Why Regulators Need A DON'T-DO-IT-IF-IT'S-STUPID Clause
Black, Eric
Why Regulators Need A DON'T-DO-IT-IF-IT'S-STUPID Clause by Eric Mick We're all familiar with the image of bureaucrats as mindless paper-pushers who put considerations of turf ahead of the public...
...The lime was a by-product of an acetylene gas manufacturing concern that operated by the river between 1913 and 1978...
...Lemon lime You can't legislate good intentions or common sense, of course...
...The deal fell through...
...The lime sludge owned by the Minnesota taxpayers is one of the exceptions to the correlation...
...Around the time McCrossan's crews were starting to excavate the lime, Davis was testifying at neighborhood meetings that the lime was hazardous according to the state's rules...
...The sludge in question is a 75,000-ton pile of lime that sits on the bank of the Mississippi River in Minneapolis...
...Minnesota had no licensed hazardous waste disposal site...
...The local electric utility, Northern States Power Company, had a big new coal-burning power plant a few miles west of the lime site...
...Before the highway department bought the lime, it commissioned a test to see if it was corrosive...
...This will likely raise the total cost of getting rid of the lime to $4 million, which seems like an awful lot of money to spend to honor a regulation that has proven irrelevant to this particular situation...
...He also claimed that the lime would have been worth $1.76 million to him if he had been allowed to remove it according to his original contract...
...The highway department has recently commissioned $75,000 worth of consultants' studies and tests to figure out what to do about it...
...But search the regulations as they might, PCA officials were unable to find a loophole that would enable them to honor the power company's request...
...The scale runs from one to 14...
...But is it necessary to rule them out...
...On the other hand, have you got any better ideas...
...The rabbit was unscathed...
...Why not change the rules so that a substance that had a high pH but could pass the rabbit test, could be ruled non-hazardous...
...But Minnesota PCA officials say they are not interested in that loophole, which they consider dangerously broad...
...He suggested that the Pollution Control Agency was giving the highway department a break...
...As we will see, it had been found so harmless that it literally wouldn't bother the skin on a bunny's back...
...The latest idea is to dry the sludge out on the site with big gas driers...
...The 12.5 rule is not idiotic in most cases...
...That ruling scuttled the plans for the lime and changed all of the arithmetic...
...Why Regulators Need A DON'T-DO-IT-IF-IT'S-STUPID Clause by Eric Mick We're all familiar with the image of bureaucrats as mindless paper-pushers who put considerations of turf ahead of the public interest as they cavalierly regulate themselves off a cliff...
...Davis succeeded in hoisting the PCA on the petard of its own regulation...
...A low pH is extremely acidic and a high ph is extremely alkaline...
...The eventual cost to the public will probably be $4 million...
...The story of a harmless pile of sludge that sparked a six-year battle between two Minnesota state agencies provides a useful lesson in the perils of this approach to government...
...This eminently sensible plan appeared to be good for all concerned, and the Pollution Control Agency approved it in advance...
...In frustration, the highway department offered to cover the lime right where it was and let the Minneapolis Park Board use it as a sort of observation platform overlooking the river...
...As he put it, "Upon receiving the overwhelming evidence from me, the PCA was forced to change its position and declare the substance hazardous...
...The lime, harmless and useful though it was, was a hazardous waste under the rules...
...Enter a private pollution control consultant named Mel Davis...
...EPA does have a loophole in its rules that would have helped Minnesota out of its predicament...
...Davis had done some tests on the lime and had participated in one of the unsuccessful bids to remove it...
...Too often, regulators find themselves engaged in a futile attempt to put the government on automatic pilot...
...The state settled the McCrossan lawsuit last July by paying him the full $1.8 million early-completion bonus, even though the lime caused him to finish two months past the deadline, plus $990,000 to, in effect, buy back the lime for the agency that was (and still is) trying to get rid of it...
...EPA set the limit at 12.5, and Minnesota subsequently adopted the same number...
...The highway department had already done the rabbit test once, but it quickly commissioned a repeat performance...
...The Maple Grove City Council said that would be fine, but once again the problem of cosmetics arose: the city did not want the sludge if it meant the gravel pit had to be certified as a hazardous waste storage site...
...Foremost among these was that the sludge be declared environmentally safe...
...The PCA didn't give up...
...It's a bad rule and I'm glad we haven't adopted it," says Mike Kanner of the PCA's Solid and Hazardous Waste Division...
...Eric Black is a reporter for the Minneapolis Star and Tribune...
...The glitch this time proved to be that while variances can be granted from the requirements of individual regulations, variances cannot be granted from "definitional" rules...
...This time the obstacle was the EPA...
...Later in 1981, a PCA official named Lisa Thorvig made a helpful suggestion: why not have the highway department conduct tests to prove what the regulations couldn't seem to recognize葉hat the lime was not corrosive預nd then apply for a variance from the regulation...
...McCrossan sued the state for more than $4 million, claiming that he was entitled to the full bonus because it wasn't his fault that the lime controversy had come along...
...Quite often, however, the problem has nothing to do either with oblivious bureaucrats or with the substance of the regulations they create...
...Whatever his motives, however, Davis was correct about the regulation...
...Rather, it lies in the bureaucracy's assumption that the drafting of a regulation is the last time that anyone with any common sense is going to grapple with the problem the regulation is supposed to solve...
...In fact, the agency had joined with the highway department to urge the power company to consider taking the sludge...
...Highway officials say that Davis, motivated by a grudge against the department and his disappointment over not getting to remove the lime himself, created a public hysteria...
...McCrossan offered to move it to a minedout gravel pit on his company's property in the nearby suburb of Maple Grove and store it there while he used some of it and sold off the rest...
