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regulatory barriers

A consensus among interested parties--the U.S. Environmental Protection Agency, Congress, states, and private industry--is that regulatory burdens are restraining the growth of the innovative environmental technology market. The real question is what roles will the principals play in smoothing the regulatory path for innovative technologies?

Environmental technology development is outpacing the ability of the regulatory community to approve new technologies. The lag between development and regulatory approval is not only delaying the commercialization of effective and efficient solutions to environmental problems, but is also impacting U.S. leadership in the global environmental technology market.

Regulatory barriers
to innovative remedy selection

On June 20, two subcommittees of the House Committee on Science (the Subcommittee on Energy and Environment, and the Subcommittee on Technology) convened a joint hearing to consider testimony on the question, "Environmental Regulation: A Barrier to the Use of Environmental Technology?" The witnesses were: David Gardiner, EPA assistant administrator for policy, planning, and evaluation; Peter Carroll, vice president of government affairs at Solar Turbines Incorporated; Jan Geiselman Power, president and chief executive officer for Power Associates Corporation; and John Urh, representing the Analytical Instrument Association.

EPA's Assistant Administrator Gardiner identified several market impediments to innovative technologies and admitted that the greatest of these is EPA. "But of all the factors that inhibit technology innovation," he said, "perhaps none is more significant than the prescriptive nature of the environmental policy framework, including regulatory, permitting, and enforcement programs, at the federal, state, and local levels. For example, many environmental standards currently in place tend to lock in the use of existing technologies because they are based on reference technologies that were already well demonstrated when the standards were promulgated."

In this regard, Peter Carroll of Solar Turbines Incorporated testified how the Clean Air Act inhibits technology selection. Regulatory agencies need flexibility to allow them to approve innovative environmental technologies that are appropriate for site-specific circumstances, rather than relying strictly on [such concepts as] best available control technology or lowest achievable emission rate.

Jan Geiselman Power testified how inflexibility in applying Superfund's presumptive remedies can deter the use of innovative technologies. She said, "Presumptive remedies seek to capitalize on experience gained at certain classes of sites, such as municipal landfills, polychlorinated biphenyl sites, and volatile organic compound-contaminated sites. Rather than conducting exhaustive studies on remedial alternatives, EPA, through presumptive remedies, pre-identifies technologies found to work at those categories of sites." Once a presumptive remedy has been finalized, the danger is that promising innovative technologies may fail to be recognized as viable alternatives. "Presumptive remedies must be flexible enough for easy and frequent updating as new technologies emerge."

Power also pointed out how the Resource Conservation and Recovery Act can impede the use of innovative technologies. "RCRA Land Disposal Restrictions mandate the use of Best Demonstrated Available Technology. BDAT for organics is costly incineration, because it achieves a 99.99 percent destruction and removal efficiency and is, therefore, best. Bioremediation can achieve about a 90 percent reduction. But keep in mind that virtually all the remaining 10 percent of contamination is not biologically available for release to affect human health or the environment. And bioremediation can be conducted at a tenth of the cost. So, which is best? A cleanup of a one-acre surface impoundment with minimal contamination cost $36 million due to RCRA incineration-driven LDRs. Bioremediation would have been an ideal alternative had not the rules prevented it."

John Uhr of CETAC Technologies, Inc. represented the Analytical Instrument Association at the hearing. He spoke about the delays in obtaining EPA approval of new analytical instruments for environmental measuring and monitoring. Uhr said, "The current system, which requires use of specific EPA-approved analytical methods to perform environmental measurement, inhibits and delays for years the use of new environmental measuring and monitoring methods. The EPA methods are highly detailed and often specify the use of specific procedures and analytical instrumentation to prepare the sample and to perform the analysis. They must be precisely followed or the results will not be acceptable to auditors and to the company or municipality that has contracted for the test, as well as to the state environmental agency and to the U.S. EPA regional and national offices. The primary cause for the long delay in obtaining approval of new analytical methods appears to be the inflexible and cookbook type detail of the existing methods."

Uhr urged EPA to adopt "performance-based environmental monitoring methods, in which the focus is on the scientific results of the analysis and compliance with data quality assurance criteria without prescribing the particular procedures, analytical techniques, or instrumentation to be used." Uhr said a program-wide, performance-based methods approval system "offers the greatest promise of substantially reducing methods approval times and stimulating the development and early use of new environmental technologies."

The complete testimonies of the witnesses who appeared before the joint House hearing on June 20 are on the Internet at

EPA wants to lead the charge

To protect the nation's environment and public health and promote U.S. commercial interests, EPA is identifying regulatory barriers and institutional disincentives for using innovative technologies. EPA's goal is regulatory reform on two fronts--modifying existing regulations now and working toward creation of a new regulatory framework that replaces the present system of command and control regulations with performance-based regulations.

Assistant Administrator Gardiner's June testimony included specific ways EPA is improving the existing regulatory system to encourage use of better, more efficient technologies.

Congress may pre-empt EPA's show

Instead of approving EPA's requested budget for regulatory reform, Congress can simply mandate EPA cut red tape. Provisions in both House and Senate versions of the National Defense Authorization bill for fiscal year 1997 stipulate that EPA and state regulatory agencies continue to streamline administrative procedures and eliminate unnecessary regulatory duplication to expedite cleanup.

States experiment with reciprocal permitting

Other players in streamlining the permitting and use of environmental technologies are states. For example, New York and Pennsylvania have become the newest members of a six-state partnership to promote cooperative approval and permitting of innovative environmental technologies. By a Memorandum of Understanding signed June 4, New York and Pennsylvania joined California, Illinois, Massachusetts, and New Jersey to establish a five-month pilot demonstration program to evaluate 12 new technologies (two from each state), which range in media and technology type from prevention to remediation. By identifying common data and review procedures, the partners aim to develop a reciprocal process for expediting the approval, permitting, and certification of environmental technologies among the six states.

Other collaborative federal,
state, and industrial initiatives

Among the scores of initiatives involving federal, state, and industrial partners are the following projects that focus on clearing the regulatory path for innovative technologies.

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