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In Name Only
FOR THE PAST 20 YEARS I have worked for the Environmental Protection Agency There I have had to choose between being a "good soldier" and obeying orders or being a "good citizen" and obeying the law I have not, I'm afraid, been a very good soldier.
When I came to the then-new agency I hoped to do something useful and constructive. In 1974 I was made a branch chief of the Hazardous Waste Management Division. The studies I supervised there played an important part in the passage of the Resource Conservation and Recovery Act (RCRA) of 1976, the first federal law regulating toxic waste. I was also in charge of drafting rules for the treatment, storage and disposal of hazardous materials.
In its preoccupation with inflation, however, the Carter administration in 1978 took steps to protect industry by removing the teeth from those regulations. At first I fought from the inside to preserve the true spirit of the legislation. As a result, in 1979 I was transferred to another position, with no duties and no staff. I became an outspoken EPA critic-a whistleblower-and have been one ever since.
In that role I spend much of my spare time meeting with grassroots environmental groups. Their members frequently ask me why the Environmental Protection Agency does not seem particularly interested in protecting the environment. The question usually comes from people who are dealing directly with the EPA for the first time, ordinary citizens with ordinary political views and lifestyles who suddenly find themselves living close to a hazardous-waste facility; incinerator, or nuclear-waste dump. These are people who started out with a strong faith in their country and its institutions, who had always thought of the EPA as the guys in white hats who put the bad polluters in jail. "If there were anything wrong with it," they say, "the government wouldn't let them do it."
To their surprise, these folks find that the EPA officials, rather than being their allies, are at best indifferent and often antagonistic. They find that the EPA views them, and not the polluters, as the enemy. Citizens who thought that the resources of the government would be at their disposal find instead that they have to hire their own experts to gather data on the health and environmental impacts of proposed facilities, while the government sits on the same information-collected at public expense. And if these folks want to go to court, they have to run bake sales to hire attorneys to go up against government lawyers whose salaries are paid by the taxpayer.
To understand why the Environmental Protection Agency is the way it is, you have to start at the top, and since the EPA is part of the executive branch, that means the White House. The president (any president, regardless of party) and his immediate staff have an agenda of about a half-dozen issues with which they are most concerned. These are usually national security, foreign affairs, the economy the budget, and maybe one or two others: Call them Class-A priorities. All others --housing, education, transportation, the environment--are in Class B.
The president expects performance in Class A. He will expect the military to be able to deploy forces anywhere in the world when an emergency arises-and if it isn't, he will bang heads until it is. If Congress doesn't support his budget, he will call the budget director into his office and pound his fist on the table. But can you picture the president bringing the secretary of transportation into the Oval Office and yelling because of poor bus service in Sheboygan? Or summoning the administrator of the Environmental Protection Agency in and chewing him out for pollution in the Cuyahoga River? I can't. The president expects performance in Class A; in Class B he expects only peace and quiet.
But regulatory agencies, by their very nature, can do little that doesn't adversely affect business, especially big and influential business, and this disturbs the president's repose. The EPA, for instance, cannot write regulations governing the petroleum industry without the oil companies going to the White House screaming "energy crisis!" If it tries to control dioxin emissions, The New York Times (whose paper mill in Canada has been sued for dumping dioxin into the Kapuskasing, Mattagami, and Moose rivers) writes nasty editorials. If it tries to enforce the Clean Air Act, polluters run to Vice-President Quayle's Council on Competitiveness for "regulatory relief." Agency employees soon learn that drafting and implementing rules for environmental protection means making enemies of powerful and influential people. They learn to be "team players," an ethic that permeates the entire agency without ever being transmitted through written or even oral instructions. People who like to get things done, who need to see concrete results for their efforts, don't last long. They don't necessarily get fired, but they don't advance either; their responsibilities are transferred to others, and they often leave the agency in disgust. The people who get ahead are those clever ones with a talent for procrastination, obfuscation, and coming up with superficially plausible reasons for accomplishing nothing.
For example, the EPA used to grant billions of dollars for the construction of local sewage-treatment plants. These plants generated a sludge that the EPA recommended for use as a fertilizer. In 1974 I pointed out to my managers that there was considerable evidence from Department of Agriculture studies that some municipal sewer sludge contained poisons that could be transmitted to people when it was used as fertilizer. I proposed regulations to control the problem. This notion was very unpopular with the burgeoning sewage-plant-construction industry and its promoters within the EPA. The responsibility for this issue was taken out of my hands and transferred to a committee, which studied sludge regulation for a year and did nothing other than recommend further study. For this they all received medals and cash bonuses as "outstanding performers."
