Compliance: The Original Sustainability
Throughout this country's relatively short history of regulating the environment, most of the major programs have focused on a model of forced compliance to achieve the desired goal: a cleaner environment. Over the years, as our natural resources have continued their inevitable slide toward exhaustion, federally and locally mandated compliance programs have begun the logical shift toward the notion of sustainability.
Throughout this country’s relatively short history of regulating the environment, most of the major programs have focused on a model of forced compliance to achieve the desired goal: a cleaner environment. Over the years, as our natural resources have continued their inevitable slide toward exhaustion, federally and locally mandated compliance programs have begun the logical shift toward the notion of sustainability.
Common use of the term “sustainability” began with the 1987 publication of the World Commission on Environment and Development Report, Our Common Future. Also known as the Brundtland Report, this document defines sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” Sustainable development marries two important concepts: (1) environmental protection does not preclude economic development, and (2) economic development must be ecologically viable in the long run. This concept of sustainability also encompasses ideas, aspirations and values that inspire public and private organizations to become better stewards of the environment and promote positive economic
growth and social objectives.
A combination of forces, including unprecedented population growth, economic constraints, urbanization and increased energy use, are imposing new stresses on the earth’s resources and society’s ability to improve, or even maintain, environmental quality. Regulatory programs promulgated by the U.S. Environmental Protection Agency (EPA) and state and local agencies recognize these challenges, and are constantly developing policies and programs mandating
pollution control and prevention and encouraging sustainable practices.
Without question, more change is coming with regard to environmental programs and policies. As such, competitive advantages will inure to those companies that are able to anticipate and prepare for these changes. Many of our nation’s largest companies, institutions and government offices are already taking voluntary steps above and beyond what is currently required, and it is inevitable that they will impose similar requirements on their vendors and contractors. The ability to predict the
types of environmental constraints that are likely to be imposed on businesses in the near and distant future, whether by government or private entities, requires a solid understanding of past and existing frameworks, as well as the direction our national attention is taking with regard to environmental goals.
Compliance is the first step to sustainability. For businesses striving to achieve restorative, sustainable practices, compliance is a minimum baseline to keep pace with changing demand and marketplace requirements. This article will provide a brief overview of some of the major environmental compliance programs created and implemented by the EPA with regard to air, water and land protection.
Without question, the air that we breathe today is healthier than it was decades ago. In the 1970s, pursuant to the Clean Air Act (CAA), the EPA identified six common, or “criteria,” air pollutants for which it established National Ambient Air Quality Standards (NAAQSs): (1) ground-level ozone, (2) particulate matter, (3) carbon monoxide (CO), (4) nitrogen dioxide (NO2), (5) sulfur dioxide (SO2) and (6) lead. Since 1970, total national emissions of the criteria air pollutants have been reduced by 25 percent. Remarkably, this improvement in national air quality occurred despite the fact that, during the same 30-year period, the U.S. gross domestic product increased 161 percent, energy consumption increased 42 percent and vehicle miles traveled increased 149 percent.
At elevated ambient levels, the criteria air pollutants, both alone and in combination, are associated with adverse effects on human health and the environment. In setting the NAAQSs for each of the criteria air pollutants, the EPA intended to protect the environment and achieve public health goals as required by the CAA. By law, the NAAQSs are periodically reviewed and revised. Information on air quality for criteria air pollutants is based on actual measurements of pollutant concentrations in the ambient air at more than 5,000 monitoring stations across the country. Areas meeting CAA standards are designated as “attainment” by the EPA, and areas failing to meet it are designated “non-attainment.” The City of Atlanta and the surrounding counties, for example, are designated as “severe non-attainment” for ground-level ozone.
