges. Jack E.
Boucher photo, National Park Service.
MARCH 1988
assume. That they should appear alien
to the average citizen, and in some cases
incomprehensible, is largely a reflection
of the fact that they have been written
by experts for experts in a society that
demands scientific standards of
precision even in statements about
uncertain or unpredictable trends.
It was not always thus. Between the
formulation of the U.S. Constitution and
the Civil War, state and local
governments were zealously protective
of their prerogatives. The federal
bureaucracy remained miniscule in
scale, and its laws often resembled
treaties among sovereign powers more
than modern-day statutes. Economic
expansion was the order of the day, and
Theodore Roosevelt, conservationist
and 26th U.S. President. Theodore
Roosevelt Collection, Harvard College
Library.
all levels of government hastened to
distribute "sweetheart" franchises and
charters to the builders of turnpikes,
canals, and railroads. Virtually no effort
was made to "regulate" any form of
capitalist enterprise.
What little restraint the country was
willing to throw in the path of progress
took the form of the common law
traditions the United States had
inherited from its mother country, Great
Britain. U.S. common law gave citizens
the right to take legal action as a means
of protecting themselves against
nuisance or harm. If the court's ruling
went in their favor, they could obtain
compensation for injuries sustained.
Some common law actions from this era
led to judicial rulings that "regulated"
the activities of isolated transgressors
against the environment or the public
health.
War is another way of redressing
grievances, as America's Civil War
illustrates: the hard-won victory of the
North was the triumph of industry and
city over agriculture and slavery. For
the next 35 years, during the so-called
"Gilded Age," all-out competition raged
among increasingly gigantic utilities,
railroads, and other industries. Their
lobbyists in fast-growing Washington
saw to it that general and permissive
grants replaced the exclusive franchises
of the slower paced and more genteel
antebellum world. The individual
citizen was more and more a tiny David
confronted with the monoliths of
private enterprise.
The federal government, too, was
beginning to grow, albeit at a much
slower pace. Its powers were not really
exercised, however, until the turn of the
century when leaders, such as President
Theodore Roosevelt, started using the
federal statute book to shield U.S.
citizens from the unbridled impact of
"progress" run amok. Lawmakers
decided it was impossible to turn back
the clock to laissez-faire competition.
Monopolies were a fact of American
life, and the best that the federal
government could do was to set up
administrative commissions to control
their worst abuses. First railroads, then
public utilities, and other large-scale
business entities fell under the purview
of newly created federal
commissions—ancestors of today's
regulatory agencies.
One of President Roosevelt's favorite
causes was the protection of America's
wilderness territories. The
conservationist mentality—given its first
voice in the mid-19th century by Henry
David Thoreau—had become much
more popular by 1901 thanks to widely
read nature writers such as John Muir.
Roosevelt, himself a great outdoorsman
and personal friend of Muir, used his
presidential power to double the
number of national parks and almost
quadruple the national forest area: steps
that gave a firm foundation to tho
conservationist tradition that, along
with the parallel traditions of common
law and public health, was so integral
to the founding of EPA.
The public health tradition also took a
giant step forward during this same
period. In the first years of the 20th
27
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century, preventive federal statutes were
written to regulate the quality of food,
drinking water, and sewage treatment.
At first de facto, then de jure, the U.S.
Marine Hospital Service—an
organization dating back to
1798—gradually expanded its functions
to deal on a centralized basis with broad
issues of public health. In 1902,
Congress re-named it the "U.S. Public
Health and Marine Service," a name
that was further altered in 1912 to the
"U.S. Public Health Service" (PHS).
A large part of the PHS's early work
had to do with the prevention of
waterborne disease, such as typhoid; in
later years, that mission was expanded
to include standard-setting for air
quality in the industrial workplace.
These early PHS water and workplace
air standards became the prototypes for
the first federal water and air programs
of the 1950s and 1960s—both of which
originated at the PHS. Lawmakers and
health professionals in the states were
also heavily influenced by precedents
set by the PHS.
Rachel Carson, environmental pioneer.
Erich Hartmann photo, Rachel Carson
Council, Inc.
The Great Depression of the 1930s
launched a new and even more activist
phase in the evolution of the federal
government. The New Deal policies of
President Franklin Roosevelt caused a
substantial increase in the size and
power of the federal bureaucracy.
Severe economic hardship opened the
way for public works projects that
regenerated the nation's infrastructure,
and in doing so led to improvements in
the quality of U.S. drinking water,
sewage treatment, and other services
vital to public health. The Civilian
Conservation Corps put some of the
jobless to work on improvement projects
in wilderness and forest areas.
In addition, New Deal leaders stressed
the importance of national coordination
and planning, objectives that were
unrealizable without an increasingly
intrusive range of federal statutes and
regulations . . . and ever larger and more
comprehensive bureaucratic entities. For
example, in 1935 President Roosevelt
opted for consolidation rather than
diversification by assigning federal
regulation of the trucking and busing
industries to the Interstate Commerce
Commission, which had been
established in 1885 to control the
railroads. Furthermore, he decreed that
the regulatory actions of all U.S.
commissions should be tailored to the
achievement of national policy goals.
Coordination and planning of a
military and economic nature had a
major trial run during World War II. To
some extent, this successful experiment
in federally run mobilization laid the
groundwork for the ambitious
environmental statutes assigned to EPA
one by one in the 1970s. At the very
least, the idea was driven home that the
federal government could regulate and
coordinate disparate types of behavior
to meet national policy goals.
By the 1950s, other factors were
fostering a new regulatory climate. The
unbridled growth of the nation's
booming chemical, plastics, petroleum,
automotive, aviation, and munitions
works was creating highly visible forms
of pollution. As a result, the traditional
method of individuals seeking redress of
environmental grievances under the
common law became inadequate.
The problem was not so much the
quantity of environmental actions under
the common law: it was their sheer
difficulty from a legal standpoint.
Expert witnesses could be found to
argue both sides of any case, to the
consternation and confusion of judges
and juries. Also, quite a few cases
involved tri-state and bi-state
metropolitan areas, such as New York
City and Chicago, with a crazy quilt of
conflicting state laws and local
ordinances.
Not only citizens but the industries
they were suing grew impatient with the
lack of a priori environmental
standards, both legal and scientific.
Some states formed advisory
commissions to offer technical advice to
concerned parties. From more and more
quarters came the suggestion that the
federal government should step in and
determine exactly what were "safe"
levels of various pollutants.
Several federal programs were set up
both to perform research on air and
water pollution and to establish national
standards. Their impact was blunted by
several deficiencies, some of which
were immediately apparent while others
came to light only later. The Federal
Water Quality Administration (FWQA)
was formed in 1965. The National Air
Pollution Control Administration
(NAPCA)—- although not given that name
until 1968—originated as a research
body in 1955 and had also acquired
some standard-setting powers by the
mid-1960s. Both FWQA and NAPCA
were at first part of the Public Health
Service, which was—as its name
suggests—more committed to public
health than to environmental protection.