In the past 18 years this story has been repeated many times. Hundreds of people in the EPA have advanced their careers--and spent tens of millions of dollars--by busily drawing up work plans, attending meetings, making proposals, writing reports, giving briefings, conducting studies, and accomplishing nothing. Today the problem of how to regulate sewage sludge has still not been resolved.
At this point you may protest that the EPA has written many regulations, that it has in fact reduced pollution in many areas, cleaned up Superfund sites, and collected millions of dollars in fines from polluters, some of whom have even been sent to jail. Yet in most cases the agency had to be coerced into meaningful action. More often than not, the EPA actually opposes the passage of tough environmental laws, and organizations like the Sierra Club have to sue in federal court just to make the agency do what it is funded for and is legally required to accomplish. For example, when I was writing guidelines for the government's procurement of recycled materials, I was told that a proposed regulation would not even be considered for the administrator's signature unless there was a court-ordered deadline. With my encouragement, several organizations sued the EPA in order to get the regulations out.
On another occasion I was in charge of writing regulations for the management of hazardous-waste landfills, which RCRA required to be issued in 1977. When Gary Dietrich, my boss, gave orders delaying the process, I warned him that we would miss the legal deadline. He laughed. "Nobody ever got thrown into jail for missing a deadline," he said.
He was right. I was taken off the job. Again I contacted an environmental organization, which sued the EPA. The court imposed another deadline. The EPA missed that one, and the judge set another. They missed that one too, and many, many more, but nobody was sent to jail for defying the court's orders or for not implementing the law. On the contrary; many were well rewarded. Meanwhile, the public was exposed to poisons leaking out of countless unregulated hazardous-waste dumps. Dietrich later left the agency to be a consultant for Waste Management, Inc.
(This leads us to what I call Dietrich's Law: "No one in the EPA is ever sent to jail, or loses his job, or suffers any career setback for failing to do what the law requires." And the corollary: "Many people ruin their careers in the EPA by trying to do what the law demands.")
The landfill regulations were finally issued in 1982, five years after they were due. They were riddled with loopholes, such as the final say given to politically appointed regional administrators in setting safety levels of toxic materials. Even so, the press hailed the EPA's heroic achievement--although the bloom quickly faded. After hearing testimony from me and many others, Congress was convinced that the regulations were too weak, and passed a new law in 1984 requiring tougher standards. This time it added a "hammer" provision: If the EPA missed the deadline, then all the wastes from a long list of chemicals would be banned from landfills. For the first time I can recall for regulations of this magnitude, the EPA met its deadlines. Why? Because in this case, hazardous-waste firms would have been hurt if the rules weren't issued. The EPA is simply more concerned with protecting the industries it is supposed to regulate than in protecting the public interest.
DOES THIS MEAN that the EPA has cynically abandoned the environment for the sake of the powerful hazardous waste lobby? Actually, most people in the agency sincerely equate the waste management industry with protection of the environment, and see the industry's opponents as anti-environmental NIMBYs. They forget, however, that commercial hazardous-waste management is primarily a business, and as such it aims to maximize income and minimize costs. Income is produced by taking in wastes through the gate; waste is money and the more the better Costs are incurred by treating the waste so that it won't poison people and the environment. Obviously these goals are diametrically opposed to what should be those of the EPA: to reduce the production of hazardous wastes and to maximize protection of human health and the environment.
The EPA's confusion on this matter is well illustrated in the ease of the world's largest hazardous-waste incinerator, now under construction in East Liverpool, Ohio, an already heavily polluted area surrounded by homes and schools and subject to frequent thermal inversions. (Behind the project is a consortium of investors put together by Arkansas billionaire Jackson Stephens, a golfing partner of Dan Quayle and contributor of hundreds of thousands of dollars to George Bush's presidential campaigns.) Local citizens found that the permit originally issued by the EPA was full of irregularities and outright violations of the law. Thus, when the incinerator operator asked for a permit modification to install a spray dryer (a device many technical experts felt was unsafe), the permit would ordinarily have had to be issued again, not just modified.
However, given the public mood, this was likely to result in long delays, if not revocation of the permit. The incinerator operator told the Ohio EPA that he couldn't "risk any appeals." The Ohio EPA agreed, saying that "if there is a way to authorize this change without a formal permit change, we should try to do so." William Muno, acting director of the EPA's waste-management division in Chicago, followed his instincts: At a meeting with congressional staffers on November 12, 1991, he said that he would not order a permit change because the EPA "had to treat our constituents [i.e., the incinerator operators] in a fair and equitable manner."
