CHAPTER 2 EFFECTIVE ENVIRONMENTAL STRATEGIES: OPPORTUNITIES FOR INNOVATION AND FLEXIBILITY UNDER FEDERAL ENVIRONMENTAL LAW
| Jurisdiction | United States |
(Feb 1994)
EFFECTIVE ENVIRONMENTAL STRATEGIES: OPPORTUNITIES FOR INNOVATION AND FLEXIBILITY UNDER FEDERAL ENVIRONMENTAL LAW
Hutcheson & Grundy L.L.P.
Houston, Texas
Debra F. Mitchell
Amoco Corporation
Chicago, Illinois
[Page 2-i]
FOREWORD
The Yorktown Project (a joint study conducted by the United States Environmental Protection Agency and Amoco Oil Company at Amoco's Yorktown Virginia Refinery) demonstrated that it was possible for industry and government to work together to achieve more cost effective and more environmentally effective results than either group could achieve separately.
A key question from the Yorktown study was "why don't we reach these results more consistently and frequently?" The Project Workgroup identified several institutional obstacles. Of concern for this report is the continued use of a "command-and-control," "one-size-fits-all" approach to environmental legislation and regulation. This approach essentially dictates which pollutants and sources to control, to what extent, and which technology to use for a broad spectrum of industrial facilities. Innovation—one of America's greatest strengths—is neither encouraged nor rewarded in a command-and-control framework.
Environmental protection is complex and becoming more so. While early efforts to reduce pollution were successful, they did not deal with the unintended consequences of these activities. We now know our current, fragmented administrative approach is not well suited to addressing the fully integrated, multimedia environment in which we live and work. Yesterday's administrative methods are at times poorly equipped for dealing with today's (and tomorrow's) more subtle and complex environmental issues — issues that cross national boundaries and physical air-water-land interfaces.
As a followup to the Yorktown Project, this report identifies opportunities for new approaches to environmental management under existing federal environmental statutes. The report identifies and discusses 17 such options. Four other options are identified that would also provide innovative approaches to managing complex industrial facilities, but would almost certainly require some new statutory authority. We are encouraged by the range of possibilities suggested by this limited analysis and hope this report will be a starting point for further discussion about opportunities for environmental innovation, new regulatory policy approaches and improved environmental performance.
We offer this report as a draft, a starting point for further discussions with the many people and organizations who share our concern about achieving real environmental protection and a healthy economy—state and federal regulatory agencies, Congress, the environmental community, business concerns, policy institutes, the environmental law profession, and many others. We look forward to working together with you.
[Page 2-ii]
TABLE OF CONTENTS
Page
FOREWORD
TABLE OF CONTENTS ii
EXECUTIVE SUMMARY
1.0 INTRODUCTION
1.1 Purpose and Scope
1.2 The Yorktown Project
1.3 Statutory Barriers to Regulatory Flexibility Under Federal Environmental Laws
2.0 THE CLEAN AIR ACT
2.1 Overview of the Purposes and Structure of the Clean Air Act ("CAA")
2.2 Flexibility vs. Command and Control Under the CAA
2.2.1 Definition of "Source"
2.2.2 Emission Standards vs. Design Specifications
2.2.3 Emissions Trading
2.2.4 Market Incentives
2.2.5 Pollution Prevention
2.3 Specific CAA Program Analyses
2.3.1 Flexibility Under State Implementation Plans (SIPS)
1. Flexibility for Establishing SIP "Emission Limitations"
A. Generic Bubbles
B. Other SIP Economic Incentive Strategies
C. Trades Between Mobile and Stationary Sources
2. Flexibility Under the RACT Requirement in Nonattainment Areas
3. Flexibility Under the CAA New Source Review Program
A. Pollution Control Exclusion
B. Fuel and Raw Material Switching
C. Emissions Increase
D. Stationary Source
E. Plant Wide Emissions Caps
4. State Flexibility in SIP Development
2.3.2 Flexibility Under Section 112 of the Clean Air Act
1. Emissions Averaging to Achieve MACT Compliance
2. Residual Risk Source Category Deletions
2.3.3 NSPS Innovative Technology Waivers
[Page 2-iii]
3.0 THE CLEAN WATER ACT (CWA)
3.1 Overview of CWA Pollutant Discharge Standards
3.1.1 Point Source Discharges
3.1.2 POTW Pretreatment Standards
3.1.3 Water Quality Standards
3.1.4 Anti-Backsliding
3.1.5 Antidegradation
3.2 Variance and Modification Provisions
3.2.1 Section 301(n) "FDF" Variances
3.2.2 Section 301(c) Economic Capability Modifications
3.2.3 Section 301(g) "No Unacceptable Impact" Modifications
3.2.4 Section 301(k) Innovative Technology Variances
3.2.5 Section 302(b) Water Quality-Based Modifications
3.2.6 The Bubble Concept Under The CWA
3.3 Flexibility Under CWA
