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27 ELR 10345 | Environmental Law Reporter | copyright © 1997 | All rights reserved The Alternative Compliance Model: A Bridge to the Future of Environmental ManagementTimothy J. MohinThe author is the Government Affairs Manager for Environmental Health and Safety Issues at Intel Corporation. He previously served as a Professional Staff member with the Senate Committee on Environment and Public Works, where he worked on environmental technology, pollution prevention, and integrated approaches to environmental management. Previously, Mr. Mohin was a Section Chief in EPA's Office of Air Quality Planning and Standards and was responsible for implementing the air toxics provisions of the Clean Air Act Amendments of 1990. He received his B.S. from the State University of New York at Cortland and his Masters of Environmental Management from Duke University. One of the most popular recent trends in the environmental arena is reinvention. The groups recommending changes to our system of environmental management are notable by their breadth, their high level of credibility, and the consistency of their message.1 Yet, despite the consistent message, it seems "the system" is resistant to change, with the entrenched interests it supports being the first to defend the status quo despite the downsides for the environment and management efficiencies. This Dialogue explores one of the most consistent recommendations from the various reinvention initiatives—that of "alternative compliance" or, more appropriately given its breadth of application, "alternative path environmental management." Specifically, this Dialogue will examine the issue from two perspectives: first, from the perspective of a company that has volunteered and successfully completed the Clinton Administration initiative known as Project XL; and second, from the broader perspective of the ongoing debate over this issue and what it could mean for reinventing our environmental management systems. Alternative environmental management is a promising antidote to the excessive bureaucracy and extreme burden that have been layered on this nation's environmental management system over the last 25 years. It embodies the fundamental recognition that we must find a better, more cooperative, and efficient system if we are to continue to succeed in managing our precious environment. William Ruckelshaus, the founding Administrator of the U.S. Environmental Protection Agency (EPA), articulated this point at a 1993 Senate hearing: It seems to me that the first tool we ought to study is the calendar. It's not 1970 anymore, it's 1993. It's not even 1980. The regulatory tools we developed for the environmental problems of decades past, in my view, are not adequate for those of the present, and far less than [for] those we can see looming clearly in the future. Worse than that, these antique control systems may actually impede the tasks before us.2 Alternative Environmental Management The concept behind alternative environmental management is fairly simple—a regulated entity is granted the right to propose a more efficient "alternative" means of managing its own environmental performance. The alternative management program is created by the regulated entity and those that benefit from the superior environmental performance it can produce. Called "stakeholders," these representatives include, but are not limited to, all the affected government bodies, environmental organizations, tribal governments, citizen activists, and the general public. If an alternative compliance proposal is accepted by the relevant governmental agency, then that proposal would operate in lieu of the otherwise applicable environmental laws or regulations. Stated another way, the alternative compliance plan would allow the regulated community and affected stakeholders to tailor the environmental management programs that apply to them in a manner that optimizes environmental gain at the least cost. As currently construed, alternative compliance rests on three main tenets: (1) the end result of the alternative management plan will produce a net environmental gain (this is one of the most controversial concepts and has been dubbed superior environmental performance); (2) the alternative management plan will grant the regulated entity flexibility to propose modifications to the current requirements in order to cut costs and/or reduce delays or inefficiencies associated with the current system; and (3) stakeholders will participate throughout development and implementation [27 ELR 10346] of the alternative management plan in its substance, structure, and acceptability. These three major components of alternative management are notable because they each point to a fundamental failing of our current environmental management system. Superior environmental performance is directly related to the growing frustration with our current system's inability to produce quick, cost-effective environmental gains. The current system has reached the point of diminishing returns, and gains are achieved at inefficiently high costs and are fraught with needless delay and bureaucracy. The desire for flexibility is clear from the strong national reaction to the inefficiencies of a system that imposes an increasing array of prescriptive, duplicative, costly, and confusing requirements.3 Recent congressional initiatives to "regulate the regulators" are further evidence of this trend.4 The current system is a victim of its own success. The dizzying array of federal, state, and local requirements covers not only environmental standards, but also monitoring, reporting, and recordkeeping requirements. This has produced a regulatory briar patch second only to the tax code, and is clearly beyond the reach of the lay person. The confluence of all of these requirements is, for the most part, at the large stationary source. It should be of little surprise that the nexus of these centrally planned, uncoordinated requirements can be grossly inefficient when applied at the local level and can actually impede, not improve, environmental progress.5 Public involvement in the current system is a miserable failure. As mentioned above, the current system is complex enough to repel all but the most educated of insiders. In addition, the public involvement opportunities that the current system rigidly imposes are poor vehicles for input and are frequently ignored.6 Local citizens who care about the environment feel disenfranchised by the very system that purports to protect them. Clearly, as has been noted by several high-level studies on reinvention, the current, medium-by-medium, command-and-control system produced dramatic benefits for the environment and public health.7 While this system, and the gains it has produced, form a solid foundation of environmental protection, the world has since changed in ways that make continued rote adherence to a " command-and-control" system inadequate for the future of environmental management. There are two fundamental shifts that have made change in the environmental management system inevitable. The first is that nearly all of the "easy" environmental gains have already been made. The current system has already regulated most of the big targets (e.g., large stationary sources) and solved the most egregious or visible environmental problems (e.g., burning rivers, air pollution so bad street lights must be turned on at noon). What is left after these big targets are far smaller, less efficient gains that are typically the most costly to achieve. Applying the same harsh command-and-control tools to smaller, more diffuse pollution sources (e.g., small businesses, consumer products, farming) is far less popular with the public and Congress. The second fundamental shift is a change in our culture. Awareness, acceptance, and support of environmental goals has continually increased over time.8 For example, most Americans today are likely aware that chlorofluorocarbons cause a "hole" in the ozone layer. The effect of this understanding is a broadening of the expertise and ownership of the environmental issue. The battle lines are less clearly drawn between industry, environmental activists, and government. Many of the professionals in this arena have worked in more than one of these traditional camps and understand the issues attendant to each. With the blurring of these lines, and the broadening consensus for environmental protection, it becomes less and less appropriate and efficient to impose a command-and-control regime where the national government sets and rigidly enforces the rules.9 The alternative management concept attempts to address the failings of the current system as well as tap into the expertise and creativity held now by all sides in the environmental debate. There are two basic manifestations of the alternative management model. While not mutually exclusive, these models embody very different perspectives of the application of alternative management and the future it portends for our environmental management system. The alternative management model most prevalent now is, not surprisingly, the one closest to our current system. This model seeks to employ the alternative compliance model as a testing ground for