Pollution controk Changing approaches Can conflicts between the administrative and economic efficiency of regulations under three environmental laws be resolved? Here are some suggestions
1288 Environmenlai Science (L Technolw
Stephen H. Schrneder Enuironmental Research & Technology, Inc. Concord, Mass. 01 742
A decade ago, environmental regulations applied to relatively few contaminants; now they cover large numbers of toxic and hazardous suhstances. Indeed, one of the earliest pollution control laws was the Refuse Act of 1899, which simply prohibited the discharge of “refuse matter” into navigable waters without authorization. More recently, in the early 197%. the first of the present generation of environmental laws were passed-the Clean Air Act and the Federal Water Pollution Control Act (renamed the Clean Water Act in 1977). Although both dealt to some degree with toxic pollutants, implementation focused on a relatively small number of more “conventional” substances. In the mid-1970s. the NRDC us. Truin consent decree identified 65 toxic pollutants for regulation under the Federal Water Pollution Control Act of 1972. Next, EPA listed some 300 hazardous substances under the spill prevention part of the same act. Then came the Resource Conservation and Recovery Act of 1976 (RCRA) and its mandate to the Environmental Protection Agency (EPA) to identify all “hazardous wastes.” Finally, we have “Superfund’-the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. Superfund incorporates the lists of toxic and hazardous pollutants developed under other laws into one comprehensive master list of “hazardous substances:” This tremendous expansion in the number of regulated pollutants, along with the shift to control of “toxic” pollutants, threatens to overload the regulatory system. This is because we are dealing in areas of great uncertainty-in identifying and measuring contamination, in measuring or predicting environmental impacts, and in determining causes even when we can identify impacts. To be sure, these sorts of problems have always existed in environmental regulation. But the proliferation of regulated substances, and the fact that they often are harmful-or suspected of being harmful-in small amounts
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and in obscure ways, makes regulation much more complex. Many of the regulatory schemes established by Congress tax the ability of science to provide the answers needed to carry them out. The Clean Water Act is a mature statute that is nevertheless important because of its current focus on toxic pollutants. But RCRA and Superfund represent the latest attempts at environmental regulation of toxic and hazardous pollutants. A recurring theme in these laws is the dichotomy between administrative efficiency (the ease of implementing a regulatory program) and economic efficiency (the degree of cleanup achieved for a given cost). Regulators seek high efficiency in both areas, but unfortunately, they often conflict with each other.
The Clean Water Act Before 1972, water pollution control efforts were based on achievement of ambient water quality standards. Arguably, this was economically efficient, since each source would control its discharge only to the degree necessary to meet local water quality standards. However, the approach proved virtually impassible to administer, because of the difficulties in translating ambient standards into end-of-pipe effluent limits for individual dischargers. The result was regulatory frustration and little cleanup. In 1972, the Federal Water Pollution Control Act was amended to require a minimum level of control based on available treatment technology. Similar dischargers had to install similar controls, regardless of the impact on water quality. The need to determine impact on the ambient environment, often the mast difficult determination to make, was largely eliminated. Instead, regulators had to determine appropriate control technology, technically a much simpler task. The result was substantial reduction in pollution, even if this was achieved in areas in which cleanup was not needed to meet water aualitv goals. Who bears the burden of resolving the technical conflicts raised bv the goal of clean water and the detkrmination of what controls are needed to achieve it? The possible actors are Congress, EPA Headquarters (HQ), the EPA regions, and the states. Congress acts through legislation, and EPA H Q acts through nationwide
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regulations. The regions and states translate these national requirements into limits for individual dischargers. Before 1972, Congress simply set the goals and left all the implementing decisions to the agencies. The regulatory scheme, based on local water quality, required that such decisions be made on a case-by-case basis. Technical and administrative difficulties plagued this effort and eventually overwhelmed the program. In 1972, Congress itself solved some of the problems by deciding that technology-based standards were needed to achieve clean water. This made EPA's job much easier, and it illustrates that when Congress can resolve uncertainty through the leg-
Problems with BAT Applying principally to the 65 toxic w "piomy" pollutants, "test available technology" (BAT) represents a major upgrading of the technology-based regulatory approach. its administratbn and enforcement couM tax the ablllties of regional and state permit miters very heavily. W h BAT, as wim previous pollutrar abatement goals, the Clean Water Act calls for nationwide guidelines. And there Is mwe need for national guidance because of the sophisticated technical decisiolls that m s t be made. However. once more these national guidelines probably will not be ready In time, and permit writers will have to rely on their own judgment. But if P A Ha, with its ability to focus expertise. cannot determine what BAT IS. it is hard to see how individual permit miters will be able to do so.Yet that is where the burden could fall, by default. If so, the limits in many permits cwM end up being determined by negotiation rather than by objective engineering evaluation, since pennit writers will strive to avoid future appeals of permits, which they believe could be on shaky technical footing. me fluny of appeals of BAT permits that migM result could make the adju dicatory hearing experience that EPA suffered through with its first round of permits look mild.
