18 ELR 10243 | Environmental Law Reporter | copyright © 1988 | All rights reserved

What Would You Do If You Were Running EPA?

Editors' Summary: The actions of the Environmental Protection Agency (EPA) may well be one of the single most influential factors influencing the quality of the nation's environment. EPA is often the maker of environmental policy as it writes regulations, balances when and how to enforce its laws, distributes grants, approves state programs, and proposes or comments on legislation before Congress. EPA must work effectively as one agency among dozens in the federal government, knowing when to press environmental issues and when to hold back. And EPA must know how to manage itself, making the most of its limited budget and personnel. Throughout it all, EPA must maintain a sense of perspective, keeping short-term emergencies from crowding out long-term priorities.

Here are their answers. The respondents, all respected leaders in the field, represent a strikingly wide set of backgrounds and perspectives. The answers reflect this diversity.

[18 ELR 10243]

Lois Marie Gibbs

Ms. Gibbs is Executive Director of the Citizens Clearinghouse for Hazardous Wastes, Inc., headquartered in Arlington, Virginia.

If I were named to head the Environmental Protection Agency (EPA) by the next president, my mother and just about everyone else who knows me would be pretty surprised. So would I, because to take such a job would be contrary not only to everything I believe in, but would also run counter to what I've learned about how you really achieve environmental justice.

My first action as head of EPA would be to resign, because I simply don't believe it is possible to achieve lasting change or environmental justice from that post. Regardless of whom we elect as president in 1988, the post of EPA administrator will still be a post for a toothless tiger. The infamous list of political and economic "realities" will continue to handcuff the next administrator, just as it has all of his or her predecessors since the founding of the Agency.

After eight years of the Reagan Administration, the new administrator will have to deal with the legacy of "New Federalism," as well as "cost-benefit analysis." This dual legacy means the need to undo attitudes that argue that (a) the federal government should step away from its historic duty to protect public health and let local governments do it because they're "closer to the people" and (b) the marketplace, above all, should be the determining force for social policy. The new administrator will also have to deal with an even more difficult legacy, that being the cozy relationship that has developed between the Agency and the polluters over the past eight years. I felt EPA's Bill Sanjour summed it up perfectly when he told the New York Times that "EPA is a wholly-owned subsidiary of Waste Management, Inc."

Instead of taking a frustrating and inevitably fruitless post as head of EPA, I would continue to work to build the growing grassroots movement against toxic hazards, which grew largely out of our efforts at Love Canal. The major advances we've seen in achieving environmental justice have historically grown out of the healthy practice of "grassroots democracy" where people at the bottom, through their tough, uncompromising action, change policy at the top. We saw this happen in the 1970s after the first surge of environmental organizing following Earth Day, and again in this decade after the Grassroots Movement Against Toxics developed after Love Canal (an event which, by the way, enjoys its 10th anniversary this year).

Every time we elect a new president, we seem to forget the lessons we've learned from the past. Every new administration [18 ELR 10244] seems to be marked with new interest in figuring out how to get things done by working from within the system. Understandably, many of our colleagues are hopeful of the outcome of the 1988 elections and see it as a golden opportunity for reform. I don't. Haven't we learned from the experiences of seeing the Nixon Administration give way to Ford and the Ford Administration give way to Carter? Regardless of who is in the White House, real change happens when people are organized to fight for their rights.

So, if someone knocked me unconscious, threw a bag over my head and shanghaied me to sit in Lee Thomas' chair at 401 M Street, I'd have to resign as soon as I regained my senses. If nominated, I would decline. No matter who the new president is, you'll see me continuing to work on building the grassroots toxics movement through the next administration. And, if it's YOU who gets Lee Thomas' job, WATCH OUT!

John M. Dingell

Representative Dingell (D-Mich.) is Chairman of the Committee on Energy and Commerce, United States House of Representatives, and its Subcommittee on Oversight and Investigations.

Our federal statutes and regulations dealing with environmental protection and public health can only be effective if uniformly and forcefully enforced. If I were running EPA, my focus would be no different than it is now as the Chairman of the Oversight and Investigations Subcommittee of the Committee on Energy and Commerce: I would be looking to achieve maximum effectiveness for our environmental and public health laws by revamping, reorganizing, and reinvigorating EPA's enforcement program.

Richard T. Dewling

Mr. Dewling is Commissioner of the New Jersey Department of Environmental Protection. He has previously served as Deputy Regional Administrator and Acting Regional Administrator of the U.S. Environmental Protection Agency's Region II.

As EPA administrator, the reality of environmental team building among EPA management and staff, Congress, states, citizens, and industry will be the priority of the Agency.

The focus of the Agency will be realigned to actively delegate existing environmental programs to the states' jurisdiction. Actual authorization will be based on equivalent — not duplicate — programs operating in the states. This will be memorialized in cooperative agreements between EPA regional offices and the states. This approach will be designed and approved by executive staff of each agency, and the process will be the scheduled priority for the Agency.

New programs will be implemented after committee consultation with states, based on realistic and implementable approaches. The timeframes for implementation of new programs must take the logistic and regulatory framework of existing programs into account. It is this committee process that will be EPA's new program priority, rather than issuing rules and guidance that undergo extensive and lengthy review while the states begin their own rulemaking and program planning process in the absence of a federal direction.

This new Agency approach will actually result in environmental management in a nationally consistent manner. The programs will be redefined, states will be fast-tracked toward self-sufficiency, and EPA will be able to utilize the states as a major resource to effectively protect the environment. Building states' programs will be done through guidance and policy with enough flexibility for states to design for their own needs.