new approaches that could be used to improve the current system. This is the concept underlying Project XL and some current legislative proposals.10 [27 ELR 10347] The idea is that a regulated entity applies to EPA or another appropriate agency for approval to implement a program offlexible environmental management. In return, the program must demonstrate superior environmental performance (i.e., a net benefit to the environment). The program would also need to be the product of joint stakeholders and public coordination. Eventually, the regulatory agencies and/or Congress would attempt to extract generic lessons from the pilot projects and plow these back into the current system.11 The second model would allow the use of alternative management, not as a test, but as an alternative path for all qualified entities. This means that any qualified regulated entity could apply for entry into the alternative compliance program and, if the entity met the requirements, would then follow a separate, more tailored set of rules than those imposed on other regulated entities. This plan has also been called the parallel track (or track two) because it would give rise to a cadre of entities that are essentially operating outside of the current system but, by definition, producing better results at lower cost. Clearly, such a path could become a superhighway if the environmental and economic benefits are high and the transaction costs are low. Congress first formally proposed an alternative compliance program in 1993 as an amendment to the Federal Water Pollution Control Act.12 Several other legislative proposals embracing this approach have been offered since that time, though none has become law.13 In addition, several high-level studies advocate alternative compliance approaches. These studies include the National Academy of Public Administration's, Setting Priorities and Getting Results;14 the President's Council on Sustainable Development's, Sustainable America: A New Consensus Report to the President;15 the National Commission on the Environment's, Choosing a Sustainable Future;16 and perhaps most on point, from the Aspen Institute's Series on the Environment in the 21st Century, The Alternative Path, A Cleaner, Cheaper Way to Protect and Enhance the Environment.17 President Clinton announced Project XL (short for excellence and leadership) on March 15, 1995, as 1 in a package of 25 reinvention initiatives aimed at improving our environmental management system.18 Following the President's announcement of the XL program, EPA followed up rapidly with a Federal Register notice requesting applications to the program.19 This notice was remarkable, most significantly for its brevity and the speed at which it was issued.20 To many in the industrial community, the lack of prescriptive rules and standards in this original notice indicated that EPA had received the message that a more flexible approach was needed and that the XL process should not be cluttered with unnecessary bureaucracy. The notice set out eight simple and broadly worded criteria that applicants were required to meet in order to be accepted into the program.21 Applicants were encouraged to develop innovative proposals and each approved proposal was to be completed in conjunction with stakeholders within six months of project approval. On November 3, 1995, President Clinton approved the first six companies for entry into Project XL.22 At around this time, several small environmental advocacy groups and the Natural Resources Defense Council (NRDC) began to complain to EPA about the XL program.23 Most of the concerns were centered around the apparent lack of rules for involving stakeholders and the vague definition of "superior environmental performance." These two basic concerns, which continue to attract the most attention to Project XL today, are addressed later in this paper. In June 1995, Intel Corporation submitted a Project XL proposal that called for the development of a "multi-media operating contact that defines environmental performance for the Chandler facility."24 Intel was an ideal candidate [27 ELR 10348] both for producing the superior performance required by Project XL and for seeking the operational flexibility available from XL because Intel has a deep commitment to environmental progress,25 a proven record in environmental reinvention programs,26 and was a company in which speed from product design to manufacture is critical to competitive success. The facility selected to host the project was, at the time, Intel's newest chip fabrication unit, known as "Fab 12." This facility, which was still under construction at the time the proposal was submitted, was expected to open and begin manufacturing Pentium microprocessors before Project XL's scheduled completion. Located on 720 acres of desert/agricultural land in the Phoenix suburb of Chandler, Arizona, this facility cost over $ 1.3 billion to construct and was expected to employ over 2,000 skilled workers. The site was large enough to house another facility of equal or greater size and the XL agreement was designed to cover two facilities the size of Fab 12. The final Fab 12 agreement is structured as two separate but related documents. The final project agreement (FPA)27 outlines the entire scope of the project, both the development and implementation process as well as the substantive commitments. It is also the vehicle for all nonregulatory commitments.28 Attached to the FPA as separate but related documents are the operating permits for the facility.29 This facility had previously been issued operating permits, but through the course of the project, these permits were significantly modified to reflect the outcome of the Project XL negotiations. The permits were kept separate to preserve their clear enforceability. One of the goals of the project was to integrate all environmental requirements into one document under one regulatory authority. Although consolidation under a single authority proved, in the end, to be too difficult to achieve fully, the project did manage a significant degree of consolidation of regulatory requirements and an unprecedented level of coordination and cooperation among agencies. For example, a single lead agency, the Arizona Department of Environmental Quality, will coordinate the activities of the other four regulatory entities that have oversight responsibility for this facility.30 In addition, all reporting and emergency planning has been consolidated under the FPA. Instead of separate reports being filed at different times with different agencies, the FPA requires a single consolidated report to be issued quarterly.31 Again, the project stopped short of full integration due to some of the rigid reporting rules. Intel will pull data from the consolidated reports and continue to submit separate reports to these separate agencies on the regular schedule. The primary improvement is that the consolidated report will, in a single document, provide all the relevant environmental data about the facility thus facilitating public understanding as well as improved emergency preparedness. The Intel project began with the principle that the people who have the most at stake must have significant involvement in every facet of the project's development and the crafting of the FPA. Intel conducted perhaps the most inclusive stakeholder process of any industrial permitting project in history. The process involved all relevant federal, state, and local agencies; environmental organizations; tribal governments; community representatives; and all Fab 12 Intel employees. To develop this process, Intel and the facilitator for the XL stakeholder process reviewed numerous past stakeholder processes, including all those classified as models by environmental and environmental justice organizations participating in EPA's Common Sense Initiative,32 as well as more extensive public participation programs such as the Overthrust Industrial Association.33 Intel developed a far more extensive and inclusionary program than any of the examples it could find.34 Even before applying to Project XL, Intel had a history of encouraging community input. The company had a standing community advisory panel (CAP) that had been selected by an experienced third-party facilitator to represent the community in Chandler.35 When Intel was accepted to participate in Project XL, the CAP was asked to appoint members from its ranks to serve on the stakeholder team. The CAP members were notified that this effort would require a considerable commitment of time. Several members with an interest in the environment volunteered for the stakeholder panel. In addition, each of the regulatory agencies appointed at least one representative to the stakeholder team. To complete tasks efficiently, the stakeholder team divided itself into an executive team and subcommittees (e.g., air, recycling, regulatory efficiency, and legal). Over the course of their deliberations, which lasted about nine months, the stakeholder team and its subcommittees held more than 100 meetings. Eight meetings during this nine-month period were fully "public" meetings, meaning that the public was notified in advance of the meeting and asked to participate.36 All of the meetings were held in the evening