(Influence peddling in this arena does not stop with the EPA. The executives and lobbyists of the waste-management companies are in constant touch with the White House, members of Congress, state legislators, state environmental-protection agencies, the press, and national environmental organizations. The Audubon Society the National Wildlife Federation, and the Conservation Foundation all have top executives of the waste-management industry on their boards.)
WASTE MANAGEMENT is the growth industry of the late 20th century It has become very rich through its ability to control the regulators who are supposed to control it-and it shares this wealth with its benefactors. Government bureaucrats soon learn that, while crossing the industry can get them into a lot of trouble, cooperating with it has many rewards-high among these the hope of lucrative future employment. Indeed, rather than the environmental enthusiasts who flocked to the EPA in its early years, the agency is now full of careerists who view their jobs as stepping-stones to bigger and better things. Scores of federal and state employees have gone on to careers in the hazardous-waste industry (see "EPA's Revolving Door," page 77), including three out of the five EPA administrators. (Of the other two, one left the agency in disgrace and one was a millionaire already)
No one is more closely associated with the revolving door at the EPA than William Ruckelshaus, appointed the agency's first administrator when it was created in 1970. When he left the EPA in 1973, Ruckelshaus became senior vice-president and director of Weyerhaeuser, the huge timber and paper company and target of many environmental groups. He served as EPA administrator a second time from 1983 to 1985. Between and after his two terms he was a director of several companies concerned with EPA regulations, including Monsanto, Cummins Engine Company (a diesel-engine manufacturer), Pacific Gas Transmission, and the American Paper Institute.
After his second stint at the agency he formed a consulting firm called William D. Ruckelshaus Associates, which was then hired by the Coalition on Superfund, an organization seeking to weaken the Superfund law by absolving polluters of strict legal liability for their actions. The coalition included such Superfund polluters and their insurers as Monsanto, Occidental Petroleum, Alcoa, Flow Chemical, AT&T, du Pont, Union Carbide, Aetna Insurance, and Travelers Insurance. Assisting Ruckelshaus were Lee Thomas, his hand-picked successor as EPA administrator, and William Reilly, then head of the Conservation Foundation. (Ruckelshaus and Thomas helped fund Reilly's organization to produce studies in support of the coalition's position.)
Ruckelshaus went on to become CEO of Browning-Ferris, the second largest waste-management company in the United States, for a guaranteed minimum annual salary of $1 million. Browning-Ferris had a dreadful environmental record and had been hit with millions of dollars in fines. Ruckelshaus was supposed to clean up the company's reputation, but the appointment did more to tarnish his.
When George Bush ran for president in 1988, Ruckelshaus was his environmental advisor, and was able to install his protege Reilly as EPA administrator; and former Ruckelshaus Associates vice-president Henry Habicht as deputy administrator. Thus the two top executives of the EPA were placed by the head of a company that is a major polluter, heavily regulated by the agency; responsible for many Superfund sites, and a contractor for EPA-funded Superfund cleanups.
People outside the agency often assume that the national environmental groups have a stronger influence with-in the EPA than does industry. The revolving door explains why this is not the case: Industry can offer EPA employees things that environmentalists cannot, especially high-paying jobs. It also offers generous contributions, over or under the table, to almost anybody who will take its money (Waste Management, Inc. has one of the largest political-action committees in the country; between 1987 and 1988 it contributed $430,000 to congressional candidates. Other examples of WMI's largess include flying a politician in a corporate jet to visit a WMI facility and giving him a cash gift of $10,000; giving a congressional staffer a $2,000 "honorarium" to visit a WMI facility; and paying an outright $3,000 bribe to a local commissioner in Florida.)
Environmental groups tend to regard the EPA as an institution, dealing with it through congressional committees, the courts, and top agency executives. Industry does the same, of course, but it also interacts with individual EPA employees at every level, working directly with the field inspectors and permit writers responsible for making particular decisions. When I was in charge of writing regulations I was the object of this courtship, showered with flattery, meals, trips, and hints of future employment. People who cooperate with industry also find that its lobbyists will work for their advancement with upper management. Those who don't cooperate find the lobbyists lobbying for their heads.
