ANNALS OF THE EPA
PART 1: WHO POLICES THE POLICEMAN?
Environmental Research Foundation
July 25, 1991
Mrs. Corinne Whitehead of Benton, Kentucky is a friend of mine. She is the past president of the Kentucky League of Women Voters and is now the head of a group called the Coalition for Health Concern. One of the organization's chief health concerns over the years has been a Kentucky hazardous waste disposal company called LWD Inc. (Liquid Waste Disposal) which owns several hazardous waste incinerators and landfills in Kentucky. LWD had achieved national notoriety when it was featured on a PBS Nightline documentary. It was most recently the subject of a extensive review in In These Times(1) Because I work for the U.S. Environmental Protection Agency (EPA), Mrs. Whitehead asked me to look into why her repeated complaints to EPA about LWD facilities had gone unanswered. I agreed to do this on an unofficial basis. I reviewed the many charges her organization had made about LWD and I selected one to follow up on which I thought would be rather simple and straightforward.
In the town of Clay in Webster County, Kentucky, LWD owned an unsophisticated hazardous waste incinerator which, although it was, and still is, permitted by EPA, had been closed by the state fire marshall in 1982 as a fire hazard shortly after a tanker truck had exploded there. Nevertheless, for many years afterward, neighbors of the facility complained about trucks going out to the facility at all hours of the night and early morning. The neighbors claimed that a well driller had drilled a well to an abandoned underground mine and the trucks were hauling hazardous waste onto the closed facility and pouring it down the well. If the charges were true, it could very likely be a felony and could send someone to prison. Mrs. Whitehead said that she had made several calls to the Office of Criminal Investigations(2) (OCI) in the Atlanta office of EPA in 1986 and 1987 on behalf of the Webster County citizens and that they had sent investigators but no one has ever heard another word about it.
Mrs. Whitehead showed me a video taped interview, made in late 1990, of a former LWD truck driver who confirmed that he had brought hazardous waste to the facility after it had been closed but had never brought any out. He said that a fellow employee who worked at the Webster County facility had told him that the waste was being poured down a well shaft. I later made a phone call to a couple who lived near the Webster County facility who confirmed that they had twice been visited by EPA investigators in 1987 in response to Mrs. Whitehead's call. Neither they nor Mrs. Whitehead had ever heard back from EPA on the results of EPA's investigations and the alleged illegal dumping did not stop.
On January 16, 1991, I submitted the following Freedom of Information Act (FOIA) request to EPA headquarters:This is a Freedom of Information request for the report of a criminal investigation conducted out of the Atlanta office of the Office of Criminal Investigations of a company by the name of LWD in Kentucky.I received a letter dated February 5, 1991 from a Mr. Howard Berman whose title was Criminal Enforcement Counsel at EPA in Washington. He said:
The investigation was requested by Mrs. Corinne Whitehead in a telephone conversation with Mr. John West in 1986 and a further conversation with a Mr. Hart in 1987. I spoke with Mr. West and he remembers conducting an investigation.I have been informed by Region IV [Atlanta] OCI [Office of Criminal Investigation] that no report of investigation was generated in that case. No formal investigation was conducted. The matter was closed on January 29, 1987.I had been told by friends inside the EPA Inspector General's office that if OCI investigators went on a field visit they would have to have filed a report. I therefore went to see Mr. Berman on February 11th. I explained to him about the charges that hazardous waste had illegally been dumped down a well shaft into an abandoned mine. He laughed and said that was a clever way to get rid of hazardous waste. I further told him that if investigators had visited the site, there would have to be a report in the files and the fact that there wasn't any would lead one to suspect that someone in the Atlanta office of EPA had removed it or prevented it from getting there in the first place. In any case, it would be a crime to cover up a crime.
Mr. Berman patiently explained that I was probably asking for the wrong thing in my FOIA request when I asked for a "Report of Investigation." This was a term of art, he said, which had a very specific meaning and whoever searched the files in Atlanta was probably looking for a document titled "Report of Investigation." He assured me that if I rephrased my FOIA request in less specific terms I would probably find that there was some sort of informal report filed.
Before I had a chance to re-submit my FOIA request, I received a letter from Mr. James Scarbrough, a branch chief in the Hazardous Waste Management Division in Atlanta, dated February 22, 1991, in response to my original FOIA request. Attached was a document titled "Report of Investigation." Indeed, just as Mr. Berman said, the investigation had been closed on January 29, 1987 ..... but it was a different investigation.