The Agency must take a leadership role in multi-media environmental protection. This directly relates to the harmonious administration of existing air, water, and waste management programs to avoid the existing discharge "shell game" and promote overall environmental management. The focus of this integrated program must be aligned with the waste management hierarchy defined in the Resource Conservation and Recovery Act; that is, source reduction, recycling, treatment, and, finally, land disposal as the least preferred option. Programs will be merged at the "top" EPA headquarters levels so that states can integrate their own programs and initiatives without facing the significant obstacles posed by inflexible policy.

EPA will set the tone for the states. Proactive environmental management and long-term planning is needed at the federal level for EPA to get itself out of the "response, single-media mode" and into the future of waste minimization and multi-media management. The dedicated staff in the District of Columbia deserve to be able to provide Congress and our public with information on the state of our environment, through an aggressive education effort and a strong position in all areas. Complex issues, such as risk assessment, should be communicated to the public with an educational approach so that all are involved in decisionmaking.

As EPA administrator, I would establish a policy in which EPA will evaluate the states' program strengths and weaknesses with a positive and constructive approach. Program strengths will be documented by EPA in the interests of state information exchange so that other states may benefit and build accordingly. Noted problem areas or weaknesses will be proactively addressed with "positives" provided by EPA, such as training to address the problem, or regionally designed guidance to provide clear direction and assistance to the states.

Team building at the Environmental Protection Agency would be done through internal education about the changes in our "environment," at the state level, in Congress, and in public perception.

With this new focus toward environmental education and exchange at all levels, the Agency will be able to look forward. The future of the environment lies in our hands. EPA is 18 years old, and it is now time for us to leave adolescence behind, face our responsibilities as a public service agency, and to work toward our goals. Integrated environmental management and enhancement will be our priorities as an adult agency whose purpose is clearly to improve the quality of life, both within and outside of our own Agency.

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Arthur H. Bryant

Mr. Bryant is Executive Director of Trial Lawyers for Public Justice, based in Washington, D.C.

Essentially, I would do everything the head of the EPA has not done in the past eight years.

First, I would use the position to galvanize and mobilize public support for increased environmental awareness and protection. The public overwhelmingly supports environmental protection, but it hasn't been called upon to act.

Second, I would strongly enforce the laws that exist and fight for more resources to do so.

Third, I would actively work to strengthen those laws and to eliminate current legal provisions that offer absurd protection for manufacturers, like the portion of the Federal Insecticide, Fungicide, and Rodenticide Act that requires EPA to buy existing stocks of toxic pesticides from pesticide manufacturers.

Fourth, I would attempt to restructure the law both to ensure proper cleanup and to create far more powerful disincentives for future pollution. We are having a terrible time cleaning up what we have already done. It is essential that we find a way to stop generating as much pollution as possible in the future.

Quentin N. Burdick

Senator Burdick (D-N.D.) is Chairman of the Committee on Environment and Public Works, United States Senate.

Over the course of the past 25 years, Congress has enacted a broad array of environmental statutes. The cornerstone of each of these acts has been the protection of public health. Preserving public health is a major justification for government involvement in the control of environmental pollution. Every American, whether in Bismarck or Philadelphia, has a right to breathe healthy air, drink clean water, and occupy land that is not toxic. During the past three decades, Americans have consistently been willing to pay the price to protect public health and the environment. In light of this overwhelming public support for congressional environmental protection initiatives, it troubles me that presidents and their appointed administrators have failed to fully use the tools Congress has provided to implement environmental protection programs.

If I were the administrator of the Environmental Protection Agency, I would hope that protection of public health and the environment would be a high priority of the new administration. Once on the job, I would simply use the authority Congress has vested in the Environmental Protection Agency to fully implement the programs for which it is responsible.

After accounting for inflation, this year's EPA budget has roughly the same purchasing power it had in 1976. Since then, Congress has enacted major new laws requiring the Agency to protect the public from hazardous wastes, toxic substances, and polluted drinking water. As evidenced by nonattainment issues, EPA's original workload has not diminished. The Agency's responsibilities have almost doubled, while resources to do the job have been significantly reduced since 1980.

Federal revenues and resources are not boundless. With the significant increase in the federal deficits since 1980, the discretionary portion of the federal budget (including EPA) has been dramatically reduced. Congress and the next administration must confront the deficit issue directly. If we fail to act in a decisive fashion, discretionary spending for agencies like EPA will continue to decline regardless of the agency's needs. By the same token, private resources are also limited. We must focus our limited resources on our most serious and pressing environmental problems.

America's public health and environmental concerns are real and complex. To address these problems, EPA must have adequate financial and human resources. We need an administration that takes protection of public health seriously and is willing to request appropriate resources to ensure the job gets done. Environmental protection should be near the top of the next administration's agenda.

Since the 1960s, we have gained a better understanding of the complex nature of environmental pollution. Congress has given the Agency broad authority to deal with these issues. What has been lacking is the resolve to marshal that authority with an appropriate level of funding to fully implement congressional intent. Hopefully, that will change come next January.

Frank B. Friedman

Mr. Friedman is Vice President for Health, Environment, and Safety at Occidental Petroleum Corporation in Los Angeles, California. He was formerly an attorney in the Appellate Section of the Land and Natural Resources Division, U.S. Department of Justice.

Many professional managers view EPA as an example of decentralization gone rampant. There are many indications that Headquarters has virtually no control over the Regions and, even worse, limited knowledge of many specific significant matters that are being handled in the regional programs. Data is usually obtained through reports that may not be complete or timely, and "turf" issues seem endemic to the present system. The changes that I am suggesting to improve efficiencies and minimize "turf" issues are not expensive and can be implemented by a new administration.

