By Larry Cahill, CPEA, Wharton IGEL Alumni Advisory Group member
“The care of human life and happiness, and not their destruction, is the first and only object of good government.” Thomas Jefferson
Thomas Jefferson was a very smart man. Perhaps though, his view of the purpose of government has been lost over time. Recently there has been much discussion on the economic damages inflicted by the federal government related to the regulatory burden that industry faces in the United States. Although these discussions are not solely limited to environmental regulatory burdens, many do believe that the pendulum has swung too far in controlling industrial operations and their air, water, and waste discharges. I am not one of those individuals. Yes, the Cuyahoga River in Cleveland no longer catches fire. And Pittsburgh’s success as a city is no longer defined by the smoke being emitted from the stacks of its steel industry plants. And the hidden Love Canal surprises are hopefully behind us. Yet, there continues to be noteworthy cases of major environmental incidents and non-compliances across the nation. The 2015 Volkswagen “clean diesel” scandal is only one of many. Did you know that every single year for the past 20 years the U.S. Department of Justice has charged some 200 to 300 individuals with committing environmental crimes? That might not seem like many but in total these are criminal charges against over 5,000 individuals, not simply civil charges for exceeding permit limits or discharge standards.
One could logically ask the question – Where does the U.S. stand today with regard to environmental regulations and enforcement as the country experiences a new presidential administration with an uncertain regulatory philosophy and strategy? Are we indeed better off and is it time to take the foot off the gas or is there still much work that needs to be done? Recent regulatory and enforcement data released by the U.S. EPA help us to better understand where we are presently as a country and where we might be headed.
Environmental Laws: The Historical Setting
The First Earth Day occurred on April 22, 1970 in the midst of a nationwide college campus strike protesting the Vietnam War. Protests in the streets all over the land. Hmmm… Sound familiar? That year of 1970 became a springboard for the passing of major federal environmental laws in the U.S. As shown in Table 1, in the next two decades, some 12 critically important environmental, health and safety laws were passed. Interestingly enough, eleven of the twelve were authorized and signed by Republican presidents; a legacy that is sometimes forgotten or ignored. Each law, of course, required the creation of regulations to accomplish the stated goals. And indeed that has occurred.
TABLE 1: Major U.S. Federal Environmental Legislation (1969-1986)
|1.||1969||National Environmental Policy Act (NEPA)||Nixon (R)|
|2.||1970||Clean Air Act (CAA)||Nixon (R)|
|3.||1970||Occupational Safety and Health Act (OSHA)||Nixon (R)|
|4.||1972||Federal Water Pollution Control Act (FWPCA)||Nixon (R)|
|5.||1972||Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)||Nixon (R)|
|6.||1972||Noise Control Act (NCA)||Nixon (R)|
|7.||1973||Endangered Species Act (ESA)||Nixon (R)|
|8.||1974||Safe Drinking Water Act (SDWA)||Ford (R)|
|9.||1976||Resource Conservation and Recovery Act (RCRA)||Ford (R)|
|10.||1976||Toxic Substances Control Act (TSCA)||Ford (R)|
|11.||1980||Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)||Carter (D)|
|12.||1986||Emergency Planning and Community Right-to-Know Act (EPCRA)||Reagan (R)|
Environmental Regulations: The Current Setting
All federal regulations, including those created by the EPA, are codified in the Code of Federal Regulations (CFR), published annually by the Government Printing Office. That is, each year the CFR is released to the public and it contains all current and updated regulations effective on July 1st of that year. The individual volumes for each year are usually available in January or February of the following year. The EPA is responsible for the 37 volumes of Title 40 of that Code. By early 2017 the EPA had released the 2016 CFRs effective July 1, 2016. The total page count for EPA’s Title 40 regulations in 2016 was 27,074, the most on record. (See Figure 1) Combined with OSHA’s 3,096 pages in Title 29 there were, for the first time, over 30,000 pages in total, with EPA regulations accounting for 90% of that total.
In taking a closer look at the data, some interesting additional facts emerge. For example:
- Recent Growth. There was an approximately 800 page, or 3%, increase in the number of pages in Title 40 in 2016. This increase was almost twice as large as the total page count in 1972, the first year of regulatory codification.
- Distribution by Media. Approximately 66% of the pages in Title 40 are devoted to Clean Air Act regulations. This represents roughly 17,750 pages, meaning that the Clean Air Act alone has almost six times as many pages of regulations than all of OSHA’s Title 29 Code.
FIGURE 1: Growth of U.S. EPA Regulations (1972-2016)
- Comparison with the U.S. Tax Code. By comparison, the 30 thousand pages of EHS regulations is only about 40% of the total page count of ~75,000 pages in the federal tax code.
