Environmental Law Section June 1998 Newsletter Articles

 

Interview of John H. Hankinson, Jr. Regional Administrator, Region IV
by J. Wayne Cropp and Susan Kerr Lee

Reengineering Update
by Bill Penny

From the Chair
by Susan Lee

John H. Hankinson, Jr., Regional Administrator, Region IV, was interviewed in Atlanta, Georgia, on March 27, 1998, by J. Wayne Cropp and Susan Kerr Lee of Grant, Konvalinka & Harrison, P.C. The interview has been edited due to length restrictions.

Prior to joining the Environmental Protection Agency, Mr. Hankinson was the Department Director of the Planning and Acquisition Department, with the St. John’s River Water Management District in Palatka, Florida. Mr. Hankinson served the Management District from 1986 to 1993. Prior to his work at St. John’s River Water Management District, Mr. Hankinson served in a number of policy, planning, and legal environmental assistance positions in government, and for private foundations. Mr. Hankinson was the recipient of the Land Conservationist of the Year Award given by the Florida Wildlife Federation in 1992; the Conservation Colleague Award given by the Nature Conservancy in 1992; the Environmental Service Award given by the Florida Defenders of the Environment in 1989; and the Conservation Service Citation Award given by the National Wildlife Foundation in 1984. Mr. Hankinson earned his J.D. Degree from the University of Florida in June 1979. He received his B.A. Degree in Psychology from Florida Presbyterian College in June 1970.

Cropp: I would like to get your impression of the relationship between the Tennessee Department of Environment and Conservation and Region IV.

Hankinson: I think we have an excellent relationship. Milton Hamilton (Commissioner) and I, in particular, have quickly developed a good personal and professional relationship. I worked well with Justin Wilson when he was in there, as well. I’ve been very pleased with the relationship that we have with TDEC. Milton has been very responsive where I have had concerns and raised issues, and I’ve tried to support what he’s doing up there, as well.

Cropp: How would you evaluate the Tennessee program?

Hankinson: I think overall, it’s a very solid program. Every state has what they do really well and then there are those programs that they’re working on improving. I think if they didn’t, I’d be concerned. Tennessee actually has some real leadership programs in my mind — the drinking water program, for example, we think is one of the best in the nation — very good management, good technical staff, very good database management, which is really a critical issue confronting the states.

I have eight states to deal with, and we’re getting into more and more complexity in this environmental area. One of the ways that we have tried to historically track what’s going on is to have databases into which the states input their various program information, to keep track of permits, monitoring data, enforcement actions, and results. Unfortunately, these are not always kept up-to-date; it’s sometimes not the highest priority to feed that database. But the database in the drinking water program in Tennessee is considered one of the best. They work well with their small suppliers.

Tennessee has also gotten out ahead on the air toxics issue, and I think Justin Wilson has shown a lot of interest in the Smoky Mountains air quality and has provided leadership in that area.

I come from a wetlands background from the St. John’s River Water Management District, and I’m very excited about the West Tennessee Tributaries project. To me, that’s the type of project that we ought to be trying to do across the nation. I think Tennessee has an improved state wetlands plan, and they work hard at implementing that plan.

Basically, I think we have a good relationship, and they have a pretty solid program across the board.

An area where I think we are working together to improve is in re-engineering, which is largely a permit streamlining focus. We are also trying to re-engineer the enforcement and compliance aspects of their operation to address some concerns about timely and appropriate enforcement. My sense was that their system is pretty distributive. Cases are initiated in their district offices, and then their procedures require several steps that go back through their headquarters and then back out to their field offices again. Often, we felt like these cases were taking way too long to complete. A good criminologist will tell you, the best way to change behavior, if there is a problem, is to immediately find it, identify it, take the corrective or punitive action necessary, and move on — not to wait several years later and then show up and say, “Oh, by the way, you need to pay this fine.” But, I am encouraged at what they’re doing in re-engineering. They’ve been very responsive to our concerns there.

Cropp: How many states are going through re-engineering efforts? I get the sense that Tennessee is not the only one.

Hankinson: Tennessee’s not. We’re supporting re-engineering efforts with our grant dollars. Mississippi’s going through a major re-engineering effort, going to a sector-based approach. We are, in essence, re-engineering our relationship with the States through our Performance Partnership Agreement, so it works very well that they are going through their re-engineering, while we re-engineer how we relate to the states. I’m very excited about this. We are working on a Performance Partnership Agreement with the state of Tennessee to support their re-engineering effort.

Cropp: What is a Performance Partnership Agreement? Is it something different from a Memorandum of Understanding (“MOU”) process?