Rather than attempt to restructure the Agency, I would install an information transmission system that would require prompt and complete reporting of summarized information on all "significant" matters from the Regions to EPA headquarters. This is nothing more than a good "management by exception" technique that has been found to be effective in managing environmental programs in multi-industry corporations operating worldwide.

For example, at Occidental we have very successfully implemented a "management by exception" concept using a mainframe computer tied to personal computers that allows us to track "significant" items in our divisions. The data is entered in the field without adding personnel. The divisions use the system for their own needs and we at corporate headquarters in turn have access to the same database. The access to the same database has eliminated the need for reports from the divisions. Similarly, on the assumption that "knowledge is power," the fact that all of us work from the same database has helped eliminate most of the "turf" issues that should be endemic to our decentralized organization. "Knowledge is power" only [18 ELR 10246] because it allows people to recognize and act on issues in a knowing way. There is no reason why EPA could not adopt the same type of system and at the same time eliminate the need for much of the report-writing back and forth. This will require EPA to carefully define the types of information and the timeliness with which it is to be transmitted, as well as information on the status of the issues, the action that is proposed, and the time any results are expected. Simply knowing what is going on, including the status of Superfund actions, state implementation plan proposals, and similar matters at the same time as the Regions would eliminate many Agency inefficiencies, and may actually encourage cooperation and interchange of data among the headquarters and field personnel.

In addition, EPA, like so many government agencies, has not moved rapidly enough in generally speeding computerization. The use of portable or lap top computers combined with personal computers in the office, such as utilized by the Internal Revenue Service, would increase personnel efficiency enormously by eliminating a major bottleneck: lack of both sufficient and competent clerical personnel. Many EPA employees, out of frustration, have already spent their own money in obtaining personal computers and lap tops, but there is no reason that the Agency should not spend the relatively few dollars for this support that in turn would greatly increase the efficiency of its professionals. I have found, and my experience is paralleled in other corporate and private sector management and law offices, that it is far more efficient to do your own work on a personal computer or a lap top than have it done by a secretary, no matter how competent the secretary. Implementation of this proposal would not require a Superfund tax!

Paul R. Portney

Mr. Portney, an economist, is Director of the Center for Risk Management of Resources for the Future, located in Washington, D.C.

After moving into our spacious new quarters, there are four things I would try to do if I were "running EPA" (the irony of this phrase is not lost on me). First, I would work to create within the Agency a quasi-independent Bureau of Environmental Statistics (BES). Analogous to the Bureau of Labor Statistics, Bureau of Economic Analysis, and Census Bureau, the BES would collect, analyze, and disseminate key data measuring all dimensions of environmental quality. Its purpose would be to initiate and sustain the annual reporting of environmental conditions and trends so that we will eventually have environmental data that rival in their consistency and usefulness the kinds of economic data that are reported regularly in the Economic Report of the President and similar forums. Until we make such a serious commitment to regular and comprehensive environmental measurement, we will lack the ability to set priorities intelligently and to judge the success or failure of the policies we implement.

Second, I would strive to explain the Agency's regulatory efforts in the context of the wide range of measures individuals can take to affect their health and environment, including decisions about smoking, drinking, exercising, and the like. Such an effort is, I believe, essential to the design of sensible policies. This is not to say, incidentally, that smokers would be urged to ignore pesticide risks or that sky divers would be told to overlook contamination of their drinking water. We have learned too much about the multiple dimensions of risk to draw such conclusions. But ti does mean that we should all understand what can and cannot be accomplished through regulatory action, at what cost, and how this compares to what can be accomplished through individual actions.

Third, where law and logic permit, I would encourage decentralized approaches to some of our environmental problems. To be sure, many of the problems we face require federal — and, in some cases, global — action, but some do not. By extending to states or localities the power to pursue their own solutions, we encourage the creativity that Thomas Jefferson envisioned in these "laboratories of democracy."

Finally, and most importantly, I would try to reestablish aconstructive working relationship with Congress regarding the conduct of environmental policy. The legacy of mistrust that has developed over the recent past has had several very unfortunate consequences. For one, it has frustrated our elected representatives into writing increasingly ambitious and detailed laws that make it hard to deal with special situations or changing circumstances. This in turn has stifled creativity and imagination in the administration of our environmental policies. As a result, we have made little headway in addressing several serious problems like indoor air pollution. These impasses have sown the seeds of cynicism among the electorate. We are in danger of not being believed when we try to arouse concern about serious problems or when we try to quell fears about inconsequential ones. Reversing this trend will require more of a partnership between the executive and legislative branches than we have seen for some time. In spite of the inherent tension between the two, we can do better than the past would suggest.

Ann Powers

Ms. Powers is Vice President and General Counsel for the Chesapeake Bay Foundation, headquartered in Annapolis, Maryland.

Much of the problem with EPA is external to the Agency. Congress has given it an increasingly large role to carry out, but there have not been commensurate increases in staff or, except for Superfund, in funding. Much of the blame for that can be laid at the feet of the administrator, and with OMB exercising a heavy hand.

The EPA administrator is going to have to take a hard look at the Agency's many tasks and determine what it will reasonably take in terms of people and dollars to staff them properly. This means not only ensuring able management, but also providing appropriate support personnel. The Agency needs to be able to attract, and keep, the best and the brightest. To do that requires not only money, but spirit and leadership. I think the American public wants EPA to be a protector and advocate. While a reasonable balance must be struck between the various constituencies, citizens must feel confident that the Agency is doing everything it can to protect them and their environment.

This is all very easy to say, but it is going to be a huge task. Dealing with Superfund alone will be a monumental problem. Neither Congress nor the public will be pleased [18 ELR 10247] when the $ 6 billion is gone and we have a whole bunch of studies and very few cleanups.