- Comparison with the Dow. Interestingly, if one does the calculations for the 1972-2016 period, there is a 95% statistical correlation between the growth of environmental regulations and the growth of the Dow Jones Industrial Average (DJIA). Granted this is some outside-the-box thinking, but could this mean that regulatory growth is good for the economy!?
Will Environmental Regulations Continue to Grow?
Will the growth of federal environmental regulations continue or has it peaked? One way to anticipate the answer to the regulatory growth question is to take a look at the Agency’s Semi-Annual Regulatory Agenda, which was last released on November 17, 2016 (as part of the Executive Branch’s Unified Agenda) in the Federal Register. This is a spring and fall requirement for all regulatory agencies[i]. In November the EPA listed 203 additional regulations (not pages, but individual regulations) that either had been recently promulgated (but not yet codified) or were under development.
Eventually, all of these new regulations will be added to Title 40, continuing the growth, unless there is a concerted effort to halt the regulatory development process; more on that later in this chapter. It is very interesting to note, as depicted in Figure 2, that each of EPA’s Semi-Annual Regulatory Agendas from 1999 to 2011 listed somewhere between 350 and 450 regulations under development, a consistency that is stunning. This means that for over a decade, there were always around 400 regulations under development on the docket. Interestingly, there has been a dramatic reduction in the number of regulations listed to roughly 200 from years 2012 to 2016. Maybe the regulatory pipeline is beginning to empty.
FIGURE 2: EPA Semi-Annual Regulatory Agenda Trends
Yes, there are still regulatory gaps
In spite of the fact that there are now over 27 thousand pages of federal environmental regulations, there remain some additional risks and vulnerabilities that have yet to be addressed appropriately at the federal level. Three of those that have surfaced on environmental audits of industrial facilities over the past 30 years are:
- Water Storage Tanks. For large firewater and other water supply above-ground storage tanks, there is no requirement for tank integrity testing or secondary containment protections. These tanks are often located adjacent to electrical substations and transformers in utility areas where a tank breach could short out the entire electrical system of the site and possibly the surrounding community. And history tells us that large volumes of unexpected water releases can do considerable damage to facility equipment. In 2011 a tsunami disabled the backup generators at the Fukushima, Japan nuclear power plant resulting in a meltdown of three nuclear reactors. One global consumer products company has recognized this water storage issue as an unacceptable risk and has developed a corporate standard that requires secondary containment for all above ground storage tanks worldwide.
- Hazardous Waste Storage. Hazardous waste stored at 90-day accumulation areas require only that drums and containers be labeled, physically intact, and inspected weekly. Surprisingly there is no federal requirement that containers be placed on an impervious surface incorporating secondary containment protections. Thus, a pretty much unlimited amount of containers and drums holding hazardous waste can be stored directly on the ground for up to 3 months at these locations. Several states, including Massachusetts, have recognized this as a gap and require additional protections such as secondary containment for accumulations areas.
- Accidental Discharges of Hazardous Substances. Spill Prevention, Control and Countermeasure (SPCC) Planning requirements promulgated under Section 112.7 of the Clean Water Act regulations are designed to prevent the accidental release of only oil-containing substances into the nation’s waters. Facilities subject to the regulations must develop an SPCC Plan that is certified by a Professional Engineer and must provide appropriate containment and/or diversionary structures or equipment to prevent a discharge of oil. New Jersey is one state that has recognized that regulating only oil in this way is a gap and has promulgated Discharge Prevention, Containment and Countermeasure (DPCC) regulations that cover not only oil but numerous other hazardous substances.
There are certainly other gaps as well and also existing regulations that require additional clarification. A great example of the need for clarification are the “weekly”, “monthly”, and “annual” requirements found in many environmental regulations. Be assured that there have been many lively discussions among site staff, regulators and auditors over whether “annual” means every 12 months or once a year. There is a big difference in the two interpretations.
U.S. EPA Enforcement Activity Remains Substantial
The EPA has had a substantial enforcement program throughout its history. EPA’s current Enforcement budget is approximately 10% of its total $8.1 billion budget and, for comparison purposes, is 35% more than the entire budget of the Occupational Safety and Health Administration (OSHA). On December 19th, the EPA released its enforcement results for fiscal year 2016, which ended on September 30, 2016.[ii] Included in those results were data on administrative, civil judicial penalties, and criminal fines assessed.
As shown in Figure 3, EPA issued $5.8 billion in civil and criminal penalties in FY2016, the most ever in history. However, the great majority of the penalties issued were due to a $5.6 billion settlement with BP Exploration & Production for Clean Water Act violations stemming from the April 20, 2010 Deepwater Horizon blowout and subsequent oil spill. Note further that the 2013 penalty amount of approximately $2.6 billion was impacted significantly by billion dollar penalties against Transocean and BP, again for the Deepwater Horizon incident.
