13 Admin. L. News 1 (1987-1988)

handle is hein.journals/admreln13 and id is 1 raw text is: ADMINISTRATIVE
-      Published by the Section of Administrative Law, American Bar Association, Vol. 13, No.1,
The Successful Use of Regulatory Negotiation by EPA
by Lee M. Thomas

(Editor's note: This article is an edited version of re-
marks made by the Administrator of the U.S. Environ-
mental Protection Agency at a colloquium on improving
dispute resolution procedures in the federal government.
The colloquium was presented by the Administrative
Conference of the United States on June 1, 1987, as part
of its program in alternative dispute resolution. The pro-
ceedings of the entire colloquium will be published in a
forthcoming issue of the American University Journal
of Administrative Law.)
The concept of negotiation and consultation is be-
coming a part of the institutional fabric of the U.S.
Environmental Protection Agency. As the Admin-
istrator for the last 2/2 years and Assistant Admin-
istrator for two years before that, it is easy for me to
understand why this has happened. EPA frequently
finds itself involved in disputes, and I would rec-
ommend the Administrator's job to only those who
like dispute resolution.
The issues EPA confronts are complex. Resolving
those issues requires input from many different par-
ties. We have a broad range of responsibilities. Our
statutory authority is incorporated in a dozen laws.
Our responsibilities may, at any particular time, range
from pesticide decisions to decisions relating to
whether or not to fill a wetland area or what kind of
standard to set for air pollution control. So the work
we do is technically complex.
It is also legally complex. Fortunately, I am not a
lawyer, and that has helped me sort through the is-
sues. The laws oftentimes lack extensive legislative
history to guide us. Many of the laws that we admin-
ister are relatively new, enacted within the last five
to ten years. But each has certainly been tested ac-
tively since enactment.
And, the issues we deal with are definitely emo-
tionally complex. Many people have strong opinions
on our standards and how we implement our stat-
utes. In many cases that emotion revolves around the
issue of residual risk, because that in fact is what we
often end up dealing with. The debate is not on the

level of protection. Rather, it is frequently on what
level of risk remains once our particular standard or
our particular action is completed. Additional de-
bate may focus on the economic impact of the action
we may be promoting.
The players in these debates are many. They in-
clude our agency; other federal agencies that have
direct involvement and interest in how we resolve
issues; the regulated community, and for us that is
virtually all business and industry, and many levels
of government; public interest groups, particularly
those that have been formed to advocate more en-
vironmental controls; our counterpart state and lo-
cal regulators-all states have counterpart agencies
to ours and in many cases so do local governments;
and, finally, citizens at large or citizens who have a
particular interest in a site-specific action we are tak-
Now, with that range of players and that range of
complexity, and with the fact that our issues are not
becoming less difficult but, I believe, more difficult
to resolve, we have established negotiation, consul-
tation, and improved communication as an overall
management theme within our agency. Particularly
over the last several years we have worked hard to
see how that theme could be incorporated into the
actions that our agency takes.
Specifically we have incorporated negotiation and
consultation into our regulatory development pro-
cess, but beyond that we have also moved to try to
establish this approach as a part of our policy devel-
opment and as a part of our site-specific action pro-
gram in the-agency-whether it is cleaning up a
Superfund site or going forward to permit a hazard-
ous waste disposal facility. Finally, we are moving
forward to establish this concept as a major part of
our enforcement efforts.
Regarding regulatory negotiation, several years
ago we looked at the processes EPA used for devel-
oping regulations and decided to explore the utility
of supplementary and complementary approaches.
(continued on page 3)

Copyright © 1987 American Bar Association

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