The Environmental Shell Game and the Need for Codification

Thomas L. Adams Jr. and M. Elizabeth Cox

Thomas L. Adams Jr. is a former Assistant Administrator of the Office of Enforcement at the Environmental Protection Agency. Mr. Adams is currently a partner at Dechert, Price & Rhoads in the Washington, D.C., office. M. Elizabeth Cox is counsel to Dechert, Price & Rhoads in the Washington, D.C., office. She formerly was an attorney in the Office of Enforcement at the Environmental Protection Agency.

[20 ELR 10367]

As we mark the 20th anniversary of the United States Environmental Protection Agency (EPA), more than a dozen federal environmental statutes have been passed since the Agency was created in 1970. Congress' method for solving environmental problems has been to enact more laws, often in reaction to catastrophes.¹ Pending legislation to create a cabinet-level Department of the Environment represents a unique opportunity to restructure federal laws and environmental regulatory programs. Rather than reflecting reaction to the latest environmental catastrophe, environmental laws should provide strong incentives to prevent the generation of pollution in the manufacturing process and recognize the cross-media effects of pollution by setting standards that assess a plant's overall impact on air, soil, surface water, and ground-water.² Now is the time for the Administration and Congress to organize and recodify the federal environmental statutes into a single coherent structure.

Gaps and Overlaps

Management by reaction to crises has resulted in a jumble of statutes, whose implementation is divided among EPA and other federal, state, and local agencies. Regulatory gaps exist, not surprisingly, in areas where crises have not yet prompted Congress to enact even more statutes.³ In addition to these gaps, many of EPA's responsibilities overlap or duplicate functions of other agencies. These overlaps include discharges from mining activities, wet-lands protection, and emergency responses to environmental catastrophes.

Causes: Fragmented Congressional Oversight

For too long environmental legislation and oversight have been disjointed. Eleven House and nine Senate committees oversee the Agency. Such scattering of jurisdiction — perhaps the product of the uncoordinated promulgation of the federal environmental laws — unnecessarily occupies much of the Agency's time. For example, in 1988 EPA officials testified before Congress over 100 times, and in 1989 that number grew to nearly 150 appearances. Congress also requests 100 to 150 reports or studies from EPA each year, in addition to the nearly 5,000 yearly congressional inquiries. Thus, regardless of the quality of leadership and staff, the overall effectiveness of any agency subject to oversight by nearly 100 separate committees and subcommittees surely must suffer.⁴

Causes: The Media Approach

The current array of statutes regulates resource by resource. But because most pollution problems affect more than one resource at a time, this media approach both fails to recognize how ecosystems function and allows industries to avoid compliance with environmental statutes by shifting pollution among resources.

EPA initiatives to improve the environmental quality of the Chesapeake Bay and the Great Lakes recognize these two geographic areas as separate ecosystems in which air contaminants settle onto surface waters, contributing to water pollution. Such initiatives represent a welcome change, but they also highlight the inherent structural barriers that the current media-specific standards pose to an [20 ELR 10368] integrated regulatory system. Stationary source air emissions continue to be regulated by one program office, while surface water discharge regulations are administered by another. Moreover, the interaction between federal and state agencies, mandated by most federal environmental statutes, adds another layer of complexity — and inefficiency — to the process.

The media-specific framework allows companies to generate pollution in one media to avoid compliance with regulatory standards in another. For example, EPA's water program office acknowledges that its effluent guidelines for organic chemicals can be met by either of two technologies: air stripping, which generates unregulated air pollution; and steam stripping, which does not. Unfortunately, air stripping is significantly cheaper than steam stripping. To address this problem, EPA is developing a pollution prevention bill that would ban such inappropriate technologies. Likewise, EPA is considering possible solutions under existing Toxic Substances Control Act⁵ authorities or through a provision in the Federal Water Pollution Control Act.⁶ Abating the pollution in the effluent is ineffective if its effects on other media, such as air, are not addressed.⁷

Solution: An Organic Statute for EPA

Rather than continuing the crises-response approach to environmental law, Congress should pass one unified federal code. This code should unify congressional oversight, provide for cross-media regulation, and stimulate pollution prevention by industry.

Unified Congressional Oversight

Under an integrated federal environmental code, one committee in each house of Congress would have jurisdiction over environmental programs. By so limiting congressional jurisdiction, the EPA would be permitted to concentrate its efforts on what it was conceived for: protecting the environment. The improved focus and efficiency would be startling.