FIGURE 3: U.S. EPA Enforcement Penalty Trends
Notwithstanding the two Deepwater Horizon enforcement actions in 2013 and 2016, on average, over the past ten years the EPA has issued approximately $200 million in civil and criminal monetary penalties each year. This should be viewed together with the over 5,000 individuals that have been charged with environmental crimes by the DOJ over the past 20 years. These numbers are not inconsequential. And with almost a billion dollars being spent annually by EPA on enforcement, environmental noncompliance remains a serious issue, unmatched by any other country. As EPA has stated in its FY 2013 OECA National Program Manager Guidance, we will “aggressively go after pollution problems that make a difference in communities. EPA will use vigorous civil and criminal enforcement that targets the most serious water, air and chemical hazards, as well as advance environmental justice by protecting vulnerable communities”.[iii]
The Cautionary Tale of December 2016
So where does that leave us? Should there be a continuing emphasis on environmental regulatory compliance and enforcement or should we indeed take the foot off the gas as some would propose. Well, if the fortnight in the middle of December 2016 tells us anything, this is not the time to ease up. Take note of the following headlines taken from that very short period:
- DuPont agrees to pay $50 million in natural resource damages to resolve claims stemming from the release of mercury in the 1930’s and 1940’s from its Waynesboro, VA plant (December 16th).
- Michigan’s Attorney General brings more criminal charges over the Flint, Michigan water crisis, including felony charges against two former state appointees and two former city officials (December 20th).
- Volkswagen reaches $1 billion deal with the USDOJ and California in the ongoing diesel emissions scandal (December 21st).
- A federal jury finds DuPont liable for $2 million in compensatory damages for an individual’s cancer stemming from the dumping of Teflon manufacturing chemicals (C8) into the Ohio River. An additional 3,500 cases are pending (December 21st).
- Shell Oil will pay $22 million to the city of Clovis, California for chemical (TCP) found in drinking water supply (December 27th).
Frankly, it’s hard to believe that all five of these incidents occurred over a two-week period in the last month of 2016. They suggest that the U.S. is nowhere near where it needs to be with respect to the environment. Continuing oversight is needed and both public and private sector institutions need to be held accountable for meeting, if not exceeding, regulatory requirements.
What Might Change
During the 2016 presidential campaign and now with the new Trump Administration in place concern has been expressed over the regulatory burden placed on U.S. industry and the regulated community in general. It should be noted that this concern is nothing new. For example, on January 18, 2011 President Obama issued Executive Order 13563, “Improving Regulation and Regulatory Review”. The Order required a government-wide review of existing rules “to remove outdated regulations that stifle job creation and make our economy less competitive. It’s a review that will help bring order to regulations that have become a patchwork of overlapping rules…”[iv] In response to President Obama’s Executive Order, EPA created the Regulatory Development and Retrospective Review Tracker (Reg DaRRT), which provides information on the status of EPA’s priority rulemakings, as well as information on the status of retrospective reviews of existing regulations. One positive outcome of the Executive Order was the July 31, 2013 issuance of a final EPA rule on solvent-contaminated wipes that reduced the regulatory burden on tens of thousands of facilities using these wipes routinely.
What is different today is the approach that is being proposed by the current Administration. President Trump has said numerous times that his goal is to eliminate as many as 75% of all existing federal regulations. The first step in that effort was the January 30, 2017 issuance of an Executive Order: “Reducing Regulation and Controlling Regulatory Costs.” This Order calls for every “one new regulation issued, at least two prior regulations be identified for elimination with the goal of zero incremental costs.” As with most Executive Orders further guidance will be required and the Director of the Office of Management and Budget is required to develop that guidance. In fact, on February 2, 2017 the White House issued guidance stating that the Order would only apply to “significant” regulations, as defined in Executive Order: “Regulatory Planning and Review”, issued by the Clinton Administration in 1993. Significant regulations are those imposing an annual economic cost ≥$100 million. The Director must also identify the total amount of incremental costs that will be allowed for each agency for each fiscal year.
This “one in, two out” approach, if enacted as stated, obviously will have significant impacts on federal rulemaking within all agencies including the EPA. As stated previously, the EPA in its November 2016 Semi-Annual Regulatory Agenda listed 203 new regulations under development or review. Will this mean that if all of these regulations are put forward that over 400 other, existing regulations must be eliminated? As arbitrary as this sounds, the answer today is yes.
