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CHAPTER 2. DOCUMENT REPOSITORY

comply with the federal regulations. In states that do not have authorization to administer

federal environmental policy, both federal and state regulations will be in force. In this

case, federal regulations will always need to be satisfied, but state regulations may add

additional or stricter regulations that must also be satisfied.

The power of local government to enact environmental laws varies from state to state,

according to the power granted by the state to the local governments. The processes and

laws that occur at this level of government vary too much to summarize here, but

regulation at the local level has become increasingly significant in recent years. In a law

review article on the advent of local environmental law, John Nolon notes, “… there has

been a remarkable and unnoticed trend among local governments to adopt laws that

protect natural resources. These local environmental laws take on a number of forms.

They include local comprehensive plans expressing environmental values, zoning

districts created to protect watershed areas, environmental standards contained in

subdivision and site plan regulations, and stand-alone environmental laws adopted to

protect particular natural resources such as ridgelines, wetlands, floodplains, stream

banks, existing vegetative cover, and forests” [68].

2.2.2 Supporting Documents

Supporting documentation for regulations is available from a large number of sources.

The dispersed nature of this material makes it difficult for individuals to find all the

relevant documents for regulation provisions. This research addresses this issue by

building a repository in which it is be possible to store all regulation material. The

supporting information may exist in a variety of different document types, such as

regulation preambles, guidance documents, letters of interpretation, letters from the

general counsel of the EPA, memos, court cases, and administrative decisions.

A regulation preamble provides the justification for a regulation’s rules and is published

along with the regulation. Black's Law Dictionary (7th ed. 1999) defines preamble as “an

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CHAPTER 2. DOCUMENT REPOSITORY

introductory statement in a constitution, statute, or other document explaining the

document's basis and objective; esp., a statutory recital of the inconveniences for which

the statute is designed to provide a remedy.” Although a preamble is not considered part

of the official regulation, it provides some background for why the rule was developed.

This background often includes why the EPA chose the regulatory structure defined in

the regulation. Preambles generally cover topics such as: whom the regulation will

affect, what studies were performed that have indicated the need for the regulation, and

how the regulation addresses selected public comments received by the EPA on draft

regulations. Preambles can provide valuable guiding principles for how the EPA

interprets the text of the regulation.

Guidance documents, also known as non-binding guidance or interpretive documents, are

informal policy documents that elaborate on how the EPA interprets or implements

regulation requirements. These documents do not have the force of law. Guidance

documents do not go through formal rulemaking procedures, and they are not legally

binding on the regulated community. Guidance documents can, however, play a very

significant role in determining how to comply with a regulation.

Letters of interpretation, memos, and administrative decisions are all forms of

supplementary documents that, while less formal than guidance documents, may provide

information similar to a guidance document on how the EPA interprets or implements

regulation requirements. While these documents are not themselves legally binding,

similar to guidance documents they provide important information on how the EPA may

treat legally binding regulation requirements.

Court cases can shape environmental regulations through enforcement decisions or the

application of judicial review. Enforcement decisions are decisions by courts on cases

about the enforcement of environmental laws. The results of enforcement decisions by

the courts can affect the compliance process through the clarification of ambiguous laws.

For example, in the U.S. v Plaza Health Laboratories case the court decided that in the

application of the Clean Water Act a person could not be considered a “point source” for

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CHAPTER 2. DOCUMENT REPOSITORY

pollution, overturning previous convictions against an individual for polluting the

Hudson River [100]. The clarification of the interpretation for point sources, which are

an important category for determining regulatory requirements, is an example of how

courts may affect the regulatory system through decisions in enforcement proceedings.