Cross-Media Regulation

Addressing pollution problems on a cross-media basis must be accomplished as part of a broad recodification of all federal environmental laws and regulations. Cross-media regulation recognizes the interrelationships among various media (e.g., air, water, and soils). For example, cross-media regulation would write standards acknowledging that air emissions must be reduced if water pollution caused by acid rain is to be reduced. Integrating the federal environmental statutes into one code would nurture cross-media regulation by addressing pollution problems in all media on a regional or facilitywide basis.

Recodification would create a common set of terms, easing communication among what are presently separate media-specific offices. For instance, the overlapping but differing definitions for "hazardous substance," "hazardous waste," "hazardous air pollutant," "toxic pollutant," and "hazardous material" could be uniformly encompassed under the term "hazardous substance."⁸

Existing Programs. To its credit, EPA is trying to work within the current statutory and regulatory structures to address pollution problems in a cross-media approach. For example, EPA is presently conducting an 18-month pilot program in which Amoco Oil Company has agreed to allow EPA to study how its Yorktown, Virginia, oil refinery can reduce overall releases. The study also will "simulate coordinated permitting to see how it would work," evaluating obstacles to the existing state and federal permitting processes.⁹ In the meantime, EPA is hampered in its efforts to promote cross-media regulation by the media-specific laws.

For example, EPA recently announced two sets of rulemakings to reduce air emissions of volatile organic compounds (VOC).¹⁰ One set applies only to new facilities large enough to be regulated under the Clean Air Act.¹¹ The second applies to facilities permitted to treat, store, or dispose of hazardous waste, but not to generators of hazardous waste. These gaps resulted in two rules that reach only a fraction of the sources of VOC emissions.¹²

Transferring Pollution. A unified statute would eliminate an enterprise's ability to create pollution in one media in order to comply in another. Standards would be rewritten to encompass cross-media impacts so that permit applicants can no longer meet surface water discharge standards by increasing air pollution emissions. Regional water quality standards would be integrated with Clean Air Act state implementation plans so that water quality and ambient air quality are improved together, not to the detriment of one or the other.

The problem of media-transferring would also be mitigated by cross-media enforcement teams, which would be integrated so that inspectors simultaneously examine air emissions, hazardous waste management practices, and effluent treatment and discharges. These teams would ensure that enforcement actions address violations on a facilitywide basis.

Permitting. In the present structure, EPA promulgates and administers federal permitting requirements separately for each media-specific program (e.g., air, water, and waste [20 ELR 10369] management). Ten years ago, EPA attempted to consolidate permitting for the various programs into one unified process. This effort culminated in 1983 in the consolidated permit regulations.¹³ The effort was only partially successful due to the significant statutory differences between the permit programs and the need to coordinate state permitting requirements with EPA requirements.¹⁴ In addition, the consolidated permitting procedure, while limited in scope, may only be implemented at the discretion of the EPA regional administrator. In most instances, facilities must still apply separately for the media-specific permits required to construct a new facility or to modify an existing one.

A truly consolidated permitting system can only be achieved by overhauling the statutory permit requirements into one unified system, which would be efficient and cost-effective for both the government and the regulated community. EPA's efforts to achieve a consolidated permitting system should be revived — except now the renewed effort should be part of an overall restructuring of environmental statutes and regulations that recognizes the cross-media impacts of pollution and the need to end duplication of effort.

Pollution Prevention

The goal of pollution prevention is to alter the production methods, modify manufacturing equipment, or change the product ingredients to eliminate or reduce pollution created in the manufacturing process. A unified organic statute for EPA would entail pollution prevention incentives.

Large Enterprises. Some larger corporations have already made great strides in this direction. For example, Alcoa Aluminum Company, faced with the cost of installing prohibitively expensive air pollution control equipment, developed technology to eliminate a major source of air emissions, save millions of dollars, and eliminate the generation — and the tremendous cost of disposal — of significant quantities of solid and hazardous waste. Changing the method of production can also result in environmental savings.

Equipment modifications can be used to prevent releases and recycle ingredients. For example, new dry cleaning machinery places the washing and drying cycles in one unit, largely eliminating emissions of a suspected carcinogen and allowing its reuse.