Hankinson: There’s much more emphasis in government, and I think appropriately so, on results. We now have the Government Performance and Results Act. I’ve been very interested in managing for results. I’m always after my folks to come up with better ways to tell me what’s going on in the environment — Is the air getting cleaner? Is the water getting cleaner? Where are the health problems? Is what you’re doing accomplishing what we set out to accomplish? That’s a real focus for the states, too and as we start to set priorities through whatever vehicles (strategic planning, GPRA efforts), we discover that there may be priorities that we would rather work on and invest in than the ones that “bubble up” from the collection of the programmatic MOUs. Essentially, that’s the way we have traditionally operated. Each EPA program has a counterpart in the state. EPA enters into an MOU with the state as to what they need to do to meet grant requirements, and then the state is evaluated on how well they did that. So, the former process allowed each program to accumulate its own requirements, and those were quite often EPA headquarters-driven in terms of what those priorities would be for a state. Performance Partnership Agreements allow us, at the highest level of the Agency, to meet with the state, and hear what the state believes its priorities should be. The state might say, “Look, we’ve looked at our state, and we really think the most important issue for our state might be non-point source runoff into trout streams (or air toxics or the health of particular communities) that we’re concerned about. We would like to have more flexibility under these MOUs, so that we can redirect some of our resources to work on those priorities.” It gives us a real good basis for having that dialog with upper-level management at the state agency, rather than at a program-to-program level only.

Now that still goes on. I mean, the program MOUs are still out there, but a fully developed Performance Partnership Agreement, as envisioned by the Agency working with the states, can include all of those agreements that we have with the state as to how we operate. Or, under the Performance Partnership Agreement concept, a state may say, “I really don’t want to put all my eggs in that basket. Things are working pretty well on a program-to-program basis, but there’s this one area (like re-engineering) that we want to concentrate on.” For instance, we are doing that with Florida. We are working very hard on “How do we measure compliance effectiveness?” This has been a flashpoint between the states and EPA. The Agency might ask, “Are you doing enough enforcement?” The states push back and say, “The goal is not really enforcement; the goal is results.” Then, we push back and say, “How are you measuring whether you got those results?” So, Florida has put a tremendous amount of effort into their Performance Partnership Agreement with us in order to quantify all the ways they would measure how effective their compliance and enforcement strategy is, in addressing their environmental priorities. So that’s very exciting. It gives us a vehicle for doing these things that we really didn’t have before.

Lee: Is there a Performance Partnership Agreement with the state of Tennessee?

Hankinson: We’ve discussed the possibility of a Performance Partnership Agreement with Tennessee that ties into the re-engineering area. We don’t have a formal one with Tennessee at this point.

Cropp: Any further comments you want to make on Tennessee’s re-engineering efforts?

Hankinson: We wish them the best. That’s a very complex undertaking. More recently, I talked with Mississippi, and I think they’re a little ahead of Tennessee in the process. Trying to move from a program-by-program review to a sector approach where someone could go to one person and get all of their permits. Well, that’s a challenge for a state. You can imagine having everyone cross-trained and making sure that all issues get pulled in. On the other hand, once you get those people trained, it seems to me that it would be a much more effective system, because you could look at the specific issues in an industry and that person who’s in the state dealing with that industry could really focus on what works in that sector, as opposed to trying to know all the RCRA regs that apply to everybody across the world. I wish them luck. It’s just a very challenging undertaking.

Cropp: Let’s talk about the solid and hazardous waste program and voluntary cleanup efforts. What is the relationship between the region and the state on voluntary cleanup efforts? Tennessee has a voluntary cleanup program. What is the regional perspective on voluntary cleanup efforts?

Hankinson: We’re very supportive of the voluntary cleanup programs, because there are a lot of sites that EPA will not reach through its Superfund program, or even under the RCRA program, that need to be cleaned up, and that either present health issues for local citizens or prevent communities from redeveloping in these areas. You have a lot of abandoned and blighted properties as a result of historical contamination, so I think the voluntary cleanup programs can be a tremendous help in that.

When a site is identified, there has to be clear communication, understanding and criteria between EPA and the states about how a site is going to be handled, because if a site comes into the voluntary cleanup program (and it may well be a site that’s beyond the capability of the program financially or otherwise to deal with), it might languish there for a time while people try to figure out, “How do I deal with this?” I think if we are working closely together, there are sites that are Superfund caliber that ought to be work-shared back to the EPA, and the states should say, “Look, this is a big site (a lot of PRPs, conflicts, technical situations), why don’t you handle that?” I think that’s the challenge of making these things work. If they work well, you get many advantages from enhanced cleanups and timely cleanups. If they don’t work well, they feed right back into the problems we’ve had with waste cleanup.