Another potential impact caused by the Executive Order would come from the new chemical requirements in the Frank R. Lautenberg Chemical Safety for the 21st Century Act signed into law on June 22, 2016. The Act requires that the EPA evaluate and communicate the risks of existing chemicals from the current inventory of 83,000 chemicals in use in the U.S. The first 10 chemicals were identified on November 29, 2016 and include asbestos, carbon tetrachloride, methylene chloride, and trichloroethylene. If an assessment determines that a chemical poses an unreasonable risk the Agency must mitigate that risk within two years. Further, for each risk evaluation completed, another must be initiated with at least 20 ongoing evaluations being conducted by the end of 2019. Does this mean that any resultant rule addressing mitigations for a particular high-risk chemical cannot be promulgated unless two other unrelated rules are eliminated? This seems rather arbitrary as well. Perhaps in this and other cases the “significant regulation” threshold will have a moderating impact and the effects will not be as severe as expected.
Another regulatory reform initiative taking place but receiving considerably less attention is the use of the Congressional Review Act enacted in 1996, which allows lawmakers to take certain actions for those laws enacted during the waning days of an administration. The Congress has already used this power to rescind EPA’s Stream Protection Rule promulgated in December 2016, which sought to protect the nation’s waterways from debris generated by coal surface mining activities. Congress is also attempting to rescind the EPA’s revised Accidental Release Prevention Requirements contained in its Risk Management Program final rule issued on January 13, 2017. A bill to rescind the rule has been introduced in the House as of this writing. Historically, the Congressional Review Act has been used sparingly but this has not been the case in early 2017.
In sum, there is strong evidence that significant regulatory reform is ahead driven by a Republican Congress and Presidency. One can only hope that logic will prevail and that protection of human health and the environment will continue as a fundamental goal for the nation.
Why the EPA’s Mission Remains Critically Important
With good reason President Nixon created the EPA in 1970. The Agency’s basic mission is to protect human health and the environment. This is accomplished with an $8 billion budget and 15,000 full time equivalent staff. Although it often is not evident in our daily lives, we have all been impacted in a positive way by the Agency’s efforts and programs. Consider if you will the scope of the Agency’s oversight and responsibilities:
- Nationwide Facility Coverage. Over 800,000 facilities in the U.S. generate air emissions, wastewater, and hazardous waste at a level sufficient to require regulatory oversight through mechanisms such as Title V air permits, NPDES wastewater discharge permits, and/or hazardous waste generation and disposal requirements. That’s an average of 16,000 facilities per state where there is regulatory oversight and controls over the release of pollutants.
- Hazardous Waste Generation. There are over 26,000 large quantity hazardous waste generators in the U.S., generating over 33 million tons of hazardous waste annually. These generators are required to manage the wastes properly and report to the EPA every other year on their activities.
- Toxic Releases. There are over 22,000 facilities in the U.S. that release listed toxic chemicals at a sufficient level to require reporting under the Toxics Release Inventory (TRI) requirements of the Emergency Planning and Community Right-to-Know Act. Over 3.3 billion pounds of toxics were released nationally in 2015. TRI reporting has resulted in a better understanding of pollutants in our environment and has driven a reduction over time of releases.
- Superfund Sites. As a result of the 1980 passage of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) some 1,188 “Superfund” sites have been cleaned up as of November 30, 2016. However, there remain 1,337 National Priorities List (NPL) Superfund sites yet to be cleaned up.
- Toxic Chemicals. There are 85,000 chemicals inventoried and regulated under the Toxics Substances Control Act. These include materials containing asbestos and PCB’s, which were considered “miracle” products when first produced. Very few of the inventoried chemicals have undergone meaningful risk assessments to determine hazards posed to human health or the environment. The Frank R. Lautenberg Chemical Safety for the 21st Century Act signed into law on June 22, 2016 contains provisions to assure that these assessments are conducted.
It is important to note that, save for the Superfund sites, all of the chemicals, wastes, releases, and discharges discussed above are being managed in compliance with existing environmental regulations. Do we really want to eliminate 75% of these regulations resulting in fewer controls over discharges and releases?
The future of environmental regulation in the U.S. is cloudy indeed. It is really too soon to tell exactly what might be the impact of President Trump’s Executive Order and other pending regulatory reform initiatives. It would be prudent to keep a close watch…
[i] The Regulatory Flexibility Act and Executive Order 12,866 require Spring and Fall Regulatory Agendas.
[ii] U.S. Environmental Protection Agency, “Fiscal Year 2016 EPA Enforcement and Compliance Annual Results,” Office of Enforcement and Compliance Assurance, December 19, 2016.
[iii] U.S. Environmental Protection Agency, FY 2013 Office of Enforcement and Compliance Assurance (OECA), National Program Manager (NPM) Guidance, April 30, 2012, p. 6.
[iv] Obama, Barak, “Toward a 21st-Century Regulatory System”, Wall Street Journal, January 18, 2011.