Grandfathers Toothpaste and Environmental Regulations
The Transportation Security Administration (TSA) confiscated my toothpaste this winter. It was the same brand of toothpaste, the same style and size of container that I’ve flown with for years. It was tucked in a 1-quart plastic bag along with shampoo, make-up, and deodorant, which as a solid apparently doesn’t have to be bagged. I’ve carried that same package of items on before; I’ve checked it through before. But this time, the 4-ounce toothpaste raised an alarm—one ounce too large for the regulations despite everything else I had done correctly.
The rules were clearly posted. The container was too large. Arguing that inspectors had let it go for the previous six years—and not only let it go but failed to say anything—didn’t save my toothpaste. There I was, sock-footed, holding a quart-sized plastic bag full of liquids, gels, and one solid … but busted all the same.
It was an unexpected reminder of a basic fact of life—rules change, and we’re expected to keep up. Sometimes, despite our best efforts, we fall short and then must adjust our approach to try again.
Some of the rules don’t seem to make a lot of sense. Why is a 3-ounce container OK but a 4-ounce container not? Does the extra dab of toothpaste make the container or the contents explosive? Can you hide something in a 4-ounce container that won’t fit in the 3-ounce container? If so, shouldn’t it make a difference that the container is made of clear plastic or partially empty? Why is there no science to justify the application of the rule to my particular toothpaste container?
No. The rule is what it is, and it’s written broadly to cover multiple situations while minimizing the amount of container-specific effort required by the inspectors. The TSA probably doesn’t think we ought to know all the reasons behind the rules.
But what if I want to know the rationale behind the implementation of increasingly stringent standards?
At best, I can actively participate in the development of rules that will affect my business. Although I’ve never been invited to participate in a discussion with the TSA about airline security, those opportunities do exist as states develop new environmental rules. Maybe I can point out some real-world experience that will affect implementation of the proposed rules. Maybe I can point out some mitigating factors or past history in other applications that create the potential to allow a variance. At worst, I’ll come away thoroughly educated on the new requirements. And then, if I want to try for a variance, I’d better plan to work through the full process defined by the new rules to create the data needed to be successful.
I wanted to argue with the TSA inspector that this was exactly the same toothpaste container that had been allowed onboard previous flights. I wanted to complain that nobody had ever told me the container was too large to be carried on. Shouldn’t I get a pass on compliance because of previous oversights by the regulating agency? They—the inspectors or regulators or somebody—let old approaches continue all the time. It happens so often we have a term for it: grandfathering. But sooner or later, there’s enough history to stop grandfathering. Although I don’t fully understand why or when the exceptions ended, my toothpaste is the victim of increasing regulation.
Last fall I wrote a letter to the editor of an area paper arguing that compromises on rule enforcement for the previous 10 years had caused the need for Iowa’s new state landfill rules and contributed greatly to the contentious process of writing them. Shouldn’t all of us have to meet the same standards if we’re doing the same things? If my 4-ounce toothpaste container is confiscated, yours better be, too.
The answer is easily “yes” when everybody is starting from the same point, but not so clear-cut when making the transition from one approach to another—for example, changing one construction standard to a more rigorous one. In those cases, regulators must provide significant advance notice of the pending change and/or a reasonable period of time in which to come into compliance after the rule is in effect. It would be useful if they also provided clear justification of the need for and benefit of the change. Unnecessarily wasting resources or shortening the useful life of a major investment is not good public policy. But neither is it right to allow activities at a higher risk of causing environmental contamination or a threat to public safety to continue unchecked. Sooner or later, the scale must tip in favor of the higher standard, and there must be an identified and agreed-upon end date to the grandfathering.
A few years ago, the Iowa Department of Natural Resources, with the encouragement of the Environmental Protection Agency, decided that its enforcement compromises weren’t contributing to an appropriate level of environmental protection. Between the two agencies, they established a deadline and changed interpretations of rules in a way that should end some of the grandfathering of Iowa landfills. Now we have at least one lawsuit—and probably several—arguing that old standards, once applied, shouldn’t be changed and that old plans, even those never constructed, shouldn’t be required to meet new, increased standards.
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I have a great deal of sympathy for some of the agencies suing. They’re getting caught by a change in rule interpretation on cells constructed and approved under the old rules years ago. For them, the effect isn’t on something in the future; it’s on something long since done and almost impossible to change. But for the others, who may have as little as a plan on a piece of paper and a permit issued that says they can build something sometime in the future, my sympathy is significantly less.
As the TSA inspector said, things change. Standards increase. He was doing his job, enforcing the rules, even though others before him hadn’t. At that point, I could fly without toothpaste or choose not to get on the plane. Either way, my deadline had come and like it or not I was expected to comply with the more stringent regulations.