Regulated sources of criteria air pollutants, such as large factories, have to meet different emission standards depending on the status of the region in which they are located. Emissions of criteria air pollutants in non-attainment areas are more heavily regulated than in attainment areas. Threshold
emissions (measured in tons) of criteria air pollutants that cause a source to be considered a “major source” requiring a permit may be significantly lower in non-attainment areas than in attainment areas. In addition, facilities in non-attainment areas may be required to purchase pollution offsets or
credits from other facilities in order to expand operations, or, in some cases, maintain current operations. It is also worth noting that, very often, the ratio of offsets, which can be generated
by facilities voluntarily taking emission sources offline, to emissions is significantly higher than one-to-one, meaning that the EPA can allow new sources into a non-attainment area while simultaneously decreasing the total amount of criteria air pollutants in that region.
In addition to the six criteria air pollutants, the CAA identifies and regulates 188 toxic air pollutants. Common examples of toxic air pollutants are benzene, which is found in gasoline; perchloroethylene, emitted from some dry-cleaning facilities; and methylene chloride, which is commonly used as a solvent in a number of industries. Unlike the criteria air pollutants, which are monitored and regulated on a national level, air toxins are regulated at the individual source through the CAA’s permitting programs.
Under the current regulatory scheme, permitted sources are divided into three categories: (1) major sources; (2) synthetic minor sources, which have the capacity to emit at a major source level, but artificially restrict their emissions below the threshold for major sources; and (3) minor sources. Major sources are more strenuously regulated, and stricter monitoring and technical requirements apply to the permits for their operations. Permitted facilities must meet specific emission limitations for
each toxic pollutant they emit. In addition, permitted facilities must demonstrate that they are employing emission-control technologies applicable to their respective industries.
Unfortunately, concentrations of toxic air pollutants cannot be quantified on a comprehensive, national level because, unlike with the criteria air pollutants, there is currently no national monitoring network for the toxic air pollutants. Data from several metropolitan areas, however, show that levels of selected toxic air pollutants have decreased since being regulated by the CAA. For example, the levels of benzene measured at 95 urban monitoring sites decreased 47 percent from 1994
Average ambient concentrations of the six criteria pollutants have shown improvements over the past 20 years as well. For most parts of the country, the average ambient levels of lead, CO, SO2 and NO2 are lower than the standards. For example, based upon the EPA’s air quality index data, the percentage of days across the country on which air quality exceeded a health standard dropped from almost 10 percent in 1988 to 3 percent in 2001. Studies such as these demonstrate significant improvements in urban air quality over the past few decades. All of these important improvements were achieved through careful implementation of rules and regulations promulgated under the CAA. Further, improvements such as these suggest that we are making important strides toward sustainability.
Safe drinking water, pristine waterways, lakes for swimming and catching fish, and aquatic life habitat are important resources to our country. The nation has made significant progress in protecting these resources in the last 30 years. One need only recall the burning of the Cuyahoga River in the late
1960s as a graphic reminder of the progress this country has made with regard to protecting its waters.
States and territories have major responsibilities under the federal Clean Water Act (CWA), including the task of assessing their waters to determine if water quality is supporting “designated uses” pursuant to state water quality standards. States are required to survey all of the waters within their boundaries and place them into one of four categories: (1) for use by aquatic life; (2) for use as drinking water; (3) to support water for fish and shellfish consumption; and (4) for recreational, agricultural, industrial and domestic uses. States must then establish water quality standards for the bodies of water, the stringency of which depends upon their “designated use.” The EPA assists
states with this process by developing recommendations for criteria to protect human health and aquatic life.
Pollutant standards vary from state to state because (1) they address different designated uses and government policies; (2) variations exist in natural conditions and ecosystem characteristics; and (3) there are geological influences on the natural chemistry of water. States also are charged with identifying the principal causes of impairments such as siltation, pathogens, metals (particularly mercury), nutrients, habitat alteration, pesticides, organic enrichment/low-dissolved oxygen, thermal modifications and low or high pH.
