The management of risk
Illinois Issues introduction: The Illinois Constitution has set the public policy and the rights of individuals regarding the environment. Article XI states: "The public policy of the State and the duty of each person is to provide and maintain a healthful environment for the benefit of this and future generations. . . . Each person has the right to a healthful environment. . . ." When it comes down to the practical level of state government setting rules and implementing regulations to manage risks from toxics in the environment, the job falls mainly on the Illinois Environmental Protection Agency and the Illinois Pollution Control Board. Their duties and powers are set by the General Assembly, but the courts and federal policy shape what they can and cannot do.
This article is one of a five-part series. For more, see "Toxics and risk" on the "Nature & environment" page.
Illinois's system for regulating toxics pollutants has been described—sometimes by the people who run it—as inadequate, outdated, and contradictory. No one has ever described it as simple. As Richard J. Carlson, director of the Illinois Environmental Protection Agency (IEPA) put it in an interview two years ago, "It's remarkable that the agency's been as successful as it's been over the years, considering."
It may not be the first thing bureaucrats are taught, but it usually is the first thing they learn: Process is policy. As Gordon Meeks Jr. put it in his 1985 guide, "Managing Environmental and Public Policy Conflicts" [National Conference of State Legislators], "The effectiveness of environmental policies is related to the process of their adoption and administration."
A corollary to the process-is-policy rule is that in public administration, function often follows form. The form of Illinois' environmental protection establishment follows the blueprint of the 1970 Illinois Environmental Protection Act. That act invested the authority to make and implement pollution control regulations in a troika of new agencies. The Pollution Control Board's five (later seven) appointed full-time members comprised a quasi-judicial body invested with the authority to adopt and enforce rules and regulations (including standards for clean air, water and soil); broadly speaking, it serves as both the legislative and judicial branches of the state's environmental establishment. The IEPA in turn was set up as its executive branch, responsible for implementing the board's regulations for the different environmental media; the agency's job is basically to issue operating permits to polluters and to monitor their compliance with the conditions imposed thereby. The third and smallest of the new agencies was the Institute for Environmental Quality (since subsumed by the Department of Energy and Natural Resources or DENR); its task was to carry out research.
The separation of functions under the Illinois system is unusual among the states, which may explain why Pollution Control Board chairman Jacob Dumelle is invited to speak not just to engineering societies and clean lakes seminars but to graduate classes in public administration. The idea was to keep rule-making separate from research, and both separate from day-to-day enforcement. Much like a bundling board used to separate sleepers forced to share the same small 18th century bed, the separation of function required by the system kept the parties involved from becoming friendlier than prudence allowed.
The virtues of separation are apparent from within the system. Pollution Control Board member Bill Forcade notes that his job is easier because he is insulated from the "pressures that accrue to enforcers." David Thomas is director of DENR's new Hazardous Waste Research and Information Center. Part of his job is to supply information to industrial managers who, when it comes to pollution control, often act like a dog who's been beaten and thus remains wary of anyone with a stick. "The nice thing about Illinois," Thomas says, "is that we have an agency like DENR which has an informational/ research focus separate from the IEPA, which is regulatory."
The system has won converts outside the bureaucracy as well, among officials who are sometimes more interested in passing bucks than passing rules. Pollution Control Board member John Marlin adds, "We're a convenient place to dump hot potatoes." Because the board hears appeals from controversial IEPA decisions such as permit denials, the board thus ' 'takes a lot of heat that would otherwise fall on the legislature or a [gubernatorial] administration."
The authority invested in the troika of agencies in 1970 (especially the Pollution Control Board and the IEPA) was considerable. "Rule-making," points out one experienced observer of Illinois' environmental scene, "is de facto policy," and the board (acting often at the request and with the advice of the IEPA) makes the rules.
But who makes the rules about making rules?
While the new Illinois troika was to have principal bureaucratic authority over environmental protection in the state, its authority was hardly exclusive. Environmental policy in the broad sense continues to be made elsewhere: by the General Assembly and the Congress; by the USEPA and the courts; other state executive agencies, even occasionally by the media. This has proven especially true in the case of toxic pollution, which is bureaucratically as well as physically pervasive; at least seven other Illinois agencies, for example, have some regulatory authority over groundwater.