The FWQA broke off from the PHS in
1966 and became part of the Department
of the Interior. Since pesticides were
already the concern of the Department
of Agriculture, a pattern of
administrative fragmentation along the
narrow lines of single media (air, water,
etc.) was being perpetuated at the very
time when ecological themes of
inter-relatedness were arising to
challenge the limitations of earlier
modes of thought.
The predominant climate from which
EPA's predecessor programs arose was,
in fact, not ecological at all, but firmly
entrenched in decades-old public health
traditions. The Public Health Service
had a pattern of not intervening in any
problem unless invited by state officials;
this did little to foster strong
enforcement. The preventive, pragmatic,
disease-specific nature of PHS
traditions, though it had its own
rationale in the public health sphere,
was simply not interventionist enough
to lead the fight for restoration of the
biosphere. And this was a goal that had
become extremely fashionable in the
wake of SiJent Spring's publication in
1962.
28
EPA JOURNAL
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The U.S. Environmental Protection
Agency, formed in December 1970, was
a hybrid of all these multifarious and
frequently conflicting patterns. The
fledgling Agency was saddled with a
tremendously difficult regulatory
mission: How should ecological goals be
balanced with those related to public
health and the common law rights of
the individual? How should the
atmosphere of public and media
hysteria be dispelled? How should
scientific findings be interpreted and
correlated—and their gradations of
uncertainty communicated to
lawmakers, reporters, and citizens?
The regulatory challenge was so great,
in fact, that it is hardly surprising that
EPA quickly became and today remains
involved in many of the most
controversial issues in the federal
government. Yet the Agency has made
important progress over the past 17
years: great strides have been made in
cleaning up America's air and water.
especially the highly visible forms of
desecration that fueled the crisis
mentality of the late 1960s. The
persistent, organochlorine pesticides of
two decades ago, such as DDT, have
been largely eliminated, and good
progress is being made in dealing with
abandoned hazardous waste sites.
The challenges of the future involve
extremely important but less visible
problems of cross-media pollution,
stratospheric ozone depletion, radon
contamination, and protection of air and
water supplies against ever-proliferating
types of toxic chemicals in trace
concentrations. Continued progress on
such problems will be incrementally
more expensive to the U.S. government
and U.S. society than the gains made
during EPA's first decade and a half: a
15-year period that has coincided with
economic and energy problems totally
unanticipated in 1970. Crises in those
areas introduced constraints that
spawned the "regulatory reform"
movement of the late 1970s and the
1980s: an effort to divest the federal
government of many of its recently
assumed regulatory responsibilities and
to let state and local governments as
well as business take up the slack.
Yet, despite growing concerns over
the size and cost of the federal
government, public-opinion polls
indicate that the American people are as
firmly committed as ever to the
fulfillment of EPA's public health and
environmental goals. Unfortunately, in
many cases, the public's evaluation of
what most needs fixing—an opinion
EPA must under law solicit and
consider—does not always square with
expert scientific analyses of the most
pressing dangers confronting the health
of the nation's citizens and their natural
environment. As a result, controversy
continues over the appropriate direction
and scale of EPA's future regulatory
mission.
Ideal preconditions for a more
coherent and successful future seem
today as elusive as they have always
been: EPA's laws are still reauthorized
and amended one at a time in a manner
inimical to cross-media and
unified-field ecological thinking. As a
result, EPA managers have become
adept in bringing cross-media and
cross-program perspectives to bear in
their day-to-day implementation of the
Agency's statutes.
Ingenious adaptation to administrative
challenges will become ever more
imperative in the years ahead. EPA's
legally assigned tasks have always
seemed to dwarf its resources. As the
nation's lawmakers strive to resolve the
problem of the deficit, EPA managers
will have to make sure they and their
co-workers learn new ways to improve
their effectiveness as regulators.
Fortunately, sophisticated computer
hardware and software are already
making it easier for federal regulators to
stay abreast of huge volumes of data.
Even so, there can be no technological
substitute for dedication and farsighted
thinking on the part of EPA managers
and scientists as the Agency faces both
the foreseen and the unforeseeable
challenges of its third decade. Q
(Lewis is an assistant editor, EPA
Journal.)
Jfeafe.
This gnarled pine grows in Yosemite National Park, California. When the park was
established in 1890, the federal government's responsibilities were starting to
expand. At the turn of the century, newly created federal commissions,
predecessors of today's regulatory agencies, began exerting control over
monopolies and large business entities. Jonathan Blair photo, National Park
Service.
MARCH 1988
-------
Speaking
about
Deadlines:
A Forum
No environmental progress
would be made without
deadlines!
Deadlines are overkill,
wasting everybody's
resources!
Deadlines are the only way
anything is going to get done!
Deadlines make EPA's life
miserable and don't get
results.'
It depends on who you are
talking to. The numerous
deadlines that Congress has
given EPA in environmental
statutes have been praised
and criticized. Yet there is
one indisputable point:
Deadlines—requirements for
a certain action by a certain
time—are a big fact of life in
EPA's job.
Are deadlines good or are
they bad /or cleaning up the
environment? EPA Journal
asked six observers with
different vantage points in
the environmental arena for
their opinions. They include
a U.S. Senator, a lawyer
representing industries
subject to environmental
regulation, an attorney with
an environmental
organization, the director of
a state environmental
department, an EPA official,
and the director of a group
which did a special stud)' on
the subject. Their
commentaries follow:
Max Baucus
Deadlines. We all live with
them. And at times we all
chafe under their burden. But
in the area of environmental
protection, deadlines are
critical for carrying out the
national demand for a
cleaner and healthier
environment.
Deadlines are necessary to
spur movement by states,
industry, and EPA towards
the goals set by Congress.
Congressional deadlines force
action and help overcome the
many obstacles to pollution
control.
The deadline serves two
very useful purposes. It
forces us, whether we're
individuals or a government
agency, to bring discipline to
our lives. And it helps us
focus on the goals we're
trying to reach. Abstraction is
very difficult for most of us
to live with, both in defining
our tasks and in deciding
when they must be
completed. While deadlines
are not the only way to make
our tasks more manageable,
they go a long way toward
helping us to get a grasp on a
project.
Still, Congress should be
cautioned to remember some
important points when
deadlines are set. Otherwise
deadlines can become the
tyrant that actually
suppresses action. First, our
deadlines are tools to achieve
a policy. We must be clear
about what we want before
we can decide how fast we
want to go in a given
direction. Second, deadlines
must be realistic. They
should not be so numerous
that their effectiveness is
diluted, nor should they be
so long-range that they
encourage delay. Third,
deadlines must be flexible. If
meeting the mini-goal of the
deadline means missing the
overall goal of the policy,
adjustment is demanded.