hours so that the stakeholders and the public would be able to participate without taking time away from their jobs. In addition, the stakeholder team granted several special requests to participate in meetings that were not designated as public, and included representatives of national and out-of-state environmental groups in the process. The stakeholder team operated on a full consensus basis. Each category of stakeholder had veto power, but individual veto power was rejected as unworkable and a disincentive to diverse team membership.37 Involvement of nonmanagerial employees in the stakeholder process has been raised as an important facet of the alternative compliance approach. Employee involvement is considered important because of potential issues involving occupational health and safety. To address this concern, Intel reviewed several stakeholder participation models in which employees other than environmental managers sat on the stakeholder team, as well as models in which there was no employee representation, and those in which all facility employees were involved.38 The model chosen was full participation by every employee of Fab 12 through an extensive process of education and communication regarding each aspect of the project. In addition, all Fab 12 employees were offered multiple opportunities to provide attributed or anonymous comment.39 Intel facilitated public, and local and national nongovernmental organization involvement through placing all project records on the company's internet home page.40 These postings also offered unlimited opportunities for attributed or anonymous comment.41 In addition, special opportunities for input and dialogue were offered through a series of briefings conducted by the author and others involved in the project. Some of the briefings were facilitated by EPA with a broad audience of environmental and environmental justice groups. Still other briefings were conducted on an ad hoc basis for the NRDC. In the implementation phase, Intel has agreed to enforceable conditions (not required under current law) to ensure a high level of ongoing public involvement. The air permit sets out enforceable conditions for semiannual public meetings on the progress toward achieving the commitments of the agreement as well as an evaluation meeting to be held in 1999. This meeting is to ensure that progress has been sufficient to meet these commitments and to recommend actions if progress is insufficient. The quarterly consolidated reports are also an enforceable aspect of the air permit. Finally, one of the challenges of public involvement on highly technical agreements such as the Intel FPA is that community members often do not possess the depth of knowledge and understanding of the complicated regulatory issues involved. In these negotiations, Intel and the regulatory agencies provided technical assistance to the stakeholder team in the form of analyses and technical expertise through a predetermined process.42 [] Superior Performance. Intel's FPA and associated permits for this project outline numerous commitments that assure superior environmental performance. These commitments apply limits to both regulated and nonregulated pollutants. Many of these commitments take the form of quantitative measures to be achieved by a certain date. Table 1 outlines these quantitative commitments.
In addition to the quantitative commitments above, the FPA contains several nonquantitative commitments.49 Many of these commitments directly respond to issues raised by the stakeholder team. For example, since the air permit allows new construction, concerns were raised about the distance from the property line to the closest building. The local law requires 56 feet, but to address the concerns of the stakeholders, Intel agreed to a minimum 1,000 foot setback from the property line. Intel also agreed to a trip-reduction program to lessen the number of vehicle miles traveled and traffic caused by its employees. Intel has also committed to computer and equipment donation and environmental education programs. [] Flexibility. Intel sought two major improvements in the environmental management system that applies to Fab 12. First, Intel sought to integrate all of the disparate environmental requirements into a single document under a single system. The intent was to streamline the system and increase the relevance of the requirements to the community's concerns. The second objective is really a subset of the first but deserves special attention because it is a major motivating factor for Intel and all quick-to-market businesses. The objective was to eliminate the slow and cumbersome process for reviewing every minor process change that occurs within a facility. The rapid pace of technological development in the semiconductor industry demands almost constant changes in the manufacturing process. Under most air permitting structures, each manufacturing change that could impact air emissions is subject to some level of public review. The intent of these reviews is to allow the public to assure itself that any possible emission increases do not adversely affect health or the environment.50 While the intent is sound, the implementation of this approach has failed because the public rarely understands, let alone gets involved in, the review of minor changes at a facility. The sheer volume of such changes, as well as their complexity, is simply too great. The challenge was to find a way to ensure that the environment and public health are protected and public understanding and involvement are enhanced without unnecessarily delaying critical manufacturing improvements. All of these challenges were met by the agreement's revised air permit.51 The essence of the agreement is that Intel has accepted enforceable limits (plant site emission limits or PSELs) on the total emissions of all categories of air pollutants from Fab 12, and the regulatory agency52 has agreed to pre-approve process changes and new construction at the site as long as the PSELs and other applicable requirements are met. [] Public Involvement. There was an unprecedented amount of public involvement leading up to the decision to accept enforceable limits, and more is required for the project's implementation. But for the public and regulators to forego the change-by-change review process, the major question that had to be answered was the effect of the PSELs on public health and the environment. The health or environmental issue that received the most attention from the stakeholder team was the emission of hazardous air pollutants (HAPs).53 The basic question was: "If Intel is allowed to emit up to 10 tons per year of any organic or inorganic HAP respectively, will these levels be safe?"54 To address this issue, Intel agreed to perform a modeling analysis of each known HAP used at Fab 12. The analysis assumed that each HAP would be emitted at the full limit [27 ELR 10351] of 10 tons per year established for aggregated HAP emissions (an impossible scenario but one that would err on the side of public health). This emission assumption was applied to an extremely conservative exposure screening model that EPA approved to estimate the potential worst-case concentration of each HAP.55 This analysis demonstrated that the concentrations were below the Arizona Ambient Air Quality Guidelines (AAAQGs)56 for all but two HAPs. For these two HAPs, Intel accepted specific enforceable limits that ensure that ambient levels will remain below the AAAQGs. The stakeholders also raised concerns about the concentrations of HAPs within the property line and the introduction of new HAPs, or even non-HAP chemicals, to the site. The potential worst-case scenario for on-site concentration of HAPs was estimated using the same analysis as discussed above, and found no exceedances of the AAAQGs. In an unprecedented action, Intel agreed to analyze all new chemicals, both HAPs and non-HAPs, for potential public health concerns. This agreement clearly demonstrates the three basic criteria set out in the XL program—flexibility, superior performance, and public involvement. It allows Intel the flexibility to make process changes and efficiently undertake new construction to meet business needs. Although no regulations for HAPs exist for Fab 12, this agreement assures protection of public health through enforceable limits that have been demonstrated as below risk levels. Also, Intel's numerous non-air commitments will result in significant benefits for the environment and the community. Finally, the public has an unprecedented amount of input to the process through numerous meetings, stakeholder involvement, notice and comment on the air permit, and continuing enforceable accountability measures outlined in the FPA and permits. Another, less apparent, benefit of this agreement is its encouragement of pollution prevention and, more importantly, what Intel refers to as "design for the environment" (DFE). The establishment of strict, enforceable caps on air emissions for the facility sets a very ambitious goal. This kind of goal establishes a paradigm that naturally drives environmental improvement into the process and the very design of the product. By knowing the emission limit as a hard design criterion. Intel engineers are challenged to