IEPA director Carlson offers a further instance. He points out that the original tripartite system was set up before there were any strong federal pollution control programs. States are required under most key federal statutes passed since 1970 to act as the federal government's surrogate as a condition of receiving vital federal aid. "We have to do basically what USEPA tells us to do," explains Carlson. "The federal government drives 90 percent of the system. Most of what the board does in terms of substantive regulation is to 'pass through' federal rules." In spite of this, Carlson says, "The board acts as if we were completely independent."
It helps to remember that the present pollution control establishment is only 15 years old. Legal and bureaucratic relationships among the many parties to the process (public and private) are still unsettled. "The thing that is most frustrating is the number of entities that believe they should be setting standards regarding how decisions are made," complains Forcade, "not setting the decisions themselves, necessarily, but how the decisions are made."
The General Assembly is one such insistent entity. The legislature has put the board under a statutory obligation to make the state's regulations consistent with their federal counterparts. The requirement stems less from a desire to protect the environment than to protect the flow of federal funds. Whatever its motive, the directive sometimes puts the board at odds with other state mandates.
Decisions about decision-making follow inevitably from the demands for access to the environmental policy-making process. To the extent that the political legitimacy of any policy depends on the number of hands who shape it, the policy of the process is crucial. "In environmental matters there is an inherently affected community that must be heard," insists veteran board member Joan Anderson. "The process must adapt to that."
Ample opportunities for public comment were built into Illinois's rule-making process, as were opportunities for affected parties to comment and to make appeals from board decisions. The scope of the process was further broadened in 1975 when the General Assembly required that formal consideration be given to the economic effects of board decisions.
Final action on complex or controversial rules thus can take two, even three years. Forcade notes the example of a proposed rule setting tighter limits on hydrocarbon emissions. The rule would affect eight or nine industries in Illinois, each with its own unique technological and economic problems. Laments Forcade, "It could take as much as a year [of hearings] to hear their side of it."
Forcade points out philosophically that such delays are inherent in "seasoned decision-making." Less patient critics suggest that board decisions are often merely ingredients in seasoned delay-making. Even some board members admit that one of the barriers to broader public participation in rule-making is not the public's lack of necessary interest or expertise, but that they can't afford the time. Industry and agency are represented in board proceedings by paid spokesmen; even the public case is often put by full-time "environmental professionals."
There are those in Illinois who believe that the promise of a participatory policy process has been scuttled. That hope, which may have been in vain in any event, is made more so by the appearance on the board's agendas of such technically complex problems as toxics control. Whatever the hopes of the architects of the system in 1970, the process has become, in Forcade's phrase, "simply an extension of representative government.''
No matter how they are arrived at, the board's decisions are subject to official scrutiny. Important board rulings are automatically appealable to the Illinois
appellate courts. Such judicial review is based on the public record, and is theoretically limited to a determination of whether a board decision was "arbitrary or capricious." Judicial review allows for speedy resolution of disputed cases of the sort that drag on years in other states. Nor is Forcade alone when he says, "There is a tremendous advantage in keeping decisions that affect particular social areas subject to review by general bodies" such as the courts.
Unfortunately, admirable principles often make for inconvenient practice. "When a regulatory decision is appealed, the courts look for very particular documentation in support of our decision," Forcade explains. The problem is that such decisions, especially in such rapidly evolving fields as toxics control, are often at what he calls "the forefront of policy." When the facts are in dispute, the board may listen to ten experts, six of whom may say that "X" is good and four of whom will say it's bad: the board is likely to vote in favor of X. "The courts look askance at that," Forcade says.
Courts want proof, in short, of the sort seldom available. "The common impediment is that nobody knows whether X is good or bad. Or, less commonly, there is a guy in California who does think he knows and he'll come to testify—if we pay him $10,000."
Most court reversals of board rulings have been made on procedural rather than substantive grounds. Occasionally a judge ventures beyond the issue of a rule's arbitrariness and capriciousness into its scientific or technical merits. Forcade, for one, finds such second-guessing regrettable. "Board members were specifically selected on the assumption that we have technical expertise in these matters," he says. "That's not a criterion for elevation to the bench."