4.0 THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)
4.1 The Current Hazardous Waste Regulatory Structure
4.2 Flexibility vs. Command and Control Under RCRA
4.2.1 Statutory Flexibility
4.2.2 Regulatory Limitations
4.3 Opportunities for Flexibility Under RCRA
4.3.1 Definition of Solid Waste/Recycling
4.3.2 Definition of Hazardous Waste
4.3.3 Remediation
4.3.4 Permitting
4.3.5 Innovative Technologies
5.0 MULTIMEDIA IMPLICATIONS
5.1 Rulemaking Consistency Within the CAA, CWA and RCRA Programs
5.2 Consideration of Cross-Media Impacts In Media-Specific Rulemaking Under the CAA, CWA and RCRA
5.3 Providing Incentives For Multimedia Approaches
6.0 TOXIC SUBSTANCE CONTROL ACT
7.0 POLLUTION PREVENTION ACT OF 1990
8.0 SAFE DRINKING WATER ACT (SDWA)
———————
[Page 2-1]
EXECUTIVE SUMMARY
In 1992, Amoco Oil Company and the U.S. Environmental Protection Agency completed a voluntary, joint project studying pollution prevention opportunities at Amoco's Yorktown, Virginia refinery. The Project's Workgroup, with representatives from EPA, Amoco, and the Commonwealth of Virginia, conducted a comprehensive inventory of releases from the refinery to the environment and evaluated options for reducing these releases.
A key conclusion of the Yorktown Project is that the objectives of environmental regulations —less pollution and reduced risk—can be achieved more effectively if facility managers are allowed to devise plant-specific compliance plans. The participants in the Yorktown Project Workgroup agreed on the four most effective pollution prevention options based in part on the unique geographical and process characteristics of the particular site and facility. The selected options did not coincide with existing regulatory requirements. By prioritizing environmental protection efforts based on their effectiveness in reducing or preventing pollution and risk at Yorktown, equivalent levels of protection could have been achieved at 25% of the cost of current regulatory programs.
The Project also demonstrated that today's environmental mandates, with their single-media focus, often ignore (1) the technological and logistical issues associated with overlapping regulatory programs, (2) the multimedia impacts of a particular rulemaking, and (3) the speed of technological progress which can make mandated technologies obsolete even before compliance begins. For example, some water and air pollution control systems create additional solid, potentially hazardous, waste. Some control systems convert pollutants from one form into another. Yet, compartmentalized regulatory agencies do not comprehensively consider or address these impacts.
Suppose a facility wants to take a coordinated, site-wide, multimedia approach to pollution reduction. Today's regulatory structure, at both the federal and state level, provides no established mechanism for allowing it to do so. There is little or no opportunity to coordinate conflicting technical requirements or compliance schedules. Highly prescriptive technology mandates, which define approved technologies and their efficiencies, leave little room for alternatives. In this regard, single-media requirements can present a significant disincentive to innovation and discourage more effective, coordinated environmental management strategies.
The EPA has also recognized the limitations of a segmented approach to environmental management. In its "Unfinished Business" analysis, the EPA for the first time compared many environmental problems to each other in a non-programmatic context. The value of the report, then and now, rests not so much on the rankings but on the realization of the
[Page 2-2]
long-term public policy importance of understanding relative risks.a In a report to EPA Administrator Reilly in 1989, EPA's Science Advisory Board's Relative Risk Reduction Strategies Committee noted that, "despite the demonstrable success of past efforts to protect the environment, many national goals still have not been attained. With hindsight, it is clear that in many cases those efforts have been inconsistent, uncoordinated, and thus less effective than they could have been." The report recommended that environmental efforts should be targeted on the basis of opportunities for the greatest risk reduction.b
To promote innovation and provide the flexibility to use innovative solutions, three fundamental elements must exist. First, the facility must have the regulatory opportunity to prioritize environmental efforts based on their effectiveness in reducing or preventing pollution, no matter what the source. Second, institutional obstacles and disincentives (in both the public and private sector) must be minimized. Finally, a partnership must exist between EPA, the facility, the state and the community which focuses more on the results of environmental protection, rather than strictly on the methods used to achieve them. In time, it is...
To continue reading
Request your trial