develop new processes and design new products that will achieve this criterion. Intel has used this DFE process very successfully in the past. For example, the new processes installed in Fab 12 emit 40 percent less volatile organic compounds than the previous generation. In addition, by using the DFE approach, Intel has managed to reduce hazardous waste generation by 50 percent since 1985, while, during the same time period, Intel's revenues grew from $ 1 billion to $ 16 billion. While DFE probably works best for a company like Intel where new products and process are constantly under design, it can also have much broader applications. Lessions Learned and Challenges Faced Looking ahead at what these changes may ultimately mean to our nation, it is important to understand the current debate surrounding the alternative compliance model, and specifically Project XL. Project XL has received the bulk of the criticism to date because it is the first program to actually test the idea of alternative compliance in practice. Much of the criticism is focused on the specific aspects of individual projects57 but other critics have focused on larger, more generic issues. For the purpose of this discussion it is important to separate the concerns about specific projects and focus on the broader concerns about the precedents that these projects may set for the future. This discussion focuses on two aspects of the alternative compliance approach that are the most frequent targets of criticism—the level of environmental performance and the stakeholder involvement processes. Perhaps one of the thorniest debates in the alternative compliance arena focuses on the meaning of "superior environmental performance." Similar to most other environmental debates, the judgment of "how clean is clean?" is fraught with both scientific uncertainty and political posturing. In the alternative compliance arena, the issue is even more complex because a single project may involve multiple pollutants in multiple environmental media. It truly tests whether we can manage an entity's environmental protection systems holistically.58 [] The "Trading" Debate. Several criticisms of the alternative compliance approach focus on the its ability to control multiple environmental media.59 Some contend that superior performance is too difficult to calculate because projects often make environmental trade offs that are difficult to compare. For example, a project may completely prevent tons of solid waste, but result in a slight exceedance of a standard for solids in wastewater. Clearly, the endpoints of concern are different in this case—reduction in solid waste disposal versus protection of a water body. Effects on different endpoints are not easily compared and very difficult to weigh in environmental decisionmaking. The question is whether regulatory agencies [27 ELR 10352] and stakeholders can weigh such factors and arrive at reasonable decisions.60 In a prior Environmental Law Reporter Dialogue, Rena Steinzor examined the fundamental uncertainty over whether the environment will be better or worse if companies are allowed flexibility to develop their own plans.61 Although her Dialogue purported to support change in our current system, it ripped into perceived flaws in EPA's XL program as well as many of its participants, while offering its own prescriptive version of reform. Much (but clearly not all) of the criticism Ms. Steinzor aims at the XL program focuses on the uncertainty over superior environmental performance. The uncertainty inherent in evaluating issues that cut across different pollutants and different environmental media is not unique to the alternative compliance paradigm. This uncertainty is largely responsible for the current environmental management system, which for the most part, relies on a medium-by-medium, chemical-by-chemical approach. Former EPA Administrator William Ruckelshaus lamented the inefficiency of this approach—an approach he was instrumental in creating—when he testified in a 1993 Senate hearing that there is no integrating principle at all built into this statutory armory. Each [environmental law] is written to stand alone, as if the world were made entirely of water, air or some other target of our concern. No word in all of this law directs the EPA to simply find the combination of policies across all programs that will garner the maximum benefit to the environment for every dollar of cost expended.62 Clearly the current system avoids, if not ignores entirely, issues that cross between environmental media or pollutants (and especially more disparate environmental issues such as ecosystem health). This means that when new environmental laws or regulations are issued, they almost never consider the impacts to the entire system. For example, many of our current control strategies simply move pollutants from one environmental medium to another.63 Nonetheless, the fact that these cross-media or "trading" considerations are barely recognized under the current approach is not an excuse for allowing the environment to worsen under an alternative compliance approach. Under Project XL, a proposal may include the increase of one pollutant in excess of the level allowed under current regulations, but the proponent must demonstrate that there is an overall net benefit to the environment and that there has been no significant increase in the risk to individualsor populations, as well as certify that there has been no significant shifting of risk.64 Perhaps the fundamental reason the medium-by-medium approach has survived for so long and the reason for the vocal criticism of Project XL's trading system, is that there is no science, no truly objective means, of determining the environmental superiority of various options for projects involving multiple pollutants in multiple environmental media. This is because systems are complex and actions in one area can adversely effect another area. The endpoints of concern are also very different (e.g., ecosystem health and human health) and subject to extreme variability in different localities. One of the classic examples of this point is the historic case of the dichloro diphenyl trichloroethane (DDT) ban. Scientific data said that DDT was a safe and effective pesticide that had many public health benefits. But following the publication of Silent Spring by Rachel Carson,65 attention was drawn to other scientific data indicating that DDT was a hazard to some bird species and tended to bioaccumulate. Ultimately the choice to ban DDT was made by policymakers, not scientists, who had to balance not only the scientific data, but the values of our society. Value judgments and political philosophy are at the core of most environmental decisions. Science sheds some light, but environmental decisions are rife with uncertainty and are ultimately subjective.66 Notwithstanding these uncertainties, Silent Spring teaches us that we must begin to move away from the medium-by-medium approach and start to look at whole systems to try and understand the best course of action. Rather than be paralyzed by this uncertainty or simply deal with smaller, more easily understood pieces of the puzzle, the alternative compliance model strives to look at the entire "system." This approach allows tough decisions to be made about which environmental controls are better in a particular place. Clearly, what some communities decide is better will not be the same for other communities.67 Variability is one of the main strengths of the alternative compliance system. It allows the flexibility needed to tailor an environmental management plan to the local situation. For example, water conservation measures at the Fab 12 facility would have been less of a priority had it not been located inan arid [27 ELR 10353] region. Similarly, facilities in Los Angeles must place a higher priority on air emissions than similar facilities in other parts of the country. The medium-by-medium approach, in contrast, imposes mandates typically generated by EPA, then passed to states, local authorities, and ultimately to the regulated entity. By the time these regulations reach their ultimate target, they have little or no relationship to the actual problems of that place. To further complicate things, this top-down process is repeated for air, water, and waste laws. In addition, each new environmental standard comes with its own reporting, recordkeeping, and monitoring requirements that sometimes even conflict. All of these requirements converge at the facility level to form a regulatory tangle that may have little relationship to the needs of the local situation. Over the 25 years this system has been in place, the regulatory briar patch that has grown around most American businesses takes specialized expertise to even comprehend, yet violations under this ssystem carry increasingly serious penalties.68 Beyond the obvious inefficiency in this system, there is a real danger in our continued reliance on it to produce the right environmental outcomes. The fact is that no one really knows if the current approach has regulated the right things in the right amounts. Given its disjointed approach, it is certain that this system has over-regulated in some areas while ignoring others. As discussed above, neither