Regulation: How Do We Get It Right?

You'll never find a discrete answer, only a concensus.

Phoenix911, you are most likely correct, but I will take a stab at it. Any industrial concern that uses water and has waste water should be required to clean up their waste water to the state that it was when they received it. Any community that uses water must do the same and as individuals we must also maintain the water we use through waste water treatment of several types from municipal treatment plants to septic systems as appropriate. These are reasonable responsibilities, however this should not be taken to the point of stopping industrial activities, just ensuring that they fulfill their responsibilities as good citizens.

I am using the How do we do it right as not being an absolute.

With it being more of a environmental and economical balance. With the balance changing inversely with the other. so it's not static but dynamic definition of right.

I agree that it should entail responsible actions.

First thing to remember, we are drinking the wastewater and storm water of all of the industries, farms and people that live upstream of us.

IMHO, the US EPA correctly justifies new regulations. The costs of healthcare (Medicare, Medicaid, doctor visits from associated ailments, and insurance) for the affected people and businesses, control technology (municipal water and wastewater treatment and industrial wastewater), and business as usual are all compared and submitted to OMB for approval. I don't see how the system can be anymore protective and full of oversight. Not saying it is perfect because nothing ever is. Currently, coal companies are allowed to pollute our rivers by mountain top removal. Hydraulic fracturing is allowed to continue without releasing the information on the chemicals used under the Community Right to Know Act and are not covered under RCRA (I personally classify this as a release of pollutants into the environment and think it should be reported as such).

Also, we can never compete with developing countries and their lack of regulation and regard for the population. We (the developed countries) have learned that it is more costly to not regulate than it is to regulate because of all of the ailments it causes. If your population is dying at a younger age or cant work due to illness, your countries output of GDP (food included) will diminish and health care costs will skyrocket.

It basically comes to a saying. "You can pay now, or you can pay later."

Where were you when Mt St Helens blew? Look at all the mud, debris, burning timber, etc.; I can't recall anyone suing gaia for all of that chaos and mayhem. The EPA has more attorneys than engineers and heavy equipment operators combined. Shows where their priorities are. Rather than offering relevant, practical solutions, they go to court. Are corporations guilty of pollution? Please show a set of corporate bylaws that encourage pollution. Pollution, whether it be by eeeeeeeeeeeeeevil corporations or your friendly waste treatment plant, are in general caused by TOBtW. (The Operator Behind the Wheel), that's right your friends and neighbors. Sometimes it is mechanical failure. Nevertheless, what good does a fine accomplish? Where does the money go? To help with the cleanup? somehow, I don't think that is the correct answer.

I live in the Caribbean, want to see pollution, where any piece of public or vacant private land is treated as a dump. The only decent islands are some of the Bahamas, Caymans, Barbados and Cozumel. ABC's Dom Rep, Jamaica, Haiti, Martinique, St Marten all leave something to be desired. And its not just here, take a LIRR ride from Speonk to Montauk, there is a real eye opener. If you're on LI, observe the east end of Sunrise or LIE after a holiday weekend. Notice all the black trash bags along the road? Do you really think the cleanup crews were busy on the weekend, or could it be the citiots couldn't be bothered taking their trash back to Manhattan?

No sir, it isn't money, lack of education, or greed, it is lack of self-respect and respect for ones neighbors. Until that is addressed on an individual and community basis, regulation is a waste of time and effort.

I think your views are a little skewed. The EPA has a mix of engineers, scientists, project managers and legal personnel. The legal personnel are the ones writing the rules, and litigating against the companies' attorneys. If the company comes to the table without an attorney, EPA doesn't use their attorney. It is a 1 for 1 match up at the negotiation table. Only the money is negotiated and only a certain part of the penalty is even nogiatiable.

No corporation puts criminal activities in their bylaws. The managers go behind closed doors and order the employees to violate the laws. A local company (ESI) just got caught earlier this year by EPA dumping waste oil down the storm drain during rain storms. http://www.paintsquare.com/news/?fuseaction=view&id=5377 has the details. The main point is company management/owners will do what they think they can get away with. Then, once caught, they hire a top attorney to defend them in court for the criminal charges.

A volcano is a natural disaster and is not regulated, nor could it be. The rest of your complaints seem to be related to waste disposal issues by individuals. Littering is regulated by the police (state and local).