Congress will continue to
impose deadlines. They can't
be avoided. The question is,
how do we make them stick.
I believe the best approach is
to diligently keep an eye on
agencies to make sure they're
doing what's required. We
can do this through oversight
or the budget process,
whichever works better to
convince an agency that we
mean business with
deadlines.
The natural inclination of
any bureaucracy is to remain
at rest. It's up to Congress to
provide incentives, either
through a carrot or stick
approach, to make sure
deadlines are met. And it's
also up to us to provide
leadership and guidance with
clearly articulated goals and
realistically attainable
deadlines, n
(Senator Baucus (D-MT)
serves on the U.S. Senate
Committee on Environmental
and Public Works, where he
is Chairman of the
Subcommittee on Hazardous
Waste and Toxic
Substances,]
Jerry Emison
The Clean Air Act was the
first environmental statute to
make extensive use of
Agency-forcing deadlines.
For this reason, it is useful to
look at EPA's experience
with it to see what lessons
can be learned.
First, the Act's deadlines
have resulted in action by
EPA and the states. A recent
study conducted by the
Environmental and Energy
Study Institute confirmed
that deadlines play an
effective role in speeding
action by EPA, the states, and
the regulated community.
The study noted that
court-ordered deadlines are
more effective than statutory
deadlines in speeding EPA
action and setting priorities.
This has been consistent with
our experience, but it
highlights one of the hidden
problems with deadlines.
Statutes which establish
deadlines implicitly assume
that the resources, technical
expertise, and public, support
needed to meet them will be
available. EPA's experience
under the Clean Air Act has
shown that deadlines alone
do not ensure that this
occurs.
Resources are not always
available to meet the
multiple responsibilities
established in complex and
lengthy statutes. As a result,
EPA necessarily finds itself
choosing to meet some
deadlines and neglect others.
EPA tries to make these
choices based on risk and
environmental protection.
However, the existence of
detailed statutory deadlines
means that such choices
frequently become a function
EPA JOURNAL
-------
of who can sue the Agency
most effectively. A further
consequence is a steady
erosion in the
"infrastructure" of a program,
when basic activities are
neglected because resources
must be shifted to deal with
court-imposed "crisis"
deadlines.
Technical expertise can
also limit the ability of EPA
and state or local agencies to
meet deadlines.
Technology-forcing deadlines
have had some successes,
most notably for automobiles.
However, in other cases,
deadlines force the Agency to
issue regulations before all of
the technical details have
been determined. Even worse
are cases where the Agency
does not know how to
achieve a given deadline, or
can do so only by applying
more resources than are
realistically available.
Finally, statutory deadlines
are no substitute for public
support. When all segments
of society work together
systematically to reduce
pollution, we accomplish
more than if we build
resistance to air-quality goals
because particular deadlines
prove to be unreasonable.
This was the case with Clean
Air Act attainment deadlines
in the mid-1970s. Ultimately,
regulatory agencies cannot
rely on deadlines to compel
draconian action by regulated
industries or by a public
which is not prepared to
accept it.
Deadlines, if few in
number and properly
applied, are a very good tool
to focus attention on a
problem and force action.
However, deadlines that are
far beyond the Agency's
ability to accomplish can
lead to chronic disrespect for
deadlines. When there are
too many deadlines, EPA can
end up with no priorities
because everything is a
priority. It is important to
clearly articulate what is
important and then focus our
energies on it.
Future deadlines should be
set for only the most
important environmental
goals. They should be
reasonable in terms of the
time and resources necessary
to meet them. Only this kind
of deadline can produce
permanent gains. Q
(Emison is Director, Office of
Air Quality Planning and
Standards, EPA Office of Air
and Radiation, Research
Triangle Park, North
Carolina.)
John Quarles
The answer is "both." That
may appear to cluck the
question, but it is the truth.
Deadlines have been essential
in spurring progress toward
stronger environmental
controls. The reason is that
deadlines are a prod to
action. They help to force
decisions.
The need for deadlines
stands out in the
environmental field because
of the complexity of most
environmental regulatory
issues. The facts are rarely
clear. Instead, uncertainty
pervades all aspects—science,
economics, technology,
institutional capacity—
you name it. Faced
with that uncertainty,
compounded by conflict as to
the underlying social
objectives, the urge is almost
overpowering to defer
decision-making and request
additional data. One of the
triumphs of early
environmental statutes was
their imposition of deadlines
which forced government
officials to bring their
analyses to a conclusion.
The heart of the argument
for deadlines is the need for
action. Action-forcing
deadlines are deliberately
designed to require cutting
through certain unresolved
questions in order to make a
decision and get on with the
job. Their justification is that
it is often better to assume
the risk of making mistakes
than to run what may be the
greater risk of passively
accepting an institutional
structure that prevents taking
any action at all.
The argument against
deadlines is that the
effectiveness of this device
has been largely destroyed by
abuse. To operate effectively,
deadlines must be credible
and command respect. In the
rush of the public to achieve
environmental protection,
impossible goals have been
set. In the rush by Congress
to pile one urgent priority on
top of another—and another,
and another—the use of
deadlines has been excessive.
Statutory provisions too
numerous to count have
imposed deadline after
deadline, setting schedules
totally out of relationship to
the work required to meet
them. As the tempo of this
process has intensified over
the past 15 years, the
integrity of deadlines has
been destroyed.
When the first
environmental deadlines
were established, they were
respected, and they were
met. By successive stages,
however, the gap between
statutory deadlines and
realistic programmatic
achievements has reached
hopeless proportions.
Regulatory officials are now
often scornful of the
deadlines. The Office of
Management and Budget
treats them with open
contempt. Courts have
learned that the deadlines are
likely to be impractical and
unenforceable. Even Congress
has abandoned any real
expectation that they will bo
met.
In short, environmental
deadlines have lost the
indispensable elements of
credibility and respect. That
is a misfortune, since when
properly used, they served
this country well, i)
(Quarles is a partner in the
Washington o/fic<; oj'Morgan.
Lewis fr Bockius and
represents sevrml
corporations. From
1970-1973, he was h'l'.Vs
General Counsel and
Assistant Administrator for
Enforcement, then EPA's
Deputy Administrator
through 1977.)
(Continued on next page.J
MARCH 1988
.il
-------
Jacqueline M. Warren
Since the early 1970s,
statutory deadlines have been
a prominent feature of the
major environmental laws
and have played an
important role in their
implementation. Questions
are occasionally
raised about their
effectiveness and their
impacts on Agency priorities
and resources, as well as on
the quality of regulations. But
on balance they have been a
constructive factor in
directing EPA to carry out its
statutory responsibilities. As
a 1985 report on the issue
concluded, "it is clear that
deadlines are one of the
critical factors necessary for
action in the environmental
arena. . . ."