the status quo or any alternative system can address cross-media or cross-pollutant issues with scientific certainty. The alternative compliance approach, however, has the advantage of considering impact on the whole system and developing an environmental plan to meet the system's needs. To make up for the lack of scientific certainty, the alternative compliance approach relies on increased public process and regulatory review. Under the XL program, any project that survives the checks and balances inherent in months of stakeholder negotiations, public scruntiny, environmental group criticism and, finally, regulatory review and approval by all affected agencies, has demonstrated to the satisfaction of a plurality of stakeholders and regulators that there are environmental benefits that outweight the costs. An alternative solution to this lack of scientific certainty is offered in Steinzor's Dialogue. Steinzor recommends a set of a priori rules for how superior environmental performance should be determined. Specifically, these rules would require reduction in the actual emissions (not the amount allowed by law) of each individual pollutant.69 Some limited cross-media or cross-pollutant trading could be approved, but only if backed up by a scientific analysis to be funded by the project proponent. Such analyses must measure not only the direct effects of such activities, but damage "to ecosystems, their propensity to bioaccumulate, or their adverse impact on the entire geographic area affected by the facility."70 The Dialogue asserts that to do any less would be to "turn back the clock to a period when we did not even attempt to evaluate the long term synergistic effects of pollution on all aspects of the environment."71 This burden of proof is enough to ensure that the alternative compliance approach remains unused for the foreseeable future. Further, it is a burden of proof applied to no other environmental management system. []The "How Much Is Enough" Debate. While questions about the level of scientific certainty will continue to plague the trading issue (and most other environmental matters), another often heard criticism is that the results of alternative compliance projects are not superior enough. This means that some of the stakeholders would have liked the project to achieve a greater magnitude of environmental gain in order to receive the benefits of a more streamlined system. Some believe that superior environmental performance must be delivered as a premium for achieving flexibility.72 However, there is a basic difference of opinion on the part of some stakeholders about whether superior performance should be a prerequisite for an alternative compliance approach. The argument against requiring superior performance is that if the project results in a new system that improves efficiency (e.g., is less costly and quicker), then these benefits are sufficient to justify the approach even if there are no measurable environmental gains. Criticism of the alternative compliance approach is sometime dismissed as a thinly veiled attempt to leverage environmental gains from the regulated community by offering to repair the obvious inefficiencies in the current system. "Greenmail" is a term often used to describe the type of deal that offers a regulated entity a way to remove needless costs and inefficiency in government mandated programs, but only if the entity "pays" a price by producing some additional environmental benefits. Some in this debate have even suggested that direct payments to the stakeholders, the community, and national environmental groups be required from companies that enter the alternative compliance program. If stakeholdersdo not directly appropriate any of the benefits of a more efficient system, they are seemingly uninterested in spending their limited resources on improving efficiency.73 The debate over the level of superior environmental performance is a red herring. It is focused on the short term quid pro quo of individual test cases and misses the bigger picture of what a new environmental paradigm could achieve in the long term. The alternative compliance paradigm embodied in the XL program is designed to be a testing ground for new, innovative environmental management [27 ELR 10354] systems. If successful, these test projects will pave the way to a new environmental management paradigm that will achieve better environmental results with less cost and more community involvement. The alternative compliance model is designed to find and remove needless costs and inefficiency. But it is also predicated on the notion that such alternative systems will broadly advance the cause of environmental protection as well as provide for improved methods of community involvement. The alternative compliance movement is fundamentally about breaking the command-and-control paradigm of the existing system. It is about tapping into the knowledge, experience, and common sense of the private sector, local communities, and governments to build a system that has benefits for all. Treating this as a short-term leveraging opportunity ignores its real potential for building and environmental management system for the 21st century. The alternative compliance system breaks new ground in its reliance on public participation,74 and as one of the newer models in environmental management, it is not surprising that it is subject to considerable debate. Often this debate takes the form of allegations that the stakeholder panel is not representative of all interests.75 For example, the lack of representation from workers in some processes has been criticized.76 Stakeholder processes are also criticized for not providing funds for the members of the stakeholder panel to hire their own independent consultants to interpret technical information. In addition, complaints about the amount of time it takes to be a participant in the stakeholder process and the lack of compensation for this time are beginning to be heard more prevalently. What is most interesting about these criticisms is what they say about the broader role of the stakeholder processes in environmental management. Many critics of the alternative compliance approach have been strong advocates of increased stakeholder involvement in environmental decisionmaking. However, when increased involvement is offered through alternative compliance projects, these same critics argue that this involvement is insufficient without broader representation, technical assistance funding and, in some cases, compensation for attending meetings. Some critics claim that stakeholder processes are potentially co-opting community activists and undercutting the efforts of national environmental groups.77 Notwithstanding the apparent inconsistency of these messages, the criticisms indicate a fundamental misconception that the stakeholder process is a decisional rather than an advisory process. While the alternative compliance approach does offer increased opportunity for participation and input, the assurance of public health and environmental protection remains firmly in the hands of accountable, reviewable regulatory agencies. Again, the Steinzor Dialogue illustrates the misconception of the stakeholder process being the ultimate protector of health and the environment. As a check on the untoward consequences of "unlimited exemptions" from current law, the Dialogue recommends that a series of rules be imposed on stakeholder processes. For example, regulators or neutral third parties should select stakeholders "to include every constituency that will be affected by the project, including national and local environmentalists, the facility's workforce, other civil groups, and local elected officials."78 Standardized instructions would regulate each stakeholder group and participating companies would be forced to promptly disclose data to such groups. Also, funding from either EPA or the project sponsors would have to be paid to public interest stakeholders to support independent technical review. The Dialogue also seems to recommend that citizen stakeholders be paid for their time spent in attending meetings. The Dialogue justifies these recommendations as a way to cope with the fear that the alternative compliance turns "the rulemaking process on its head, developing national standards at the local level and severely disadvantaging environmentalists."79 This set of prescriptive and costly recommendations rests on a fundamental mischaracterization of the alternative compliance stakeholder group as a pseudo-governmental decisionmaking entity. Clearly, if one were trying to devise a system wherein each stakeholder group was imbued with essentially the decisionmaking authority of government, one would also seek to ensure that these groups had resources similar to that of government, such as adequate expertise, funding, access to data, etc. To follow this model through, however, it would have to also be accountable to the public and its decisions subject to judicial review. But the alternative compliance model has never been predicated on unelected, unaccountable citizen panels being ultimately responsible to ensure public health and environmental protection. This is clearly the role of government. The stakeholder process at the hearing