...The result: Instead of paying $783,740 to remove the lime, the department ended up paying him $599,534 just to rearrange it...
...It has a pH of about 12.7, yet construction workers have stood hip-deep in the stuff with no ill effects...
...Because of its pH level, the sludge was classified by the Minnesota Pollution Control Agency as a hazardous waste...
...The company had had enough public relations problems over pollution issues...
...The loophole says that if a hazardous waste is going to be beneficially recycled, the waste can be excused from all hazardous waste regulations...
...But the park board declined to accept the land with the lime still on it...
...The department had planned to give the acres left over after the lime was removed and the road was built to the board to compensate it for park land taken elsewhere for the road project...
...The department then applied for the variance...
...But that didn't prevent the machinery of government from throwing itself in the path of the public interest...
...lime sludge can be used in scrubbers to clean the smoke...
...Our position is that we want our land, and we want it now and we want it without hazardous waste sitting on it," said a spokesman...
...Thanks to the rigidity of the regulatory apparatus of state and federal government, the sludge continued to be classified a "hazardous waste," and the citizens who tried to dispose of it found themselves grappling with the bureaucracy for six years, at a cost of $2 million...
...Since the PCA wouldn't allow him to remove the lime, he bulldozed it into a pile to make room for the road...
...The contractor, Charley McCrossan, planned to make a second profit by selling the lime for land-spreading or waste-water treatment...
...It didn't need the additional aggravation of a big pile of "hazardous waste" sitting on its property...
...States that want to regulate their own environments have to clear their rules with the feds, and federal law says that states have to have regulations that are at least as stringent as EPA's...
...The $20 million contract included a $783,740 line item to excavate and remove the lime...
...If the rules couldn't be bypassed, perhaps they could be changed...
...The rules said that any substance with a pH higher than 12 is hazardous on the grounds of being corrosive...
...All this anguish could have been avoided had someone in the bureaucracy been able to anticipate the inevitable circumstance in which wellintentioned rules might prove irrelevant...
...We've all felt the frustration of going through contortions in order to comply with this or that apparently senseless regulation...
...The story of a harmless pile of sludge that sparked a sixyear battle between two Minnesota state agencies illustrates the need for regulators to accommodate life's unpredictability by providing an escape hatch to the regulations they write...
...Substances with a pH that high様ye, for example葉end to corrode skin...
...Lime is commonly used in agriculture (it lowers the acidity of soil), construction (it's a stabilizing agent), and, ironically enough, pollution control (it can benefit lakes that are suffering from acid rain and purify waste water...
...At the same time, the sludge was almost universally recognized as neither hazardous nor a waste...
...In a letter to the state agencies, a power company official asked if the lime could be reclassified as simply a "solid waste...
...Sludge yes, 'waste' no...
...Officials of the Pollution Control Agency (PCA) and the Environmental Protection Agency have since confirmed that the sludge presents no serious threat to land, water, air, man, or beast...
...When McCrossan finished the highway job in November 1982葉wo months later than the deadline for collecting the maximum $1.8 million early completion bonus葉he lime was still sitting where he had stacked it...
...Nobody was terribly surprised...
...He knew it had a high pH and was familiar with the state's new rules...
...Then it can be moved and re-used...
...McCrossan was trying to qualify for an early completion bonus in his contract...
...Once again, the bunny failed to bristle...
...This was, after all, basically a damp version of the lime you might buy in a garden store...
...Confident that they were dealing with a harmless substance, the state officials bought the land and awarded a contract to build the portion of the highway that cut through the lime pit...
...Both McCrossan and William Crawford, the highway department engineer in charge of the case, even tasted the sludge to demonstrate their belief that it was harmless...
...He wanted the value of the lime paid to him...
...Once the lime sludge is no longer a liquid, it will no longer have a pH and can be declared non-hazardous...
...The story of Minnesota's sludge troubles illustrates the need for regulators to accommodate life's unpredictability by providing an escape hatch to the regulations they write預 Don't Do It If It's Stupid clause...
...But a high pH does not actually cause corrosivity...
...Let's get definitional In 1981, while McCrossan was still building the road, he and the highway department hatched another sensible plan to solve the problem...
...The state made two more attempts to move the sludge...
...The test for this is to apply a poultice and see if it burns the shaved skin on a rabbit's back...
...EPA doesn't allow the rabbit test exception, so it told Minnesota that the state couldn't allow it either...
...In case you have forgotten your high school chemistry, pH is a measure of the acidity or alkalinity of a substance...
...Clearly, the agency had learned from the lime sludge case that using pH as an absolute indicator of hazardousness didn't make any sense...
...It caused little or no mischief at that site for 65 years, until the Minnesota Highway Department acquired it in 1979 because it was in the path of a new interstate highway...
...Moreover, the highway department estimated that to load the lime into special hazardous waste trucks and transport it out of the state would cost more than $20 million...
...Here was an opportunity for the Pollution Control Agency to use a theoretical "pollutant" to combat a real one at the cost of making a mere semantic change...
...That was enough to defeat the plan...
...The power company decided it might be interested in taking the lime off the state's hands, but with several conditions...
...Rather, it simply tends to correlate with corrosivity...
...The plant used antipollution smokestack scrubbers...
...Sorry, the agency said, the hazardous designation must travel with the lime...
...They said it tasted like an unsweetened antacid tablet...
...In other words, if the rules say it's hazardous, the variance procedure doesn't allow the agency to say it isn't...
...The never-ending story By now you've probably figured out how our story ends: the lime is still sitting there...
...But between the time of that approval and the time McCrossan's crews started moving the lime, the PCA adopted new regulations defining hazardous waste...
Vol. 16 • January 1985 • No. 12