The report was of an investigation of a different complaint that Mrs. Whitehead had made about a different LWD incinerator in Calvert City, Kentucky and not the one in Webster County. The complaint involved an eye witness to the illegal burial of thousands of drums of hazardous waste at the LWD site. The investigators interviewed the witness and then closed the case almost as soon as they opened it with these concluding words in their report:On January 21, 1987, a meeting was held with Mr. Michael Newton, Deputy Regional Counsel, legal advisor, and Mr. Donald Stone, technical advisor. After relating the content of the [name deleted] interview Mr. Newton concurred that the allegations of drum dumping did in all probability occur but these incidents happened prior to enactment of RCRA(3), and the statute of limitations have expired.This conclusion was rather mind-boggling. Since RCRA was enacted in 1976 and the report states that the unnamed witness left LWD in 1979, how, then, did they conclude that the burial was prior to the enactment of RCRA?
Therefore, based on the facts and circumstances as reported it is this agent's recommendation that this criminal case be closed as unfounded. [Emphasis added]
No one at EPA had ever bothered to send a copy of this report to any of the citizens in Kentucky. When I showed the report to Mrs. Whitehead she said it only confirmed her impression of EPA's indifference, if not collusion with LWD. She pointed out that the burial of those drums was common knowledge. She even had a map of where the drums were buried. She also knew of other witnesses with more recent experiences whom the investigators could have interviewed if they really wanted more details, instead of just looking for an excuse to close the case.
On February 26th, I resubmitted my FOIA request. This time it read:For reasons which may be my own fault in the way that my January 16 request was worded, the report does not contain all the information I am looking for. The attached report was apparently in response to Mrs. Whitehead's call to Mr. West in 1986 which, I am told, concerned the LWD facility in Calvert City, KY. As I stated in my letter of January 16, there was a second call to Mr. Hart in 1987. That call, I am told, concerned the LWD incinerator facility in Webster County, KY.Mrs. Whitehead told me that she reported to Mr. Hart that although the Webster County incinerator had been closed by the fire marshall, it was continuing to accept hazardous waste and that the waste was being dumped down a well drilled into an abandoned mine. Surely such a serious accusation must have merited some action on the part of EPA, which must have resulted in some written document or documents. By whatever name these documents might be called, I would like to have a copy.I received a package dated March 20th from Mr. Berman again. His letter said:I have requested and received a complete copy of all documents existing within the Region IV Criminal Investigations Division office regarding LWD.All the material was about the LWD incinerator in Calvert City. There was nothing in the package concerning the Webster County facility. If the people I talked to in Webster County weren't hallucinating when they told me they were visited twice by investigators from EPA, then something was very wrong.
Although the package contained nothing relevant to my inquiry, it confirmed some of the things Mrs. Whitehead had told me. She had said that anything she sent to the State of Kentucky or to the Atlanta office of EPA ended up in the hands of Mr. Amos Shelton, the owner of LWD. A EPA memorandum from James F. Bycott, assistant regional counsel to Alan Antley, chief, Waste Compliance Section dated February 19, 1987, said:On February 5, 1987 representatives of L.W.D., Inc. visited Region IV and accidently obtained a copy of a citizen's complaint, with pictures and a map which I advised the Waste Compliance Section to withhold.The next package I received was from Mr. James Scarbrough of the Region IV Waste Management Division dated March 29, 1991. This package contained inspection reports and other data from the LWD incinerator in Webster County and another LWD incinerator in Louisville, Kentucky.
Inspection reports of the Webster County facility dated February 1984, April 1985, and July 1985, all made reference to the fact that there were spills on the ground needing cleaning up, even though the facility had been officially closed since February 1982. Furthermore, even though it still has an EPA permit, there was nothing in the Hazardous Waste Management Division files on the Webster County site later than July 1985.
Mrs. Whitehead had other reasons for harboring suspicions about the relationship between LWD and the EPA Region IV office in Atlanta. In 1988, Mr. Don Harker, was chosen as the administrator of Kentucky's Waste Management Division. In 1989 he tried to close down LWD's Calvert City incinerator because of numerous violations. Then, in October of 1989, Mr. Tom Nessmith, EPA Region IV chief of policy planning and evaluation, told the press that if the incinerator were closed, EPA would cut off the funds to Kentucky (then totaling $40 million) that Congress had appropriated for cleaning up Superfund sites. The next month, Mr. Harker was fired and the incinerator continues to operate. A newspaper article reported(4) that the governor of Kentucky was paid $500,000 to pull that off and gives his source as "a former very high official in Kentucky government".
