by Randy Hurst
Statutes, regulations, permits, statements of policy, guidance documents, orders, notices of violation. As regulated entities (water, solid waste, and wastewater authorities) we are subject to a multitude of “official” documents. Understanding these requirements can be a challenge. This article adds another level of complexity to the subject-the “official record.”
Statutes, of course, are adopted by an elected legislative body. Whether enacted by Congress, the General Assembly, or the Borough Council, a properly adopted statute or ordinance is enforceable law. Because of the complexity of the subject matter of many statutes, the legislature often (thankfully) does not include all of the minute details that are necessary to create the implementation structure. Instead, the legislature authorizes an administrative agency to adopt regulations. When regulations are properly adopted as authorized by the statute, they also become enforceable law, just as if the details were included in the statute itself.
Even though the provisions of statutes and regulations are generally clear, there are always situations where interpretation is necessary. Interpretation of the meaning of these rules can be by the legislature itself or by the administrative agency charged with enforcement. The regulated entity (including its lawyers and engineers) is NOT given the power to interpret rules; doing so would create chaos as everyone interpreted laws in their own unique way. When a requirement is ambiguous or vague there may be several sources of clarification. First, one might look to the interpretation decided by the judiciary-court opinions or the opinions of quasi-judicial agencies like the Environmental Hearing Board. However, many technical questions have never been the subject of a published judicial opinion, so the most useful source of information is usually the second tier of “official” documents-guidance manuals, statements of policy, or the written opinions of authorized agency officials. These forms of information are part of the record (in fact, many of these documents are available on agency websites) and they are expected to be applied fairly, consistently, and uniformly. This does not mean, however, that these documents have the force of law. Any policy can be challenged for nonconformance with the underlying law (statute or regulation), and every policy must be applied on a case-by-case basis. Policies and guidance documents are valuable, but may not be treated as if they are law: what the courts call a “binding norm.” Doing so, even when reasonable, has been repeatedly held to be unlawful. You will note that many guidance manuals and policy statements have a “disclaimer” at the beginning which reflects this concept; it reminds the agency staff that the document is not to be considered as a binding requirement, but as a guide to reasonable interpretation of the “real” law-the statute and regulations.
The official record contains more than contemporary documents, however. Some of the most important elements of the record are the interpretations and policy statements made at the time the statute or regulation is first adopted. In the case of statutes, one may look to the legislative record: what did the legislators who drafted and passed the bill say about it? In the case of federal laws, the Congressional Record provides a wealth of information such as committee reports, amendments (both adopted and rejected), and floor debate by sponsors and opponents of the bill. The Pennsylvania legislature has a much more limited written record, and local governments rarely have much of anything to turn to.
Since the “nuts and bolts” of most laws are found in the regulations, however, it is these rules, not the statutes, that are most often in need of interpretation to address particular situations. And, fortunately, regulations are nearly always supported by an extensive record. By law, regulations must be adopted using a formal procedure that includes publication of a draft for public comment (a Notice of Proposed Rulemaking) and review of comments submitted by the public and interested agencies-most notably the Independent Regulatory Review Commission, an arm of the legislature charged with reviewing draft regulations for conformity with the authorizing statute. For many regulations, the agency will prepare a “comment response document” that itemizes all of the comments received and the agency’s responses. In many cases, in response to a comment the agency will modify the final rule. Upon adoption, the final rule is published again along with explanatory notes, including a discussion of the changes that were made to the proposed rules in response to the comments received. The discussion portion of the public notice is often significantly longer than the rule itself. Thus, a written official record is created which explains the purpose behind the regulations, the various alternatives that were considered, and the way in which the adopting agency intends for the final rule to be interpreted and applied. These record documents (the comment-response document and the discussions accompanying the notices of proposed and of final rulemaking) provide valuable interpretive tools.