Judicial review is a court’s authority to “determine the legality and constitutionality of an

action of a government official, agency, or legislative body” [42]. Fred Anderson, in an

article in the Duke Environmental Law & Policy Forum, notes that judicial review is an

important part of the regulatory process [3]:

“Judicial review of agency action plays a critical and distinctive role in the

oversight of agency rulemaking. In contrast to legislative oversight, which focuses

on an agency's budget and effectiveness, or executive supervision through the

selection of agency leadership and policy, review of agency conduct by a court

focuses on legality and reasoned decision-making. In this way, judicial oversight

supplements political controls on administration by checking whether the agency

is acting in accordance with the will of the political branches as expressed in its

enabling legislation. Judicial oversight can also serve as a second look at the

exercise of reasoning and expertise by agencies. As an independent check on the

validity of administrative decisions, judicial review also contributes to the

political legitimacy of regulation.

Specifically, judicial review seeks to ensure that agency action violates no

constitutional command (e.g., due process), is authorized by statute or other law,

observes procedural requirements, and has a substantial basis in fact and reason.”

Since courts may strike down or change the interpretation of regulations as a result of

judicial review, court cases may provide insight into how a regulation will be interpreted.

It is therefore important that information on court cases be available in the document

repository.

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CHAPTER 2. DOCUMENT REPOSITORY

2.2.3 Why Supplementary Documents are Important

While generally not legally binding, supplementary documents can be important sources

of information, without which it may be difficult to fully comply with environmental

regulations. This section provides some background on the importance of supplementary

documents.

The Beazer East, Inc. v. U.S. EPA case provides an example of the importance of

supplementary regulation documents [9]. In this case the EPA brought action against

Beazer East for violating RCRA groundwater-monitoring regulations with regard to its

plant’s aeration basins. Beazer claimed the aeration basins were “tanks”, not “surface

impoundments”, and were therefore not subject to RCRA groundwater-monitoring

regulations. The primary issue the court resolved in this case was whether or not, under

RCRA regulations, Beazer’s aerations basins qualified as “tanks” or if they should be

treated as “surface impoundments.” ” Beazer’s aeration basins consisted of six-inch thick

reinforced concrete basins approximately 15ft deep and 80ft across, built into the ground.

In 40 CFR, Section 260.10, a “tank” is defined as:

“Tank means a stationary device, designed to contain an accumulation of

hazardous waste which is constructed primarily of non-earthen materials (e.g.,

wood, concrete, steel, plastic) which provide structural support.”

The regulation also defines “surface impoundment” as:

“Surface impoundment or impoundment means a facility or part of a facility

which is a natural topographic depression, man-made excavation, or diked area

formed primarily of earthen materials (although it may be lined with man-made

materials), which is designed to hold an accumulation of liquid wastes or wastes

containing free liquids, and which is not an injection well. Examples of surface

impoundments are holding, storage, settling, and aeration pits, ponds, and

lagoons.”

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CHAPTER 2. DOCUMENT REPOSITORY

An internal EPA memo, known as the “W eddle memorandum”, cl arified the tank and

surface impoundment definitions by using “struc tural support” as the deciding factor.

The memo stated that in order for something to be classified as a tank, it must have

sufficient structural support to maintain structural integrity even if removed from the

ground and free standing. Beazer conceded that its aeration basins did not meet the

standards laid out in the Weddle memorandum. Beazer claimed it had been deprived of

adequate notice, however, since the standard described in the Weddle memorandum

amounted to a new “rule” that had been adopted without the notice and comment

procedures required by Section 553 of the Administrative Procedures Act (APA) [1].

The court found in favor of the EPA, ruling that the Weddle memoradum was an

“interpretive rule”, not a “legislative rule”.

Interpretive rules are exempted from the

notice and comment requirements of the APA. Legislative rules, which must be

promulgated in accordance with the APA, are rules that impose new duties upon

regulated parties and have the force of law. Interpretive rules interpret language already

existing in regulations, simply stating what an agency thinks a regulation means. Since

the EPA’s interpretation of the tank requireme nts was reasonable and consistent with the

regulation, the court ruled against Beazer in the case.

