STATE AGENCIES
writes these regulations to get a new standard put in place, but in the meantime, “Don’t bother my client.”
Before I leave this topic, here’s another word of advice. If you
walk into a meeting with an agency and their lawyer is present, leave the meeting unless your company’s or client’s lawyer is also present. You are not an attorney. While you will have the ability and the assignment to discuss the agency’s regulations on a scientific basis, you are not expected to argue law with a licensed attorney. Keep this in mind, and if you’re ever “ambushed” by the agency and refuse to participate, it will be the last time that tactic is tried on you.
Here is an aside on the topic of “law;” I call it the “Law of
Unintended Consequences.” The poster child for this is, of course, the now-outlawed use of DDT to control mosquitos and thereby eradicate malaria. The Law of Unintended Consequences also operates in the environmental field, as follows.
I was consulting to a municipal solid waste landfill that had been
operating for over 15 years before I was engaged. The original cells were situated on a “clay horizon that was compacted in place” and the closed cells were capped only with vegetated soil. The agency was concerned that landfill gas might be escaping to the atmosphere but were always suspicious about that “compacted in place” clay liner. Nevertheless, they required the landfill operator to install a synthetic membrane cover above the old cells. There were negative results. Within a few months, a shallow monitor well at the south edge of the old cells began discharging gas (occasionally, the well would whistle). Gas testing revealed a combination of nitrogen, methane, and a devil’s brew of volatile organic compounds. Simultaneously, groundwater down gradient from this part of the closed cells began exhibiting elevated VOC concentrations, and the contaminant front was migrating much more quickly than could be attributed to advection and dispersion. My calculations, using Henry’s Law, matched the well-gas VOC concentrations with the groundwater VOC concentrations. It was the case that the affected aquifer was a “water-table” type horizon, and the gas was flowing through the unsaturated zone, exposing the down gradient water table to the VOCs in the gas. Remediation required the installation of landfill gas recovery wells in the old cells, and a fairly straightforward “pump and treat” groundwater remediation system to address the affected water table. For an extensive discussion of the Law of Unintended Consequences, see: (
https://www.econlib.org/library/ Enc/
UnintendedConsequences.html).
To work successfully with a regulatory agency, you must
understand their motivations and default positions. As you might surmise from the foregoing, compliance of the facility or project with agency expectations and regulatory standards is at the top of their list. You may or may not be surprised to learn that, from their perspective, “cost is no object.” Well, perhaps not literally, but evaluating the cost of corrective action or rule compliance is well down their list of priorities. You also need to be aware that innovative technologies and solutions are, more often than not, viewed with deep suspicion – this is especially the case when the new technology is substantially less costly than the “ordinary” or “traditional” method.
In the same vein, managing agency expectations will also benefit
your project or client. Demonstrating progress toward a mutually- agreed upon goal is the best way of doing this, but you need to keep them on focus. This is best accomplished during informal meetings between as few people as possible. The agency’s technical representative and mid-level manager on their side, you and your client or owner’s representative on your side is, in my experience, ideal. Large meetings with three or more levels of representatives on the agency’s side can be problematic. I remember one meeting in which a solid waste facility’s compliance was the topic. After an
www.aipg.org
hour, the agency’s Department Manager began a wrap-up and it quickly became clear that he had been at a different meeting than had the rest of us. It took us 30 minutes to reel him back in to what had actually been agreed.
In addition to large meetings being problematic, any agency
meeting where the public is invited can be a huge headache. Such a meeting can quickly morph into a situation where everybody is trying to justify their position for the public, and no real solutions are possible.
Occasionally, in spite of everybody’s best efforts, a situation can arise where a formal agency action is needed, often via a hearing, or during subsequent litigation. In the case of a hearing, it is likely that the agency will prevail since, if for no other reason, the quasi-judicial panel will be comprised as an element of the agency itself. Again, in these types of now-adversarial situations, many of the same tips prevail. You must always be courteous and professional; you must be the best scientist on either side of the equation; you must know the rules (even though your client’s or employer’s lawyer will be leading on that front), you must have the site history cold, and you and the attorney on your side must be able to work together in complete cooperation with neither of you surprising the other.
Finally, here is a little aphorism to keep in mind. “It is often easier
to get forgiveness than permission.” This works best in “small” situations, when you sense that the agency’s representative is wavering, or there is an ambiguity in the regulations.
I promised a word about dealing with Federal agencies. In
the last several years of my career, I found myself working with the EPA at two Superfund sites. In my first meetings with their representatives, I noted a certain arrogance on the part of their technical people. I chose to ignore it and to deal with them as I would any other agency representative, keeping to the science and sharing my local knowledge. In every case, they eventually moved past the arrogance, and we were able to enjoy professional, if not cordial, relations.
About the Author Peter H. (Pete) Dohms is a retired geologist, living in Payson,
Arizona (which he describes as a “geologist’s paradise) with his wife of 56 years. He is proud of the fact that his career spanned 43 years without a single day of unemployment. Pete is a frequent contributor to TPG. Any questions for him can be directed via the Editor.
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Jul.Aug.Sep 2024 • TPG 21
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