Nor will they be willing to weigh every decision in terms of risks and dollars. While we want to get the most bang for our buck, there are simply many values that cannot be quantified in monetary terms. We need to assure that the values the public holds dear are adequately taken into account. In light of existing problems, the next administrator is going to have a big job to get the Agency where it belongs.

F. Henry Habicht

Mr. Habicht is Of Counsel to Perkins Coie in Washington, D.C. From 1983 to 1987 he was Assistant Attorney General for the Land and Natural Resources Division, U.S. Department of Justice.

The appointment of a new EPA administrator will be a critically important decision for the next president. Like our two most recent administrators, the new administrator must be a strong individual — a leader and educator. He or she must continue the process of restoring public confidence in the Agency through consistent enforcement and by openly presenting the facts and the issues to the American people and calling upon them to be part of the process of settling the agenda for the next 10 years. I am convinced that our society can solve the environmental problems of today, as we have proven with the problems of gross pollution in the past. The nature of these new problems, many of which are caused by small sources and by individuals, requires us all as individuals to recognize our responsibility — but the administrator must provide the public with the information to enable us to assume that enhanced role.

If I were administrator, the following would be some key elements of my agenda:

1. Make clear that environmental protection policy is not a world apart from the mainstream of other national policies. Environmental policy as an issue of major public concern must be integrated with national economic, agricultural, energy, and foreign policy to ensure that it is an effective, rational, and constructive part of our national scene. I am convinced that effective environmental protection is not inconsistent with sound economic progress. But this integration is critical.

2. Within the Agency, we must integrate approaches taken to address toxics and pollutants in all media and avoid costly overlaps or inconsistencies among media in assessing and managing risk. In this process, we must promote research and education in the health and environmental sciences and support an open public debate through which we can truly determine what are the most pressing environmental priorities to address. I would encourage industry to help support such constructive research efforts.

3. Because we have limited dollars chasing an increasing number of problems, we must make an absolute top priority of promoting and not discouraging new ideas and technologies. The EPA research and development budget must be enhanced, and private-public partnerships and university centers for new technologies should be promoted. Private market incentives for the development of technologies should also be encouraged, not only in minimization and recycling, but also in all fields of environmental protection.

4. Coordinating constructively the state and federal roles in making and enforcing policy in areas such as groundwater protection and solid waste control is critical. I would continue and intensify EPA's current efforts in this area.

5. We must also make a major priority of international cooperation on environmental protection. Ensuring that all nations, including developing nations, are a part of this effort is critical in that it promotes substantive environmental protection, ensures fair sharing of environmental responsibilities, and can provide an important new basis for international cooperation on a range of issues relating to world economic and development policy.

Nicholas C. Yost

Mr. Yost practices environmental law in Washington, D.C., with the law firm of Dickstein, Shapiro & Morin. He has previously served as General Counsel of the Council on Environmental Quality; Director of the President's Task Force on Global Resources, Environment, and Population; Deputy Attorney General in charge of the Environmental Unit of the California Justice Department; a public interest lawyer; and a Visiting Scholar at the Environmental Law Institute.

What an exciting challenge! There are so many things to do.

First, there is a tone to be set. I would want thattone to be one that maximizes consensus among affected interests. Having at one time or another worked as a lawyer for the federal government, a state government, a public interest law firm representing environmental interests, and a private law firm representing businesses, I fully believe that most people would rather join together to fight problems than to fight each other. Opportunities to replace confrontation with consensus must be nurtured. We all benefit from laws and regulations whose merit is agreed to by all affected.

Second, and relatedly, EPA must have an open door to everybody. The administrator must have a rigorous determination to ensure that all those affected know that their concerns will be treated with fairness and understanding.

Third, EPA should be — to paraphrase Teddy Roosevelt's concept of the presidency — a "bully pulpit." There is much to be explained to the American people. For instance, we Americans have the finest set of environmental laws in the world and have over the past two decades vigorously and effectively clamped down on the disposal of our wastes in our air, in our water, and in our land. But we must do more. The solution to our waste problems lies not only in the enforcement of the excellent laws we have — vital though that is — but also in addressing the causes of that waste, leading the American people to an understanding that the raw material used in the first place will influence whether it ever becomes a waste, and that permanence and recycling are to be preferred to the serial usage of disposables.

Fourth, the very problem I used to illustrate leadership — that what happens in one medium affects what happens in another — must be emphasized. What is not burned or released into water ends up in land. EPA must make its decisions in light of these "cross media" realities so that "least worst" disposal methods are found.

Fifth, the scientific basis that underlies the policy decisions that EPA makes must be insulated from outside pressures [18 ELR 10248] and established in accord with the norms of the scientific community.

Sixth, the United States must devote far more of its attention to global environmental leadership both within the United Nations Environmental Programme and otherwise. It is both morally right and in the national interest to do so. A less polluted Earth is, after all, a better and healthier place for Americans as well as for the others with whom we share this Earth.

In sum, the administrator must articulate and pursue a vision of a decent environment in which all may live and which all may share.

James J. Florio

Representative Florio (D-N.J.) is Chairman of the Subcommittee on Commerce, Consumer Protection, and Competitiveness, of the Committee on Energy and Commerce, United States House of Representatives.

The only job more difficult than that of the next president will be that of the next administrator of the Environmental Protection Agency.

The last eight years are nearly a decade lost in the effort to protect public health and the environment. Instead of learning from the complex environmental problems facing us, the federal government has abdicated its leadership role in ensuring a healthy environment.