WHAT CAN BE DONE, then, to make the EPA serve the public interest? Appointing an energetic administrator and giving him or her a lot of money and authority will not work. If; as is usually the case, the president demands only peace and quiet, more funding and power will only make that easier to deliver. The head of the EPA will not be effective unless the president wants effectiveness. In my 20 years with the agency that happy situation existed only under Richard Nixon during William Ruckelshaus' first term as administrator. Presidents Ford and Carter were too concerned with the economy and paid only lip service to EPA regulations. Ronald Reagan didn't even bother with lip service, appointing hooligans to run the agency. When Anne Gorsuch. was finally forced to resign in March 1983 over her political manipulation of the Superfund program, Ruckelshaus was brought back as Mr. Clean; but his second administration was a flop. The man who had been so effective under Nixon was a dud under Reagan, which shows that the president is key to making the EPA work. Under George Bush, we have reverted to the days of lip service, with no real support. This is, I'm afraid, what scientists would call the EPA's "equilibrium state."
To achieve genuine reform, realism must replace idealism. We have to deal with what the EPA really is and what we know about it, rather than what we would like it to be. This will require narrowing the agency's discretionary power and transferring as much authority as possible into the hands of the public. Following are some suggestions to those ends:
Hammer Provisions. As we saw above, the secret of these blunt legislative instruments is their tacit recognition that the EPA works more diligently to protect the industries it regulates than to protect the public. Hammer provisions can also be used to enforce goals, which at present are meaningless, since nothing happens if they aren't met. But suppose the EPA administrator and other top political appointees were hired with the proviso that unless specific targets were met--a l0-percent reduction in hazardous waste generation within a year, say--they would lose their jobs. Perhaps then the administrator would spend more time in achieving goals than in making speeches about them.
Liability. Civil-liability provisions are another great, unbureaucratic instrument for reform. Such provisions in Superfund actually did more to change the way industry handles its hazardous waste than any other act of Congress--and this came about almost by accident. Congress, as is often the case, was vague and ambiguous when it defined the liability of polluters for the damage and cleanup costs of old dump sites. In interpreting that fuzzy language, however; the courts determined that liability is "strict." This means that no showing of fault is necessary to establish responsibility, little proof of the relationship between cause and effect is required, and each liable party is potentially responsible for the entire cleanup.
These provisions are so effective that industry and its insurance companies have spent millions trying to get rid of them. They would prefer that the funds for cleanup be pooled and paid out on a "no fault" basis. (There's nothing like strict liability to convert capitalists to socialism.) The fear of liability is a far greater incentive to industry to do the right thing than is fear of the EPA.
Regulations. The EPA is a wimpish regulator. Take the case of hazardous-waste incinerators. It makes no difference what you as a private citizen may see, feel, or smell coming out of the smokestack. Emissions could melt the paint off your house or force you to wear a gas mask, but that would have no bearing on the EPA's enforcement, which relies instead on data supplied by the incinerator operators. Ironically agency officials often don't know how to interpret this data themselves, and have to depend on the company being investigated to do it for them.
Since little attention is paid to the content of the waste being burned, every now and then an incinerator explodes, as happened recently to a Chemical Waste Management incinerator in Chicago. In Kentucky, Don Harker, former head of the state's waste-management division, was fired because he tried to revoke the permit of the Liquid Waste Disposal (LWD) incinerator at Calvert City. "I don't know what LWD has burned," he said. "I don't think LWD knows what it has burned. I don't think anyone does."
Even if an inspector finds a violation, this only triggers a lengthy complex process with many levels of warning, review; appeal, negotiation, and adjudication before any action is taken (or; more often, avoided). Compare this with what happens when you park under a "No Parking" sign. A policeman writes a ticket, and you can either pay the fine or tell it to the judge. If the EPA wrote the rules for parking violations, the policeman would first have to determine if there were sufficient legal parking available at a reasonable cost and at a reasonable distance, and would then have to stand by the car and wait until the owner showed up so that he could negotiate a settlement agreement. This is what comes of Congress giving the EPA administrator broad discretionary power to write and enforce rules. We would be better off if he were more like a cop.
Bad-Boy Laws. Several states have laws that bar them from doing business with chronic offenders. Unfortunately these laws are usually discretionary and are rarely invoked in hazardous-waste cases. If they were, all of the big commercial hazardous-waste firms would be out of business in those states--which is why the laws are not used. I would like to see a mandatory federal bad-boy law applied to the licensing of hazardous-waste sites and to the awarding of Superfund contracts.
Of course, EPA officials always argue that if we close down the big commercial operators, there will be no one left to run the hazardous-waste business. That's like saying that we have to let racketeers run gambling casinos because no one else knows how. The hazardous-waste business is extremely profitable, and there are plenty of honest businesspeople who would love to get a foot in the door. There's no reason to tolerate crooks.