Another issue that we’re always working with states on, is what levels should we clean up to, and how do we communicate as partners so that we get the sites cleaned up. We’re not interested in having a Superfund site for the sake of having a Superfund site. If it can be cleaned up in another way, and it’s cleaned up to the appropriate criteria, we’re delighted to see that handled. We just want to be sure that things don’t fall into some gray area and don’t get dealt with.

Lee: Before we leave the Superfund program, on the Superfund MOU, do you know where Tennessee’s MOU with EPA stands? My understanding was that Tennessee had submitted a draft. It was returned by the Agency, and the state resubmitted a proposed draft.

Hankinson: I really don’t know any more than that. We’re presently working with them on the MOU which will meet both federal and state needs for cleanup levels and timely communication to avoid duplication. We feel certain that we will reach an agreement soon. Some of this “sausage” I don’t want to see made.

Lee: Now that quote we’ve got to use. (Laughter)

Cropp: Let’s move on to air quality issues, such as the ozone and particulate matter standard revisions, and air quality in the Southern Appalachian Mountains. There are a number of major, new policy initiatives that impact us in the South.

Hankinson: You may want to interview my Deputy at some time, Stan Meiburg, who, honest to God, has a Ph.D. in PSD. He takes the lead on air issues. That’s pretty much the way we break it down.

Cropp: Addressing those air issues, particularly for those who live in East Tennessee, where there are a number of Class I PSD areas, what impact do you see the air policies, such as regional haze, and standard revisions, having on economic development in the South, especially for those of us who live close to federal Class I areas?

Hankinson: First of all, I don’t think of the environment and the economy being at odds. In the South particularly, our natural environment is a large part of our economy. And that’s very true in the Appalachian Mountains and the Smokies, for example. I saw Dolly Parton on David Letterman last night and if I have my facts straight, she said there’s over 10 million visitors a year to the Great Smokies National Park. That’s a huge investment, a huge economic benefit. Obviously, we have to be sure that air sources don’t exacerbate our haze problems and other air quality related values.

We are in the middle of a robust economy. We, of course, have got to be cognizant about costs and competitiveness for our industrial base. I feel that when you look at the big picture, in terms of the economic development in the South and in Tennessee and, particularly, as it relates to air quality issues, that we can make significant improvements without creating an economic liability or competitive disadvantage for our companies. It may take time. You can’t move from one place to another overnight when you’re talking about major investments like that. A lot of the issues are coming together now to suggest that we have some hope of cleaning up the air where we have some of these challenges. We’ve got the interaction of the new standards.

Cropp: Ozone, in particular.

Hankinson: Ozone, in particular. We’ve got further concern being generated over global warming and the impacts of those issues. We have the NOx State Implementation Plan (“SIP”) call on facilities that are related to the work of the Ozone Transport Assessment Group (“OTAG”). I don’t think I’ll ever get a quote as eloquent as Justin’s “Regulation without documentation is tyranny.” (Laughter) I’ve got to hand it to him. That’s a good one. I really like the Southern Appalachian Mountain Initiative (“SAMI”) approach, where the states have gotten together and said, “Let’s try to come up with our own solution on this.”

But that’s a very slow process, and you have political changes in the state, and then it’s not as high a priority with the Governor, or the Governor decides to back out. There are all of these sovereignty issues that we deal with. But, still, I really think that’s the way of the future to address these regional environmental issues. I am real hopeful that the SAMI will provide the leadership we need to address those issues.

Cropp: Tennessee has worked out the MOU with the Department of Interior regarding air-permitting procedures as they relate to the Smokies. Do you see other States in the South signing on to the MOU with the Department of Interior?

Hankinson: I think so. We believe that the permit procedures will encourage states to adopt the approach that Tennessee has already taken. It improves coordination and dialog. I’ve encouraged other states to adopt the MOU. They all have different positions on it. Some of them believe their procedures already accomplish the necessary coordination. Some of them have different ways of dealing with it. For some, it’s just not a priority.

Cropp: When it comes to new source construction, do you believe that major industrial sources will be able to build in East Tennessee? We have a spine of Class I PSD areas running up and down the Appalachians, including the Great Smokies, Cohutta, Joyce Kilmer-Slickrock, Shining Rock, and so on.

Hankinson: If you define economic development simply as industrial development, I would assume that Class I requirements enter into the decisions as to where to locate facilities. What I am saying is, in an economy driven a lot more by Dollywood than the big industrial facilities these days, you have to really look at where the economic inputs are coming in, and think about that in location decisions. I think it’s appropriate for companies to think about that in making decisions about where they are locating.