In general, Congress
imposes deadlines in order to
circumscribe Agency
discretion to disregard a
legislative direction.
Inclusion of deadlines in a
statute provides a modicum
of assurance that the
appointed task will be
acknowledged, included in
the Agency's budget, and
carried out on a schedule
that is reasonably related to
the statutory timetable. It also
provides a legal mechanism
by which outside
organizations can compel the
Agency to implement the
provision in question.
The history of the Clean
Air Act, the Clean Water Act,
the Toxic Substances Control
Act, and the Resource
Conservation and Recovery
Act (RCRA) shows that
citizen suits to enforce
compliance with deadlines
have been central in directing
EPA to implement major
features of each statute. For
example, the 1976 Natural
Resources Defense Council
Consent Decree, involving
implementation of the toxic
pollutant discharge
provisions of Section 307 of
the Clean Water Act has
shaped EPA's
implementation of that Act
for more than a decade. That
Consent Decree (which was
incorporated into the statute
in 1977) terminated litigation
in four deadline suits against
EPA. Similarly, a 1978 suit
by the Environmental
Defense Fund put the Agency
on a court-supervised
schedule to implement the
basic hazardous waste
management program under
RCRA.
Other examples can readily
be drawn from different
statutes to illustrate the same
point. Looking back over
EPA's history, it is clear that
deadlines have played a
constructive role in shaping
both the timing and the
substance of the Agency's
implementation of these
important environmental
programs without
compromising the quality of
the regulatory effort, a
(Warren is a Senior Staff
Attorney with the Natural
Resources Defense Council.)
Ken Murphy
"I can't help but believe that
deadlines have been
incredibly effective."
"1 can't help but believe that
deadlines have been
incredibly ineffective."
This is how two long-time
participants in the legislative
debate view statutory
deadlines, demonstrating
how passionately people
disagree about them.
Effectiveness, like beauty,
lies in the eyes of the
beholder. Depending on what
objectives you think
deadlines serve, you can
come to contradictory
conclusions about them. And
everyone has an example to
support his opinion.
The debate over deadlines
began with the Clean Air Act
of 1970 and continues with a
vengeance today as Congress
considers what to do about
the many areas of the country
that have failed to meet
clean-up deadlines.
Congress sets deadlines to
accomplish multiple
purposes: to force EPA action
by a certain date, to set
priorities, to blunt the
influence of the Office of
Management and Budget
(OMB), and to make possible
court suits to compel agency
action, to name some of the
most important.
In an effort to provide
better information on the
deadlines debate, the
Environmental and Energy
Study Institute initiated the
first comprehensive analysis
of the deadline record and
factors relating to
effectiveness. (This 1985
report is available for $10
from the Institute, 122 C
Street, NW., Suite 700,
Washington, DC 20001.)
Here's what we found:
• Deadlines play a necessary
role in getting EPA, the
states, and the regulated
community to act, but they
are not sufficient by
themselves to guarantee
action, and their bottom-line
effectiveness is elusive.
• Congress imposes more
deadlines on EPA than it can
possibly meet, diluting the
import of any one deadline.
• Many deadlines are
unavoidably unrealistic:
because no one can
anticipate what's involved in
carrying out a proposed task.
Deadlines perceived as more
realistic are more effective.
• The cumulative load of
deadlines on EPA means
Congress seldom sets
priorities. Instead, the real
agenda is largely set by the
courts and, ironically, by
EPA management and OMB.
EPA JOURNAL
-------
• The deadline load sets up
EPA (and the states and the
regulated community) for
failure, increasing
Congressional and public
distrust, leading in turn to
more deadlines.
• Deadlines have little
impact on EPA's overall
budget or the budgets of
particular programs and
provide only a limited check
on OMB power.
So, should Congress stop
setting deadlines? Our
answer is no. There are no
real alternatives, unless there
are major changes in this
country's "command-and-
control" approach to
pollution control and its
legislative-administrative-
judicial system, neither of
which seems likely. And
deadlines, however
imperfect, serve many
purposes for Congress, EPA,
the states, environmental
groups, and even the
regulated community.
Still, there are significant
opportunities to improve the
effectiveness and efficiency
of deadlines. Congress can,
and should, take a number of
constructive steps:
• Enact fewer deadlines,
governing only the most
important tasks.
• Set more realistic
deadlines, to increase the
chances that everyone will
take them seriously and work
to meet them.
• Make crystal clear which
deadlines are really expected
to be met, through sanctions,
aggressive oversight, and
other means.
• Have the authorization
committee go to bat for their
programs in the budget
process in order to close the
gap between Congressional
expections, as expressed in
the authorization laws, and
EPA funding levels, as
provided in appropriations
laws.
• Tackle head-on the issue of
OMB involvement in EPA
regulations and budget.
These steps will not be
easy. But unless Congress
takes them, deadlines will
continue to be no more than
a not very powerful first
step—until they have passed
and lead to litigation or
legislative extension. D
(Murphy is Executive
Director of the
Environmental and Energy
Study Institute, an
independent, bi-partisan
policy development center
which works closeJy with the
Congressional Environmental
and Energy Study Conference
and its members.]
C.D. Besadny
There are deadlines
everywhere. Reporters have
them, and so do diplomats. If
you borrow money, you must
repay it by a certain date. So
why are there questions
about environmental
protection deadlines?
The answer involves
economics, politics, and
science. But it also involves
evenhandedness and a
determination to follow
through in an equitable
fashion. Congress and state
legislatures have passed
numerous laws and accepted
countless administrative
orders to protect the
environment. But the critics
claim that enacting laws
granting generous
appropriations has not
cleansed the environment.
Furthermore, they correctly
state that by focusing on
environmental media such as
air or water, these laws and
appropriations ignore the
truth that everything is
connected to everything else.
The laws are not holistic.
Nevertheless, in my role as
a chief state environmental
administrator, I heartily
endorse the concept of
mandatory compliance
deadlines in certain key
areas:
• As we work toward
specific quality levels for air,
water, or land.
• For installation of
pollution-control equipment,
waste-reduction processes, or
materials-handling practices.
• In reaching pollution
permit conditions.
• In accomplishing mitigation
or restoration.
Without deadlines,
procrastination,
misunderstanding, and
litigation are more likely. It
would be more difficult to
bring environmental violators
to justice.
In a larger sense, we need
federally imposed deadlines
to maintain a level economic
playing field for states that
are competing for jobs.
Federal deadlines protect
progressive states like
Wisconsin from those that
would cut environmental
corners to attract jobs or
investments. Perhaps it is
possible to develop, enact,
apply, and enforce
environmental protection
deadlines more efficiently
and effectively. Thoughtful
representatives from
business, government, and
public interest and academic;
circles should review the
strengths and weaknesses of
the existing deadline-forcing
process and offer
improvements.