The Pollution Control Board itself is not a court but is obliged to operate very much like one. Because its rules carry the weight of law, they must be legally sound, and the process of their adoption procedurally impeccable. The result is that environmental rule-making has come to be dominated not just by engineers but by lawyers. This was probably inevitable. DENR economist Ken Costello, writing in 1985, decried the lack of economic incentives among the tools to control toxics as an alternative to traditional regulation, and blamed much of their absence on "the legal background of those responsible for writing environmental rules." A system devised by lawyers, in short, quickly becomes dependent on them.
Interestingly, no responsible observer of the Illinois system has proposed abandoning it. The reasons for their allegiance vary. Anderson's support is philosophical. "The conceptual underpinning of the Illinois Environmental Protection Act is equal access, a guarantee that no entity involved has special access to decision-makers. Most parties to the process in Illinois appreciate the checks and balance mechanisms that we set up to protect that access." Carlson's support is more practical. "There's a natural institutional tension," he notes. "It's supposed to be that way. It's probably fairer. The system has grown so complex that we need an opportunity to second guess bureaucratic decisions. But it's definitely not efficient."
The most familiar visitor before the board is the IEPA. The two bodies in some ways resemble two movie stars from the gossip magazines whom the public imagines to be hand in hand but who in fact are often hardly on speaking terms. Working from the same script, their roles remain very different. The board can and does overrule the agency on proposed regulations, on permit decisions, on landfill sitings.
Such tension as exists between the board and the agency owes as much to what some in the agency regard as the overdue deliberation the former gives to its decisions. "The tripartite structure in Illinois encourages buck-passing," states Carlson flatly, not bothering to deny that a few of those bucks have passed through his agency. "What takes as little as six months in other states can drag on for four years in Illinois." Anderson for one is sympathetic. "The agency's frustration often is a very natural one," she admits, adding drily, "Regulation requires elaborate due process."
Illinois' environmental administrators aren't the only people frustrated by this sometimes leisurely march toward decisions. Public anxiety about toxic pollution often manifests itself statutorily in the form of legislatively imposed deadlines. "We get legislation telling us to publish this study or enact this rule," says Pollution Board Control chairman Dumelle. "We understand the legislators' urgency, but you can't always develop a rule in one year." "We are getting increased deadlines for rules," says Anderson, although she says that the General Assembly has not been as interfering as Congress is with the USEPA. "A legislative focus on a public policy concern can be commendable," Anderson continues. "It's just that they can't realistically make informed determinations on the kinds of decisions that must be made." She concedes that a deadline is a lesser evil "if the alternative is to have the General Assembly try to legislate what is really a rule."
To the constraints of time must be added the constraints of information. One critic familiar with the process explains it: "You have to understand that everybody involved in a proceeding has an interest in being involved in the proceeding. They’re not particularly interested in the outcome. Everybody is making a living at this."
Anderson puts it more diplomatically. "On highly technical issues," she confirms, "the participants do not talk about the whole range of an issue, but only those issues of particular concern to" them." The hypothetical case of a proposed new standard to limit the emission into the air of Forcade's substance "X" will illustrate. Industry is likely to present only those cost data which reflect least favorably on the economic impact of the proposed standard. Environmentalists favoring the new limit may choose, from among dozens of ambiguous studies, those data which support the most dramatic claims of risk to the public health. IEPA staff may even cite the absence of reliable monitoring techniques as an impediment to its enforcement.
Such narrow ambitions pose problems for the board. Its decisions must be based on the record as developed in hearings, which means that a record limited by the calculated self-interest of the parties testifying can result in decisions of limited relevance. The recent acquisition of an in-house scientific staff has helped reduce the board's dependence on the testimony of interested parties."
The system has its own biases. Operators of public water supply systems in Illinois are obliged to make monthly reports of drinking water tests to the IEPA; landfill operators are obliged to make quarterly reports of routine checks of monitor wells. Reporting requirements for toxic air pollutants, however, scarcely exist, because there is little actual emissions data to report. Operating permits are issued based on computer simulations that predict what will come out of a smoke stack by extrapolating from what goes into the boiler at its other end; the IEPA's own monitoring equipment is limited to ambient air samples, not stack samples. Regulation is a function of information, with the result that the state scrutinizes waterborne toxics much more carefully than airborne toxics—a priority which may have little to do with their relative health risks or the cost-effectiveness of their respective remedies.