That same year, 1989, PBS ran a Frontline documentary titled "Who's Killing Calvert City?" Among the revelations was the fact that in 1987 EPA Region IV commissioned an audit of the LWD Calvert City facility by the consulting firm of PRC Environmental Management. The report showed many gross violations of air, hazardous waste and worker safety rules as well as keeping two sets of records on the treatment of wastes. EPA kept the report secret until someone leaked it to Frontline.
There was also the fact that large numbers of people in Region IV had left government service for lucrative jobs in the commercial hazardous waste management industry. Although this situation is common throughout EPA, my observation has been that the so called "revolving door" seems to be most popular in Region IV. The previous regional administrator, Jack Ravan, became CEO of the second largest hazardous waste company in America. The current regional administrator, Greer Tidwell, admitted that he got his appointment with the help of the influence of Howard Baker, a director of Waste Management, Inc., the largest hazardous waste company in America.(5)
Recently, a former employee of LWD was found dead under violent circumstances shortly after he had exposed alleged illegal waste disposal practices of LWD to a local newspaper. Although the medical examiner, after 30 days, said the death was by natural causes, Mrs. Whitehead, and other local citizens, suspect otherwise.
At this point I felt that there was more than enough grounds to suspect skulduggery at EPA's Atlanta office, so on April 2, 1991, I sent the following letter to Mr. John C. Martin, EPA's inspector general:A lady by the name of Mrs. Corinne Whitehead has brought some facts to my attention which I think warrant an investigation. She told me that in 1987 she made several calls to the Atlanta office of EPA to inform them that the LWD hazardous waste incinerator in Webster County, Kentucky, (EPA ID No. KYD088438874) which had been closed by the fire marshall, was continuing to accept hazardous waste and that this waste was being poured down a well which had been drilled into an abandoned mine shaft. She told me that several EPA investigators had visited some local citizens but no action was taken. She also showed me a video taped interview of a former LWD driver who said he had taken hazardous waste to the site after it had been closed and that another employee of LWD had told him that the waste was being poured down a well to an abandoned mine.
I put in several Freedom of Information Act requests for information on the investigation. There was nothing in the EPA files. I spoke, by telephone, to Mrs. Ellis Gardner of Providence, Kentucky. She confirmed that she and her husband had twice been visited by EPA investigators in 1987 and that they had come as a result of Mrs. Whitehead's call and that as far as she knew, no action resulted from their visit. Furthermore, neither she nor Mrs. Whitehead had received any report from EPA.
I do not believe it is possible that there is no report of investigation or any other documentation for such a serious charge, especially one which merited two field visits, unless the documentation had been removed from the files or suppressed.
This does not seem far fetched in light of the following:
- The recent suspected murder(6) of a former LWD employee who informed the press about illegal disposal at LWD's Calvert City hazardous waste incinerator.
- The fact that LWD was able to "accidently" obtain copies of citizen's complaints and other documents from the EPA Atlanta office which were part of a criminal enforcement proceeding.
- The ease with which the Atlanta office was willing to dismiss charges of illegal dumping at the Calvert City LWD plant.
- The fact that the Atlanta office had suppressed a report from its own contractor about wrongdoing at LWD.
- The continual "revolving door" of personnel from the Atlanta office to the hazardous waste management industry.
I therefore urge you to investigate the missing report of the investigation of the Webster County LWD facility. I would also like to be kept informed about the disposition of this request for investigation.The next letter I got was the greatest shock yet. It was from my old correspondent, Mr. James H. Scarbrough of the Region IV Waste Management Division dated April 22, 1991, informing me that the inspector general had turned the investigation over to him! Not only had the inspector general turned the investigation of missing reports over to one of my leading suspects, but he had also compromised my confidentiality, which is a serious violation of the law governing investigations by inspectors general.(7) The letter contained nothing relevant to my inquiry.