March 2008
Grandfathers Toothpaste and Environmental Regulations
The Transportation Security Administration (TSA) confiscated my toothpaste this winter. It was the same brand of toothpaste, the same style and size of container that I’ve flown with for years. It was tucked in a 1-quart plastic bag along with shampoo, make-up, and deodorant, which as a solid apparently doesn’t have to be bagged. I’ve carried that same package of items on before; I’ve checked it through before. But this time, the 4-ounce toothpaste raised an alarm—one ounce too large for the regulations despite everything else I had done correctly.
The rules were clearly posted. The container was too large. Arguing that inspectors had let it go for the previous six years—and not only let it go but failed to say anything—didn’t save my toothpaste. There I was, sock-footed, holding a quart-sized plastic bag full of liquids, gels, and one solid … but busted all the same.
It was an unexpected reminder of a basic fact of life—rules change, and we’re expected to keep up. Sometimes, despite our best efforts, we fall short and then must adjust our approach to try again.
Some of the rules don’t seem to make a lot of sense. Why is a 3-ounce container OK but a 4-ounce container not? Does the extra dab of toothpaste make the container or the contents explosive? Can you hide something in a 4-ounce container that won’t fit in the 3-ounce container? If so, shouldn’t it make a difference that the container is made of clear plastic or partially empty? Why is there no science to justify the application of the rule to my particular toothpaste container?
No. The rule is what it is, and it’s written broadly to cover multiple situations while minimizing the amount of container-specific effort required by the inspectors. The TSA probably doesn’t think we ought to know all the reasons behind the rules.
But what if I want to know the rationale behind the implementation of increasingly stringent standards?
At best, I can actively participate in the development of rules that will affect my business. Although I’ve never been invited to participate in a discussion with the TSA about airline security, those opportunities do exist as states develop new environmental rules. Maybe I can point out some real-world experience that will affect implementation of the proposed rules. Maybe I can point out some mitigating factors or past history in other applications that create the potential to allow a variance. At worst, I’ll come away thoroughly educated on the new requirements. And then, if I want to try for a variance, I’d better plan to work through the full process defined by the new rules to create the data needed to be successful.
I wanted to argue with the TSA inspector that this was exactly the same toothpaste container that had been allowed onboard previous flights. I wanted to complain that nobody had ever told me the container was too large to be carried on. Shouldn’t I get a pass on compliance because of previous oversights by the regulating agency? They—the inspectors or regulators or somebody—let old approaches continue all the time. It happens so often we have a term for it: grandfathering. But sooner or later, there’s enough history to stop grandfathering. Although I don’t fully understand why or when the exceptions ended, my toothpaste is the victim of increasing regulation.
Last fall I wrote a letter to the editor of an area paper arguing that compromises on rule enforcement for the previous 10 years had caused the need for Iowa’s new state landfill rules and contributed greatly to the contentious process of writing them. Shouldn’t all of us have to meet the same standards if we’re doing the same things? If my 4-ounce toothpaste container is confiscated, yours better be, too.
The answer is easily “yes” when everybody is starting from the same point, but not so clear-cut when making the transition from one approach to another—for example, changing one construction standard to a more rigorous one. In those cases, regulators must provide significant advance notice of the pending change and/or a reasonable period of time in which to come into compliance after the rule is in effect. It would be useful if they also provided clear justification of the need for and benefit of the change. Unnecessarily wasting resources or shortening the useful life of a major investment is not good public policy. But neither is it right to allow activities at a higher risk of causing environmental contamination or a threat to public safety to continue unchecked. Sooner or later, the scale must tip in favor of the higher standard, and there must be an identified and agreed-upon end date to the grandfathering.
A few years ago, the Iowa Department of Natural Resources, with the encouragement of the Environmental Protection Agency, decided that its enforcement compromises weren’t contributing to an appropriate level of environmental protection. Between the two agencies, they established a deadline and changed interpretations of rules in a way that should end some of the grandfathering of Iowa landfills. Now we have at least one lawsuit—and probably several—arguing that old standards, once applied, shouldn’t be changed and that old plans, even those never constructed, shouldn’t be required to meet new, increased standards.
I have a great deal of sympathy for some of the agencies suing. They’re getting caught by a change in rule interpretation on cells constructed and approved under the old rules years ago. For them, the effect isn’t on something in the future; it’s on something long since done and almost impossible to change. But for the others, who may have as little as a plan on a piece of paper and a permit issued that says they can build something sometime in the future, my sympathy is significantly less.
As the TSA inspector said, things change. Standards increase. He was doing his job, enforcing the rules, even though others before him hadn’t. At that point, I could fly without toothpaste or choose not to get on the plane. Either way, my deadline had come and like it or not I was expected to comply with the more stringent regulations.