As noted, there is ample provision for public access to the process through participation in hearings, through the initiation (upon petition) of rule-making before the Pollution Control Board, through access to IEPA enforcement files. Indeed, some toxic control programs, such as the Illinois Department of Agriculture's weak pesticide program, rely utterly on the public for monitoring. Jim Yoho, an environmentalist attorney in Champaign, states flatly, "Illinois citizens who go to the trouble of pulling out files tend to do more for reform than anything else." Yoho cites a case of a leaking landfill near Joliet, where monitoring data lying dormant in IEPA files was analyzed by local activists, resulting in official remedial action. Local action, Yoho insists, "is a big factor any time anything gets done about toxics."
Critics point to such cases as confirmation of the IEPA's lack of manpower. Carlson points out that, as a state agency, his staff has to worry about tens of hundreds of landfills and waste sites, not just the one "up the road," and he worries that local pressure can lead to expensive cleanup actions inconsistent with the modest public health threats they avert.
Inevitably in Illinois, the equation linking process and policy is sometimes complicated by a third factor: politics. The political legitimacy of actions by the IEPA and Pollution Control Board derives largely from the degree to which citizens and local governments are consulted, if not obeyed.
Landfills are a case in point. Public anxiety about toxic leaks from landfills is mounting, from Hopedale to Quincy to Belleville. Even sanitary landfills have become controversial neighbors as people come to see any waste as more of a threat than a nuisance. As a concession to local concerns, the IEPA in the mid-1970s granted county boards and municipalities a say in site selection. (The authority was originally granted administratively until a court ruled that the agency did not have the discretion to delegate its own site-selecting authority; the arrangement has since been sanctioned by statute.) IEPA retains the authority to rule on the technical aspects of proposed landfills. In some cases, however, skeptical local authorities have commissioned their own independent analyses of such proposals—a conflict of prerogative which will probably have to be smoothed in court.
Enforcement of IEPA regulations is a further case in point. State law requires a cumbersome process in which violations are referred by the IEPA to the Office of the Illinois Attorney General for criminal prosecution. When the bosses of each—Gov. James R. Thompson and Atty. Gen. Neil F. Hartigan—recently became likely contenders for the state's top political job, cumbersome became contentious as well. As of late 1985, Hartigan's office had filed 18 enforcement actions, most at its own initiative, leaving the impression that the IEPA was being soft on polluters; at the same time the IEPA began referring cases to the USEPA for administrative action instead of seeking criminal prosecution via Hartigan's office, charging the latter with chronic delays. (On a wall at IEPA headquarters is a framed enlargement of a 1985 editorial cartoon showing a Rambo-like character standing with a machine gun outside a door marked IEPA; the caption reads, "Uh ... sir . . . Attorney General Neil Hartigan to see you.")
The offices have since agreed to a truce. Nonetheless, an enforcement mechanism requiring the close cooperation of an agency controlled by the governor and another major elective executive office likely to be controlled by the opposing political party is inherently vulnerable to political interference.
Bureaucracies at any level seldom need extrinsic political motives to compete. (At least one staffer who has spent time in both agencies observes that ordinary bureaucratic jealousies were at work as well as political jockeying in the dispute between Thompson's IEPA and Hartigan's office.) Panels such as the Hazardous Waste Task Force jointly established by Hartigan and Senate President Philip J. Rock, a Democrat, typically recommend better communication among state and federal agencies, but seldom say how to do it.
Local governments add another layer of responsiblity, and thus another layer of potential misunderstanding and mistrust. Kendall County citizens, worried about wells contaminated by what turned out to be benzene, were frustrated to learn that while county health departments have jurisdiction over individual drinking water wells, the IEPA has jurisdiction over the aquifers that feed them. Said one county official at the time, "It's one of those borderline things." It's a common occurrence in a system crisscrossed by so many institutional borders to begin with.
Of all the interagency relationships which shape the process of environmental policy-making in Illinois, none is as complex or as intimate as that between the state and the USEPA. While the states are often described as Washington's partners in the pollution fight, they often are treated more like conscripts, as the federal agency enjoys both a superior standing in the law and resources.