But deadlines are
necessary. Without them and
their even application in
every state, environmental
progress and economic fair
play will never be fully
achieved, n
(Besadny is Secretary,
Wisconsin Department ni
Natural Resources.)
MARCH 1988
33
-------
Heading Off Waste
Before It Starts
by James Lounsbury
Modern industry has provided
Americans with an unprecedented
standard of living, but it has also
generated massive amounts of chemical
wastes and other waste products. Before
there were environmental laws and
pollution control technologies, most of
these wastes were discharged directly
into the environment with little thought
for the consequences. Since the
mid-1960s, the nation's environmental
laws sought to reduce pollution though
increasingly stringent end-of-pipe
requirements that controlled waste
generation and other discharges to the
environment.
In the mid-1970s, EPA made a first
attempt to redirect the nation's
pollution control strategy away from
end-of-pipe treatment and toward
pollution prevention. EPA developed a
waste management hierarchy that
emphasized waste prevention over
waste generation and management.
However, EPA's initial policy had only
a minimal effect since the priorities
reflected in our major environmental
statutes continued to focus on
end-of-pipe pollution controls.
The 1984 amendments to the
Resource Conservation and Recovery
Act (RCRA) marked a strong shift in
hazardous waste management policy.
They required even more stringent
restrictions on treatment and land
disposal of wastes. But more
importantly, the 1984 amendments
presented, as the nation's top waste
management priority, a call for waste
generators to reduce or eliminate, where
feasible, the generation of hazardous
waste as expeditiously as possible. EPA
has focused on several areas to
accomplish this "waste minimization"
policy goal. There are two basic waste
minimization approaches that are the
focus of this initiative:
• Reducing waste at the source by
changing production processes so that
less waste is generated in the first place.
• Recycling waste materials in whole or
in part so that they can be reused in
some way.
J. Winston Porter, EPA's
Administrator for Solid Waste and
Emergency Response, has some very
strong views on what direction EPA
should take:
I've been making tough waste
management and cleanup
decisions in the RCRA and
Superfund programs for almost
three years. I'm convinced that we
can't continue to generate, treat,
and dispose of such huge
quantities of wastes. Waste
minimization is an alternative that
can certainly have a significant
effect over the coming years. Waste
minimization is very helpful from
an environmental perspective, and
can often be a real winner
economically.
Industry Incentives
Foremost among these are cost
considerations as traditional forms of
hazardous waste management become
ever more expensive, some prohibitively
so. Land disposal methods, while still
the least expensive way of disposing of
hazardous waste, have skyrocketed in
costs from as little as $10 per ton of
waste a decade ago to well over $240
per ton now. Incineration costs may be
as high as $1500 per ton. Moreover,
these escalating disposal costs are only
part of the bill that generators of
hazardous waste are incurring for land
disposal these days. They must also pay
for administrative and reporting
procedures and insurance coverage
against a host of liabilities that are
associated with accidents and/or the
mismanagement of wastes. Under these
conditions, waste minimization is
beginning to look like a better deal for
more and more generators.
In the foreseeable future, many waste
generators may find the option of
shouldering the increased costs for
treatment and land disposal less and
less viable. Significant obstacles,
including opposition from affected
communities, are hindering initiatives
to situate and construct new treatment,
storage, and disposal facilities for
hazardous wastes. Few new sites are
being approved anywhere in the United
States—assuring that adequate capacity
for disposal of wastes will continue to
be a concern in many states.
An incentive related to disposal
capacity was added in the Superfund
amendments of 1986. Congress directed
that each state must assure that, by
1989, it will be able to provide adequate
disposal capacity for hazardous wastes
for a 20-year period. States are currently
in the process of determining whether
and how they can make those
assurances. The potential for waste
minimization is one of the key elements
of their deliberations.
As an additional financial incentive,
waste minimization techniques can
reduce the financial liabilities that are
associated with hazardous waste
management. In the last 10 years, a
number of law suits have been won by
individuals and groups that were able to
demonstrate harmful effects to their
health as a result of exposure to wastes
that were improperly managed. If less
waste is generated, there is less chance
for environmental releases that result in
such litigation.
The American public, in general, has
become increasingly intolerant of toxic
chemical risks. Waste minimization is
one way to boost the confidence of local
residents that the environment can be
protected.
Disincentives
On the other hand, EPA recognizes that
there are some pragmatic obstacles to
waste minimization that have been
identified by industry. For instance,
many companies may want to reduce
their production of waste, but lack the
technical and financial information they
need to select feasible waste
minimization technologies. Such
decisions sometimes demand
specialized engineering expertise; many
34
EPA JOURNAL
-------
small or medium-sized companies either
can't afford or don't have access to this
knowledge.
Another disincentive arises when
initiatives to reduce waste at the source
entail changing the way that products
are made. Many companies are reluctant
to take a chance that the quality of
established products might suffer in the
process.
Disincentives for waste minimization
also occur when waste generators have
already committed resources to other
methods for complying with waste
regulations and deadlines. Some have
made major investments to install
end-of-pipe treatment technologies.
Many of these are very expensive and
extremely difficult to alter once specific
configurations are in place. Many
industry managers are also reluctant to
Lancy International, Inc., Warrendale, Pennsylvania, manufactures electrolytic
metal recovery equipment such as that shown here on site at an electronics
plant. Using this equipment, the plant is able to extract about 75 pounds of
copper per week from waste generated during the production of
telephone-switching equipment. The recovered copper is then sold, and the cost
of landfilling is also saved. Lancy photo.
consider minimization if they know that
more familiar hazardous waste
treatment strategies and techniques will
meet regulatory requirements. As a
result, they may lack the resources or
motivation to explore additional or
supplementary waste minimization
techniques.
Success Stories
Despite such obstacles, waste
minimization programs can eventually
benefit most companies—even those
that have already committed significant
resources to more conventional
end-of-pipe techniques. Over the long
run, they will expedite permit
procedures, significantly reduce
long-term waste management and
liability costs, raise public confidence in
the ability of the generator to protect
public health and the environment, and
usually save money at the same time.
Often, the costs of making changes to
reduce or recycle waste are far
outweighed by the savings in waste?
handling, treatment, and disposal costs
that result. This isn't always the case,
but it is usually worth taking a look.
There are many low-cost or no-cost
techniques that can be applied to many
processes. Success in minimizing waste,
however, is almost totally dependent on
a firm and sustained commitment by a
company's top management to set up a
corporate program to reduce and recycle
wastes in an economic, way.