The loss of natural areas adjacent to water bodies to development and agricultural activities is causing serious concern regarding our ability to maintain waterways in a sustainable fashion. This effect is especially hard-felt in fast-growing areas such as the southeastern United States. When impervious
surfaces — asphalt and concrete, for example — impede or accelerate natural flows, water cannot percolate through soil. As a result, rainwater rushes off, picking up pollutants and overwhelming local streams. Further, the recent trend toward low-density development leaves fewer pristine natural areas
and trees, and exposes more land to pesticides and chemical fertilizers, thus polluting stormwater runoff and, subsequently, our water bodies.
An analysis of rivers, streams, lakes and reservoirs, based upon U.S. Geological Survey (USGS) data, revealed that 23 percent of the stream banks, lake shorelines and adjacent wetlands have been altered by use as crop lands or by urban development. The USGS has synthesized contaminant and
nutrient data from its 1992–1998 National Water Quality Assessment (NAWQA) Program on 36 study units throughout the United States. Some of the major findings include the following: (1) detectible concentrations of pesticides are widespread in urban, agricultural and mixed-use area streams; (2) streams in urban areas generally have higher concentrations of insecticides than streams in agricultural areas; (3) elevated (above background) levels of heavy metals are found in most U.S. waters; and (4) widespread volatile organic compounds, such as benzene, toluene and ethylbenzene, are seen in shallow, urban groundwater. In addition to these problems, contaminated sediments can be a serious issue in areas where industrial activity has occurred.
Much of the industrial activity in the United States predated our awareness of the harmful effects of certain pollutants and the adoption of pollution-control programs. Industrial pollutants such as dioxins, mercury, lead, polychlorinated biphenyls (PCBs) and other persistent toxic chemicals and
sediments can affect water quality and aquatic life. Industrial releases of metals also remain potential stressors to water quality.
States regulate water quality in part through the implementation of National Pollutant Discharge Elimination System (NPDES) stormwater and wastewater discharge permits. These programs regulate everything from stormwater runoff from construction sites to industrial wastewater discharges
from manufacturing operations. While there is strong evidence that these programs are working, achieving sustainable water quality remains a challenge.
Another important program under the CWA is found under Section 404 and applies to our nation’s wetlands. Wetlands provide critical habitat, breeding grounds, resting places and sources of food for fish, shellfish, birds and other wildlife. They also filter pollutants, limit flooding and buffer coastal
areas from storm damage. As graphically demonstrated by Hurricane Katrina, loss of these habitats can destroy an ecosystem’s natural ability to diminish the effect of devastating storm surges.
In 1997, the United States had approximately 105.5 million acres of wetlands — less than half of the 220 million acres estimated to have existed in 1600. Until the 1970s, conversion to agricultural land was a predominant cause of wetlands loss. Since then, rates of annual wetland losses have been
dropping, from almost 500,000 acres to fewer than 100,000 acres averaged annually since 1986. This decrease is due in large part to compliance with Section 404 of the Clean Water Act. Section 404 is administered by the U.S. Army Corps of Engineers and prevents the deposition of dredged or fill material into water bodies, including wetlands, of the United States without obtaining a permit authorizing and regulating the activity. Most states have similar “sister” programs that
are usually administered through cooperative agreements between the Corps and the state. Through compliance with these programs, we have been able to greatly slow the rate of wetlands lost when compared to historical losses.
Steadily, as more information is gathered and programs are adjusted, compliance schemes are moving our commercial, residential and industrial practices toward sustainable rates of water-quality impacts.
“Waste” is broadly defined as unwanted material left over from manufacturing processes or refuse from places of human or animal habitation. Within that category are many types of waste recognized by the EPA, all of which have properties that may make them dangerous for human health and the environment.
In recent years, there have been major improvements in the nation’s management of waste. The focus of national, state and local waste programs has shifted from disposal methods to pollution prevention through waste reduction. Preventing pollution before it is generated is often less costly than remediating pollution. Further, resource reduction and recycling programs reduce pressure on the environment by protecting resources and land. Increased recycling also extends the lifespan of disposal facilities, such as landfills.