"The General Assembly tells us we have to keep abreast of the federal programs." explains Dumelle. Pollution Control Board chairman. "So we update the rules every six months or so." The USEPA's agenda for rule-making during a typical, recent six-month period lists 249 proposed rules. "Pretty soon you end up with a telephone book." Dumelle says. And keeping abreast of the feds often means moving sideways, not forward; one of the problems noted by the Hartigan-Rock Hazardous Waste Task Force was piecemeal federal laws; the state's telephone book on toxics policy, in other words, is not only bulky but some of its pages are blank.
Predictably, differences of ends lead to differences in means. The USEPA prizes uniformity, the states flexibility; the former considers issues from a national perspective, the latter from a more local (if not parochial) one. They are governed by different procedures, according to different calendars in differing political and economic contexts. To the innocent, it seems a system in the sense that guerilla warfare is a system.
Consider the wrangle that began when the Pollution Control Board, acting at IEPA's urging, granted variances to 21 Illinois communities from federal standards setting limits on the amount of naturally occurring radiation allowed in drinking water. Illinois maintained that the radiation in some cases only marginally exceeded the allowed maximums, that the processes to remove it were prohibitively expensive, that health effects were un-proven, that the board could not prescribe remedies because the USEPA had failed to issue promised treatment guidelines. The USEPA replied that the variances in effect exempted the affected communities from the federal standards, and moved in January to revoke them.
The dispute reveals deeper divisions. The USEPA is obliged to consider only health hazards; the state is compelled to consider economic costs in its regulatory decisions. The USEPA complained that the state had ignored relevant regulations; the state complained that the regulations were unclear or did not exist. The feds took action because of the state's bureaucratic sins, not out of immediate evidence of risk; the state replied, in effect, that the spirit of the law in this case made a better guide to policy than its letter.
The divisions extend beyond the problem of radioactive drinking wells to basic philosophies. The USEPA (prodded by Congress) has used the 1976 Resource Conservation and Recovery Act or RCRA as its main weapon against toxic pollution. RCRA prescribes a compound-by-compound approach, what Carlson calls "cookbook toxics control." The IEPA, on the other hand, has made the Toxic Substances Control Act (TSCA), also passed in 1976, the underpinning for its toxics management strategy. That act (still largely unimplemented) calls for a more comprehensive approach to toxic risk reduction. "There is a fundamental policy choice," explains Dumelle. "Do you go compound by compound? Or is there another way to do it? Should we attack these compounds generically, perhaps by requiring incineration or some other broad-brush disposal technology of whole classes of this stuff?"
Part of the USEPA preference for a RCRA-type approach may be explained by the political pressures operating on it. The USEPA looks to the states to produce indications of activity to prove that it is doing its job. Carlson explains. "The USEPA is under severe political pressure, so they tell us to produce something. They want to show the number of permits issued, inspections made, filings for enforcement actions because we don't have any other good measure of progress. It's what we here call a bean-counting exercise."
The USEPA under Reagan is asking the states to do more than just count beans. The USEPA's long-awaited air toxics control strategy was announced in June of 1985. It stressed what agency spokesmen described as "federal-state cooperation," under which the feds would focus on reducing toxic air pollution from such dispersed sources as woodstoves, dry cleaners, and gasoline stations; the states would be left to monitor the fewer but bigger sources such as chemical plants. Critics quickly criticized the plan as a way for the Reagan USEPA to relieve the regulatory burden on industry by abandoning the task to understaffed, underfunded state agencies under the ruse of administrative flexibility.
Such moves have been countered by a Congress whose recent legislation, such as the reauthorized Safe Drinking Water Act, the 1984 amendments to RCRA and the reauthorized Superfund act, are more and more prescriptive. Congress not only has been setting ambitious goals for toxics control but specifying the deadlines by which they must be met, in some cases even specifying the technologies to be used to meet them. Rather than giving regulators more leeway, a distrustful Congress has given them less. Joan Anderson sums up recent trends in her observation about what she calls "son of RCRA": "Congress put a bunch of hammers on us."