The first step essential to the reconstruction of EPA and the federal effort to protect the environment is a commitment to enforce the laws and use the tools provided to EPA to lead the effort for sensible environmental protection. Whether it is clean air or water, asbestos cleanup, or hazardous waste, there can be little progress without leadership. Congress can pass laws, but substantial progress will come only when those laws and policies are faithfully and aggressively implemented.

Second, the new administrator must take advantage of the resources that EPA should possess. Many dedicated, hard-working employees remain at EPA, but many others have left, discouraged by the attempts to subvert progress. EPA should be a resource and a reliable provider of sound scientific expertise on environmental problems. Instead of ideology determining the scientific results, science should lead us to policy conclusions. EPA needs the scientific expertise, people, and commitment to move forward to protect people and the environment.

Third, the new administrator must learn the lessons of past efforts to protect the environment and harness the existing economic and other forces to enhance the federal effort to protect the environment. While maintaining a strong enforcement presence, other incentives are essential. For example, instead of relying alone on EPA personnel or state personnel to ensure safety of environmental facilities, the regulatory system should be structured to include insurance requirements that encourage the insurance industry to assist in policing such facilities.

As another example, incentives should be included to reduce the amount of pollution we create, and to encourage new, innovative methods of treatment. When companies have financial and other incentives to reduce the quantity of pollutants they produce, they quickly find it is in their interest to do so. Similarly, when there are alternatives to normal methods of disposing of wastes, such as chemical or other treatment techniques, and such alternatives are environmentally sound and economically attractive, we will have eliminated serious waste disposal problems.

The next decade will determine if we are serious about preserving our resources for the next generation of Americans. We have lost much ground in the last eight years, and it will take a full-scale, aggressive, and intelligent effort to regain that ground.

David R. Andrews

Mr. Andrews is a partner at McCutchen, Doyle, Brown & Enersen, which has offices in San Francisco and Washington, D.C. He was formerly Legal Counsel and Special Assistant for Policy at EPA.

If I were the administrator of EPA, I would have three immediate goals:

First, to restore the public's faith in the Agency.

Second, to restore the Agency's credibility and influence with Congress.

Third, to ensure that the Agency meets its primary environmental and public health responsibilities.

There is no question that Bill Ruckelshaus moved the Agency away from the brink of disaster and put it back on the road to recovery. Lee Thomas has kept the Agency on that road, but the Agency continues to suffer from a perception that it is not fully committed to meeting its environmental and public health responsibilities. Therefore, there is still some distance to travel before Congress and the public will view EPA as an agency operating with a full commitment to meeting its responsibilities.

I would put in place a firm, fair enforcement program that cuts across all media programs. To ensure fairness, clear policy direction and guidance from Washington would be required, since headquarters and the regional offices must clearly understand that the enforcement power of the Agency is its most powerful tool as well as its most destructive force. The program would be vigorous but tempered with fairness and not measured strictly by numbers, the size of the company, or the amount of money likely to be received in fines. The enforcement office would not only have responsibility for establishing the policy in each media program, but would also be responsible for ensuring regional consistency in enforcement matters. To remove what I view as constraints in the Agency's enforcement authority, I would renegotiate the relationship with the Department of Justice to reestablish a true attorney-client relationship. Lastly, to fund this enhanced enforcement program, I would propose the elimination of a number of assistant administrator slots (or reduction of associate administrator positions) and transfer the resources to the enforcement program.

A firm and fair enforcement program would not be the complete answer to EPA's current problems, but it would go a long way towards accomplishing the first two goals: assuring the public that the Agency is a diligent protector of public health and the environment, and giving Congress the confidence to bestow on the Agency the flexibility [18 ELR 10249] program will also yield benefits that will help meet my third goal.

The Agency's primary mission can only be accomplished with a management system that allows the Agency's managers to do their jobs without worrying about what the 12th floor thinks. A team of proven managers would run the programs with minimal oversight from the 12th floor. As mentioned earlier, I would eliminate certain assistant administrators, which would also have the effect of streamlining the management of the Agency.

Equally important goals would be to seek statutory authority and funding in problem ares currently not clearly addressed under existing authorities, such as pesticide contamination of groundwater.

Longer-term goals would include better integration of the regional offices into policy decisions and better relationships between EPA and the states.

B. Suzi Ruhl

Ms. Ruhl is Executive Director and General Counsel of the Legal Environmental Assistance Foundation, Tallahassee, Florida.

The Environmental Protection Agency should sunset all state primacy programs every two to four years. Such a practice would ensure better protection of the environment and public health, and benefit state agencies.

Currently, many states are operating primacy programs that fall far below the minimum requirements set by federal law. Deficiencies include inadequate staff, insufficient financial resources, and inappropriate regulations regarding public participation. The administrative burden required for withdrawing primacy often perpetuates inadequate programs. These deficiencies in the state programs can cause major environmental consequences. For example, inadequate staffing in an underground injection control program can result in the misapplication of geochemical transformation models, which can lead to contamination of underground sources of drinking water.

In addition, due to changes in federal statutes and administrative policies at EPA, state agencies must constantly revise their primacy programs. It is very time consuming and often difficult for states to secure the necessary changes in the primacy program. This task is compounded when state legislative changes are required. By sunsetting the program every two to four years, EPA could provide the opportunity for clustering required regulatory changes. Thus, all changes for the primacy program would be made at one time, on a predictable schedule.

Ultimately, by sunsetting state primacy programs, states would be encouraged to maintain consistency with minimum federal requirements, and be better able to secure necessary changes for the protection of the environment and public health.

Jim J. Tozzi

Mr. Tozzi is Administrator, Multinational Legal Services, P.C., in Washington, D.C. He was previously Deputy Administrator for Regulatory Affairs of the Office of Management and Budget.