of the alternative compliance paradigm is intended to provide concerned citizen volunteers better access to the system to make their concerns and views known and understood. Stakeholder processes are not a substitute for the decisionmaking powers of government; they are a supplement to the public involvement process. This means that the "severely disadvantaged environmentalists"80 and all other interested parties would get a new opportunity for input in addition to the public review already required under the current system. Project XL has demonstrated that advisory stakeholder processes on the local level can have real and tangible benefits. In the case of Intel's XL project, numerous commitments in the FPA and permits are a direct result of the issues raised by the stakeholders. In addition, by virtue of learning about the operations of Fab 12 and building up a unique level of trust, the stakeholders were instrumental in offering constructive criticism and insight into the final project agreement. This process would have failed, as both a legal and a practical matter, if stakeholders had been burdened with the roles and responsibilities of government.81 In practice, stakeholder processes are essentially self policing. Like most groups, they typically operate by consensus without having rules imposed on them. Any group or individual that has a big stake in the outcome, but has not been represented, will typically find a voice through the stakeholder process. If a plurality, or even a vocal minority, object to the project or the process, it is unlikely to reach the regulatory approval stage and even less likely to win approval. Also, the ultimate outcome of the project will be reviewed by the broader public under the standard notice-and-comment procedures that all environmental rules currently undergo. Finally, Project XL, and current alternative compliance legislation, require that tthe conditions of approval for any project include an analysis of the stakeholder process. This means that even if the substantive outcome is judged satisfactory, the project may still be rejected because of inadequate stakeholder process. It may be premature at this point to start drawing on the lessons learned from the experimentation underway in Project XL. Nonetheless, these bold experiments provoke thoughts of how our environmental management system might be improved and strengthened. As discussed above, many stakeholders currently adhere to a model that promotes small incremental changes tested out in pilot projects before being incorporated into the current structure. Others believe that the system will always be inefficient and costly if it fails to take into account the naturally unique characteristics of each regulated entity and the need for holistic management of the broadest possible environmental system. One of the reasons for this support is the growing trend toward "devolution" of authority. The duplication and lack of coordination between federal, state, and local levels of government as well as the increasing environmental management capabilities of state and local authorities, have led to increasing calls for more authority to be delegated from the federal level. Some environmental stakeholders, however, have complained that state and local authorities may not have the resources or expertise to deal with the issues and are more likely to be swayed by the economic benefits of industry to the exclusion of their duty to protect the health and environment of their communities. These arguments become even sharper in the context of an alternative compliance model, because some authority is delegated all the way to the regulated entity and local community. Typically, the end of this chain of delegation is the facility level. This is where all of the regulatory responsibility rests. This is also where the real impacts and benefitis of such regulations are realized. Under the current environmental management system, there is an inverse relationship where those with the most to gain or lose from environmental regulations have the least authority in how they are implemented. The alternative compliance approach partially reverses this relationship by allowing some limited flexibility to experiment with new approaches that provide more input to the process and guarantee superior environmental performance. Any new approach that advocates the shifting of power in an entrenched system will always be met with criticism and hositility. It invites critics to imagine worst-case scenarios in an attempt to either preserve an existing power base or create new authority for themselves. The broader trend, however, is clear. An increasing plurality is rejecting overly prescriptive, one-size-fits-all control. In part, this trend recognizes that most state and local environmental authorities have matured and are now vested with the kind of trust, authority and resources to step in for federal authority. Similarly, regulated entities and local communities have also become more knowledgeable, capable, and responsible in dealing with the environmental issues that affect them. The question that remains is how much authority can be granted to which level. While various models will continue to be tested through Project XL and similar experiments, there is a growing realization that stewardship of the environment is a shared responsibility, not the province of any one stakeholder group. What the alternative compliance approach represents is a promising way to access the huge, and largely untapped, reservoir of skill, innovation, and resources in the private sector and local communities. This approach delegates some authority along with overwhelming responsibility for environmental compliance. It challenges the people on the narrow end of the regulatory funnel to turn their complaints into constructive suggestions for improvement. In the process, it gives voice to an entire class of local stakeholders who have perhaps the most at stake and historically the least input. It is hoped that this Dialogue will help to shape this debate so that all sides will recognize the potentially huge benefits of opening upthe environmental management system to more flexible approaches and more involvement. The environmental gains leveraged from both the stakeholders process and the requirement for superior environmental performance could be great. The cost savings from injecting some common sense into the system could also be substantial. As the successes grow, so will the multi-stakeholder coalition of support for this system. In addition to support and improvement of the XL program, an important next step for this program is passage of a new law that would facilitate its use. EPA is currently operating the XL program by cobbling together its current authorities and using cumbersome tools such as site-specific rulemaking. The XL program and the alternative compliance plan would benefit from congressional authorization. From a legal perspective, such authorization would ensure that the participants in the program would have some assurance that their projects would be protected from legal challenges; [27 ELR 10356] it also would clarify the delegation of authority issues as well as the role of the stakeholder process. As a practical matter, unauthorized programs have poor track records within any bureaucracy. They tend to compete poorly for resources with authorized programs, and are vulnerable to changes in administration. If the program is to thrive, it must do so with adequate resources, authority, and oversight, which only Congress can provide. Clearly, the last chapter has not been written in this Dialogue. The only thing that is certain is that if we cannot decide on a new course of action, then we have made a decision to live with the current system. 1. Reports from some of the more broadly known reinvention efforts include ASPEN INSTITUTE, THE ALTERNATIVE PATH: A CLEANER, CHEAPER WAY TO PROTECT AND ENHANCE THE ENVIRONMENT (1996); NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, SETTING PRIORITIES AND GETTING RESULTS (1995); NATIONAL COMMISSION ON THE ENVIRONMENT, CHOOSING A SUSTAINABLE FUTURE (1993); and PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT, SUSTAINABLE AMERICA: A NEW CONSENSUS, REPORT TO THE PRESIDENT (1996). 2. Taking Stock of Environmental Problems: Hearings Before the Senate Comm. on Environment and Public Works pt. 1, 103d Cong. 206 (1993). 3. In a previous ELR Dialogue, Beth S. Ginsberg and Cynthia Cummis characterized the need for the alternative compliance paradigm. Beth S. Ginsberg & Cynthia Cummis, EPA's Project XL; A Paradigm for Promising Regulatory Reform, 26 ELR 10059 (Feb. 1996). 4. Such initiatives include regulatory reform proposals that require cost-benefit analysis and other restrictions on regulation. See S. 343, 104th Cong. (1995); H.R. 9, 104th Cong. (1995); and H.R. 1022, 104th Cong. (1995). Also, state legislatures, EPA, and Congress have endeavored, through audit protection laws, to protect companies that simply try to evaluate, or audit, their own compliance with the massive array of environmental requirements that apply to them. 5. See John Pendergrass et al., The Environment and the Contract, 25 ELR 10350 (July 1995). 