PATHWAYS TO STATE POLLUTION
PREVENTION REGULATORY INTEGRATION:
THE SPRINT COMPENDIUM

by:
Jeanne Herb
Allen White
Susan Helms

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Background

More than two decades have passed since the enactment of the nation's main environmental statutes. The good news is that these laws have, in general, resulted in cleaner air, water and land. The mixed news is that these laws and, more so, the regulatory infrastructure developed to implement them, has resulted in a prescriptive, control-oriented foundation that is ill-equipped to bring industry to the next level of environmental protection while contributing to the economic vitality of the nation.

The shortcomings of the current environmental regulatory regime include:

• An approach that is based on defining highly prescriptive approaches for achieving compliance. Such an approach results in a "compliance first" mentality in industry, government and the public and, in doing so, curtails creative efforts to achieve compliance in alternate ways, including prevention.
• An approach that assumes that the standards on which the prescriptive approaches are based assures environmental and public health protection. Yet, with new knowledge often comes the identification of environmental and public health risks that previously were not factored into the development of an environmental standard. Existing pollution control approaches assume that safe standards can be set with confidence, while prevention methods simply assume that "less is better."
• An approach that demands that industry invests significant capital for pollution control equipment. This makes environmental compliance a "cost," not an asset. Once a company invests significant capital in a control technology to achieve compliance, it has little incentive to reduce chemical use or generation through process changes, materials substitution or other prevention approaches.
• Neglect of pollutant shifting from one environmental media to another ignoring the ultimate fate for many pollutants including those that are the most persistent, bioaccumulative and toxic.
• An approach that, in the end, does not provide the greatest level of environmental protection. The environmental management hierarchy defined in federal law recognizes that preventing the use and generation of toxics is the most effective way to protect environmental quality in the long term. The single medium, end-of-pipe emphasis of the current regime does not systematically ensure that prevention alternatives will be sought.

Addressing these shortcomings in order to bring about a pollution prevention (P2) ethic is a formidable challenge facing business, the public interest community and state environmental agencies today. For the states, the outstanding question is whether agencies have the tools they need to address this challenge in a way that results in a comprehensive and lasting prevention culture in core environmental regulatory programs.

Beginning in the mid-1980s, awareness began to emerge of the impediments to achieving industrial P2 under the existing environmental regulatory structure. Early P2 studies, including INFORM's Cutting Chemical Wastes, pointed to the enormous opportunities for achieving significant reductions in chemical use and waste generation while reaping significant financial rewards. This finding was affirmed by other work, including the 1986 Office of Technology Assessment (OTA) study Serious Reduction of Hazardous Wastes, which pointed to the substantial regulatory obstacles which stood in the way of achieving these rewards.

These early studies spurred a first wave of P2 programs at the state level (Figure 1). These programs, in general, were voluntary initiatives to assist industry in realizing profitable prevention options. Many states, on the premise that technical information was the principal impediment to accelerating P2, created Technical Assistance Programs (TAPs) which provided free, non-regulatory assistance to industry to identify P2 opportunities. The positive outcomes of these technical assistance programs were bolstered by the eye-opening results of the initial reports under the Toxics Release Inventory in 1988. For the first time, the public began to fully appreciate the enormous volume of pollutant releases at the facility, state, regional and national level. The combination of convincing economics and public demand for more aggressive pollution reduction formed a potent driver for business to give P2 a serious look.

While the economic case for P2 became increasingly evident, the sluggish pace of P2 progress by the early 1990s presented an apparent contradiction. Why, if the economics were persuasive, were profit-driven firms unwilling to implement P2 options in their own self-interest? Work by Tellus Institute and others argued that, in part, the explanation lay in the combination of conventional cost accounting methods that obscure the true costs of chemical use and wastes. Without a transparent picture of the costs, managers will systematically under-invest in P2 improvements. At the same time, the continued dominance of technology-based, end-of-pipe regulations continued to drive business decisions toward single-medium, pollution control compliance.

In response to a desire to further advance the gains of first-wave efforts, a second wave of P2 programs emerged. This second wave sought to move industry towards a prevention-based mode through enactment of new government policies and regulations—mostly P2 planning and reporting requirements. During this second wave, the federal Pollution Prevention Act and counterparts in several states were enacted. In some cases, these laws sought to lay the foundation for development of a systematic transformation of the environmental regulations from pollution control to P2.

As we survey the current P2 landscape in the late 1990s, it becomes immediately evident that P2 has by and large stalled in its evolution toward becoming the dominant regulatory ethic and framework. A third wave, in which P2 would be fully integrated into core environmental regulatory programs, simply has not occurred. P2 has failed to permeate agency operations to the point of achieving a transformation of core regulatory programs from a pollution control to a P2 foundation.