Such is the case with the Minnesota
Mining and Manufacturing (3M)
Corporation's "Pollution Prevention
Pays" program. Since 1975, this
aggressive program has reduced 3M's
waste generation by more than 100,000
tons, and has saved the company an
estimated $250 million. Crown
Fiberglass of Ohio implemented another
highly successful waste minimisation
program. This one reduced 90 percent
of the firm's waste volume by using an
on-site solvent recovery process and
substantially decreasing its purchases of
virgin acetone.
These are only a few of thousands of
possible examples. The important point
is that these companies continue to look
for and implement additional
source-reduction and n;t:yclin£>
techniques.
Even though finding ways to reduce
and recycle wastes ultimately depends
on conditions that are specific to each
site or plant, basic approaches and
procedures seem to hold promise for
several different types of companies
MARCH 1988
35
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since they have already been employed
successfully at many locations across
the country.
Laying the Groundwork
A number of companies have made
significant progress on their own.
Several states have also made strides in
providing the technical information that
many medium or smaller-sized
companies need to get the job done.
North Carolina, for example, stresses
the economic and environmental
benefits of waste minimization through
the Pollution Prevention Program which
encourages generators to reduce,
prevent, recycle, or eliminate wastes
before they become pollutants. The state
funds research projects, provides on-site
technical assistance for generators, and
disseminates pertinent information on
waste minimization to support the
program's objective.
Several other states including Illinois,
Minnesota, and California, to name a
few, have very active programs. Some
states, such as New Jersey and
Massachusetts, are moving waste
minimization legislation forward to
provide the needed direction and
resources. EPA believes states must play
a critical front-line role in providing
needed technical assistance to medium
and small firms. To further this
objective, EPA is making $6 million
available to states to develop technical
training and industry technical
assistance programs.
EPA's role has been clearly outlined
by Congress. The 1984 RCRA
amendments and several bills that have
been introduced in Congress mandate
that EPA must maintain a leadership/
role if national goals are to be achieved.
EPA's 1986 Report to Congress on
Minimization of Hazardous Waste
concluded that it would be
counterproductive for EPA to establish a
mandatory regulatory program for waste
minimization at this time. It argued that
incentives already exist for waste
minimization and that regulations as
such might only serve to hamper other
critical aspects of hazardous waste
management as well as perhaps being
costly to develop and implement in the
form of a regulatory program. The report
did conclude, however, that federal and
state governments have a critical role to
play in promoting waste minimization
by collecting technical and general
program information on the processes
and techniques involved, and by
distributing this material in a timely
manner to waste generators.
Roger Schecter, Director of North
Carolina's Pollution Prevention
Program, believes that "EPA must
provide the national focus in the areas
of policy setting and promoting national
programs. A key element is providing
an information network at a national
level to insure that technical
information is developed and made
available to firms which need the
information and to states which are the
front line advisors to many firms."
" I'm convinced that we can't
continue to generate, treat,
and dispose of such huge
quantities of wastes,"—/.
Winston Porter.
To accomplish this objective, the
Agency is piloting a "clearinghouse"
operation that will collect and
disseminate information on waste
minimization to states and to industry
waste managers. This clearinghouse will
include a waste minimization
bibliography that is accessible through
EPA's library system. The references
will also be available through an
automated data/information retrieval
system that is being developed by EPA
through a cooperative venture with
several state agencies including the
Maryland Hazardous Facilities Siting
Board. This project is also being
supported by the Illinois Waste
Resource and Information Center and by
agencies of several other state
governments. The clearinghouse will
provide state technical assistance staffs
and waste generators with critical
information on waste minimization
techniques and advice concerning
sources of additional information on a
range of issues that pertain to waste
minimization.
EPA is supplementing these activities
by developing a comprehensive Waste
Minimization Opportunities Assessment
Handbook. This will help companies
conduct a "self-review" of their
production and waste management
practices to identify appropriate
source-reduction and recycling
techniques. Waste minimization
technology fact sheets are also being
developed specifically for
small-quantity generators that are
associated with 18 industry processes.
Other EPA support material being
developed includes a short manual for
plant managers on improved hazardous
waste operating practices and another
manual on metal parts cleaning—an
activity common to many industry
categories. A manual is also being
developed by EPA which includes a list
of suggested procedures to help
companies identify the full range of
costs associated with evaluating
promising waste minimization
techniques or opportunities. The
EPA/RCRA hotline (800-424-9346) can
provide general information on the
availability of these documents.
Forging a Long-Term Strategy
EPA is committed to finding ways to
reduce waste generation, or to recycle
waste, through its various programs
including air and water, as well as solid
waste. The Agency will submit a report
to Congress in 1990 with conclusions on
the desirability and feasibility of issuing
waste minimization regulations or other
incentives based on information the
Agency will be collecting and analyzing
over the next two years.
EPA knows that waste minimization
is an important element in forging an
effective long-term strategy for managing
America's hazardous wastes.
EPA is committed to working
collectively with state and local
governments and with waste generators
to develop effective source-reduction
and recycling programs, a
(Lounsbury is Director of EPA's new
Waste Minimization staff in the Office
of Solid Waste.)
36
EPA JOURNAL
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Swamped by
Our Own Sewage
by Wesley Marx
Jogging along the Boston Bay shore
one morning, William Golden
noticed what appeared to be jellyfish
exposed by the low tide. The next
moment he was disgusted—then
angered. "The jellyfish turned out to be
shiny clumps of human fecal matter and
grease," recalls the jogging lawyer. Like
thousands of other shore lovers, Golden
was getting a firsthand look at
America's sewage system in action.
Across the nation, millions of gallons
of murky, raw sewage are leaking
through pipes, gushing out of manholes,
backing up into basements and washing
onto our shores. These wastes are alive
with pathogens capable of killing us.
And our ability to generate all these
wastes is simply outracing our ability to
control them. Consider:
• Thanks to 68 sewage spills in the last
seven years, a popular recreational bay
in San Diego has frequently been
unusable. Another 60 spills there have
transformed a wildlife refuge into a
recurring public-health hazard.
• Because of hundreds of spills,
overflows and bypasses each year,
Boston can lay claim to one of the
country's most polluted bays. Fecal and
other organic matter has accumulated to
levels of several feet at the bottom of the
Inner Harbor.
• A 50-mile-long coastal slick of
dumped garbage, sewage and hospital
waste turned last summer into a
public-health nightmare in New Jersey.
Even blood-test needles turned up on
beaches.
• Over 40 percent of the nation's
municipal sewage facilities have
public-health and water-quality
problems. About 150 communities still
dump raw sewage into bays, lakes and
coastal waters.
(Reprinted with permission from the
January 1988 Reader's Digest. Copyright
1987 by the Reader's Digest Assn., Inc.J
MARCH 1988
Partially treated wastewater is sprayed at the Crownsville Wastewater Treatment
Plant in Maryland. With safeguards, land application of treated effluent can
transform wastewater into a valuable resource. For example, it can help fertilize
golf course greens.
