Obtaining Regulatory Guidance from the Regulators

A major part of practicing environmental law is the ability to advise based on an assessment of how an agency is likely to behave.  The rules and regulations are often not as clear as a regulated party would like. Interpreting the rules and regulations, or using how they have been interpreted in other contexts to determine a recommended course of action, can be difficult.  I had a recent reminder, however, that it can also sometimes be quite simple.  I was approached by a potential client regarding a landlord tenant dispute that centered on how a dental office handles its waste.  The problem was the presence of mercury in the amalgam and possibly in the dental waste.  I had never looked into how dental offices deal with their waste. For a variety of reasons, I did not represent the dentist.   The call made me curious, however, because mercury is hazardous in such low concentrations that I would have assumed that most dentists have this problem.

A quick review of the materials available online located a recently-published EPA guidance document describing best practices for dental offices.  I forwarded it to my dentist friend and he found it quite helpful.   So, how do people find out about these things?  Federal regulatory material is published in the Federal Register.  See www.federalregister.gov.  Rules and regulations must be published in draft form and there is a public comment period in which regulated parties have an opportunity to comment on the proposal.   It may be cost prohibitive for small businesses to watch for regulatory developments, but many trade organizations have someone reviewing this material so that they can advise their members.  As a young attorney, that was one of my roles.  Back then, they published a book every day that contained an index of the day’s regulatory material.  It is easier today because it can be reviewed online.

Agencies spend very little time educating the regulated community and the last thing any business wants is to first become aware of a regulatory requirement by receiving a Notice of Violation.   People working in regulated industries know which agencies they need to be concerned about.  Thus, watching for new regulatory material that may affect your business, or finding someone to do so, is not so difficult.  My dentist case proved that it can also be an easy way to resolve some problems.

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