6. For example, in the case of the pollution prevention in permitting pilot (P4) project, a pioneering project similar in substance to Intel's XL case, the public hearing on the permit attracted only one person—an environmental consultant. Most often, local residents disregard the notices and opportunities for comment regarding permit matters unless major controversy has arisen in the popular media. Frankly, the public is busy, and unless convinced that the subject matter is important to its well-being, is not willing to commit the time to these matters. In contrast, the public involvement procedures, or "stakeholder participation" requirement in Project XL, actively brings the views of the public into the planning process for major environmental matters. 7. ASPEN INSTITUTE, supra note 1; NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, supra note 1; NATIONAL COMMISSION ON THE ENVIRONMENT, supra note 1; PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT, supra note 1. 8. Americans have increasingly seen public service campaigns and favorable depictions of environmentalism in film and television. Also, opinion surveys have shown that an increasing percentage of Americans favor environmental protection measures. David B. Rockland & Gwyn L. Fletcher, The Economy, the Environment, and Public Opinion, EPA J., Fall 1994, at 39. 9. This does not necessarily apply to environmental "standards" that substantively limit emissions. Rather, it refers to the overwhelming and uncoordinated system of environmental requirements that converge at the facility level. 10. See, e.g., S. 2160, 104th Cong. (1996). 11. This is the reasoning behind Project XL, in which EPA requested proposals for 50 projects with the intention of developing reinvention lessons from widely diverse pilot projects. 12. S. 1114, 103d Cong. § 206 (1993). 13. See § 629 of the Dole, Johnston substitute for S. 343, 141 CONG. REC. S9546 (daily ed. June 30, 1995); Senate Amendment No. 1796 to the Dole, Johnston substitute for S. 343 offered by Sen. Joseph Lieberman (D-Conn.), 141 CONG. REC. S10248 (daily ed. July 18, 1995); Senate Amendment No. 1823 to the Dole, Johnston substitute for S. 343 offered by Sens. Christopher Bond (R-Mo.) and Charles Robb (D-Va.), 141 CONG. REC. S10431 (daily ed. July 20, 1995). The Aspen Discussion Draft attempts to put the concepts discussed at the Aspen Institute Series on the Environment in the 21st Century into legislation. Keith Cole, Aspen Discussion Draft (1995) (on file with author). 14. NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, supra note 1. 15. PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT, supra note 1. 16. NATIONAL COMMISSION ON THE ENVIRONMENT, supra note 1. 17. ASPEN INSTITUTE, supra note 1. Nearly 150 representatives of government agencies, companies, and environmental organizations have participated in the Aspen Series on the Environment in the 21st Century. In addition, the Center for Strategic and International Studies, the Keystone Center, and the National Academy of Public Administration, through their ongoing participation in the Enterprise for the Environment study, are analyzing the use of alternative compliance programs. 18. President William J. Clinton, Remarks on Project XL and the Reinventing Environmental Regulation Program (Mar. 15, 1995) (available from the ELR Document Service, ELR Order No. AD-979). In this announcement, Project XL emerged as the cornerstone of the Reinventing Environmental Regulation program. 19. EPA, Regulatory Reinvention (XL) Pilot Projects, 60 Fed. Reg. 27282-91 (May 23, 1995). 20. See Rena I. Steinzor, Regulatory Reinvention and Project XL: Does the Emperor Have Any Clothes?, 26 ELR 10527 (Oct. 1996). 21. EPA, supra note 19, at 27282-91, EPA's eight criteria are: (1) environmental results; (2) cost savings and paperwork reduction; (3) stakeholder support; (4) innovation/multi-media pollution prevention; (5) transferability; (6) feasibility; (7) monitoring, reporting and evaluation; and (8) shifting of risk burden. 22. These six included Anheuser Busch, HadCo, Intel, Lucent Technologies, Merck & Co., and 3M. Project XL was also featured in President Clinton's1996 State of the Union Address. President William J. Clinton, State of the Union Address (Jan. 23, 1996) (transcript on file with author). In addition, Vice President Gore discussed Project XL in his October 9, 1996, debate with Jack Kemp when he responded to charges of being an overzealous regulator. Text of the Vice Presidential Debate (Oct. 10, 1996) (transcript on file with author). 23. Some of these groups drafted a questionnaire that they demanded be filled out by the applicant companies that delved into numerous activities of these firms. Up until the night before the President's press conference announcing the first approved projects, these groups were threatening to publicly oppose the program if their demands were not met. 24. Intel Fab 12 Facility Based Project XL Initial Proposal (June 30, 1995) (on file with author). 25. Between 1985 and 1995 Intel reduced its hazardous waste production by over 50 percent, while in that same period the company's annual revenues increased from $ 1 billion to $ 16 billion. At Fab 12, the Chandler, Arizona, host site for Intel's XL project, Intel has installed new processes that reduce volatile organic compounds emissions by 40 percent. 26. Intel, working with EPA, Oregon, and the Northwest Center for Pollution Prevention, pioneered the P4 permit. The P4 permit has many similarities to Intel's XL project. In particular, it essentially established caps on various air pollutants in exchange for pre-approval of small process changes that may have otherwise required a permit revision. 27. Final Project Agreement for the Intel Corporation Ocotillo Site Project XL (Oct. 18, 1996) http://www.intel.com/intel/other/ehs/projectxl/final.htm [hereinafter FPI] (available from the ELR Document Service, ELR Order No. AD-3286). 28. Nonregulatory commitments refer to both the quantitative and qualitative commitments that Intel made in the FPA that were not associated with any regulatory requirement. For example, Intel has committed to reduce the volume of solid waste from Fab 12 as well as recycle and reduce other wastes, although no regulations require such reductions. Some of the commitments took the form of nonquantitative measures, such as the donation of computer equipment, carpooling, and environmental education programs. It is notable that some of these nonregulatory actions found their way into the enforceable terms of the air permit that is part of this agreement. For example, Intel agreed to enforceable conditions for all of the public accountability measures in the FPA. 29. FPI, supra note 27, attachement 2. 30. The other four entities are EPA Headquarters, EPA Region 9, the Maricopa County Environmental Services Department, and the city of Chandler. 31. The requirement for these reports, along with the semiannual public meetings to review progress, have been incorporated into the Maricopa County Air Permit and are subject to enforcement conditions. 32. See the Good Neighbor Project's reviews of models of stakeholder processes. Sanford Lewis, Precedents for Corporate-Community Compacts and Good Neighbor Agreements (Mar. 1996) http://www.envirolink.org/orgs/gnp. 33. Information about the Overthrust Industrial Association can be found at http://www.alt-path.com/oia.htm. 34. The Intel process held a greater number of public meetings than other models, provided easier public access to the process, allowed greater involvement in crafting environmental management elements, provided greater and quicker access to data and information about the process and substance of the FPA, and involved a greater number of facility and companywide employees. 35. The Intel CAP consists of a cross-section of interests, including environmentalists (e.g., a board member of the Campaign for Responsible Technology and a member of the American Public Health Association); representatives from local, state, and tribal governments; and community residents. 36. The team notified the public of meetings by advertising in the local media and distributing English and Spanish handbills. All public meetings were held in central locations such as elementary schools and were held in the evening to encourage participation. Minutes were recorded and the public was offered time to comment at every meeting. 37. There were three main stakeholder categories: (1) Intel employees; (2) community members; and (3) regulators from EPA, the Arizona Department of Environmental Quality, Maricopa County, and the City of Chandler. Acting as a single entity, any stakeholder category could veto an FPA element. No individual, however, was allowed a veto. Individual veto power was considered, but no example of a diverse organization operating successfully in this manner was found. Moreover, because the stakeholder team felt it was critical to encourage diverse membership, they felt that category veto, but not individual veto, should be the accepted process. 38. See Lewis, supra note 32. 39. Intel manufacturing employees at Fab 12 were contacted about Project XL via e-mail "blasts" and various Intel publications, including INTEL THIS WEEK (eight articles), BUSINESS UPDATE VIDEO, BUSINESS UPDATE MEETING PRESENTATIONS (quarterly), INTEL LEADS QUARTERLY, INTEL BRIEFINGS, HR NEWSLETTER, and EHS NEWSLETTER, and asked for their input. In addition, manufacturing employees addressed the stakeholder panel regarding workplace health and safety issues. 40. Project records included data, information, concepts, meeting minutes, draft documents, and final documents. 41. The Intel stakeholder team facilitator outlined eight opportunities for interaction between the stakeholder team and the public at the March 5, 1996 public meeting: (1) public meetings; (2) local cable television; (3) facilitator; (4) print media; (5) comment cards; (6) members of the XL team; (7) Intel's internet site; and(8) EPA's Project XL internet site. 42. The process that the stakeholder team developed was similar to the time-tested method of choosing arbiters. Each category of the stakeholder team would identify potential technical assistants. Then the team would agree on the protocols of analyses and presentation. Finally, the stakeholder team would find the expertise. The process was designed to provide any technical expertise or assistance required without fostering a "consultants at 50 paces" situation. In this case, much of the technical expertise was already available through members of the stakeholder team.