islatiue process, it simplifies the regulatory process.
After 1972, EPA still had to define effluent limits based on treatment technology. The act called for EPA HQ to issue nationwide guidelines. What happened, in fact, was that mast guidelines were not issued in time to be used by the permit writers, who ended up exercising their own "best engineering judgment" (BEJ) on a caseby-case basis. Thus, resolution of the uncertainties in defining treatment technologies and effluent limits fell to the regions and states by default. Fortunately, these determinations usually were relatively straightforward, so the system worked fairly well. Permits were issued and cleanup occurred.
A flawed basis? Many regulated parties and others say that a regulatory scheme based on technology is flawed, because the controls are not directly related to local environmental benefits. Indeed, this is a refrain one hears at times from both industry and environmentalists. Industry argues that more lenient standards are often justified because of the assimilative capacity of the local receiving waters. In other words, it is not economically efficient to spend money on controls that are not needed to protect local environmental quality. Environmentalists,on the other hand, sometimes argue that a technologybased approach is not stringent enough, because even state-of-the-art controls may allow serious environmental contamination. .. -Although based mainly on technology, the Federal Water Pollution Control Act of 1972 was somewhat sensitive to both points of view. In response to the environmentalists' arguments, Congress backed up technology-based requirements with ambient water quality standards. Thus, if technology-based effluent limits did not result in compliance with water quality standards, the discharger could be required to meet stricter requirements. In addition, Congress called for nationwide standards for toxic pollutants, as needed to protect the environment. On the industry side, Congress authorized technology-based standards to be relaxed for thermal discharges that did not harm aquatic life. In each of these cases, Congress returned the burden of deciding what standards and controls are needed to Volume
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protect the environment, and all the uncertalnties involved in that, to EPA and the states. EPA and the states had great difficulty with these effects-based requirements. In the toxics area, EPA HQ selected a few pollutants and tried to set standards for them. The agency soon became bogged down in the scientific problems inherent in that effort, and environmental groups sued the agency for not performing its assigned task. The result was a complete restructuring of the control of toxics under the water act. EPA and the environmental groups signed a settlement agreement, known as the NRDC Consent Decree, that replaced control of toxics based on environmental impact with technology-based controls. This was clearly contrary to the 1972 water act, and yet, the environmental groups accepted it, because they recognized that more cleanup would occur if the decisions the agency had to make were simplified. The post- 1972 experience with thermal discharges further illustrated the difficulties of setting controls based on local environmental impact. Under Section 3 16(a) of the act, the burden was on individual permit writers to determine the impact of thermal discharges on receiving waters. This was an especially difficult task for new discharges, since permit writers had to predict environmental impacts. Contested cases, usually dealing with major electric generating plants, became legal and technical nightmares. Science simply could not provide the necessary answers with any degree of precision. The case of the proposed Seabrook nuclear facility in New Hampshire presented a comedy of regulatory fuTility. The uncertainties were so extensive that at each level of review, up through the U.S. Court of Appeals for the First Circuit, the decision of the prior decision maker was overturned. This series of reversals was not attributable to bad faith on the part of any participant or decision maker in that case. The questions that had to be resolved under the act simply did not have precise, definitive answers. Amendments of 1977 In sum, the water quality-based requirements in the 1972 water act presented severe implementation problems. Against this background Congress amended the act in 1977, and 1288