Then, on June 18, I got a phone call from Ms. Barbara Vandermer of the Office of the Inspector General telling me that the Inspector General had decided not to conduct an investigation and that the case was closed. There was no explanation for the action. When I asked for some documentation on who made the decision and why, she said she would check with her boss and call me back. On June 24th Ms. Vandermer called back to tell me that her boss, Mr. John C. Jones, would not write such a memorandum but I was free to put in still another FOIA request for the inspector general's file on my case. She said that the file contained a memorandum from one of the divisional inspectors general which gave the reasons for not opening the case. So I put in another FOIA request on the same day for the file.
Just when I thought there were no more surprises, on July 12th, I got a letter from Mr. John C. Jones, assistant inspector general for management, dated July 10, 1991. He had denied my FOIA request on the grounds that the case was still open!
I called Ms. Vandermer that same day. She was expecting my call and she sounded very nervous and upset. When I asked what was going on, she said she could not give me any more information than was in Mr. Jones' letter except to confirm that she had told me, on instructions from Mr. Jones, that the case was closed and that I could get the file through a FOIA request. She said she would be going out on a very fragile limb to say anything more. Shortly after that conversation, she called me back with an odd request: would I confirm that she had given me no information other than what she had given me so that she could tell that to Mr. Jones?
I tried calling Mr. Jones, but when I gave my name to his secretary she refused to put me through. I finally told the secretary to tell Mr. Jones that he may have committed a felony when he signed that letter and he had better talk to me. He did, but he refused to give me any explanation for his strange behavior.
Two weeks later, on July 24th, I talked over the telephone to Mr. James Johnson, the divisional inspector general for investigations in Atlanta, to find out if my case truly was still under investigation. Since Mr. Johnson was the officer in charge of all inspector general investigations in the Atlanta region, it seemed reasonable to assume that any investigation of wrongdoing at the Atlanta office of EPA would be under his jurisdiction. He said he had never heard of the case and didn't know anything about it.
I talked to several other people who had similar experiences with the inspector general. It was their opinion that the EPA inspector general frequently held cases open solely for the purpose of denying FOIA requests when there was material in the case files that was embarrassing to him.
These are the questions that I am left with. Since the Atlanta Office of Criminal Investigations did investigate Mrs. Whitehead's complaint about illegal dumping at the Webster County facility of LWD, they must have found something incriminating because it would make no sense to remove or suppress a report which found nothing. This is corroborated by the fact that there are no site inspection reports in the Atlanta Hazardous Waste Management Division files after 1985.
But suppose I am completely wrong and there is an innocent explanation for the fact that there are no reports, such as, perhaps there was no investigation. This could have been readily ascertained by the divisional inspector general in Atlanta, yet the inspector general at headquarters in Washington never turned the case over to him. Instead he sent my letter to the Hazardous Waste Management Division. If there is an innocent explanation, why didn't the Inspector General produce it? Why didn't he even try to find out? Why is he preventing me from seeing the files by keeping the case open while he does nothing with it?
The inspector general may claim that the case is too trivial or lacks merit to make it worth his while to investigate, but then why did it take him three months to reach that conclusion ... and without even consulting with his own Atlanta office? And why is he hiding that conclusion from me? Furthermore, I am aware that the inspector general has put considerable resources into investigating far more trivial and far less meritorious cases than this one. If accusations of EPA personnel covering up environmental felonies by the people they are supposed to be regulating are not worth investigating by the inspector general, then what is?
1. Dick Russell, "The Mysterious Death of Lynn Ray Hill," In These Times, July 10, 1991. this is an excellent summary of LWD's record.
2. There are three different branches of EPA discussed in this story. The Hazardous Waste Management Division in the Altanta (Region IV) office of EPA has responsibility for issuing and enforcing permits for hazardous waste management facilities in the Southeast. The Office of Criminal Investigations investigates alleged criminal violations of EPA regulations. The Office of The Inspectgor General investiates alleged criminal and other violations by EPA personnel and EPA contractors.
3. RCRA stands for Resource Conservation and Recovery Act of 1976. this is the federal law governing hazardous waste.
4. Dick Russell, op. cit.
5. EPA, Office of Inspector Genreal (OIG) no action compalint memorandum concerning Greer C. Tidwell, regional administrator, EPA Region IV, EPA OIG Office of Investigations File No. 89-0026, dated August 4, 1989.
6. This was written before I had learned of the medical examiner's conclusion that the death was from natural causes.
7. 5 USC Appx Section 7(b) (The Inspector General Act of 1978 as amended).
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