Cropp: Talking about the ozone air quality standard change and the NOx SIP call, there is a sentiment expressed by some that northeastern states are trying to require the energy industry in the South to upgrade controls in order to equalize the playing field, if you will, even though, the theory goes, southern impacts do not reach the Northeast. What’s your thoughts about what kind of impact these air pollution regulations will have on the South and, in particular, on electric generation in the South?

Hankinson: Stan Meiburg is probably a better expert on that. I don’t think our Agency has sided with any region. This is really being managed from a national basis, based on the data that has been generated out of OTAG as to where these utility NOx reductions might come from, given the information that we have on transport. I’ve read Justin Wilson’s concerns about this and I understand that, but I feel like the Agency has taken a responsible approach to it, and I think these NOx reductions are appropriate given the data that we have, and will also help address some local ozone related issues.

Cropp: While we’re talking about East Tennessee, why don’t we talk about federal facility compliance, the Department of Energy (“DOE”), and what your regional perspective is, particularly on Oak Ridge and federal facility compliance.

Hankinson: We’ve had some concerns at DOE that I think are shared with the State of Tennessee. DOE has been trying to reindustrialize, and they’ve been leasing out buildings, and we don’t feel that they have been following the proper approvals and safety issues on that. It’s an issue that we have with DOE.

We understand the state is very interested in assuring long-term cleanup and ensuring that the federal government meets its commitment to clean those areas up, and we’re very committed to being sure that the health problems and environmental problems at Oak Ridge are properly remediated. It is complex how you do that, but I don’t know that the federal government has a precedent for establishing a trust fund for a particular site. I think we ought to look at any creative option to try to be sure to clean those sites up, because there’s probably no place other than federal facilities where we have this concentrated an amount of pollution. There’s also an environmental justice issue in the little town of Scarborough, a neighborhood close to the Y-12 plant where ATSTR is now doing a health study. We’re very interested to see what the results are on that. We’re being very aggressive along with Tennessee, and I think we’ve worked quite well together with the state in trying to get the facility to be sure to do what we think they need to do.

Cropp: So you might be willing to look at a trust fund type approach for DOE?

Hankinson: Well, I don’t know what the legal basis for that is, but I’m interested in exploring anything that’s going to get the cleanups done more quickly and ensure that they get done right over time.

Cropp: One last question on water quality. The American Heritage Rivers designation — there has been some controversy over whether the Heritage Designation will lead to land condemnation and other takings issues. What is your perspective?

Hankinson: As far as I’m concerned, I feel very strongly that this is a red herring issue that’s been focused on by some groups to create some huge specter of federal intervention. Essentially, the basis of the American Heritage Rivers program is exactly the opposite. It’s to say to local communities, “Do you have a river resource that you’re proud of, and do you have a plan to make that river even better environmentally or useful to your community, and do you in some way want to enhance the focus and commitment to the river? If you have that, tell us what that is, and if you’re one of the communities selected, then we will add our resources to your commitment to try to help achieve your goals.” There’s no condemnation authority involved. There’s no regulatory involvement. It’s not like the Wild & Scenic River Designation, which did come with some regulatory baggage. I have heard the discussions about, “This is the nose of the camel,” and allegations about black helicopters and boats on the river. I think this kind of talk comes from folks who have a great deal of problem with anything the federal government does and, to some extent, I think it’s been picked up by some folks in a partisan sense to try to make an issue out of it. It’s unfortunate because we’re losing the chance to do some really good things.