Why has implementation of P2 stalled at the state level? How can the P2 evolution (or revolution, in the words of some) be reinvigorated to move into a third wave? To the credit of numerous states, many P2 regulatory innovations have been tried and/or implemented. Various agencies have P2 components in core regulatory programs, including compliance, permitting, standard setting and planning. Yet, existing integration efforts at the state level fall short of bringing about a systemic and lasting change for several reasons. Principal among these are:

• Most state agencies have not developed a comprehensive P2 regulatory integration agenda and, instead, focus in piecemeal fashion on a particular aspect of environmental regulation. States that have strong P2 regulatory integration efforts in permitting, for example, may have no efforts underway in enforcement.
• Most state agencies have not addressed the underlying drivers of core regulatory programs such as organizational structure, workplans, regulations, and job descriptions. As a result, P2 regulatory integration initiatives tend to treat the symptoms rather than the causes which will bring systemic change.
• Many P2 regulatory integration initiatives fail to be based on a defined structure with quantitative metrics. Instead, they often include vague P2 definitions, limited specific components and qualitative measures. Without a sound P2 structure and metrics, many initiatives result in practices that are, in the end, not true prevention.

What is needed at the state level, first and foremost, is the development and implementation of clear and comprehensive P2 regulatory integration agendas that are:

Developing effective P2 regulatory integration agendas is a formidable challenge for state agencies. In this era of government downsizing, many are struggling to respond to the immediate demands of the public and the regulated community, "fighting fires" in reaction to the "issue du jour." Internal resistance to change is strong, and 25 years of end-of-pipe, medium-by-medium regulation dies hard. Moreover, agencies are without guidance on how to develop comprehensive P2 regulatory integration agendas. Even those that want to are not sure how to proceed.

To address this challenge, Tellus Institute launched the State Pollution Prevention Regulatory Integration Initiative (SPRINT) in September 1997. Phase 1 planning of SPRINT, made possible by the financial support of the Pew Charitable Trusts and the Heinz Endowments, was completed in summer 1998. Phase 1 benefited from the expertise of a Steering Committee comprised of Christopher Daggett, former Commissioner of the New Jersey Department of Environmental Protection; Daniel Greenbaum, former Commissioner of the Massachusetts Department of Environmental Protection; and G. Tracy Mehan, Director of the Michigan Office of the Great Lakes and the Michigan Great Lakes Protection Fund.

SPRINT's goal is to assist state agencies in transforming their medium-specific, pollution control regulatory infrastructures to multimedia pollution prevention. Its design, outlined in Figure 2, is based on several key assumptions:

• That the current environmental statutory framework provides considerable flexibility to integrate P2 into core regulatory programs. SPRINT is designed to exploit this flexibility while recognizing that some genuine statutory and regulatory obstacles to P2 integration may require statutory or regulatory change.
• That state agencies which want to fully integrate P2 into core regulatory programs lack the tools to do so.
• That the development of comprehensive and lasting P2 regulatory integration agendas cannot follow a cookie-cutter one-size-fits-all approach. Instead, customization and tailoring to account variations in agency P2 progress, resources and organizational history are essential to SPRINT's success.
• That while ongoing regulatory integration efforts underway in states provide some models, there also is a wide array of untested innovative practices (IPs) that merit attention and experimentation.
• That the existing network of state environmental agencies is a ready-made vehicle for leaning and adaptation of IPs across agencies.

Based on these assumptions, SPRINT's design involves identifying and documenting current and promising IPs and working collaboratively with partner states to develop integration agendas based on selected IPs. In doing so, SPRINT is designed to support partner states with both technical and organizational change expertise to achieve its P2 transformation goal.

As depicted in Figure 2, during SPRINT-Phase 1, Tellus developed this Compendium of P2 Innovative Regulatory Integration Practices based on a review of P2 regulatory integration efforts underway in states. Also, during Phase 1, Tellus is entering into Memoranda of Agreement with several states. These state agreements outline the partnerships between Tellus and these states that will be underway in Phase 2. During Phase 2, Tellus will work cooperatively with the partner states to develop and implement long-range, customized P2 regulatory integration agendas based on the Innovative Practices contained in this Compendium. The ultimate goal of the Tellus-state partnerships is to transform the underlying culture and operations of the agencies to be P2-based.

At this juncture, SPRINT is limited to P2 in relation to industrial use, generation and release of regulated toxics and pollutants. However, we recognize that regulatory integration is relevant to other areas of state regulatory activity such as agricultural and non-point source P2. While industrial toxics are the focus of Phases 1 and 2, subsequent phases may well embrace these equally important opportunities for achieving P2 regulatory integration.