Supplementary information has taken on such importance in recent years that the EPA

has come under criticism for possibly attempting to avoid the due process requirements

of the APA by using informal documents to set policy [96]. A description of how

supplementary documents can be used to set important aspects of policy was provided by

the U.S. Court of Appeals for the D.C. Circuit in Appalachian Power Company v. EPA

[4]. The court criticized the EPA for using supplementary documents to circumvent the

requirements of the APA and avoid judicial review of its lawmaking:

“The phenomenon we see in this case is familiar. Congress passes a broadly

worded statute. The agency follows with regulations containing broad language,

open-ended phrases, ambiguous standards and the like. Then as years pass, the

agency issues circulars or guidance or memoranda, explaining, interpreting,

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CHAPTER 2. DOCUMENT REPOSITORY

defining and often expanding the commands in the regulations. One guidance

document may yield another and then another and so on. Several words in a

regulation may spawn hundreds of pages of text as the agency offers more and

more detail regarding what its regulations demand of regulated entities. Law is

made, without notice and comment, without public participation, and without

publication in the Federal Register or the Code of Federal Regulations. With the

advent of the Internet, the agency does not need these official publications to

ensure widespread circulation; it can inform those affected simply by posting its

new guidance or memoranda or policy statement on its web site. An agency

operating in this way gains a large advantage. “It can issue or amend its real

rules, i.e., its interpretative rules and policy statements, quickly and inexpensively

without following any statutorily prescribed procedures.” Richard J. Pierce, Jr.,

Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L.REV. 59, 85 (1995).

The agency may also think there is another advantage--immunizing its lawmaking

from judicial review.”

In some cases, courts have struck down supplementary documents for overstepping their

bounds as interpretive documents. For example, in the case Appalachian Power

Company v. EPA [4] the court found that the EPA issued a guidance document that

“broadened underlying EPA rule and its promulgation was thus improper absent

compliance with formal rulemaking procedures”. The court then set aside the guidance

document in its entirety.

Supplementary documents play a very important role in environmental regulations. For

this reason, it is critical that individuals writing, enforcing, or seeking to comply with

regulations have access to all relevant and available supplementary documentation. The

Due to its demonstrative nature, the document repository is not currently being audited to remove

supplemental documents that have been invalidated (such as documents that have been struck down by the

courts).

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CHAPTER 2. DOCUMENT REPOSITORY

document repository described in this chapter is designed to make these important

documents more accessible.

2.3 Categorization of Documents

This section explores the use of categorization systems as an organizing principle for the

document repository. Categorization systems allow us to classify or categorize (the two

terms are used interchangeably here) documents into modular hierarchical structures so

that they are easier to browse and search. Browsing documents according to a

categorization structure is a natural way to navigate documents. This is a common

approach popular among web directories for web page searching. An example from the

document repository is shown in Figure 2.1. First, the nature of categorization will be

discussed. Categorization is a natural, yet challenging, approach to use for organizing

information. Second, some information retrieval issues and terminology will be

discussed. Third, the remainder of this section will focus on approaches for constructing

categorization systems.

2.3.1 Categorization

There is a wide variety of terminology in use for classification work. For purposes of

clarity, we will use the same terminology as used by Charles Heenan in his manuscript on

classification [41]. Because the terms “taxonomy” and “ontol ogy” take on a variety of

definitions in the literature, we will use the terms “classification hierarchy,”

“categorization hierarchy,” “classification structure,” and “categorization structure”

instead of “taxonomy” or “ontology”. For a

detailed history and more general treatment

of classification the reader is referred to [41].