The reauthorized Safe Drinking Water Act, for instance, requires the USEPA within three years to set safe limits for an additional 83 contaminants (the present version covers two dozen). It further requires states (also within three years) to adopt groundwater protection plans. Congress, however, allocated only a fraction of the money to do either — another instance of what many critics see as Congress' failure to reconcile legislatively complex policy problems to the federal budgets, environmental needs, and state-federal partnerships.
Toxics emerged as an issue at a time when the federal fiscal commitment to environmental programs was beginning to fade. Congress resisted White House pressures and increased funds for emergency cleanups under the Superfund program. But grants for more mundane work by the states, such as planning, testing, monitoring, permit reviewing, or enforcing rules, have been shrinking.
Illinois has been obliged to make up some of the federal shortfall. Every recent independent analysis of agency operations, such as those done by the Hazardous Waste Task Force and the nonprofit Health and Medicine Policy Research Group, stressed IEPA's need for more money and staff to cope with toxics. In 1985, for example, IEPA ran its new toxics biomonitoring programs by "borrowing" staff from existing programs; top staff admitted at the time that progress in air toxics surveillance would come at the price of cutbacks in the sampling for conventional air pollutants.
After years of stagnant state funding, however, appropriations to the IEPA increased in fiscal years 1985 and 1986, with much of the new money going to toxics control programs. In 1984 the Thompson administration also allocated $20 million for the "Clean Illinois" program to clean up 16 sites on the State Remedial Action Priority list (sort of a mini-Superfund), to fund the state's share of federal Superfund cleanup costs, to set up expanded groundwater monitoring, and to do research. Funds generated by new fees levied on hazardous waste generators support further state cleanup and research work.
Merely spending money is not likely to reduce the risks from toxics, although it may well reduce the political risks of not spending it. Congress doubled the White House's budget for the Superfund, but there is real doubt that the increase will buy twice as much safety; there are not enough safe disposal sites to accommodate so much material, with the result that Superfund's spawn often is merely moved from one leaking landfill to another.
Hazardous wastes are only one manifestation of toxic pollution (and not necessarily the most hazardous one). But the complications encountered to date as environmental agencies try to cope with this relatively straightforward set of tasks are not encouraging. A 1985 audit of the IEPA's hazardous waste management program by the Illinois auditor general was scathing. Waste fees were left uncollected, the report said, and the manifest system designed to track the movement of wastes had major deficiencies, while reports were out of date and key records were inaccurate or incomplete. A top IEPA official, recalling more recent and much-publicized complaints about the Illinois Department of Public Health, jokes grimly, "Now they're the worst agency in state government."
Tracking paper and tracking waste, however, often have little to do with each other. While the efficient administration of an inefficient system may bring smiles to auditors, it may not do much else to improve the environment.
Questions about "how to do it" seem premature when the question of what to do has yet to be settled. In a 1986 position paper, the Illinois Environmental Council (IEC), the lobbying voice for the state's several dozen environmental organizations, expressed regret that Illinois "never developed a coherent approach to the overall toxics problem." A more open inquiry into basic policy questions is needed, stated the IEC, via what it called "new mechanisms for public participation."
Kevin Greene is a part-time IEC lobbyist. "There's no overview," Greene points out. "What's missing is an overall public policy debate about toxics." Virtually all the parties involved agree that the General Assembly, which theoretically is the proper venue for such debate, is a better place to shape programs than policy. That task has been attempted in several other, less crowded forums. The IEPA, for example, convened an advisory committee of knowledgeable citizens when it drafted its new toxics control strategy. The Hazardous Waste Task Force entertained comment from both professionals and the lay public around the state. Most intriguing of all is the Environmental Consensus Forum, established in 1980 originally under the aegis of the University of Illinois's Institute of Government and Public Affairs and now overseen by the U of I's School of Public Health; composed of important business, industry, environmental, and public health representatives, the forum explored toxics policy as early as 1982, when it drafted a compromise proposal to ban the landfilling of hazardous wastes, which eventually became law.
Each of these efforts, while commendable, has been less than comprehensive. Advisory committees are suspect, if only because they serve at the discretion of those agencies seeking advice. Inquiries by bodies such as the Hazardous Waste Task Force have been limited to only a few aspects of the toxics problem, and in this particular case carried the taint of political partisanship. The Environmental Consensus Forum is an independent entity which, perversely, suffers from its independence, since it has no handle on the levers of power; one sympathetic observer privately describes it as "a solution in search of a question."