Disposal Breakdown. In the 19th
century, as our cities expanded, sewage
began to overwhelm the disposal
systems—outhouses, septic tanks and
gutters that drained into the nearest
river. New York, Chicago and San
Francisco reeled from typhoid, cholera
and other sewage-spawned epidemics.
The solution? Modern treatment plants.
These removed gross sewage matter, but
they still used waterways to dilute and
"purify" waste.
By the 1960s, reliance on water-borne
disposal showed signs of breaking
down. The sheer volume of waste was
exceeding the cleansing ability of our
waterways. While waste loads spiraled,
water flow in our rivers was being
reduced by dams and other diversion
projects. Polluted runoff from urban
streets, toxic dumps and farmland was
competing with sewage for the
remaining diluting ability of our
stressed waterways. From Coney Island
to San Francisco Bay, quarantine signs
reappeared on our waterfronts.
In 1972, Congress responded with the
Federal Water Pollution Control Act,
which came to be known as the Clean
Water Act. The EPA was given the
power to enforce discharge standards
and dispense federal grants for sewage
treatment. But, despite an infusion of
37
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// unchecked, the nation's
municipal waste flow, a
staggering 27 billion gallons a
day, will rise to 43 billion
gallons daily by the year 2005.
$43.7 biJJion in federal grants, our
waterways are still staggering under the
waste load.
While Lake Erie and certain other
grossly polluted waterways have
benefited from the EPA's help, the
nation's overall water quality has
remained about the same. Federal funds
have made sewer plants bigger, thus
increasing our reliance on conventional
water-borne disposal. By 1981 a top
environmental official was warning,
"The existing grant program is a classic
case of governmental failure. Billions of
dollars have been spent, but
improvement in water quality has been
minimal at best."
Massive Spills. Today, each of us
generates about 60 gallons of waste
water daily. And the greater the waste
loads pouring into treatment plants, the
more cleansing steps are necessary
before disposal. Primary
treatment—removal of floating debris
and some suspended solids—must
escalate to secondary treatment, an
elaborate process using bacteria to
remove more solids. But this generates
tons of sludge that settle out from the
waste stream. And the waste stream
itself can still contain nutrients that
trigger messy "blooms" of pea-soup
algae to crowd out native life in lakes
and bays. Result: another chemical and
biological treatment to remove nitrogen
and phosphorus.
The whole process creates risks of
larger and larger accidental spills from
giant plants. The first truly massive spill
burst from a model San Jose-Santa
Clara, California, sewer plant in 1979.
Fishermen in south San Francisco Bay
first noticed the water turning brown.
For 36 days, billions of gallons of
marginally treated human sewage
gushed into the bay. Fishing, boating
and swimming had to be restricted. As
the area fought to recover, still more
spills occurred.
This was no crude, aging municipal
system but one of the nation's modern
"super" sewer plants. What happened?
Changes in the composition of the
sewage during peak waste loads
changed the bacterial balance. Tiny
bacteria used to consume pollutants
were smothered by filamentous
organisms that clogged up the works.
The system had to "bypass" billions of
gallons of sewage into the bay with little
or no treatment. The spills were
stopped, but only after San Jose had
spent $150 million more, including
repairs, to ensure that the
temperamental bacteria got the right
amount of air and nutrients.
Big disposal plants also fall short of
expectations when cities neglect to
expand and maintain the lines that
bring in the raw sewage. Aging sewer
lines clogged with roots, along with
inadequate pumping stations contribute
to San Diego's infamous rate of coastal
sewage spills. (Under state order, San
Diego is repairing its leaking system.)
Forty percent of the flow reaching the
huge Blue Plains plant in Washington,
DC, may consist of storm water that
enters sewer lines. Such excess flow can
also trigger overloads and spills. A rainy
day in the Oakland, California, area
often results in sewage overflows at
more than 175 locations, because of
storm water seeping into sewer-line
joints.
Most older cities rely on combined
sewer systems carrying sewage and
storm runoff. When these systems were
built, however, large amounts of open
land were available to soak up rainfalls.
Today, with the land paved over,
stormwater flows quickly overload city
plants. In Hartford, storm-induced
overflows in summer pollute a 16-mile
stretch of the Connecticut River. In
Boston, combined sewer overflows
dump over five billion gallons of raw
sewage and storm runoff into Boston
Harbor each year.
"Greening" of Sewage. Must we
become victims of our own waste? Some
communities are resisting such a fate by
shifting from conventional disposal to
some old-fashioned alternatives. When
you hike through a pine forest in
Clayton County, Georgia, for example, it
is hard to believe you are walking
through a waste-treatment system. After
partial treatment, sewage from the
150,000 residents is piped to a storage
lagoon where the sludge is separated
out; the treated waste water is then
sprayed on 2725 acres of hilly
woodland.
Such "land application" has certain
critical advantages. The earth contains
infinite numbers of tiny organisms that
can decompose sewage impurities—so
Clayton County will never have to
worry about the nuisance nutrients that
sewer authorities spend millions of
dollars to remove. Instead, these
nutrients are helping grass and trees
grow faster.
"Why pay for something soil and
plants will do for free?" asks Wade
Nutter, a University of Georgia scientist
who helped design the Clayton project.
Trees from the irrigated forest are
harvested and burned, to dry and
pelletize the sludge that is then sold as
fertilizer, which helps defray operating
expenses. (The operation is possible
only because county industries must
remove certain contaminants from their
waste water before discharging it into
the sewer system.) After percolating
through the soil, the purified waste
water eventually drains into creeks to
help renew the country's drinking
supply.
The EPA now estimates that such
land-treatment alternatives, when
compared with conventional systems,
38
EPA JOURNAL
-------
Musf we become victims of our
own waste? Some communities
are resisting such a fate by
shifting from conventional
disposal to some old-fashioned
alternatives.
can cut construction costs by 25 percent
and operating costs by 50
percent—depending on the
concentration of contaminants and the
availability of land.
Today, in virtually every clime across
the United States, the "greening" of
sewage systems proceeds. Treated
sewage from St. Petersburg, Florida, that
once polluted Tampa Bay now irrigates
4400 acres of urban open space, from
parks and residential lawns to a golf
coufse. Revenues from water sales help
offset operating costs. Tallahassee and
Coral Gables have shifted to land
application; Orlando is also shifting.
Western states short of waterways to
dilute urban sewage are beginning to
turn to land treatment and reuse.
Lubbock, Texas, recycles waste water to
sustain a six-mile-long community
greenbelt. An arid canyon that once
served as an urban dump hosts a new
chain of fishing lakes that yield catfish
and bass.
California has some 250 reuse
projects. Bakersfield receives $300,000 a
year in income from a 5000-acre farm
that irrigates with its treated effluent.