Mr Kayak:

You made my point. No company did this but three INDIVIDUALS were involved, our 'friends and neighbors" as I pointed out. So what went wrong? Well far toooooooooo many attorneys and not enough engineers to do follow up inspections might be a place to start. Exactly what I stated. Doesn't seem in this case that any employees were involved nor any "closed doors" it does look as if it is more senior management. This was a "certified" facility. I think the pertinent question(s) is what constitutes certification and who did the certifying? Therefore the EPA seems to be at least partly culpable. Who gets the benefit from the 35 million dollar fine, if it is ever collected? Who gets the clean up tab? Let me guess, maybe the taxpayers, maybe even an eeeeeevil corporation(s) who contracted with an EPA CERTIFIED waste treatment facility.

In closing, do you think the three individuals violated any existing regulations? If so, do you really, really, think that adding more regulations would deterred these three and allowed you to kayak in cleaner water.

Oh, we have a Dept of Environmental something to "enforce" unlawful dumping.

IMHO I don't think there is anyone in the Western hemisphere who condones illegal dumping. I have suggested to the local alcalde (mayor) to propose a punishment of cleaning a mile of highway or beach in a pink jumpsuit, but that has yet to occur.

We have great year - round kayaking. need an open water.

Look forward to your response

I don't see anything in the original post about "New" regulations

I'm sure the managers in question would take a 1/2 day of community service in the place of a $35million fine

Dear Garth:

The OP in his opening question asked "what guidelines should elected officials follow and regulatory bodies use in determining how to regulate economically promising activities such as hydraulic fracturing?" I read this as what should we do with new regulations. The company filed for bankruptcy, typically that means they haven't any money. How will they pay the 35 million dollar fine? Furthermore, this incident is not an "it rained too much or the pump broke scenario" If the ruling is accurate this is a bit more than the ordinary white collar crime. Nowhere did I suggest a 1/2 day of community service for a crime of this nature. These three are beyond any hope of redemption and should be doing community service until the cost of the cleanup is repaid. Working as day laborers at the respective sites at minimum wage without protective gear and no medical benefits would be appropriate.

In closing, what regulation(s) and punishment can you think of that would deter people from doing this?

I don't think regulation & punishment alone are solutions to getting regulation "right"

it's going to take a comprehensive approach

tar & feathers or community service aren't real hindrances

in post 9 you did suggest that picking up trash on a mile of road was a fitting punishment for illegal dumping

that would just cause companies to have scapegoats ceo's of record

Actually, the owner and managers are the company in our eyes. They control the company and all of the employees. They control the actions of the company. This company was inspected every 2 years for air quality. I am not really fond of the inspector and think he should retire. He has been here since the 1970's. Every source that I have gone to after him, I have found many violations and issues. The EPA project manager monitored the contracted company for the processing of the left over wastewater which was shipped to another treatment facility. This one is pretty newly built and didn't have all of the maintenance issues that ESI had.

I question certifications as well. I do like the ISO system. It requires third party audits. Although, I have been to a few safety certified that were union shops and had all kinds of safety issues.

Here in Indiana (I can't speak for other states), the penalties collected go into the Special Fund. This fund is used for environmental grants (pollution prevention projects, recycling projects, energy efficiency projects, etc), for low interest loans to communities for water and waste water projects and for environmental clean-ups. IDEM Office of Air Quality is a money maker. We collect $ per ton for Title V sources, and annual fees for FESOP and lower sources. We constantly get scrutinized for our penalties assessed. We rarely ever don't collect the penalties. Most of the time we get the violators to come to an agreed order. If an Agreed Order isn't reached, we issue a Commissioners Order. Companies can not file bankruptsy against these orders. We get our money before the banks get theirs. The only time it gets really difficult to collect is on these abandoned properties. I don't directly work with them, but I have heard about them. The cities usually confiscate the property and get money from IDEM to clean them up under the Brownfields program. I can see how on the outside looking in it is difficult to follow the money and understand what it is being used for. Being on the inside, I don't even know where it all goes. What I do know is EPA has ranked IDEM as the #1 state in Region 5 for our environmental programs.

The Office of Air Quality only has 4 legal types that write the rules. The rest of us are engineers, scientists and environmental managers. IDEM has 902 personnel with only 16-20 legal type (attorneys and paralegals) personnel (IDEM Office of Legal Counsel has 6 attorneys that litigate for all of IDEM).

if you had a blank slate what would environment regulation look like?

What would make the process more efficient?

