by Cynthia Price
The process to review and streamline Michigan’s regulatory rules is intensive, but it is a stellar opportunity for those invited to participate, one that Warner Norcross and Judd attorney Troy Cumings is pursuing full force.
Cumings, who is senior counsel at Warner Norcross as well as a “lawyerlobbyist,” told the Grand Rapids Bar Association’s Environmental Law Section that the current opportunities arose as a result of Governor Rick Snyder creating an Office of Regulatory Reinvention (ORR).
Executive Order 2011 - 5, which established the ORR, also allowed for the appointment of advisory rules committees on specific topic areas, as designated by the governor. Cumings was asked to be part of the Environmental Advisory Rules Committee (EARC) earlier this year, one of several committees constituted.
He says that the first thing members of the EARC did was ascertain how serious the administration is about incorporating the committee’s recommendations. “At the first meeting there were a few of us who actually stood up and asked whether the governor was actually going to take action. We said we need confirmation that this was not going to sit on a shelf, and we’ve gotten every confirmation we’ve ever wanted. This is a priority of the governor’s.”
Once he was sure of that, Cumings threw himself into the work.
Facing review of over 6000 rules, the EARC quickly decided to divide the work up in to subcommittees corresponding to some of the major divisions within the Department of Environmental Quality (DEQ), chiefly Air, Water, and Remediation. Cumings took on the task of chairing the Remediation Subcommittee.
The subcommittee will make very specific recommendations, which will be vetted and prioritized by the larger EARC. Those recommendations will be forwarded to Michigan’s chief regulatory officer and director of the ORR Steve Hilfinger for review and final forwarding to the governor.
Cumings said that the EARC is likely to have to ask for a very brief deadline extension. The recommendations are due Oct. 15, but he believes it will probably take until the end of October to finalize them.
Draft white papers are in circulation, and Cumings thought that the larger EARC will probably derive its recommendations from those in simple form, referring people to the final white papers for more background.
The primary motivation for such reinvention is to create a better economic environment in the state, or as the Executive Order states it, “to have a regulatory environment and regulatory process that are fair, efficient, transparent, and conducive to business growth and job creation.”
Therefore, the committees are charged with considering factors such as the costs of compliance, the extent to which the rules conflict with, or duplicate, other rules, and whether the rules exceed national or regional compliance requirements. They must also take into consideration the health or safety benefits of the rules, and whether they are mandated by statute or by a constitutional provision.
The EARC reached out to the regulated community and “every organization we could think of” for information that would help them understand where duplication, inefficiency, or some other factor might interfere with the conduct of business activity. What they heard was that uneven implementation and application of the rules was more of a problem than the rules themselves, so they have also included that in their scope.
Related to that, they are reviewing all of the guidance documents that DEQ staff follows, which includes a hodgepodge of types of documents numbering more than 1600 developed by widely-differing methods. The group will make recommendations about standardizing such development procedures.
According to Cumings, participation by the DEQ has been steady and helpful. He mentioned that the DEQ Director, Dan Wyant, has brought on Anne Couture to serve as Senior Policy Advisor, Executive Division, charged in part with moving this process forward. Lynelle Marolf, Division Chief of the Michigan DEQ Remediation Division, has attended meetings and made herself available for discussion. Randy Gross, Director, Office of Policy and Legislative Affairs at DEQ, also has had broad participation.
Many of the EARC’s discussions have been specific and technical. Cumings shared a few of those specific issues in broad strokes, and the section members present discussed such matters as the 2010 revisions of Part 201 and Part 213 of Natural Resources and Environmental Protection Act cleanup criteria. Other specific discussions included Leaking Underground Storage Tanks and their regulatory history, and the Groundwater Surface water Interface (GSI) regulations. Cumings noted that Michigan is the only that which regulates GSI.
As far as suggesting changes to Michigan law, Cumings said that the EARC is trying to avoid that, but he cannot rule it out in all cases. Warner Norcross attorneys are very involved with the Grand Rapids Bar’s Environmental Law Section. Kenneth Vermeulen serves as chair, and Scott Watson is the vice chair. Vermeulen noted that the section will meet every other month, and asked for topic suggestions.