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changed the name of the law to the Clean Water Act. In the toxics area, Congress basically adopted the NRDC Consent Decree, formalizing a technologybased approach as the backbone of toxics regulation. But in the thermal discharge area, Congress not only did not amend the act, it added two more water quality-based variances. The most important of these was for ocean outfalls for publicly owned treatment works (POTWs). For such POTWs, Congress provided a variance from secondary treatment if aquatic biota were protected. The vague standard of protection-“protection and propagation of a balanced indigenous population of shellfish, fish and wildlife”-was taken directly from the thermal discharge variance in Section 316(a). Why did Congress take this water quality approach, even though it had been proved to be fraught with technical difficulties? Although both power plant cooling systems and large POTWs use well-established treatment technologies, such technologies are very expensive in both cases. A straight technology-based approach would have cost huge amounts of money, and Congress believed the regulated pollutants-heat and domestic sewage-were benign under some circumstances. In short, Congress felt that it was worth the administrative difficulties associated with water quality-based requirements to save substantial money. In these cases, the conflict between administrative and economic efficiency was resolved in favor of economic efficiency. The Clean Water Act experience illustrates some of the difficulties presented by regulatory schemes based on uncertain science. In practical terms, the process becomes slower and more expensive. Applications for permits become much more detailed as decision makers search for the elusive, and perhaps unattainable, truth. Decisions are inherently more difficult to make, in part because scientific fact is replaced by opinion, and different parties often present different opinions. Battles between expert witnesses are common. Decisions often involve several technical disciplines, complicating things enormously. Another problem is that decisions become more vulnerable to appeal. This is the case partly because the technical judgments on which they are
based are often close calls, and also because decision makers are more likely to allow improper factors to shift an otherwise closely balanced scale. An additional problem occurs when one factor in a regulatory decision is based on uncertain science, while another is based on some other easily quantified factor, such as cost. In such situations, there is a danger that the easily quantified factor will be given undue weight, simply because there is nothing firm with which to compare it. This is one reason environmentalists often object to cost-benefit analyses for environmental requirements.
RCRA Subtitle C of the Resource Conservation and Recovery Act (RCRA) sets up a so-called “cradle-to-grave” regulatory program for hazardous wastes. First, the act requires EPA to define and identify hazardous wastes and their characteristics. Then, RCRA mandates regulations governing the activities of generators and transporters of such wastes. The emphasis here is on record keeping and a manifest system for wastes. The idea is that anyone who must deal with the waste should know what they are handling and where it comes from. Finally, RCRA requires EPA to publish standards that apply to treatment, storage, and disposal facilities-the end of the hazardous waste chain, or the “grave” in the cradle-to-grave terminology. Like effluent limit guidelines under the Clean Water Act, these hazardous waste management standards will be implemented through permits which will be issued to individual management facilities. Operation without a permit is illegal, except during an initial period when an existing facility may qualify for “interim status.” States may be authorized to issue RCRA permits, provided that their programs are equivalent to the federal program. Although Congress set up this elaborate management system, the standard that governs EPA’s activities is, unfortunately, brief and vague. EPA is authorized to issue such regulations “as may be necessary to protect human health and the environment.” In contrast to what it did with the Clean Water Act, Congress did not make any of the tough decisions about what sort of controls are needed, but left those decisions to EPA. There is no
Review of decisions Congressional decisions-that
hearings. The resuit was that many facilities went unregulatedfor years. One hopes this experience will not be repeated under RCSiA. aMw~&the potential certainly is there. One thing that may hold down the number of appeals is the absence of the adjudicatay hearing. Under RCRA, ulllke the Clean Water Act. pennits are appeal& directly to the administretw of EPA in a s w o f w m i process thatdoes not invoke an evidentiary hearing. This shwm decrease the potential fa delay in two ways. FIM. n sharm disoavage those who would appeal simply to achieve delay. And second, it will resun in much quicker decisions in mose cases that are appealed. The absence of an evidentiary hearing is gocd for another reason. too. An evidentiary hearing is a trialtype. adversary proceeding in which opposing sides present and crossexamine witnesses. In the pocess, each side may try to cast doubt on facts presented by the other. It may benefd a party to confuse things rather than seek a correct or best available technical resuit.