I think we need a simpler system without political oversight. Right now we have so many levels of air permits and requirements (BACT, LAER, MACT, NSPS, PSD ETC) that it takes a person specialized in air quality to fill out the applications. This can be a burden on some smaller companies. Although, we do have our Compliance Assistance Program which is free and confidential that will help the company submit the applications and meet the requirements for any regulations. All of the unproven exemptions are a problem as well. Politicians love these exemptions and push to have them included for their pet/supporting industry. You can always tell which industries are going to be a politician's pet and be getting over on the system by looking at who is supporting him/her.

The problem with any system is the large number of pollutants that could be emitted, the toxicity of or amount of harm from those pollutants and the different limits that cause harm. Then, how do we determine these limits for each geographic area? California has more strict regulations because it is upwind of mountains and the pollutants remain trapped. We can't just look at it by state or even country. These pollutants travel the world many times over before they are naturally removed by the oceans, vegetation, etc. Also, some states refuse to recognize the science behind many of the pollutants and don't care about their neighboring downwind states.

The best way that I can think of is to have regulations for each type of equipment that is used. EPA and the states have enough information and stack tests to make this happen. It would make it very easy for the companies to determine their requirements by just searching through the rules for the equipment that they are planning to put on-site. Then add an overall source limit for each criteria pollutant. Penalties should be based on fees avoided (permitting etc) and the amount of pollution released over what the source is permitted to release on a $ per lbs emitted basis. If it puts the company out of business, then they shouldn't have been in business to begin with. Their competitors are following the rules and still turning a profit.

Take away the appeal process. Companies should not be able to appeal a permit. Indiana has 1 backlogged air permit because the company keeps fighting everything through appeals in the original permit. This needs to end and this company needs to follow the rules. We are 15 years past the promulgation of Title V and this company is still not controlling its emissions. This is unacceptable. Even though, I don't know all of the details on this one, it is still ridiculous.

The self-reporting is going to continue no matter which system is used. There are way to many sources for regulating agencies to observe all of them on a continual basis. I have over 350 sources in 8 mostly rural counties and that isn't counting the auto-body shops that I have to inspect, my 4 power plants (3 coal and 1 natural gas) or the un-permitted sources that haven't been identified (we are required to find 2 un-permitted sources a year). I inspect about 50-60 of these sources a year. We could add more inspectors but that comes at a cost even though they only pay us 2/3 of the private sector wages. Or they could increase our hours and pay. We currently only work 75 hours (we don't get paid for our mandatory 30 minute lunches) every two weeks and are not authorized to go over. We have to adjust our time within the pay period.

I like how the NESHAPs, NSPSs 326 IAC 2-11 (Permit By Rule) and 326 IAC 8 are set up. http://www.in.gov/legislative/iac/iac_title?iact=326 is the IAC link. If the entire system was set up like 326 IAC 2-11, it would be much easier to determine what permit a source needs. It would need to be broken down by pollutant. For example, the steel industry. An EAF has a different emission factor than a BOF. Then, there would need to be PM, VOC, lead, antimony, etc fees. The lead fees would be much higher than the general PM fees due to toxicity. The more emitted the higher the fees get per lbs emitted. This would provide an incentive for the company to use the best available control to reduce the annual fees. (Title V currently does this to a mild extent with $ per ton fees, but not enough to really push the industry to improve. Also, FESOP and lower level permits don't have $ per ton fees.) The fees could go up each year by a percentage greater than inflation to push the companies to improve. 1st year is $x per lbs, 2nd year is 1.05($x) per lbs, 3rd year is 1.05((1.05($x)) per lbs. The rule would have to annually adjust for inflation for the 1st year of operation. Any operating scenarios not listed in the rule would be required to stack test to prove what the emissions are.

The main problem with our current system is that it has been added to in a piece by piece basis with the new knowledge that we have gained. It makes it difficult to navigate and determine what requirements apply to a particular source. With my system, it would require a lot more rule making as scientists get a better understanding of what a new chemical does or the extent of what our current emissions are doing to humans and the environment.

one last note: politicians need to be removed from the process. They don't understand science and never will. And they have their own corrupt motiviations and agendas.

I am done rambling on. Hope it all makes sense. I don't think our current system is going to change to a more efficient and easily navigable system. It would require way to much time and effort. Also, the corrupt politicians won't allow it to happen.

