The Communication/Feedback System: Panel Discussion

JOHN A. S. McGLENNON, President, ERM-New EnglandDAVID MORELL, Ph.D., President, EPICS InternationalJON GREENBERG, Browning-Ferris Industries

[20 ELR 10538]

JOHN A. S. McGLENNON: I have two or three suggestions that EPA should consider in order to develop a more formalized feedback system. One is to incorporate an annual review process into some of our regulations. There would be no harm in convening an annual or biennial meeting of representatives of the regulated community to ask how well we are doing and how well the regulation is working.

Another suggestion concerns the regulatory negotiation process. We are required to form a committee under FACA, the Federal Advisory Committee Act. Members are appointed by EPA, and the charter is approved by OMB. Since we go through all of those steps, why not keep such a committee in operation? It would not need to operate continuously over the period of implementation of a rule, but perhaps could be reconvened — as the committee that was responsible for writing the rule in the first place — perhaps annually for a three-year period to ensure that the rule gets off on the right foot.

Other developments are discussed in two articles in a newsletter published by the Harvard Program on Negotiation. One article addresses the proposed Negotiated Rulemaking Act. I believe Senator Cohen from Maine is one of the sponsors. The Act will provide for all federal agencies to create offices that will initiate negotiated rulemakings. A second article discusses a bill, initiated by ACUS, called the Administrative Dispute Resolution Act. Again, it creates a requirement for agencies to set up offices providing alternative dispute resolution procedures in disputes arising from questions about regulations. This proposal was filed by DeConcini of Arizona and Grassley of Iowa and is a brand new bill. I can not predict its outcome.

These developments show that there is movement out there, a recognition of the frustration that you have discussed today, recognition that we do not have a perfect process, and that there are ways in which it might be improved.

DAVID MORELL: With respect to more effectively involving the private sector in the regulatory process, Mr. McGlennon, let me pick up on that point as well as your rather interesting concept of the annual or biennial meeting to review how well the regulations are working.

In both cases it is important to involve more than the regulated community and EPA. One would expect me to say that we must involve state agencies, but, in addition, I think the public must be involved in some way.

We speak too much to ourselves — the regulated community and the regulators. We need to be more careful to involve a more general public. The public will direct us more toward the system's fallacies.

In terms of the communication system, it seems to me that a few clear channels are open. But many channels are rigid and unworking. EPA and the state agencies talk quite a bit, but they do so formalistically. The state/EPA agreement process needs to be noted here; in some parts of the country it seems to be an effective dialogue. In others, it is not effective at all. Typically, the process is used to distort our environmental priorities by creating what I call "bean-counting" rules that pass from EPA headquarters, through the regions, and into the [20 ELR 10539] states, who use them to keep the money flowing. The Section 106 money in air, in water, in RCRA grants, and so on require meeting certain commitment numbers which may or may not have anything to do with a broader sense of the priorities in the implementation of these laws. As a result, we have some odd communications between EPA and the states over remediation preferences.

There seems to be what one of my former colleagues at Princeton called a failure in discourse: essentially, people are talking past one another rather than to one another about such interesting issues as: How clean is clean? Do we believe in non-degradation as a policy with respect to ground water clean-up? What kinds of technologies are to be used at what cost? How important is fund balancing for the CERCLA fund? How important is it for a state Superfund? How important is it for a Potentially Responsible Party not to spend all of its assets at one site and therefore have none left either to employ people or to do clean-up at its other sites?

Further, there is too much programmatic focus — the air division director at EPA talks to an air chief in a state agency without much knowledge or interest in what is going on in RCRA or Superfund or any of the other divisions. We all pay too little attention to what is outside our particular scope.

With respect to EPA and the regulatory development process, I find one missing link in our discussion: OMB. It is easy to criticize EPA, but a great deal of the decisions we criticize are not made at EPA, but by the Office of Management and Budget. Given the OMB pressures that are felt at EPA, in terms of the regulatory development process and any communications about it, we need to shed some light on that dark arena of important public policy.

With respect to communication between industry and the agency, I find too much formality and occasionally too much informality. We have too little open, honest communication, and too much whispering and lobbying or formalistic communications — paper-shuffling rather than effective two-way dialogue. Again, I see a failure in discourse, a passing in the night of effective communications.

There were times in my two and a half years with EPA Region IX when I found that we had an important policy issue in the Regional Administrator's office. Often at these times, the situation seemed to be: "check the lawyers at the door and send in your engineers to talk to our engineers. We won't pretend we are solving all the problems, but we will deal with some of the technical and the economic issues that lie behind them, and we'll do it without legalistic posturing."

We have discussed possibilities for shared information, but how much is really shared? How much do any of us take advantage of? It isn't packaged. The EPA guidance that went to one industry isn't available generally in terms of how it might affect others. There is little in the way of industry-agency communication about cross-media issues. But John and Jane Q. Public see it as an ambient world, not a statutorily driven mono-media myopia.