Is,
the statutes themselves--are subject to very limited review. Generally, Congressional action may be overtun%d only on Constitutionalgwnds. Thus, if Congress resolvesan issue, it stays resolved. Under the Clean Water Act, for example, industry could not argue that BAT is not needed to achieve water quality goals, because Congressdecided it is. Agency regulations, on the other hand, are subject to judicial review for o w n p l i i wim the p m i n g statute. Where the statute telis an agency to decide what is neededtopmtect health and the environment, a court can, within limits, seconQuess the agency. In a sense, then, agency regulations and the decisionsthey represent cannot be considered final until the courts act. The uncertainty this situation injects into the system is mltigat,however, by the fact that regula8 usually may be challenged only once, and they must be challenged soon after they are issued. Once that challenge is resolved, the regulations are not subject to further review when they are applied to individual situations. But if the important issues are not resolved by the statute or regulations, they must be resolved on a case-bycase basis. Each individual decision cwld be subjected to challenge. This can resuit in a proliferation of appeals by irxhtsby, environmentalists,or born, sepping the agency’s resources. and can cause substantial delay in many
Flexible dialogue may be bmw There is a serious question as to whether a d v v proceedingsare the best way to resolve the technical uncertainty that often is at the core of environmental disputes. Caoperation is needed, not conflict. Regulation should be accomplished through e neaotiitive orocess with the flexlbllW
cases.
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.Y) proper mle of the carrts hen, is a ownpiex subject In W .and mention of only one aspect of it will be maQ here-the degree to which couts defer to the odmlons of experi age++ cles late EPA in technil mettms. There is a general rule mat cotuts will give deference to decisions, interpretetions. and findings of fact of agencies acting acaord!ng to meir legislati mandates. This deference isfwndedlnpartonrotbnsafagency expwtise in tednicel-em. is a way for judgss-the supreme generalists-to a d d the need to resoh detailed technical questions. The degree to which touts defer to agencies varies gsatly. but the de(erence rule cleariy presents a hvdk, to anyone cmteeling the technical decisions of government. There is aC ways a concemthatlhe rule may become a crutch thet the courts lean on too heavlly, avoiding their review rasponsibiliii. And there is concem that the agencies themselves may come to rely on Iha rule and make declsiom I- rigorously than they nnrvrllywould.because they feelmal h y will be upheld in any event. Would it make sense to reduce or eliminate judiclel defetenca? Some poponents of rquiatory reform have syxlested it WaJd. However. to do 80 would compel the c o r n to make declslons they are lsequiQpedto make. thereby inWng judicial chaos. Especially in the environmental area. wn am dealino with comDiax
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on all sides.