EPA is now a mature agency. Although the Agency continues to receive new statutory mandates, its basic mission is well established. Its continued effectiveness will be determined in large part by the method in which it resolves conflicts among its statutory mandates and its various constituencies.

Current mechanisms for resolving site-specific issues related to environmental compliance will be unable to handle the increasingly greater number and complexity of expected disputes. By and large, the Agency has relied either on informal hearings before Agency officials or on formal proceedings before the courts. The system is overloaded, with the result that transaction costs and time are increasing with no apparent impact on the environment.

Consequently, the new administration should insist that both EPA enforcement officials and industry first attempt to resolve their differences pursuant to the existing EPA guidance on alternative dispute resolution (ADR). While ADR is being used at an increasingly greater rate to resolve a wide range of conflicts among multinational corporations, its acceptance by the public sector is considerably slower. Advancing the use of ADR is made particularly difficult by the considerable incentives against its use, including, for example, that it is easier and less costly for EPA officials to refer an issue to the Department of Justice. In addition, the use of ADR may involve greater political risks, since some groups often measure EPA's commitment to environmental protection by the number of lawsuits, rather than by actual cleanups.

The state of the environment will suffer if the backlog of cases before the courts continues to increase; the change of federal personnel and the use of outdated information will result in premature dismissals and settlements. The new administration should be persuaded that a "get tough" policy does not mean more litigation in itself, and that environmental results should not be measured by the employment of lawyers, but by the cleanup of sites and widespread and voluntary compliance with standards.

Erik D. Olson

Mr. Olson is an attorney at the National Wildlife Federation in Washington, D.C. He was formerly an attorney in the EPA Office of General Counsel.

EPA must regain the American public's full trust; it must regain the mantle of moral authority by seizing a leadership role in educating the public about environmental problems and outspokenly fighting to solve them. The new EPA should:

Catalyze efforts for stronger environmental legislation. Congress works best at addressing environmental problems when lead by a strong EPA. Unless Congress has already done so, the new administrator should propose and work for (i) an overhaul of the antiquated pesticide law; (ii) a strengthened Clean Air Act that addresses acid rain and air toxics; (iii) comprehensive legislation to prevent groundwater pollution; (iv) comprehensive legislation to regulate genetically engineered organisms; and (v) a source reduction law requiring industrial process and other changes that reduce the production of waste at its source, rather than simply at the "end of the pipe."

[18 ELR 10250]

Vigorously implement existing laws. The new administrator should create expert staff teams to conduct a fresh and publicly visible top-to-bottom review of whether each delegated state program under EPA's laws meets legal requirements, is enforcing the law properly, and has resources adequate to meet its responsibilities. EPA should place a high priority on enforcement in states with poor records, particularly focusing on the deficient enforcement of the Safe Drinking Water Act and Superfund.

Rededicate itself to public participation. EPA should make it a top priority to make the public a full partner in decisionmaking, and to put data into the hands of the public and states. Through the Community Right-to-Know program, Superfund technical assistance grants, and by other means, EPA should seek to assure an informed public, and to nurture the development of the "laboratory of

Put "Environmental" back in "EPA." EPA has been drifting away from protecting the environment, focusing increasingly on human health. While human health obviously must be a top concern, it is not the exclusive concern. In its risk assessments and risk management decisions, EPA must consider the importance, albeit unquantifiable, that the public places upon the environment itself. Thus, addressing the ecological effects of air pollution, pesticides, and toxic substances must be a priority. The Superfund program must integrate the natural resource damage program into its cleanup efforts, and must revamp the hazard-ranking and cleanup system to consider food chain impacts. In addition, EPA should vigorously recruit more staff ecologists.

Redress staffing inadequacies. The scars of the Gorsuch era are most severely felt in continued understaffing of many EPA programs. As a result, EPA's finest staff members are overworked; work quality suffers. Inadequate staffing also necessitates the Agency's excessive use of contractors, which undermines EPA's institutional memory, in-house expertise, and program continuity. Increased staffing and a better pay scale for professionals, combined with a stronger proenvironmental management philosophy, would reduce the "brain drain," staff turnover, and low morale in some EPA programs.

Khristine L. Hall

Ms. Hall is IBM Corporation's Program Manager for environment and energy issues, in Washington, D.C. Previously, she was a Senior Attorney at the Environmental Defense Fund.

If I were running the Environmental Protection Agency in early 1989, I would take the following as givens:

(1) protecting the environment is integral to a sound economy and improving the quality of life in the United States and globally;

(2) public support for environmental protection is increasing, so whether the administration is Republican or Democratic, EPA's programs must be strong, credible, and effective; and

(3) the business of environmental regulation and compliance is getting tougher and more dispersed throughout society.

Rather than add to "wish lists" of specific substantive issues, I would like to address two more general management issues that cut across all of EPA's substantive areas. These are: (1) ways to encourage better business compliance and (2) improved handling of information.

Better Business Compliance

Our system of environmental regulation will always be suboptimal unless a high degree of voluntary compliance with the regulations is attained. The strength of enforcement programs is one important factor in ensuring compliance, and at both the state and federal level enforcement has improved over the years. Yet, much more can be done, chiefly through programs to assist and encourage compliance.

Complying with environmental regulations is and should be regarded as a legitimate cost of business. Putting in place the internal systems that result in compliance is not an easy matter, however, especially considering how complicated and multi-layered our system is. While most large corporations that use or produce large volumes of chemicals have the necessary internal programs in place to meet or exceed regulatory requirements, a large number of smaller operations lack sophistication both on what the law requires and what to do about it. In a strikingly similar arena, the Internal Revenue Service has recently undertaken a program to educate small businesses concerning the intricacies of the tax code to gain a higher degree of compliance, ultimately leading to more money collected. The environment would benefit from a similar approach.

