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What to Expect from the U.S. EPA in 2005

Also this month:

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What changes might we see now that Steve Johnson has been nominated to be EPA Administrator?

Lynn L. Bergeson, Esq. of
Bergeson & Campbell, P.C. provides the following expert insight: "While Steve Johnson has been nominated to be EPA Administrator, there are other positions at EPA to fill. Of all the open appointment positions in OPPTS and ORD, there has been only one nomination (Timothy Oppelt -- ORD); the void continues to be filled by career staff. It's important to note that even once people are nominated for these positions, they might not be confirmed for months. Unless the new Administrator has an agenda for change, it's likely that most EPA programs will see little change.

"In general terms, this is what I expect to see for the short- and near-term:
  • With Bush's re-election, the environmental community will face a difficult time in advancing its agenda, and will rely on tools outside of the Executive Branch. Litigation will continue to be a ready tool, as will publicity splashes intended to induce change by force of public opinion.

  • Endocrine disruptors actions are expected to pick up. EPA has been implementing its program since the late 1990s, and some speculate there will be renewed pressure to produce something soon.

  • The push to control the budget deficit bodes badly for EPA. FY 2006 will see hiring freezes and squeezed revenues that diminish available funds. Contractor support cutbacks will adversely affect EPA’s ability to conduct scientific assessments.

  • EPA is expected to shift its OSWER sites to recycling and pollution prevention, and to focus on areas that emphasize materials reuse. EPA’s efforts to revise the definition of solid waste will continue in 2005.

  • EPA took final action in March on air rules for power plant emissions to reduce sulfur dioxide, nitrogen oxides, and mercury emissions, and is planning to regulate regional haze and issue fine particles standards.

  • Congressional action related to both the pesticide and the chemical regulation programs will continue to be muted. Legislation amending FIFRA and TSCA to comply with Prior Informed Consent/persistent organic pollutants agreements, and confirmation of the President’s appointments for EPA Administrator and OPPTS and possible ORD Assistant Administrators will be notable exceptions.
"Overall, EPA-regulated entities should see little change in the general patterns of behavior or underlying policies. EPA will be expected to do its job with minimal notoriety and ever-reduced resources."

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How many company headquarter sites have completed their Responsible Care Management System certification audits? Will all of the certifications, due by Dec. 31, 2005, be completed on time?

I’m getting mixed signals. While the
U.S. Responsible Care Web site indicates that 4 headquarters (out of 126 member companies) have achieved certification, I’ve heard that 6 have completed their audits and 4 are in progress. Perhaps these two sets of figures are consistent if the 2 headquarters not listed on the Web site have had their audits, but have not yet been certified.

Regarding the prospects of all the required certifications being completed by the end of the year, it’s possible -- a survey we recently conducted indicated all but one respondent expects to complete its headquarters certification on time. Several companies, however, may not be able to get certified in time, since:
  1. As of April 1st, there are only 39 weeks until the deadline. I just don’t think that the current certification audit infrastructure can carry the load of 3 headquarters certification audits a week from now until then, especially considering the availability of people during the summer and the Thanksgiving/Christmas holiday season. While I’ve heard that only 65 (of 126) member companies’ headquarters might now be required to be certified by the end of the year, a) I’m not aware of the basis for that figure as it’s difficult to imagine that 50% of all members could qualify for the small company one-year exemption and b) that still leaves almost 2 certification audits a week -- a difficult task for the current certification audit infrastructure.

  2. A percentage, hopefully small, of headquarters will probably not get certified the first time through -- either a followup audit and/or conformance work plan will have to be prepared and accepted prior to the deadline.
I’ll keep on top of the issue and report back in a future column.

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How do I get investment funding for a small sustainability-oriented company I’ve started?

Based on the projects I’ve worked on the past six years, you’re in a tough spot. Most equity investors need companies having (or an excellent likelihood of having) $10 million to $100 million in annual sales to make their effort worthwhile. Also, the type of company you are starting typically does not have the rapid, expansive growth that most firms require to invest, develop and exit (e.g. sell their interest) within 3-5 years with a sufficiently significant (e.g. 200%-400%) return in exchange for their risk.

Your initial funding can come from a mix of:
  1. Local/regional/state community development grants
  2. Investment programs/funds specializing in sustainability, social development or other areas
  3. Micro loans
  4. Family loans
  5. Personal seed money
As you proceed, here are a few other lessons I’ve learned:
  • Have a real business, not merely an ideal, and a sound business plan with credible leadership, market assessment and realistic financial planning components
  • Be prepared to put up a significant share of your own funding
  • Share your technology and how your company will be different than the existing and future competitors, though get a signed confidentiality and secrecy agreement (with terms in the event of violation) beforehand
  • Be prepared to share or give up ownership control -- it’s their money and they’ll want to call the shots
  • Attend a few appropriate investment conferences and presentations to get a feel for who’s out there, the type of money available and what investors are seeking
  • Pay out of your own pocket for assistance in getting grants or investors, not a percentage of the funding obtained -- grant organizations and investors want to invest in the business, not in the effort to securing the funding
Other insights and assistance are provided in our September 2000, October 2000, November 2001 and December 2003 columns.

A good article on this topic recently appeared in the January/February issue of In Business magazine. Additional information, leads and a calendar of relevant events are provided in the spring issue of Green Money Journal.

Please keep us informed of your efforts -- we’ll be glad to report on your progress in a future column.

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Postscripts: The Most Ridiculous Item -- Part IV Just when I thought the business climate in New Jersey couldn’t get any more ridiculous (see also our May 2004 column), they did it again. This time, however, it isn’t the state’s Department of Environmental Protection -- it’s the state’s Legislature. In essence, it enacted a statute requiring that everyone “engaging in governmental processes" must register as a lobbyist. This means -- hold your hats -- that even site EH&S representatives and contractors talking with permit engineers about their applications or draft permits must first register with the state as a lobbyist AND provide quarterly status reports. Oh, yeah -- don’t’ forget to send in your annual registration and quarterly status report submittal fees!

Edd Hogan of Norris, McLaughlin & Marcus, Penn., tells us, “The state’s Election Law Enforcement Commission issued the proposed rules on Dec. 15 and has already held its two public hearings on the matter as the regulations must be adopted by early January 2006. However, to the extent that the commission can review and respond to the comments presented at those hearings, it can adopt the new changes to N.J.A.C. 19:25 even sooner than that."

Delightful. Anyone know of available office space for a company seeking to relocate in another state?

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Got A Question?
Send your questions about environmental management issues to [email protected]
We can’t guarantee that we’ll answer every question, but we’ll try.

Steve Rice is president of Environmental Opportunities, Inc., a strategic EH&S management and project support services company in Florham Park, New Jersey. He has 30 years of executive EH&S leadership experience, including 25 years with both Exxon and BASF, and is an ACC-authorized Responsible Care Management Systems (RCMS) auditor.

Copyright 2005, Environmental Opportunities, Inc.

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