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DRAFT - FOR DISCUSSION PURPOSES

EFFECTIVE ENVIRONMENTAL STRATEGIES:

OPPORTUNITIES FOR INNOVATION AND

FLEXIBILITY UNDER FEDERAL

ENVIRONMENTAL LAW

June, 1993

Prepared By

Bradley I. Raffle, Esq.,
Hutcheson & Grundy L.L.P.
Houston, Texas

Debra F. Mitchell, Esq.,

Amoco Corporation

Chicago, Illinois

The authors also acknowledge the assistance of J.B. Ruhl, Eva Fromm and Charles E. Sullivan, Jr., Fulbright & Jaworski L.L.P.

DRAFT - FOR DISCUSSION PURPOSES

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.

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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.

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2.1

2.2

Overview of the Purposes and Structure of the Clean Air Act ("CAA")
Flexibility vs. Command and Control Under the CAA

2.2.1 Definition of "Source"

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2.3

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Specific CAA Program Analyses

2.3.1 Flexibility Under State Implementation Plans (SIPS)

1. Flexibility for Establishing SIP "Emission Limitations"
A. Generic Bubbles

Other SIP Economic Incentive Strategies
Trades Between Mobile and Stationary Sources
Flexibility Under the RACT Requirement in
Nonattainment Areas

Flexibility Under the CAA New Source Review Program

Pollution Control Exclusion

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State Flexibility in SIP Development

2.3.2 Flexibility Under Section 112 of the Clean Air Act

Emissions Averaging to Achieve MACT Compliance
Residual Risk Source Category Deletions

2.3.3 NSPS Innovative Technology Waivers

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3.3

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
Flexibility Under CWA ...

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THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)
The Current Hazardous Waste Regulatory Structure

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Rulemaking Consistency Within the CAA, CWA and RCRA Programs
Consideration of Cross-Media Impacts In Media-Specific Rulemaking
Under the CAA, CWA and RCRA

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