CHAPTER 2. DOCUMENT REPOSITORY

Figure 2.1 Example categorization of the document repository

A paper by Kenneth Bailey [6] contains an excellent introduction to classification. The

following excerpt from Bailey’s work also leads to why classification structures are an

excellent fit for a regulation repository:

“In its simplest form, classification is merely defined as the ordering of entities

into groups or classes on the basis of their similarity. Statistically speaking, we

generally seek to minimize within-group variance, while maximizing between-

group variance. This means that we arrange a set of entities into groups, so that

each group is as different as possible from all other groups, but each group is

internally as homogenous as possible. By maximizing both within-group

homogeneity and between-group heterogeneity, we make groups that are as

distinct (nonoverlapping) as possible, with all members of a group being as alike

as possible. …

Almost everything is classified to some degree in everyday life, from chewing

gum (bubble and nonbubble), to people (men and women), to animals, to

CHAPTER 2. DOCUMENT REPOSITORY

vegetables, to minerals. Grouping objects by similarity, however, is not quite as

simple as it sounds. Imagine that we throw a mixture of 30 knives, forks, and

spoons into a pile on a table and ask three people to group them by “similarity.”

Imagine our surprise when three different classifications result. One person

classifies into two groups of utensils, the long and the short. Another classifies

into three classes,—plastic, wooden, and silver. The third person classifies into

three groups,—knives, forks, and spoons. Whose classification is ‘best’? …

The lesson here should be obvious—a cl assification is no better than the

dimensions or variables on which it is based. If you follow the rules of

classification perfectly but classify on trivial dimensions, you will produce a

trivial classification. As a case in point, a classification that they have four legs or

two legs may produce a four-legged group consisting of a giraffe, a dining-room

table, and a dancing couple. Is this what we really want?

One basic secret to successful classification, then, is the ability to ascertain the

key or fundamental characteristics on which the classification is to be based. A

person who classifies mixtures of lead and gold on the basis of weight alone will

probably be sadder but wiser. It is crucial that the fundamental or defining

characteristics of the phenomena be identified. Unfortunately, there is no specific

formula for identifying key characteristics, whether the task is theory

construction, classification, or statistical analysis. In all of these diverse cases,

prior knowledge and theoretical guidance are required in order to make the right

decisions.”

Bailey’s example of people organizing the same objects into three different

classifications, each perfectly valid, illustrates precisely why categorization structures are

a good fit for organizing information in a document repository. Different people and

organizations have different ways of structuring the same data so as to best fit their needs.

For example, large semiconductor manufacturers, small auto body repair shops, and

authors of new regulations will probably each have different ways of organizing

CHAPTER 2. DOCUMENT REPOSITORY

regulation documents. There is no inherently “correct” way to structure all the

information in the document repository, and categorization structures allow us to provide

a number of different perspectives. Recognizing that different entities will want

information classified in different ways is key to taking advantage of the new possibilities

provided by current information technology. Jane Fountain, in a report on information,

institutions and governance, notes that, “Currently, most government information on the

web is organized according to the classification systems of agencies rather than the

mental models of users. … Hence, althoug h the Internet and web, in theory, make

government information more accessible to the public, organization online often

replicates paper-based classification schemes and therefore merely automates the status

quo” [33]. Developing approaches for managi ng regulatory information that take into

account that there will be many different ways of organizing information may alleviate

the problem Fountain points out, and that is what the document repository discussed in

this chapter is designed to do.

Figure 2.2 illustrates how different categorization structures can offer different

perspectives on the same set of data. Note that documents grouped together in one

categorization structure may not be grouped together in a different structure (e.g.,

documents D and E). In addition, documents that are covered in one structure may not be

available in a different structure (e.g., documents A and E).

In order to be scalable, a classification hierarchy should have a clear logical relationship

between categories and subcategories, and the overall structure should coherently

subdivide the documents it is designed to cover. The most common logical relationship

used in classification hierarchies is the generalization of the “is a kind of” relationship.

For example, “Oak tree” could be a child node of “tree” if the “is a kind of” relationship

were the organizing principle for the hierarchy. Other popular organizing principles are

“part-to-the-whole” (i.e., “leaf” could be a ch

ild of “tree”) and “is-a-process-of” (i.e.,

“photosynthesis” could be a child of “tree”).

The development of scalable classification

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