The IEC proposed that toxics policy serve as a model for a new kind of environmental policy-making. Arguing that "citizen concerns have not been seriously considered" under present arrangements, the group endorses among other things a comprehensive review of options for toxic control policy, including analysis of management techniques used in other states and expansion of the public's right to petition for rule-making "without the current burden of proof burden required under current Pollution Control Board rules."
That public, alas, is likely to remain more anxious about toxics than informed. The fact that the general public doesn't know everything about toxics isn't as much a problem as their assumption that regulators do, or should.
The broader purpose of such a broader process, it seems, would not be to legitimize a policy so much as to legitimize policymakers. To work, regulation must be rendered politically acceptable to the regulated community. Toxics promise to make almost everyone a member of a regulated community. Tracking down toxics is likely to force regulators to intrude into areas of daily life heretofore exempt, from crabgrass cures to local land use.
It is tempting to see something of the 1960s in the 1980s. In those years, a series of controversies inside and outside Illinois gradually made people inside and outside government realize that the familiar apparatus for environmental protection was woefully inadequate—with regulatory authority split among too many agencies having too few resources, each dealing only with a narrow range of traditional health concerns.
Whether Illinois needs to reinvent its environmental protection establishment to protect itself against toxics, as it did in 1970, or merely redirect it, cannot yet be said with certainty. One of the things that is different in the 1980s is that environmental programs since 1970 have acquired an inertia—an encumbrance of laws, procedures, and vested interests—which makes it all the harder to shift them. Many steps have already been taken to provide more money, better interagency coordination and more research, but it will take years to know whether they led environmental protection in the right direction. "The problem isn't so much managing an unmanageable system," concedes the IEPA's Carlson, "as it is knowing what to do." ●
Rules by consensus?
A frustrated Bill Forcade, member of the Illinois Pollution Control Board, sees great potential in some system of negotiated rule-making or consensus decision-making or consultation. Decision-making authority would remain with the board, but parties to a proposed rule would work together informally to agree to general concepts and terminology, perhaps even to draft some of the specific language of the rule. The result would be to speed the public sessions before the board.
Forcade notes that such techniques are well established both in the U.S. private sector and in government regulation in Europe and Canada.
While no state has yet invested any authority to use mediation or negotiation in either environmental rule-making or enforcement, such techniques are something of a fad in Washington, D.C. Farmers and farm workers are meeting the staff of the U.S. Environmental Protection Agency (USEPA) to draft regulations protecting field workers from exposure to toxic pesticides, and labor unions and manufacturers have been invited to the Occupational Health and Safety Administration to talk about minimum exposure levels to industrial solvents. Most significant were the negotiations between consumers (the Campaign for Pesticide Reform) and industry (the National Agricultural Chemical Association) which recently broke a 13-year deadlock during which the new Insecticide. Fungicide and Rodenticide Act languished in Congress. Frustrated by the cost and uncertainties of their lobbying and litigation contest, the two sides signed an agreement covering such contentious issues as timetables, funding and public notification procedures; a national reporter said it was as if the PLO and Israel had signed a mutual defense pact.
Illinois Pollution Control Board member Joan Anderson remains dubious. "There certainly is a place for what I call consensus." she states. "But the process in Illinois doesn't only not preclude negotiation, it requires that it be open negotiation." She points to the federal environmental rule-making process, where consultation with industry over proposed rules has often been so informal as to be indictable. Parties not privy to these sessions (usually environmentalists) must challenge them after the fact, in court. The contention and delay are not really eliminated, she suggests, only deferred until later in the process and to a forum less equipped to cope with them. ●
IEPA's new strategy: Controlling the forest instead of
chopping it down tree by tree
"States have tended to be laboratories of imitation rather than innovation in environmental management," writes Barry Rabe of the University of Michigan School of Public Health in a 1986 report, "Fragmentation and Integration in State Environmental Management." Rabe sees the Illinois Environmental Protection Agency's (IEPA) Integrated Toxics Control Strategy, announced in 1984, as a laudable exception.