Finally, there is the crucial issue of timing. There are serious problems in the timing of compliance and clean-up actions by the private sector.

Can we begin to communicate better about our implementation problems, or are admissions of failure deemed unacceptable? Is EPA secure enough to be able to admit in discussions with the rest of us that things aren't perfect? Are corporations — from the largest to the smallest — ready to admit that corporate non-compliance is rampant?

I am afraid the answer is no on all accounts. Until it is at least a qualified yes, we will have difficulty achieving anything but failure in discourse.

I also find a number of clients, including non-profits — universities, for example — that are deathly afraid of any look at compliance on their part. As a result, EPA abdicates to Congress the role of honest criticism.

We end up with more land bans, more hammers, as the system, as I called it earlier, of a declining spiral of failure goes on. Congress will play that role, in large measure because they feel the heat from constituents who look out at the ambient situation and see that it isn't working.

So, by EPA not being able to communicate effectively with the public (and often the problem is less EPA than it is OMB, who tells EPA what it can say), it becomes detached not only from the public, but also from Congress, whose constituents are that uninformed public.

JON GREENBERG: I spent several years at EPA as a policy analyst, carrying out my responsibilities to protect human health and the environment. About a year ago, after a lot of soul-searching, I left EPA to join Browning Ferris Industries and the ranks of the regulated community. Now, instead of developing land ban regulations from a moral high ground at EPA, I have to comply with them from the perceived moral low ground of a large waste management company.

I would like to make two points. First, regulations will never be perfect. There is no elegant way to regulate the diversity of parties potentially affecting the environment. Once you are regulated — and you are regulated because you lack credibility — you are in that situation forever. We can reach agreement on better technical regulations; we can do many other things. But the fact is, once you are regulated, you are not liked by a large segment of society. All of the forces that we have passing laws and developing regulations are going to come to bear, and they are not designed with your best interests at heart.

My second point is that fixing existing regulations is far more difficult than creating them. The system is not set up for it. Looking through the 1980 Hazardous Waste General Codification Rule, I came across a paragraph that brings out this issue of whether or not regulations can be fixed at a later date. It reads:

"In these regulations we have tried to strike a balance between these two extremes. [the extremes being, in this context, generic versus specific regulations] Where we fail to achieve the right balance, we suspect that this will become apparent in the early stages of implementing the program. If there are situations where strict application of the standards contained in these rules would bring about a result which is obviously not intended, we would appreciate being advised of it so that we can take appropriate action. We are prepared to react to these problems with regulatory amendments, interpretive guidance, reasonable implementation, enforcement as appropriate."

It continues in that vein. This is nice language and I think it is well meant. But the truth of the matter is, once regulations are issued, they acquire a certain inertia of their own. They are hard to undo or fix, and it tends to be only at the fringes, if at all, that repairs occur.

For the most part, unless the issues are technically very narrow and don't have any strong policy implications, they will not be easily fixed. Too many forces at play will prevent it. If they are narrow and technical, then they can be fixed.

[20 ELR 10540]

Part of the problem is that EPA Headquarters generally develops regulations with only a modest amount of input from the regions, the states, and the regulated community regarding feasibility of implementation. Early on in the development of a rule, anticipating legislation, the Agency already has made major policy decisions in the absence of debate or outside information. Also, the regions and states don't participate fully in the regulatory development process because they run their own programs and can't afford the distraction. And often they are as bewildered by the complexity of what Washington is doing as is the regulated community.

Another problem in crafting good regulations is that success, for Headquarters, in large part is defined as meeting statutory deadlines with the minimum political heat. Success is not necessarily the "implementability" of regulations. This is not to say that the goal or the purpose of Headquarters actions is not good. They simply have a number of forces — like Congress and congressional staff, OMB, and the environmental community — to whom they must listen while attempting to issue regulations on time.

Yet another problem at the federal EPA level is that few people in Headquarters, staff or management, have ever been in the position of implementing these programs, or trying to comply with them. That is another built-in situation where the regulators don't know what faces the regulated.

I am a good example of that. I came from EPA, and I didn't know what it was like to comply with EPA regulations, I am reasonably intelligent. But I didn't think about many of the implications of the land ban while I was at EPA. Two months after leaving EPA, I was surprised to be involved in a lawsuit over the first/third rule when the agency wouldn't take our comments and didn't believe the pain it would involve for us.

Even when there is a general consensus that a program needs to be rationalized, the inertia is still tremendous. One of the simple reasons for this is that the resources needed to fix regulations are not abundant. Congress tends to pass funding legislation for the development of regulations, possibly enough to reach the implementation stage. But then the funding trails off, and there is no money or basic institution left to repair implemented regulations.

Another source of inertia is the fact that once people become accustomed to a complicated regulatory framework, even if it is ineffectual or inefficient, they tend to support the status quo, simply because they understand it. The difficulty of going on yet another path and retraining everyone outweighs the desire to change.