Some pollution control methods, while not preventing the creation of pollution, convert it to a harmless or helpful product. For example, a new method for treating acid mine drainage has resulted in the creation of some 400 small wetlands at coal mining sites while reducing the need for conventional chemical water treatment plants.

Recycling finished products and production by-products, such as spent solvents and process baths, has also significantly reduced pollution and avoided costs. Recycling aluminum cans not only saves the cost of mining bauxite and producing aluminum, but also eliminates the incident air and water pollution. Recycling finished products, such as paper, cans, and bottles, also relieves some pressure on overflowing landfills.

Reclamation and reuse of the by-products of production is another fertile area where hazardous waste disposal costs and waste water discharge costs can be eliminated. Spent solvents, spent process waters used to quench metals, and used oil are among the by-products being reprocessed for reuse.

Small Enterprises. Unlike large companies, smaller businesses may not have the resources to invest in research for environmental solutions or to purchase new technology. For example, dry cleaning companies may find it difficult to pay for new machinery that reduces air emissions and recycles cleaning fluids. Restructuring pollution control standards to provide incentives for small enterprises to use pollution preventive technologies and nonhazardous ingredients is needed. Technical advice and information must be made available to assist small facilities in meeting industrywide standards.

Compliance Incentives. EPA needs to make better use of its research, public information, and technical program offices to provide technical advice to the regulated community. Additional incentives — like those in H.R. 4140 which was introduced by Rep. Lynn Martin (R.-Ill.) and would provide a 10 percent tax credit for investments in pollution control equipment — would encourage existing permit holders to upgrade their facilities to reduce or eliminate waste generation and pollution emissions and discharges.

State and Federal Roles

Most federal environmental regulatory statutes establish programs that may be delegated to the states for implementation. To be approved by EPA to administer the program, a state must demonstrate that it has state laws and regulations to implement the requirements of the federal environmental program (e.g., water pollution, hazardous waste). Generally, the state program must contain requirements that are at least as stringent as those of the federal program. The standards for state program approval, however, vary from program to program. Prior to EPA approval, affected enterprises must comply with both the federal and state requirements. After a state program has been approved, the state requirements apply in lieu of EPA requirements.

Once a state program is approved, EPA continues to promulgate additional regulations affecting the program. Every time a new set of regulations is issued, the approved state program must play catch-up by adding a new set of conforming regulations. In the interim, EPA and the state issue permits and implement the program jointly, with the state overseeing the part of the program for which its regulations have been approved and EPA administering [20 ELR 10370] its own requirements for the remainder of the program. If federal environmental laws are codified into a cross-media system, the state program requirements could be similarly codified as one cross-media system.

Implementation of the state and federal programs could be coordinated to the point where facility inspections would be conducted jointly by a team of state and federal inspectors, checking for compliance with state and federal regulations for air, water, underground storage tank, hazardous waste management, and any other applicable requirements. A joint inspection report would be issued and the facility would be instructed to address any compliance problems on a facilitywide basis.

Where Do We Go From Here?

EPA has launched efforts to address environmental problems in a preventive cross-media approach. The Agency is trying to work within the existing structure to bring together its media-specific programs in solving regional pollution problems. For example, EPA is developing a pollution prevention legislative package that may address some of the problems discussed. However, unless the overall structure of media-specific programs is changed legislatively to create a unified cross-media regulatory system, these ongoing piecemeal changes will continue to be hamstrung by the existing program structure.

Increased awareness of cross-media impacts of pollution suggests that major changes to regulatory standards are urgently needed. Such changes cannot be made across the board under the existing statutory framework of unrelated and conflicting standards for the separate protection of each media. As EPA's unsuccessful efforts to create a consolidated permit program show, the inefficiency of maintaining separate programs for each media can only be remedied through statutory and regulatory change. A unified codification of environmental protection laws with a resulting restructing of implementing regulations would provide the basis for a more efficient and cost-effective regulatory system for both government and the regulated community.

The current impetus to elevate EPA to cabinet status presents a unique opportunity to make sweeping improvements in the unification of environmental law. EPA Administrator Reilly recently called on Congress for assistance: "Instead of continuing to add more and more discrete authorities as new problems arise, we should begin to integrate our efforts to sustain environmental quality. . . . We have no basic organic legislation to provide us with a broad overall mandate to protect the environment and human health."¹⁵ The solution to this dilemma, according to Reilly is a single federal environmental code, responsive to the needs of the environment, rather than patch-work legislation from a Congress reacting to problems it did not foresee. The time to change the anachronistic media-by-media approach is now.

