The Nickel Report

Since 2013, EPA’s enforcement office has been promoting an initiative it terms Next Generation Compliance. In common parlance, the term “next generation” refers to the next stage of development or version of something. The term inherently suggests improvement – a better mousetrap, for example. Who would object to such progress? Several recent applications of EPA’s “Next Gen” strategy illustrate that, as with most things in life, the devil is in the details.

First described in an article by the Obama administration’s assistant administrator for enforcement, Cynthia Giles, the “Next Gen” program identifies five interconnected elements designed to improve the effectiveness of EPA’s compliance program by writing rules with “compliance built in.” Next Generation Compliance, Envtl. Forum, Sept./Oct. 2013, at 22. By focusing on those five elements – identified as (1) regulation and permit design, (2) advanced monitoring, (3) electronic reporting, (4) transparency and (5) innovative enforcement – EPA hopes to devise requirements that are clear and self-implementing.

One would hope that such requirements also would involve use of methods that have been sufficiently validated to give all interested parties confidence and that are easy to use. However, two of the final rules signed by EPA Administrator Gina McCarthy during her last days in office involve applications of “Next Gen” Compliance that have been criticized by some for imposing requirements that, while clear and self-implementing, also impose unfair risk and burden on the affected facilities.

The first rule, signed on December 21, establishes mandatory “electronic reporting” requirements for numerous categories of stationary sources subject to New Source Performance Standards under the Clean Air Act. Many of the commenters on the proposed rule supported the move to electronic reporting, but objected to use of the specified EPA-designed software, describing it as outdated, clunky and difficult to learn and use. In short, they largely objected to the details. Question: Is electronic reporting really “Next Gen” if it uses last-generation or “legacy” software?

That rule’s fate is somewhat unclear. Designed to be effective on publication, the lengthy rule was withdrawn from the Office of the Federal Register at the new administration’s directive for further review when it failed to get published prior to President Trump’s inauguration. Whether anyone will challenge the rule is unclear. EPA took some of the sting out of the new requirements by promising to provide facilities additional software options over the next few years of implementation.

Of course, EPA’s ability to follow through on such promises for “Next Gen” requirements is somewhat uncertain. Developing new tools takes resources. That raises another question: How will management changes at EPA impact implementation of the “electronic reporting” element of the “Next Gen” Compliance initiative, which is dependent upon development and maintenance of complex computer systems, many of which are designed and managed by government contractors under already strained budgets?

The second rule, signed on December 28, reconfirmed a rule mandating use of a new method for monitoring emissions at ferroalloys production facilities, whose product is used to make steel. (There are only two such facilities left in the United States.) The new method – called the digital camera opacity technique or DCOT – measures the opacity or opaqueness of an emissions stream by employing computer software to analyze photographs of the facilities’ emissions taken with a digital camera. Citing consistency with the “advanced monitoring” element of its “Next Gen” Compliance initiative, EPA refused to include in the rule the option for facilities to determine compliance using the longstanding EPA-promulgated test method that relies on a trained human observer to make the measurement.

Proponents of the rule argued that DCOT is better than the traditional human observation method because it establishes a more permanent and objective record of the measurement. Those who objected to it – including commenters from industries not subject to the rule – cited the lack of testing to determine the accuracy of the new method when applied to the conditions at the targeted facilities. They also objected to the proprietary nature of the software needed to employ DCOT. The only software program meeting the requirements of the rule is under exclusive license (from the US government patent holder) to a single commercial provider who conducts the analysis in-house as a paid service. With only one service provider, and no real hope of competition in the near future, facilities fear they have no mechanism to challenge the results of a test or to keep prices in check.

More questions: Is an “advanced monitoring” method “Next Gen” when it is available only from a single provider? How much testing is required before an “advanced monitoring” method is sufficiently validated? In other words, can something be too “Next Gen”?

The fate of the ferroalloys facility rule is somewhat more certain, at least for now. This relatively short rule did make it to publication and has taken effect. 82 Fed. Reg. 5401 (Jan. 18, 2017). However, the rule could be judicially challenged, or even reconsidered by the new administration. There is no telling at this point whether management changes at EPA will influence the agency’s view of  the level of validation and competition needed to support the required use of an “advanced monitoring” method.

One thing is clear: If EPA continues on the same course with its “Next Gen” initiative, questions like the ones raised by these rules are likely to continue. What happens with these two rules may provide some insights into what comes next.