The agency in the early 1980s undertook what Rabe calls an "expansive" two-year review of its own toxics control programs. Under the general direction of Roger Kanerva, IEPA's manager of environmental programs, the review sought ways to reduce the single-medium bias of conventional pollution programs, thus equipping the agency to cope with the more comprehensive challenges posed by toxics. As Kanerva put it in 1984, such efforts would necessarily "cut across traditional program boundaries within our agency and extend outside this bureaucratic realm to other state agencies such as [the departments of] Public Health and Agriculture."
The new policy outline was published in 1984 in a report titled "Chemical Safety: An Agenda for Continued Progress in the Control of Toxic Pollutants." The agency's ambitions were necessarily described in terms of permit review processes and so on. But overall the report promised a fundamental shift in approach—from a single-medium to a cross-media perspective, from chemical sampling to biological testing as a proof of toxic damage, from the elimination of hypothetical risk to the management of measured risk, from an utter dependence on traditional regulatory structures to the reliance on economic incentives and recycling.
Richard J. Carlson, IEPA director, explains, "We think it makes more sense to find problems and then solve them, instead of looking at chemicals that might be problems and then eliminating them. Toxicity is the best measure of risk, if you can find ways to do it." The agency is already at work on perfecting ways to test for toxic damage. The IEPA's expanded biomonitoring program exposes living organisms, such as plants, water fleas, and minnows, to samples of polluted air, water, or soil and examines them for evidence of harm, such as mutated genes.
The approach is controversial. The nonprofit Health and Medicine Policy Research Group in Chicago worries that toxics "will not be controlled or regulated until after a definitive problem has been demonstrated," despite the agency's stated goals of preventing chronic health effects from toxics.
Traditional pollution programs have the advantage of knowing the agents of risk, be they lead or cholera germs, and thus being able to devise control techniques for each. With thousands of suspect substances at large in die environment, the traditional approach leaves regulators in the position of trying to put out a forest fire one tree at a time. "You can do one, maybe two chemicals a year," says Carlson.
Opinion outside the agency (and, according to some reports, inside it as well) is more than skeptical. A critique by the Health and Medicine Policy Research Group in 1985 criticized the new agenda's lack of cost estimates and specific implementation plans. The group also worried that a shift to biological monitoring might be made at the expense of ongoing sampling for recognized hazardous substances.
Other objections are more fundamental. Robert Ginsburg is research director of the Citizens for a Better Environment and among the staunchest critics of the IEPA's toxics strategy. Ginsburg was principal author of the recent position paper of the Illinois Environmental Council, "Toxics Policy for Illinois." About the IEPA's strategy die paper states: "It was developed virtually behind closed doors with little public discussion or input from any but the regulated community. The proposal was never made enforcable as either legislation or regulation. Further, the philosophical approach it espoused—one based on eliminating 'unreasonable risk' from toxics as opposed to one based on eliminating the toxics threat to the maximum extent technologically feasible—was dictated by the Agency from the outset."
Ginsburg elaborates: "Industry says that, until you know for sure that a given substance is dangerous, don't regulate. The other side says that, even if you don't know but there is a reasonable basis for action, you should regulate to protect the public health." Ignorance thus is offered as a rationale for both action and inaction.
Has the compound-by-compound, command-and-control regulatory approach indeed been outmoded by the sheer scope of toxics pollution? Jacob Dumelle, chairman of the Illinois Pollution Control Board, is one of those people who wonder whether the application of such a system to dozens, even hundreds, of toxic compounds can make it so intricate that adding to it is folly.
Dumelle believes that zero-discharge can still be a valid goal for a toxics control program. The problem is to adapt it by attaching it to what he calls "broad brush" control techniques such as high-temperature incineration. "We can say, 'Less is better,' " suggests Dumelle, "and concentrate on individual processes that put out the least amounts of whole classes of dangerous substances. In effect, you say to hell with the compound-by-compound approach and get as close to zero-discharge as you can."
Illinois has undertaken basic reform in its environmental programs before. The aim of the original tripartite agency structure in 1970 was, after all, to consolidate authority in environmental regulation which was then shared among disparate agencies. More to the point, its aim was to allow a more coherent policy by broadening the prevailing single-medium focus; as Gov. Richard B. Ogilvie pointed out in his special message on the environment that year, "We live in one unified environment and we need one unified program." ●