On Wednesday, April 29, 1998, Commissioner Hamilton met with the environmental division directors regarding our reengineering efforts. These were the main points he made during the meeting:
It is imperative that we reengineer. Our Department has been very successful to date in protecting the environment, but more progressive strategies are necessary to address the complexity of present and future environmental issues.
Reengineering has and must be employee driven. The Process Evaluation Teams represent a cross section of the various programs in this Department. Reengineering will only succeed if “front-line” staff take the lead in its implementation.
We have committed a tremendous amount of resources to this effort not only in the reassignment of staff to participate in the Process Evaluation Teams, but also in committing to the people of Tennessee to improve customer service, efficiency and protection of the environment.
Revenue loss is not to be a driving force and not all permitting is to be done in the field.
It is crucial that division directors provide positive leadership and every individual is being asked to assist in these efforts and to support the final decisions as approved by the Steering Committee.
Throughout the past year the Office of Reengineering has made the communication of ideas a top priority, whether it was brown bag lunches, newsletters, web sites, Commissioner’s forums, EAC visits or informal discussions. To keep this communication open we have asked the employees working on reengineering to discuss both final decisions made by the Steering Committee and work-in-progress. This can and has resulted in some misunderstandings in the difference between final and pending decisions. The following is a summary of the decisions made by the Steering Committee to date:
Establishment of Environmental Assistance Centers (EACs) - TDEC’s eight field offices were renamed and rededicated as EACs, effective February 1, 1998. Previous division boundaries were realigned so that all boundaries are consistent.
The regional EACs will be staffed with an EAC manager, an EAC Administrator and two Environmental Service Assistants in addition to existing technical staff. Department of Personnel has approved an EAC Manager (EPM2 or EPM1), an EAC Administrator (ASA4 or ASA2) and two Environmental Services Assistants (ESA) (Administrative Secretary) for each EAC. The concepts of an Environmental Response Team (ERT) and an Environmental Coordinator (EC) were also approved and must be further developed.
A departmental Planning Coordinator, Paul Evan Davis was hired to implement the recommendations of the Planning Process Evaluation Team. All recommendations of the Planning Process Evaluation Team were approved including the development of the 4-year strategic plan as well as annual plans.
Division directors are the owners of the current permit processes. They are responsible for implementing the recommendations in the Permit Reengineering Process Evaluation Team’s Implementation plan (July, 1997).
SOPs are a high Department priority. To date, 37 individual SOPs have been drafted and 16 have been reviewed and approved by Division Directors and the BOE Assistant Commissioner. SOPs are required for all department processes.
Specific recommendations to have a certificate of compliance replace permitting, what type of permits we issue from the EACs, the establishment of a central office EAC and reorganization along functional lines will continue to be discussed and may be considered by the Steering Committee at a later date.
Specific recommendations for an environmental court and a citizen advocate for public participation have been deferred indefinitely.
The Steering Committee will continue to lead the reengineering effort, evaluate new recommendations and provide direction and guidance for implementation.
The Environmental Assistant Centers are now receiving calls through the 1-888 number and calls are tracked on a computer database. EAC front-desk staff have received extensive training. Interviews for the EAC manager positions will begin this week.
We are now ready to move to the next phase of reengineering and focus on permitting. This is an opportune time to reevaluate our methods for implementing recommendations. In the past, reengineering recommendations have been implemented almost entirely by Office of Reengineering teams. However, for reengineering to be successful, all TDEC employees must be involved in the process. For this reason, Commissioner Hamilton is turning specific reengineering recommendations back to each division and charging the division directors with implementation. Individual Divisions are asked to report to the Steering Committee on specific recommendations by July 1, 1998.

This will be my last Chair’s letter and Chair-Elect Joe Sanders will take over the chairmanship of the section after the annual section meeting at TBA’s 117th Annual Convention scheduled for Friday, June 19, 1998, at 2:00 p.m. CST in Nashville. I have enjoyed being Chair of the section and look forward to continuing to work with the section in the future.

One of my most enjoyable moments as a section member came during the Annual Solid and Hazardous Waste Conference held in Gatlinburg in mid-April. Not only did I enjoy watching John Hankinson sing the blues, I got to see our own David Harbin and Commissioner Milton Hamilton in action on the stage. For those of you who missed Commissioner Hamilton’s rendition of “Big Boss Man,” you missed fine singing and good dancing by an inspired Commissioner.

The presentation on Geographic Information Systems sponsored by the section at the Conference was also a huge success thanks, in large part, to the efforts of James Weaver. While we have not yet been able to obtain CLE credit for the presentation or other portions of the Conference, we are already working on this issue for next year.

At the risk of sounding like a “broken record,” I want to emphasize that there are many opportunities for persons who want to become involved with the section. Yet another opportunity is being presented for section involvement with the formation of The Re-Engineering Legal Advisory Committee. All members should have received an invitation to join the Committee from Bill Penny. The Committee, which held its first meeting on April 30, presents an opportunity to become involved in the section and in the re-engineering process being undertaken by the state. As with all of our meetings, you may attend the committee meetings by telephone conference call if you want to do so.

At the upcoming annual section meeting, a new executive committee will be elected and a new secretary will be selected from the government sector. If you are interested in such a leadership role within the section, please contact me or any other member of the current executive committee to discuss becoming more involved in the section.

Finally, thank you to all of the section members, and especially the officers and executive committee, who worked so hard this year to improve the section. I look forward to working with Joe Sanders in his upcoming role as the section’s “Big Boss Man.” I wonder if he can croon and boogie like the Commissioner!!