Also,larger companies think they have the sophistication to comply — they can understand the regulations. And once they finally understand, they tend to feel that, if nothing else, the situation is at least certain, so why upset it again. The small companies who don't know what the Federal Register is in the first place are out of the loop altogether.

Because the Agency doesn't have the resources to initiate major review of the rules, fixes tend to come from statutory amendments. The amendments renew resources for the Agency, allowing it to move into a regulatory development or modification role. But generally, the statutory amendments also carry with them a host of new goals and deadlines. Thus, EPA can't simply go back and make the necessary changes. It has to strike new ground. The history of the Solid Waste Disposal Act, through RCRA and the 1980 amendments and HISWA, shows this cycle of ever-expanding goals and means.

Finally, I have a few solutions to suggest, but they may be overly optimistic.

Our problem goes beyond the environmental community. Being regulated in a country like ours is a difficult situation, regardless of the arena. Probably the best solution would be to avoid regulation altogether because it is so hard to do it well. What that would require, on the part of the regulated community or those who are not yet in the regulated community, would be a constant, diligent effort to anticipate environmental problems and to prevent them from the start.

Another possible solution might be to let EPA have a longer leash in setting priorities and devising solutions.

In addition, integrating environmental acts would help. Chemicals obey the laws of science, not a multiplicity of regulations and statutory authorities. In the present system, depending upon which statute you choose, you get entirely different, even conflicting, results or requirements.

Speaking from personal experience, I would say that there should be more "cross-pollination" between the regulators and the regulated. EPA tends to be a one-way street; not a lot of people return to EPA once they have left for the regulated community, particularly at the professional staff level. If there were more of a revolving door, people could go back and forth between regulating agencies and the regulated community, and we would begin to develop joint ownership of the problems rather than this somewhat bi-polar situation of adversarial positions.

Finally, we need to institutionalize a regulatory review process — after a program has been developed and fully implemented, not before.

DISCUSSION

McGLENNON: I would like to ask the representatives of industry here how effectively you feel you are influencing the regulatory process? Do you think it is useless to try?

PARTICIPANT: My own experience with EPA is that the only way to get the Agency's attention is to file a lawsuit. When I do that, I can work out my problem. Often, as you know, it is a private arrangement that takes care of the problem. At EPA, even when no one disagrees that you should get the relief sought, you can't get any attention until you file suit. There is a great deal of money wasted in that effort. There should be a better solution.

McGLENNON: I agree. When I was talking to someone about this program, she told me that one reason that the regulated community files lawsuits is to guarantee themselves a seat at the table. There are many meetings going on at EPA unbeknownst to them. Once they file suit, they are invited. That is extremely disappointing.

MORELL: One of the issues we haven't yet discussed at length is the role of trade associations in communicating on behalf of their members. Looking back over years in this business, my view is that they don't seem to serve their clients well in the regulatory process. I have very little feel for what they do in the political process; they may be serving their clients very well. But in terms of interaction with EPA or state regulatory development, they don't seem to do well. It appears that individual firms expressing their opinions directly to EPA or its state equivalents is more effective than reliance on the trade association.

WILLIAM A. ANDERSON, II: Let me offer some comments. I think the reason for filing lawsuits to get a seat at the table is 8 ERC 2120 (D.D.C. 1976), where the stipulation or agreement in NRDC v. Train was reported. The Best Available Technology effluent limitations under the Water Act prior to the 1977 Amendments were driven by a consent decree [20 ELR 10541] that was entered into without the knowledge of many who were affected by it and continue to be affected by it. This is why people file suit: to have a seat at the table.

I have seen within EPA over the last three or four years what strikes me as a fairly pernicious trend. There seems to be notably less concern, particularly at the professional staff level, for advancing the public interest, and more concern for winning in the Court of Appeals. The ultimate test of a good regulation becomes not whether it advances the public interest in a meaningful way, but rather whether, in this post-Chevron era, the regulation can be sustained by the Court of Appeals. This has led to gamesmanship in EPA's consideration of comments, and communication is now a one-way street.

Effective communication requires two elements: someone to speak and someone to listen. But EPA is not listening. Instead, they are essentially playing debating tricks in the responses to comments. They are not grappling with the issues raised in those comments. That is dangerous for us as a society.

GREENBERG: I am not trying to defend EPA, but I think part of that feeling of one-way communication is the result of something like the HISWA, with a lot of congressional oversight imposing a real fear of straying from the statutory language, even in the interest of good public policy. The original land ban proposal tried to temper what Congress had done. The Senate version of the original land ban proposal capped treatment levels a bit with environmental and health considerations. The House version had no cap and was strictly technological. EPA saw early on that there were some funny disconnects there requiring treatment for treatment's sake in some cases, and in others requiring insufficient treatment to be protective at all.

Such situations reinforce the Agency's disinclination to take risks. They went ahead with the Senate version in theregulatory development process, even though the House version carried through. That helps to explain EPA's covering itself from the political heat, and not wanting to get involved in the debate because it sees that it can't win. Its job is to meet those hammer dates, no matter what, which isn't very comforting.