The County Sanitation districts of Los
Angeles, serving four million people,
recycle ten percent of their massive
wastewater flow to irrigate campus
landscapes and recharge groundwater.
Two paper companies use the effluent
to process paper pulp.
Low Flow. Rather than make
treatment plants bigger, some urban
sewage agencies are refurbishing their
sewer lines. Hagerstown, Maryland, cut
excess flow from 14 million gallons
daily to six million by relining its sewer
lines. Underground sewer repair no
longer means tearing up streets; special
tubing can be inserted in manholes to
reline aging pipes.
Lansing, Michigan, and Bellevue,
Washington, use detention basins to
reduce pollutant loads in storm runoffs.
Denver detains runoffs in decorative
plaza ponds to reduce peak flows. Such
efforts help close a glaring loophole in
pollution-control strategy. While the
Clean Water Act controls discharges
from treatment plants, controls on storm
runoff from urban streets and farmland
remain largely voluntary, even though
they contribute up to 50 percent of the
pollutants that converge on our
waterways. The EPA is now preparing
guidelines to regulate urban storm-water
systems and, in October, announced
major pollution controls restricting the
release of some of the worst industrial
contaminants into normal bodies of
water and sewage treatment plants.
Low-flow toilets and showerheads can
cut waste loads too. The normal
six-gallon toilet flush can be cut to two
gallons or less. To save on the capacity
of its water supply and sewer systems,
Novi, Michigan, lowers its municipal
connection fees for developers who
install low-flow fixtures. In California,
the Monterey-Carmel area is requiring
low-flow devices with new
construction.
More communities will have to adopt
such self-reliant strategies, as Congress
is replacing the costly federal
sewer-grants program with state-run
revolving-loan programs that must be
paid back. And since 1984, the EPA has
been cracking down, and has filed or
settled over 60 lawsuits accusing
communities of illegal discharges. The
City of Los Angeles agreed to a record
$625,000 fine for illegal spills and
discharges, and also promised $2.3
billion worth of sewage improvements
over the next 12 years.
Under pressure from federal, state and
private lawsuits—one brought by jogger
William Golden on behalf of the city of
Quincy—the Boston area is finally
cleaning up its sewage act, upgrading its
plants with federal, state and local
financing. It may take almost $3 billion
and 11 years to render Boston's sewage
system safe.
WE CAN NO LONGER rely so heavily
on our waterways to dilute and contain
our spiraling waste loads. If unchecked.
the nation's municipal waste flow, a
staggering 27 billion gallons a day, will
rise to 43 billion gallons daily by the
year 2005. Yes, we have improved our
sewage-treatment plants and expanded
their capacity. But unless we want
soaring public-works budgets and
massive disease-causing spills, we must
create more "living filters" to purify
sewage, more community greenbelts,
more cleansing lakes and other
alternative treatment methods—and we
must act now.
For information about alternative
treatment methods, write: EPA National
Small-Flows Clearinghouse, P.O. Box
6064-RD, West Virginia University,
Morgantown, West Virginia
26506-6064. a
MARCH 1988
39
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Appointments
Greer C. Tidwell has been
selected as the new
Administrator for EPA's
Region 4.
Tidwell has been president
of his own environmental
management, planning, and
engineering company in
Nashville, since 1974. He has
served as chairman of the
Tennessee Solid Waste
Disposal Control Board and
has been involved in
developing new technologies
and approaches to
wastewater treatment for
municipalities and
industries. From 1971-1974,
he was chief of the EPA
Tennessee-Kentucky Liaison
Office in Nashville, and from
1964-1971 served as
supervisor of the Special
Projects Staff and chief of the
Environmental Assessment
Staff at the Tennessee Valley
Authority in Tennessee and
Alabama.
He received his bachelor's
degree in civil engineering
and a master's degree in
sanitary engineering from
Vanderbilt University and is
a registered professional
engineer. He completed a
year of graduate study at
Harvard University as a
fellow of the National
Institute of Public Affairs.
Sylvia Lowrance has been
appointed as Director of the
Office of Solid Waste (OSW).
Lowrance, who has been
with EPA since 1979, has
extensive experience in
EPA's hazardous waste
programs. Prior to being
selected for this new
assignment, she served since
January 1987 as Director,
Characterization and
Assessment Division, in OSW.
Before joining OSW, she
worked in several policy and
management positions within
the Office of Waste Programs
Enforcement and Office of
Emergency and Remedial
Response. Prior to her
hazardous waste positions,
she worked in EPA's Office
of Water. She has also
worked as a consultant and
association executive.
Lowrance received her A.B.
from the University of
Michigan and her J.D. from
the Catholic University of
America. She has received
EPA's Bronze Medal twice: in
1983 for her work on the
Management of the National
Contingency Plan and in
1987 for her contribution to
the Strategy for Development
of Hazardous Waste Program.
Edward A. Klein has been
named Director of the
Municipal Solid Waste Task
Force.
Klein brings a broad base
of environmental and legal
experience with him to this
position. He has been with
the Agency since 1980
serving as Director. Chemical
Control Division in the Office
of Toxic Substances (OTS]
until 1984. In that year, he
became Director of the TSCA
Assistance Office in OTS,
where he was responsible for
direct liaison with large and
small businesses, Congress,
the press, environmental and
labor groups, and federal and
state agencies. Before joining
EPA, he served as a Special
Assistant to OSHA's chief
lawyer and was a successful
attorney at the National
Labor Relations Board.
Klein received his
bachelors degree from
Pennsylvania State
University and his J.D. from
New York Law School. He is
a member of the U.S.
Supreme Court bar and the
New York state and
Washington, DC, bars.
Bruce Diamond has been
selected as the new Director
of the Office of Waste
Programs Enforcement.
Diamond has served as
Regional Counsel in EPA's
Region 3 Office since 1985.
with responsibility for legal
enforcement matters as well
as legal and policy advice to
the Regional Administrator
and other senior managers.
During 1983-1984 Diamond
served as Associate Professor
of Law at Rutgers University
Law School in Camden, New
Jersey. From 1974 to 1983 he
served in several positions at
the Agency, including Acting
Associate General Counsel
for Water, Deputy Associate
General Counsel in the Air
Division, Deputy Associate
General Counsel in the Toxic
Substances Division, and
Staff Attorney, Water
Division. He worked as a law
clerk for Judge Coffin of the
U.S. Court of Appeals for the
First Circuit from 1973 to
1974.
Diamond received his
bachelor's degree in biology
from the University of
Pennsylvania and his J.D.
magna cum laude from the
University of Michigan Law
School, n
40
EPA JOURNAL
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Spring arrives. Mike Brisson photo.
Back Cover: Azalea blossoms—a closeup.
Photo by Steven M. Hassur, copyright 5
1988.
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