When EPA issued its preliminary plan in May for review of its regulations, I said that the proof would be in the pudding. Well, EPA has now issued its final plan. My review? The pudding tastes ok, but it doesn’t taste as good and it’s not as filling as it could be.

My major complaint with the preliminary plan was its failure to target the single biggest area for reform – those areas where EPA still relies on command and control regulation. Obviously, statutes dictate EPA’s approach in many cases, but not all. There is much more friendly generic language on this score in the final plan. For example, EPA now states that:

To supplement traditional compliance approaches, EPA plans to routinely structure federal regulations and permits as effectively as possible to achieve compliance, through adequate monitoring requirements, public disclosure, information and reporting mechanisms, and other structural flexibilities, including self-certification, and third-party verification.

Unfortunately, specific example of proposed changes to rely on self-certification and third-party verification are few and far between in either EPA’s “early action” or “longer term” lists of potential reforms. Why couldn’t EPA have included one simple bullet? Why couldn’t EPA simply have directed each program to review its statutory authority to shift from technology-based or other command and control approaches to performance standards and market based approaches?

It is telling that only 1 of 35 specific proposals relates to Superfund, which remains purely a command and control program – and even that item concerns only National Priorities List rules, not how cleanups are selected and overseen. I don’t see any provisions in CERCLA that would prevent EPA from revising the NCP to identify risk-based standards for different media and allow PRPs to meet those standards in whatever cost-efficient manner they can identify.

True regulatory reform is clearly not going to happen overnight. EPA’s current plan probably qualifies as a step in the right direction, but it’s not much more than a baby step.