DRAFT - FOR DISCUSSION PURPOSES EFFECTIVE ENVIRONMENTAL STRATEGIES: OPPORTUNITIES FOR INNOVATION AND FLEXIBILITY UNDER FEDERAL ENVIRONMENTAL LAW June, 1993 Prepared By Bradley I. Raffle, Esq., 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. 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. 2.1 2.2 Overview of the Purposes and Structure of the Clean Air Act ("CAA") 2.2.1 Definition of "Source" 12 13 223 13 2.3 18 B. C. 2. 3. 4. 1. 2. Specific CAA Program Analyses 2.3.1 Flexibility Under State Implementation Plans (SIPS) 1. Flexibility for Establishing SIP "Emission Limitations" Other SIP Economic Incentive Strategies Flexibility Under the CAA New Source Review Program Pollution Control Exclusion State Flexibility in SIP Development 2.3.2 Flexibility Under Section 112 of the Clean Air Act Emissions Averaging to Achieve MACT Compliance 2.3.3 NSPS Innovative Technology Waivers 38 39 40 44 45 3.3 3.2.3 Section 301(g) "No Unacceptable Impact" Modifications 56 57 57 58 59 4.0 4.1 THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) 61 61 5.1 5.2 Rulemaking Consistency Within the CAA, CWA and RCRA Programs 79 |