The types of waste generated range from yard clippings to highly concentrated hazardous waste. Only three types of waste — municipal solid waste (MSW), “hazardous waste” as defined by the Resource Conservation and Recovery Act (RCRA), and radioactive waste — are tracked with any consistency
on a national basis.
Municipal solid waste, otherwise known as trash or garbage, is one of the nation’s most prevalent waste types. In 2000, the United States generated approximately 232 million tons of MSW, which represents an increase of nearly 160 percent since 1960. During that same time, the population increased 56 percent and gross domestic product increased nearly 300 percent. In 2000, each person generated approximately 4.5 pounds of waste per day, up from 2.7 pounds per capita per day in 1960. For the last decade, per capita generation has remained relatively constant; however, the amount of MSW “recovered” — i.e., recycled or composted — increased more than 1,100 percent, from 5.6 million to 69.9 million tons in total. This increase is due in part to public demand and awareness.
The term “RCRA hazardous waste” applies to waste that is ignitable, corrosive, reactive and/or toxic, or to waste from specific processes that are listed under RCRA. RCRA tracks and regulates the generation of hazardous waste by requiring generators to comply with strict rules regarding the generation, handling, transportation, storage and disposal of these wastes. In 1999, the EPA estimated that 20,000 businesses generating large quantities (more than 2,200 pounds each per month) of hazardous waste collectively generated 40 million tons of RCRA hazardous waste. Generators are required to track their hazardous waste activities from generation through transportation and treatment, all the way to their ultimate disposal. Through this recordkeeping system, the EPA is able to set waste-reduction goals that encourage generators to recycle, reuse or find less hazardous alternatives to the materials utilized in their processes. Through these RCRA programs, less RCRA hazardous waste is disposed of today than in years past, even while gross domestic product continues to increase, again evidencing steps toward sustainability.
Compliance represents a step toward sustainability, but only the first step. Many large, private companies, such as Coca-Cola and Home Depot, along with universities and governments, are voluntarily going beyond what the current regulatory scheme requires, and may require their vendors
to do the same. To stay competitive, companies will need to anticipate and prepare for impending changes in both the involuntary regulatory scheme and the voluntary culture of promoting the environment.
At Smith, Gambrell & Russell, we have a strong history of advising our clients on environmental matters, and have a finger on the pulse of developments in environmental law. Along with our trusted environmental-consulting partners, we can help you audit your business’s environmental and sustainability practices in areas such as environmental permitting, compliance assistance, regulatory strategy development, air quality, carbon footprinting, CO2 offsets and trading, greenhouse gas standards, wastewater discharge, site assessment, green buildings, ecolabeling, resource efficiency, renewable energy, pollution prevention and waste minimization, and more. With the help of SGR, you can increase the sustainability of the environment while also improving the reputation and sustainability of your business in the long term.
Take a Look at Yourself
Many companies in the United States and abroad are voluntarily adopting policies and practices designed to reduce their impacts on the environment and our natural resources. These practices can be simple, such as setting printers so that they default to two-sided copies, or more complicated, such as estimating the amount of carbon released into the atmosphere as a result of the company’s
operations. Adopting these practices may strengthen a company’s brand and make the company more competitive in a market that is increasingly aware of sustainability issues.
While some sustainability measures may never become mandatory, others, such as calculating carbon
emissions, are likely to become a legal requirement in the near future. For instance, pending legislation, which is likely to become law within the next few years, will require companies to measure and reduce their carbon emissions. As such, businesses are well advised to get ahead of the game now by analyzing their business practices and determining areas in which it is feasible to implement
sustainability practices. This can be accomplished by conducting a sustainability audit. In conducting a total sustainability audit, your business will have to look beyond what is required under existing governmental regulations and industry practices.
At SGR, we can assist clients in this endeavor by helping them to understand the trends and directions of environmental regulatory schemes, and by conducting, in conjunction with our partners, directed and focused sustainability audits for individual businesses. In this way, we can help business owners determine what sustainability actions may be appropriate for their business and what actions to take now in anticipation of changing markets and regulatory schemes.