The Department of Economic and Community Development recently released a much awaitedRegulatory Reform Report on the state of State Government. Not surprisingly, environmental programs as well as the department of environment and conservation itself were put under the microscope.
Following Governor Haslam’s inauguration last year the Governor tasked the Department of Economic and Community Development (ECD) with the responsibility of regulatory review as part of Gov. Haslam’s Jobs4TN plan. According to ECD, the goal of this task was to produce a report and set of recommendations to the governor in order to make improvements to state government’s regulatory system as well as the way it conducts business. During this process, ECD worked with existing Tennessee businesses, business advocacy groups and state departments to identify federal and state laws, regulations and processes inhibiting job growth.
The report notes at page 41, “There was a general consensus that state government should do everything in its power to remove regulatory or legislative uncertainty for businesses. Many businesses expressed concern regarding risking significant capital investments prior to the settling of this uncertainty (mainly at the federal level).”
While we have referenced the entire report in the first paragraph,, I think it is helpful to pull out the findings and recommendations. These findings and recommendations could have substantial impact on future environmental programs.
Findings and Recommendations
A. Findings
Much of the input that was received during this process indicated that Tennessee does not have the specific problems with individual regulations that plague other states in our country; however, this process highlighted numerous regulatory and operational issues within our government. The most common findings are detailed below:
Regulatory Interpretation
Numerous examples were provided during this process regarding uneven regulatory interpretation and the lack of transparency of such interpretation in our state. The common problem addressed involves situations where departmental regulators or inspectors enforce the same regulation inconsistently in different regions of the state even when there is no apparent reason for doing so. Businesses expressed that playing a regulatory “guessing game” was inefficient, expensive and contributed to uncertainty that would give businesses hesitancy to further invest in this state.
Regulatory Enforcement Inefficiency
Whether individuals who enforce regulations in certain departments are given the proper training or have the proper skill set required to enforce regulations is a concern across the state. Additionally, there is a perceived lack of accountability in regards to state inspectors. Many concerns were expressed regarding inspector misconduct, such as poor treatment or perceived intimidation of businesses they are inspecting.
Relationship with Federal Agencies
The relationships certain departments have with federal agencies and whether a state department will adequately represent Tennessee’s interests or simply capitulate to the wishes of the federal agency should also be evaluated. The most common complaint addressed situations where the state departments have latitude to interpret a regulation differently than a federal agency and instead simply rely on “guidance” from the federal agency, regardless of whether this “guidance” is appropriate or not.
Transparency
The lack of information set forth by boards, commissions and departments regarding the regulatory process in the state makes it difficult to monitor this process and perpetuates inconsistencies. Many expressed concern that there was not proper oversight and accountability of the boards and commissions process.
Departmental Culture
In addition to the concerns regarding the regulatory process, there were an overwhelming number of concerns regarding the lack of “customer service” the state provides. Serious and severe problems were addressed and involved: departmental inefficiencies; lack of response to constituents; poor attitude; rude treatment of constituents; threats made towards constituents; and general lack of management and accountability.
B. Recommendations
Assessing Future Regulations
Implement a process that assesses all regulations prior to becoming final. This process should include requirements for boards, commissions and departments to ensure a full and open regulatory process, ensure stakeholders have proper input in the process, and include a written statement from the promulgating body as to why the rule is needed and whether the affected stakeholders have been considered. This information should be included on the regulatory transparency website.
Culture of Compliance
Require regulatory enforcement entities to make efforts to work with constituents to help them comply with regulations and to help them understand inspector expectations. One of the more common complaints received during this process was the perception that certain departments and inspectors play a game of “gotcha” instead of working with the businesses to assist them in complying with regulations.
Culture of State Government
Assess reforming aspects of the state employment process. Many of the complaints during this process surrounded the lack of accountability of state employees and the lack of professionalism encountered while interacting with the state government. Employees should be held accountable for their actions. State employees that do not properly conduct themselves or fulfill their duties should be easily disciplined or dismissed by their supervisors.
The state should assess the benefits of providing customer service training to employees and developing customer service standards. Employee performance reviews should take into account these standards and hold those accountable for not complying with these standards.
Eliminating Unnecessary Regulation
Direct each department to begin the process of eliminating or modifying the regulations provided during the departmental review of this process.
Federal Regulations
Conduct an annual survey to businesses tracking problematic federal regulations. The results of this survey will further guide the state’s ability to work with the Tennessee congressional delegation to improve or eliminate these regulations.
Interdepartmental Interaction
Review all procedures or processes that are performed by more than one department to assess whether these procedures and processes can be streamlined. A number of complaints during this process revolved around departments failing to work together on the same matter. This failure leads to costly delays for businesses.
Legislative Opportunities
Search for legislative or regulatory opportunities to address business concerns regarding certain laws such as worker's compensation or unemployment laws.
Regulatory Interpretation
Require that every department enforcing regulations create uniform regulatory guidance, where applicable, in order to promote regulatory certainty and oversight within this process. Implementing this process would provide businesses with certainty and add transparency to the regulatory system.
Regulatory Transparency
Develop an interactive, “one stop” website. Develop an interactive website that allows constituents to easily find regulatory information and require each department, board, or commission to post notices on this website and to create an updating service that constituents can receive all notices regarding potential rulemaking. A fairly common complaint, especially among small- and medium-size businesses, was that it was very difficult to engage in the regulatory process without the costly process of hiring an attorney. All agreed that having an easier method for finding information would be beneficial and make the regulatory system easier to navigate.
Assess the necessity of each board and commission. Many concerns addressed the necessity of certain boards and commissions within this process and whether these entities have proper oversight and accountability. Many of these entities are duplicative, unnecessary, or can be consolidated. This system tends to lead to confusion regarding the rulemaking process. Where appropriate, boards and commissions that fit this description should be eliminated or consolidated.
tags: TDEC EPA ADMISTRATIVE WATER AIR WASTE