1. For example, Love Canal and Valley of the Drums provided much of the impetus for the enactment of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601-9657, ELR STAT. CERCLA 001-075. Similarly, the release of methyl isocyanate fumes and the resulting deaths of over 2,000 persons in Bhopal, India, precipitated passage of the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA 110-012. It is likely that the Exxon Valdez oil spill will spur enactment of broad new oil-spill legislation. See Jones, Oil Spill Compensation and Liability: When Good Things Don't Happen to Good Bills, 19 ELR 10333 (Aug. 1989).

2. Adams & McSlarrow, Seizing 1989 as a Window of Opportunity: An Environmental Challenge to the Next Administration, 18 ELR 10419 (Oct. 1988).

3. For example, storage of hazardous waste is heavily regulated under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 004-050, but storage of hazardous products, such as gasoline, generally is not regulated in the federal statutory scheme.

4. The inefficiencies of this supervisory structure have not gone unnoticed. Recently EPA Administrator William K. Reilly explained the practical impact of the disparate legislative controls: "The mechanisms for formulating policy are so diffuse that we are bound to have gaps . . . so large that human health and natural resources may needlessly be put at risk." Address by EPA Administrator William K. Reilly, Natural Resources Defense Counsel Marshall Lecture, Washington, D.C. (Nov. 27, 1989) [hereafter Reilly Address].

5. 15 U.S.C. §§ 2601-2671, ELR STAT. TSCA 003-056.

6. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 003-065.

7. EPA Eyes Ban on Technologies That Shift Pollution From One Media to Another, Inside EPA Weekly Rep., June 8, 1990, at 1.

8. See CERCLA § 101(14), 42 U.S.C. § 9601(14), ELR STAT. CERCLA 007 ("hazardous substance"); Federal Water Pollution Control Act (FWPCA) § 311, 33 U.S.C. § 1321, ELR STAT. FWPCA 039 ("hazardous substance"); RCRA §§ 1004, 3001, 42 U.S.C. §§ 6903, 6921, ELR STAT. RCRA 004, 010 ("hazardous waste"); Clean Air Act § 112, 42 U.S.C. § 7412, ELR STAT. CAA 013 ("hazardous air pollutant"); FWPCA § 307, 33 U.S.C. § 1317, ELR STAT. FWPCA 034 ("toxic pollutant"); Hazardous Materials Transportation Act, §§ 102, 103, 49 U.S.C. 1802, 1803 ("hazardous material"); see, e.g., New Definition of Solid Hazardous Waste Recommended in EPA Study of RCRA Programs, 20 Envt' Rep. (BNA) 479 (1990).

9. EPA, AMOCO Announce 18-Month Joint Effort to Study Pollution Prevention Alternatives, 20 Env't Rep. (BNA) 1938 (Apr. 6, 1990).

10. Clean Air Act final regulations: 55 Fed. Reg. 26912 (1990) and 55 Fed. Reg. 26931 (1990); RCRA final regulations: 55 Fed. Reg. 25454 (1990).

11. 42 U.S.C. §§ 7401-7626, ELR STAT. CAA 004-052.

12. New Chemical Plants, Hazardous Waste Facilities, Face Tight Controls on Smog-Forming Emissions Under New EPA Rules, Envtl. News (EPA Office of Public Affairs Press Release, June 13, 1990).

13. 40 C.F.R. pt. 124.

14. These permit regulations consolidate some of the procedures applicable to the issuance, modification, revocation, reissuance, and termination of RCRA permits dealing with storage, treatment, or disposal of hazardous waste, deep-well injection of wastes, air pollution permits in areas meeting areawide standards for certain air pollutants, and pollution discharges to surface waters permits, excluding RCRA and deep-well injection of waste emergency permits and RCRA permits by rule. Although Clean Water Act dredge and fill permits are issued by the U.S. Army Corps of Engineers, certain procedural regulations applicable to EPA participation in the permitting process are covered in 40 C.F.R. pt. 124. The substantive requirements of each program remain separate. For more on consolidated permitting, see generally Law of Environmental Protection, § 3.06[2][a] (S. Novick ed. 1987).

15. Reilly Address, supra note 4.