48. Id. § 7661a(a), ELR STAT. CAA § 502(a); id. § 7412(a)(1), ELR STAT. CAA § 112(a)(1). 49. FPI, supra note 27. 50. There is also the somewhat more bureaucratic intent of keeping the operating permit up to date with every piece of equipment operating at the facility. 51. See FPI, supra note 27, attachment 2. 52. In the case of Fab 12, the regulatory agency with jurisdiction over the air permit is the Maricopa County Environmental Services Department. Because Fab 12 is a minor source for all categories of air pollutants, federal jurisdiction is not applicable. However, a very similar air permit was issued under federal permitting rules for Intel's facility in Aloha, Oregon. 53. The list of the 189 HAPs designated by the 1990 Clean Air Act Amendments can be found at 42 U.S.C. § 7412(b)(1), ELR STAT. CAA § 112(b)(1). 54. While this question dominated much of the stakeholder deliberations, it should be noted that there are no HAP emission standards for Fab 12, nor are any planned. Furthermore, Fab 12 is not a major source of such emissions, meaning it is exempt from federal standards for air toxics unless EPA makes a special finding that air toxic risks from this industry are significant. 55. The model employed was SCREEN3, an EPA-approved exposure screening model that, like all screening assessments, uses very conservative assumptions when calculating ambient concentrations to minimize the possibility of overlooking a potential public health concern. 56. The AAAQGs are established by the state of Arizona as guidelines but are not regulatory limits. ARIZ. REV. STAT. § 49-426.04(B) (1995). The guidelines are set by using the levels considered safe for workers, then dividing this amount by an additional safety factor. 57. Intel's stakeholder team and EPA both responded to the specific criticisms received on the Intel XL project http://199.223.29.233/xl home/intel comment response.html; http://www.intel.com/intel/other/ehs/projectxl/fnlresp.htm. 58. The first XL projects have been facility-based efforts. The good news is that such projects are relatively simple. The bad news is that true environmental protection is most efficiently achieved through ecosystem management. If we cannot manage facilities holistically, which the present system discourages, we may never reach a truly effective ecosystem approach. 59. As stated above, the superior environmental performance is a prerequisite in most of the alternative compliance policy initiatives to date. Although certainly not a universally held concept, it is interesting to note that virtually all of the criticism of the approach is from the perspective that superior performance is not good enough or too uncertain to be acceptable. A smaller, but growing cadre of stakeholders is questioning the need for superior performance as a prerequisite of alternative compliance plans that produce more efficient systems with equivalent environmental performance. 60. In the Intel case, criticism focused on the approach used to cap the HAP emissions. Because thecap limited the aggregate of all HAP emissions, critics complained that the mix of chemicals in the total emission stream may change. This condition could potentially result in higher emissions of more toxic chemicals, without violating the aggregate emissions cap. This concern failed to take into consideration that each chemical was proven safe even if individually emitted at the full aggregate emissions cap. Also, due to the absence of any regulatory requirements for these chemicals, the status quo situation allows for increases and decreases of these chemicals. 61. Steinzor, supra note 20. 62. Supra note 2, at 207. 63. Examples of such control strategies include air stripping technologies, which move pollutants from water to the air, and wet scrubbers, which move pollutants from the air to water. 64. EPA, Regulatory Reinvention (XL) Pilot Projects, 62 Fed. Reg. 19872 (Apr. 23, 1997). 65. RACHEL CARSON, SILENT SPRING (1962). 66. The inverse relationship between perceived environmental risk and scientifically calculated environmental risk is well documented by various studies. Perhaps the most compelling is the September 1990 EPA Science Advisory Board report on the 1987 study, Unfinished Business. U.S. EPA SCIENCE ADVISORY BOARD, RELATIVE RISK REDUCTION STRATEGIES COMMITTEE (1990); EPA, UNFINISHED BUSINESS: A COMPARATIVE ASSESSMENT OF ENVIRONMENTAL PROBLEMS (1987). The relationship is further documented in a follow-up report, U.S. EPA SCIENCE ADVISORY BOARD, REDUCING RISK: SETTING PRIORITIES AND STRATEGIES FOR ENVIRONMENTAL PROTECTION (1990) (available from the ELR Document Service, ELR Order No. AD-3). As this last report notes, "federal environmental laws are more reflective of public perceptions of risk than of scientific understanding of risk." Id. at 12. 67. The fact that communities will arrive at different decisions does not obviate the role of the public health official. All alternative compliance models incorporate strong regulatory oversight to ensure a consistent level of public health protection and to avoid shifting the risk to other communities. 68. An interesting result of this situation is the growing trend in state and federal policy to allow regulated facilities to conduct self-evaluations, or audits of compliance, without subjecting themselves to increased liability for violations. See, e.g., H.R. 1047, 104th Cong. (1995), EPA, Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations, 60 Fed. Reg. 66706 (Dec. 22, 1995); 1995 Minn. Laws Ch. 168, § 9; George Van Cleve & Keith W. Holman, Promise and Reality in the Enforcement of the Amended Clean Air Act Part II: Federal Enforceability and Environmental Auditing, 27 ELR 10151 (Apr. 1997). 69. Pollutants could not be aggregated, as in the case of volatile organic compounds, global warming gas, hazardous wastes, or solid waste. 70. Steinzor, supra note 20, at 10531. 71. Id. 72. The policy judgment in favor of superior environmental performance acknowledges that there must be some environmental gain involved in a restructured system. It is interesting to note, however, that this approach seeks to create environmental gain by bartering on reducing the cost and inefficiency of the current environmental system. 73. The Aspen Institute report recommends that when a project results in a more efficient system but produces equivalent environmental results, some of the savings attributable to the project should be appropriated for an environmentally beneficial purpose. ASPEN INSTITUTE, supra note 1, at 16. 74. Stakeholder involvement has become a central characteristic of not just the alternative compliance model, but of many other current environmental policy options. Sources as diverse as Superfund reauthorization proposals, EPA's Common Sense Initiative, and the newly released Report on Risk Assessment and Risk Management focus on stakeholder involvement as a central element. Presidential/Congressional Commission on Risk Assessment and Risk Management, Framework for Environmental Health Risk Management (1995). The increasing reliance on stakeholder involvement in the environmental management system has led to compelling questions about its role in policy development and the extent to which it can be relied on to produce fair, equitable, and accountable results for society. 75. Steinzor, supra note 20, at 10533-34. 76. Campaign for Responsible Technology, Urgent Request for Sign-on (Nov. 19, 1996) (on file with author). See Steinzor, surpa note 20, at 10533. 77. Michael McCloskey, The Skeptic: Collaboration Has Its Limits, HIGH COUNTRY NEWS, May 13, 1996, at 9. 78. Steinzor, supra note 20, at 10535 (emphasis added). 79. Id. at 10534. 80. Id. 81. This does not mean that technical assistance, representation, and respect for participants' personal time should not be part of any stakeholder process. All of these issues can and have been adequately addressed in the XL program. 27 ELR 10345 | Environmental Law Reporter | copyright © 1997 | All rights reserved |