While strong enforcement should continue, a commitment of federal funding for educational programs aimed primarily at small to mid-size businesses would probably be a cost-effective way of gaining compliance in the environmental area. Communicating directly with mid- to high-level managers (not necessarily CEOs) will most certainly gain additional compliance. Since the most effective voice to most business is the business community itself, thought should be given as to how to get business to educate business. It may be that trade associations, business schools, and similar institutions can play a key role in this effort for a fairly reasonable investment.

Improved Information Handling

EPA has often been criticized for the way it handles information, from data collection to communication. Among the areas that could stand substantial improvement are collecting appropriate data; ensuring that data is consistent across program areas and "integratable" from one program area to another; analyzing and converting it into usable information; making both data and information accessible and usable by allparties concerned; and communicating the information in a form that is accurate, credible, and understandable.

EPA's programs have changed substantially in the last 15 years. Information management, dissemination, and communication as EPA is analyzing pollution control technologies have become critical to EPA's ability to achieve its mandate. Illustrations can be found in the huge challenge of information management and communication under Title III of the Superfund Amendments and Reauthorization Act, the need to convince American homeowners [18 ELR 10251] that they individually should address the radon problem that may be lurking in their basements, and the advisability of approaching waste reduction primarily through technical assistance and education.

Improved information handling will have several salutary effects, including the ability to better

(1) spot and analyze problems and trends — the waning and waxing of risks;

(2) prioritize among the hundreds of issues confronting the Agency — increasingly a necessity given the fact that budgets are not limitless;

(3) provide better environmental information to the public;

(4) communicate its priorities and reasons for them to Congress and the public;

(5) make useful information available to those who must comply with environmental regulations; and, ultimately,

(6) protect human health and the environment more effectively and efficiently.

Taking a step back to look at information handling broadly and across program lines, going back through previous reports that made suggestions on improving data collection and handling, and continuing to increase Agency sophistication on "risk communication" skills are but a few steps a new administrator should consider in this area.

David F. Zoll

Mr. Zoll is Vice President and General Counsel of the Chemical Manufacturers Association, Washington, D.C.

Though the Chemical Manufacturers Association (CMA) has an extensive agenda of environmental issues, instead of attempting to offer CMA's priority substantive or programmatic suggestions, I have offered my personal answers and limited them to management suggestions.

1. Selectively expand the use of federal advisory committees and such consensus procedures as negotiated rulemaking. Purpose: To narrow the range of controversies that must be resolved through more formal procedures and to infuse more science into the regulatory process.

2. Establish a coequal or coordinated relationship, or both, between EPA's legal and technical staffs. Insist upon a multidisciplinary management philosophy to speed the development of soundly based, defensible proposals.

3. Establish aggressive oversight of regional office policies to ensure appropriate national policy consistency. Obtain increased resources for regional office implementation activities.

4. Dramatically expand resources for the training of EPA's professional staffs.

5. Explore outreaches to Congress that will encourage it to conduct macromanagement more often than political oversight of EPA.

6. Pay greater attention to new risk information in establishing domestic priorities and to the increased importance of global risks; develop a greater in-house capability of placing risk information in appropriate contexts for all sectors of the public.

7. Allocate additional resources to EPA's international environmental activities to assist the Agency in learning about the scientific advances and regulatory policy experiences of other countries.

8. Explore the possibility of selective exemptions from the civil service salary schedule to enable the Agency to retain experienced personnel in programs that are at critical junctures.

William Eichbaum

Mr. Eichbaum is Undersecretary of the Executive Office of Environmental Affairs for the Commonwealth of Massachusetts. Previously he has served in senior environmental protection positions in Pennsylvania, Maryland, and the U.S. Department of the Interior.

During the 1980s an unfinished agenda of environmental issues has steadily grown at EPA. In the last decade of this century these problems have to be resolved. To do this and to guarantee that the Agency is not again paralyzed in the face of new problems, the next generation of leaders must:

(a) establish the Agency as the national and international moral leader and advocate for strategies to protect and restore global and regional ecosystems and to protect the public's health;

(b) communicate, in cooperation with a revitalized Council on Environmental Quality, to the American people and Congress a long-range national strategy for environmental and public health protection and provide understandable reports regarding progress in achieving specific objectives of the strategy;

(c) implement creatively and vigorously the mandates that have been given to it, and in this effort recapture the trust and confidence of Congress, the states, nongovernmental organizations, and the public;

(d) obtain new resources and streamline operations so that decisionmaking and program implementation are achieved effectively and rapidly;

(e) increase scientific research about the effects of human activity on the environment and public health and firmly establish such science as the base for Agency regulatory programs, recognizing that policy judgments to protect people and environments must be made in the absence of complete information; and

(f) develop new programs and evolve existing ones to ensure that the generation of harmful materials is reduced and disposal of wastes in the environment is absolutely minimized.

EPA must pursue these broad objectives in order to assure that, as the nation prepares to meet the challenges of the 21st century, its environmental foundation is strong and safe.

Jeffrey G. Miller

Mr. Miller is Professor of Law at Pace Law School in White Plains, New York. Previously he was in private practice and was an enforcement official at the U.S. Environmental Protection Agency for 10 years.

If I were administrator of EPA, like any other administrator I would face a full agenda already set for me by Congress, the president, the courts, and the EPA staff. But I would fight like the devil to carve out enough time to pursue what I think is important. In all my actions, I would try to carry out my responsibility as a person, a [18 ELR 10252] citizen, and a public servant: to leave my country, the world, and their shared environment better for my stewardship. And I would remember that the public and private resources available for environmental enhancement are limited; meaning that EPA can achieve the highest degree of environmental progressonly by husbanding those resources, devoting them where the likely benefits to the environment are the greatest. With this in mind, my three personal concerns would be peopling, policing, and prioritizing.