While I agree with many of your points, I must strongly disagree with some major ones. Remove politicians and allow bureaucrats to make, enforce and collect the fines? While you seem to be above reproach, and thank you for your prior lucid response, I can't say the same for many of your brethren. While politicians have their faults NGO's, (RFK's boys, Greenpeace) are much worse.

Another point is the "zero" tolerance rules for many items. While it is a nice concept, removing these items below "background" levels is wasteful. Lead for example has been around for a couple of centuries, but only recently has it come under attack. The removal of lead paint and the ensuing cleanup is a waste of time. The argument that children can gnaw on lead painted window sills is specious at best.

Mercury is another, remember Mercurichrome, it was used for a long time with no ill effects. However, I do agree with the premise of removing mercury switches from auto hood and trunk light switches even though the replacements don't work.

Asbestos is the same story, treated properly, it is a safe, reliable product.

Seems as if we are a bit apart, thank you for the great responses.

In closing, I would also suggest differing types of fines. The individuals in the case you sited should be ridden out of town on rails, can't use tar and feathers, but branding might be in order. If the treatment facility is in compliance and a flood for example or major equipment malfunction occurs the fine should be mitigated. The major part of the litigation process should be the losing party pays all court costs and reimburses the winning party for all associated costs. If the original litigant is found to have raised environmental concerns to cover NIMBY issues, that litigant should pay additional treble damages. The money must be set aside in escrow prior to filing court proceedings. Finally, the losing attorneys should be disbarred.

this is what I think is key:

The main problem with our current system is that it has been added to in a piece by piece basis with the new knowledge that we have gained. It makes it difficult to navigate and determine what requirements apply to a particular source.

There does need to be a more comprehensive approach

I don't know how you could have an agency without oversite?

I like the idea of a more collaborative process.

Glad I asked, you know stuff

"I don't know how you could have an agency without oversite?"

There is still oversite. We have Public Comment periods and EPA review on all permits that are issued. Rules have Public Comment, EPA review, OMB, and must be approved by the state's Air Pollution Control Board. I just want the greedy politicians removed. They don't care about how many lives and medical bills it is going to save for the public, in my experience, they just care about !

Thanks for the compliment! I was hoping I had learned something in the 5 years that I have been with IDEM.

what counties do you work in?

I grew up in Elkhart county

I thought you meant no oversite for EPA

there are plenty of levels

ideally there would be the fewest layers of politicans/bureaucracy involved possible & still continue integrating new knowledge

politicans may or may not be greedy

they are certainly guilty of short term thinking

The northern counties in my area are Newton, Jasper and Pulaski. The southern counties are Warren, Fountain and Tippecanoe. I have all counties in between. Our Northern Regional Office has Elkhart.

I make trips to South Bend a few times a year to go to East Race whitewater park. It is one of my favorite places to kayak in Indiana.

Dear Mr. Kayak:

I'm happy that your EPA is such an honorable and altruistic entity. In addition you should give credit to the HR people for only hiring the most virtuous of people. They must have scoured Lake Wobegone to find such a great team. IMHO your entity is the exception rather than the rule, the FCC, DHS, FDA and even the FBI can't hold a candle to the people with whom you work.

The problem sir is not the regulations, punishments or our elected and appointed officials, the problem is the American Public. They are the ones who are ultimately responsible and culpable for the current state of affairs. As I see no turn around on the horizon, I fear that the USofA with its hopes and dreams are part of a bygone era. Much as Margaret Mitchell wrote in the opening of her book.

A guiding principle should be that environmental regulations must be take into account the cost and availability of technology to achieve them. The fashionable thinking in Washington these days seems to be that technology development to respond to environmental problems is just an excuse for industry foot-dragging. Everything environmental is cast as an emergency, thus mooting all consideration of practicality. The burden of proof should be on the EPA to show not only that a problem exists, but also that the proposed emissions standards are achievable by scalable technologies.

Saying: "we reject consideration of cost" -- as the EPA did with its proposed MACT boiler mercury rule -- reinforces the objection that the proposed industry burden is arbitrary and capricious. Instead of stimulating and assisting technology development, half-baked draconian regulations cause embattled industries to respond politically by hiring more lobbyists and lawyers, rather than engineers. Or simply moving offshore.

For fracking wastewater, it would be helpful if the problem were honestly stated with all of the pertinent facts made public and an honest assessment of the limitations of existing technologies. Right now it's a spin battle with no accepted fact base, and the EPA-industry dialogue has degenerated into name-calling and political pressure.