Hence, when a regulatory provision is unclear, one place to look for an explanation (in addition to contemporary guidance documents and statements of policy by the agency) is the record created at the time of adoption. While this exercise may be tedious and time consuming, it can yield valuable-even surprising-results. One recent example will illustrate the potential cost, in real dollars, of not being cognizant of the official record.
In 1997 PaDEP proposed a number of changes to its municipal wasteload management regulations (Chapter 94). One of the proposed changes was a new requirement to install flow meters at the influent end of each treatment plant “or other part of a facility.” A number of comments were submitted objecting to this proposed rule for two reasons. First, many treatment plants already had flow meters at the effluent end of the plant and installing influent flow meters would have been costly, unnecessary, and, in some cases, physically impossible. The second objection was to the vague term “other part of a facility,” which some feared could be interpreted to give PaDEP the power to require flow meters to be installed throughout the collection system. In response to these comments, DEP revised the final version of the rule to delete both the word “influent” and the phrase “or other part of a facility.”
The reasons for the changes stated by PaDEP “on the record” were that it recognized that influent flow meters were not always necessary (although a flow meter at some location was still required), and that it had no intention of creating a power to require flow meters to be installed anywhere other than a treatment plant. (It should be noted that PaDEP can, as part of the permitting process, require meters to be installed as part of a new facility such as a pumping station; the rule change only limited PaDEP’s power to require retro-fitting meters into existing facilities.)
The changes and the reasons were discussed in three “official” places: the Comment-Response document, the Final Order issued by the EQB (the rule-making body for PaDEP), and the notice of final rulemaking published in the Pennsylvania Bulletin. The current rule (§ 94.13(a)) states that “a plant [with over 0.1 mgd flow] shall be equipped to continuously measure, indicate and record the flow.”
Recently, however, one regional PaDEP office sent letters to a number of municipalities demanding that they install influent flow meters immediately, citing the Chapter 94 regulation as authority. In addition, some plants received demands to install new flow meters in their pumping stations and other places in the collection system so as to better monitor system flow characteristics. Again, Chapter 94 was cited as giving authority for the demands. Costs for compliance for some municipalities could run into tens of thousands of dollars.
Reading only the rule as written, the regulatory interpretation asserted in these “notices” is plausible, if not entirely reasonable. Since it is the agency, and not us, that has the power to interpret its regulations, it would appear on the surface that the demands were valid and enforceable agency interpretations of an ambiguous regulation. In fact, however, in light of the entire official record, there is no ambiguity in the rules that would allow for such an interpretation. An “interpretation” is only allowed when the rule itself is not clear. In this case the rule is clear; the letters did not “interpret” the regulation, they attempted to substantively change it. That fact, however, is only apparent from a review of the entire official record.
In response to the letters, I provided the information discussed above (including copies of the relevant documents) to the regional counsel. In response, I received a letter that said that the letters were drafted by technical staff (apparently without consulting with legal counsel), that the requirements stated in the letters were actually “requests,” and that the staff believed that the installation of the additional flow meters would be helpful in monitoring flows required to be reported in the annual “Chapter 94” report. Although the response did not specifically address the information in my letter, it appears that the regional office agrees that the regulatory claims in the letters were in error and that they were merely requests, not regulatory requirements.
This example is only one of several recent instances where long-standing policies have been abruptly changed-usually by mid- or low level staff-without notice to or discussion with the regulated community. I suspect that the trend will continue. PaDEP has undergone extensive personnel changes in the last few years. Many of the officials who were present when the regulations were adopted, and who knew what they were intended to mean, have been retiring and being replaced by new people who have no such experience or knowledge. This phenomenon, commonly known as “loss of institutional memory,” will, I believe, become more and more of a problem as we move forward. It behooves the regulated community and its consultants-engineers and attorneys-to become more vigilant in understanding the regulations as they were meant to be understood and questioning changes in long-established policies and procedures. The Official Record will be a valuable tool in reviewing these changes and keeping them within the bounds of the law.