Peopling. During its first two decades, EPA has had considerably more than its share of extraordinarily talented and dedicated people at all levels. Without them it would have utterly failed in its missions.

Unfortunately, they have left in droves. The reasons vary: low salaries, bureaucratic rigidity, some disastrous supervisors, scandal, and presidents who demean their civil service, for example. Some capable and dedicated employees remain, but the percentage of dead wood at all levels has increased alarmingly. The ability to recruit new employees of the same caliber as 10 years ago has decreased alarmingly.

Much of this is beyond the power of the administrator in charge, but he can let it be known that within government EPA is the place to work: the place where the work is the most challenging, fascinating, rewarding, and important. EPA should be understood as the place where integrity, respect, and the public interest set the tone. The administrator can also push within the administration for more pervasive changes in its attitude toward the civil service, in salaries, and in the working environment. The administrator can also set as an Agency priority the recruitment of the best and the brightest from colleges, graduate and professional schools, and the ranks of experienced professionals.

Policing. Administrator Gorsuch tore EPA's enforcement program asunder. I would put it back together. I would recreate the Office of Enforcement in Washington and the enforcement divisions in the regions. I would put all of EPA's enforcement resources in them, under a presidential appointee whose only responsibility would be enforcement.

Only such a program has a chance of developing any real consistency in enforcement policy and performance, media by media, region by region. Only a program with such a critical mass has a chance of developing any real professionalism by internal and external training and by breeding an enforcement mentality and esprit de corps. Only a presidential appointee who has sole responsibility and full authority for enforcement can ever do justice to the full and fair enforcement of our environmental laws.

Prioritizing. The radical disconnection between the expenditure of our public and private environmental resources and the resulting environmental benefits is evident to all but the most narrow visioned. Some are afraid to admit this for fear it is a stalking horse for deregulation or abandonment of environmental programs. It need not be and should not be. I would push for realignment by word and deed.

Word is easy. The administrator is pushed willy-nilly into every public forum. He can foment debate, challenge the assumptions of narrow visions, and suggest a wise course for the future.

Deeds are harder. Better methodologies are needed to identify meaningful priorities within and between media. A better budget process is needed to put resources where they will achieve the greatest benefits. Basic legislation must be reexamined and altered in this light.

Perhaps only generic residual management and environmental protection legislation, with no media orientation, can achieve this goal. It is clearly beyond the ability of the administrator to deliver any legislative reform. But without his vision, leadership, and persistence, it will never happen. At the same time, quest for rational expenditure of resources cannot be a mask for do-nothingism. Where the need for environmental protection is real, it must be steadfastly pursued with intelligence and imagination, with all available resources, with adamant will, and with endless persistence.

Brent Blackwelder

Mr. Blackwelder is Vice President of the Environmental Policy Institute, Washington, D.C.

As administrator of the Environmental Protection Agency, I would make a number of significant changes.

First and foremost, I would make dramatic changes in approaches to pollution control by placing the highest emphasis on source reduction of pollutants through process changes, waste exchanges, recycling, and similar techniques. Waste reduction or waste minimization can be extraordinarily cost effective, as many case studies have shown. Furthermore, it is essential to prevent pollutants from going into the least regulated medium. The waste reduction provision in the Resource Conservation and Recovery Act must become the centerpiece for all pollution control strategies, not just an afterthought.

Second, I would promulgate models of successful pollution control. It is not enough for EPA to tell industries to meet certain standards. EPA must develop a portfolio of the best ways of dealing with all forms of pollution and must disseminate these models through a variety of creative strategies. Over the years, a great deal of knowledge has been developed about the best ways to deal with point and nonpoint sources of pollution, but the success stories and techniques need far greater visibility and polluters need to be shown on a regular basis. To date, efforts in this direction are meager.

Third, I would dramatically improve data collection, monitoring, and research. The gaps in our knowledge of what volumes of pollutants are being disposed of are shocking. Throughout the nation there is significant failure to check compliance with permit conditions.

Fourth, as a means of paying for the essential data collection, monitoring, and research, I would increase the permit processing fees and make the charges proportional to the seriousness of the discharge. Through increased user fees it would be possible to free up scarce funds for urgent new priority issues such as climate research and groundwater protection.

Fifth, I would improve enforcement by giving citizens a far greater role and interest in checking the condition of their local soil, air, and water. Part of this initiative [18 ELR 10253] would involve the establishment of a fund to reward citizens who turn in evidence against violators of pollution control laws. Such a provision existed in the 1899 Refuse Act but was largely negated by the 1972 Clean Water Act. Another component of the initiative would be the preparation and distribution of monitoring devices to citizens to enable them to do the appropriate tests for pollution.

Sixth, I would get EPA to exercise its mandate to deal with pollution caused by other federal agencies. Notable offenders are the Department of Agriculture with its stream channelization practices and the Department of Defense with its toxic discharges.

Seventh, I would devote more money to work on protection of the ozone shield through a rapid phase-out of chlorofluorocarbons (CFCs), the wellhead protection program for groundwater, cleanup of nonpoint sources, the degraded condition of our greatest estuaries, and integrated pest management.

In summary, EPA desperately needs new leadership. It is being run as if it were the Industrial Protection Agency. EPA's proposed regulations on CFCs are so weak as to allow a doubling of these ozone shield killers by the year 2000. These regulations exemplify the failure of the Agency to live up to its mandate to safeguard the public health.