Experience with the first round of permits under the Clean Water Act shwved the problems that can occur WtXM the important Issues are relved on a permit-bygermit basis. ndreds of these permits were appealed. In each case the act requires an opportunity for an adjudicatory hearing. which is a formai trial-type proceeding. EPA simply did not have the resouces to umlertake these
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agency must make a decision. decision maker’s betterbyaflexiMe rigid procedures evidentiary hearings. The colllts are also important environmental regulation. When a court reviews an action, it is belng asked to decide the issues that were before the a m
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Volume 15, Number 11. November 1981 1289
technology-based scheme in RCRA, only the general “protection of health and the environment” standard. Decision making will thus be difficult and involve the full range of technical and scientific decisions that are needed to translate the general standard into regulatory conditions for individual facilities. RCRA deals with an area of contamination that in some ways is more complex than those covered by earlier environmental laws. For example, the act is concerned with all environmental media, not just air or water. Not only will the coverage of the regulations be very broad, but difficult trade-offs among the media may be required. For example, should land disposal of hazardous organics be allowed, with the resulting threat to groundwater, or should incineration be required, even though there may be contamination of the air? Assuming one can predict the competing threats-a major assumption in itself-how does one balance them against each other? Another area of increased complexity stems from the fact that RCRA compels EPA to address groundwater contamination. Groundwater systems are not well understood, and regulation of groundwater is especially difficult because of its inherent inaccessibility compared to surface water or ambient air (ES&T, September 1981, p 994). The lack of knowledge about groundwater raises special concerns, because groundwater moves very slowly, and lacks the flushing capabilities of air and surface water. Mistakes could be costly, and perhaps irreversible. In addition, we are only in the initial stages of developing effective technologies to deal with hazardous wastes. We do not know what the state of the art will be in 10-20 years, and we do not really know how effective present technologies are at preventing pollution of groundwater and other media. A hard task All in all, then, Congress assigned EPA a difficult task with RCRA. Congress did indicate that EPA was to issue regulations of nationwide effect, and implied that at least some of the difficult decisions should be made by EPA HQ on a nationwide basis. And Congress provided EPA with the flexibility to issue many different kinds of standards, such as design and operating conditions, emission or effluent 1290
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limits, and environmental performance standards. At this point, EPA has issued or proposed most of its hazardous waste management (HWM) regulations. Of particular interest are the land disposal regulations, which govern facilities such as landfills, surface impoundments, and land treatment. EPA has had great difficulty in issuing these regulations because of the complex issues involved. Indeed, the regulations were reproposed in February, and probably will not be issued in final form for over a year. Moreover, just after EPA proposed the regulations, the agency issued temporary permitting standards for new land disposal facilities. These were published to allow permits for new facilities to be issued to help avoid a shortfall in hazardous waste disposal capacity. These land disposal regulations represent a substantial shift in the burden of regulatory decision making from EPA HQ to the permit writers. This shift is brought about by use of vague environmental performance standards and variances. In effect, the regulations turn out to be an elaborate restatement of the general mandate of RCRA to protect human health and the environment. Even where design and operating standards are used, they often are not specific, but are expressly related back to the ultimate environmental goal of protecting human health and the environment. This type of r e g d t i o n places a tremendous burden, as well as tremendous discretion, in the hands of the individual permit writers. Can they handle it? This is the same question that was asked about the BAT permit writers under the Clean Water Act; however, under RCRA the decisions will be more complex. For example, the land disposal regulations basically ask for a complete, detailed analysis of pollutants, pollutant pathways, and environmental impacts. The permit writers then must turn this comprehensive, multidisciplinary analysis into permit conditions. Not the least of their tasks will be the initial decision of what level of contamination constitutes protection of health and the environment in each case. EPA has recognized the difficult task facing the permit writers, and has indicated that national “permit assistance teams’’ will be formed to help them. This restores at least some of the burden to the national level. Even so,
the job of the permit writers will be formidable. And although they will get help from HQ, each of their permit decisions will be subject to appeal. If HQ had made some of the decisions by issuing more specific nationwide regulations, these decisions could be contested only once, at the national level, rather than with each permit.
Superfund While the Clean Water Act and RCRA are traditional environmental statutes in that they set standards and compel compliance, Superfund is different. That law seeks to affect behavior by adjusting the rules of liability, not by commanding particular actions. Superfund addresses “releases” of hazardous substances. “Release” is defined very broadly to cover virtually any movement of hazardous substances into any part of the ambient environment. The law authorizes the government to clean up harmful releases, and makes a wide variety of responsible parties liable for cleanup costs and damage to natural resources. A large fund is created, mainly from industry taxes, to finance government cleanup. The main purpose of Superfund is remedial-to clean up old hazardous waste sites and new spills. But it is hoped that the new liability established by the law will cause industry to adopt a high standard of care to avoid releases in the first place. Superfund is economically efficient in the sense that money is spent only where there is a need to clean up existing pollution. The Superfund liability concept has a seductive simplicity, and some have described it as the ultimate pollution control law. Theoretically, it works like this: Those who cause environmental harm are held liable for the damages they cause; costs are internalized; and marketplace forces minimize pollution as economically appropriate. When Superfund was being debated in Congress, some advocates of it were concerned that a very comprehensive bill would undermine existing laws like the Clean Water and Clean Air Acts. They felt that others might argue that liability for damages is enough; industry should not also be required to meet specific control requirements. But there are many problems with relying on a liability scheme like Superfund to ensure adequate control.
Some are practical and stem in part from our technical inability to identify the causes of environmental damages in many cases. Other problems are philosophical. The causation problem is a serious one. Often it is impossible to know what causes a particular health or environmental problem, either because there are many potentially contributing causes, or because the link between cause and effect cannot be established with reasonable certainty. For example, from whom would the emphysema victim in Los Angeles recover damages? Also, the chronic effects and long latency periods of wme hazardous .substances greatly complicate the causation picture. Another problem with liability schemes is that by the time harm becomes evident, the responsible parties may be long gone, or may be unable to pay. Finally, the liability concept would allow harm as long as the polluter pays. But for certain harms, such as death or disabling disease, it is repugnant to consider allowing them in return for money. Superfund itself has a major flaw that prevents it from even theoretical consideration as a substitute for traditional command-and-control regulation. Superfund does nof establish liability for damages to private parties. Only government cleanup costs and natural resource damages are covered. Those suffering medical injury or property damage cannot use Superfund. They must recover by other means, such as state tort litigation. Superfund is primarily a reactive law-a pollution or contamination problem exists, so the government cleans it up. There will be some difficult technical issues involving questions, such as which sites to clean up, and how far cleanup should go-the “how clean is clean” question. These issues will be similar to the issues that arise under the commandand-control laws. But they should not present the same implementation problems, because they do not have to be fully resolved before the government can act. The government does not have to wait for implementing regulations, although it does have to modify the National Contingency Plan, which will be the blueprint for long-term cleanupefforts. The point at which the difficult technical issues may present the most severe problems
is reached when the government tries to compel someone else to clean up, or tries to recover cleanup costs. Active participation needed As the past decade progressed, Congress and EPA gave increasing attention to the control of large numbers of toxic and hazardous pollutants. A variety of different approaches have been used. with varying degrees of success. One of the crucial elements in the success of any program is the degree to which the regulatory approach can be implemented in the real world. given the many areas of uncertainty in our knowledge of toxic pollutants and their effects. Programs that are theoretically attractive may be virtually impossible to implement. Thus, the technical community should actively participate in legislative and rule-making processes to ensure that Congress and EPA are fully aware of the practical consequences of the programs they adopt.
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Stephen H. Schrder is an Enuironmenral Coun.rel for Enrirnnmenral Research & Technology. Inc. ( E R T ) , in Concord, Mass. He graduated from rhe Massochuserrs Insrirure of Technology in 1967 wirh a B.S. deg.-ee in aeronaurics and astronautics. Afler working in rhe space program for three years, Mr. Schroeder affended Haruard Low Schw1,graduaring wirh a J.D. degree in 1973. H e worked for five years in rhe Enforcemenr Diuision of rhe U..q. Enoironmenral Prorection Agency:r Bosron regional office, /allowed by fhree yearr wirh the Natural Resources Defense Council. Inc., in Wushingron,D.C. H e has exrenriue experience in warer qualify and hazardous wasre regulation.
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