The Revolving Door. It should be perfectly clear that a person in a regulatory agency who views the agency as a stepping-stone to a better-paying job cannot serve the public faithfully. Yet Congress has never passed a law restricting persons in regulatory agencies from going to work for the companies their agency regulates. I would propose a law forbidding political appointees and senior government employees from accepting any form of direct or indirect compensation from any person regulated by their agency for a period of five years after they leave government service. The number of years could be reduced for lower-ranking civil servants. This law should, of course, include lawyers.
The common argument that this would keep good people from entering government is nonsense. Good people do not use government service as a means of getting rich quick. A revolving-door rule would keep out the ambitious careerists who now permeate the federal bureaucracy, and let in men and women with a real desire to serve their country.
Conflict of Interest. The revolving door is an individual conflict of interest, but there is a closely related institutional conflict in the EPA and some other regulatory agencies. The Nuclear Regulatory Commission, for example, has responsibility for regulating nuclear-power plants, but it also promotes the use of nuclear power. Similarly the EPA has the responsibility for regulating hazardous-waste facilities, but also promotes the siting of these facilities. When the EPA assures the safety of a proposed hazardous-waste installation, citizens living nearby never know which hat it is wearing, regulator or promoter
An easy solution is for Congress to pass a one-sentence law: "No regulatory agency may spend appropriated funds to promote the use of the products or services that it regulates."
The Carrot and the Stick. Every time the EPA falls short of expectations, it complains that it doesn't have enough money people, authority or time, so Congress and the courts give it more of everything. What kind of incentive is that? When I was a manager if a subordinate failed to do an assigned task and gave me the excuse that he didn't have enough resources or time, I would ask him if he had requested the resources and time, and if he had warned me that the task could not be completed unless he got them. If the answer was no, he was in trouble. Congress should adopt the same standards for the EPA.
One guaranteed quick fix would be to reward whistleblowers. At present, a person who calls attention to waste, fraud, or abuse at high levels of the EPA can only look forward to harassment and isolation, with no hope of promotion or even a responsible position. Congress ought not only to protect whistleblowers, but to reward them when their charges prove correct. This would greatly increase the number of whistleblowers and decrease the amount of waste, fraud, and abuse. If you think rewarding public servants for doing their duty is excessive, consider the cost of failing to do so.
Consent Agreements. One of the most egregious abuses of discretionary authority by the EPA is the use ofconsent agreements to settle regulatory violations. A consent agreement is like a plea bargain, a contract wherein a defendant agrees to stop an illegal activity without admitting guilt. Consent agreements by the EPA usually result in the defendant paying a fine and promising to sin no more.
A big problem with consent agreements is that they are drawn up in secret, with no public review. While they usually concern cleanup of dumps or hazardous-waste spills, the injured community does not participate. This secrecy is an open invitation to corruption and abuse. Polluters with good connections and good lawyers are able to get consent agreements that grant them all sorts of privileges to which they are not entitled, in exchange for paltry fines. A good example is what happened when Chemical Waste Management was denied a permit to store carcinogenic polychlorinated biphenyls (PCBs) at its hazardous-waste dump at Emelle Alabama. They stored them there anyway, and got caught. An eventual consent agreement fined Chem Waste far less than it made by its illegal action, and threw in a PCB-storage permit. The agreement also exempted the firm from punishment for any other past violations, even those that had not yet come to light. In short, for a $450,000 fine, Chem Waste received waivers worth more than $100 million. Congress should limit the scope of consent agreements, require that they be made public, and require the court to hear from any past or potential injured party before signing.
INSTITUTIONS ARE made up of people. Behind the great and powerful Oz is a fragile little man pulling the levers. Because it must be implemented by weak and fallible individuals, the liberal dream of powerful institutions protecting and perfecting our lives can easily become a nightmare of corruption and abuse.
The Founding Fathers knew this. They didn't trust institutions. They didn't think a nation could remain free unless its citizens stayed on top of things themselves; that's why they set up such an elaborate balance of competing interests, of checks and balances. I believe the right approach is to reduce the power of institutions, and increase the power of the people, who have the most at stake.
For more information
William Sanjour has written a lengthier and more detailed critique of the EPA, available for $15 from the Environmental Research Foundation (ERF). PO Box 73700, Washington, DC 20056-3700. Also available from ERF is a lively weekly newsletter. Rachel's Hazardous Waste News. Subscription rates are $15 for students, $400 for businesses and $40 for all others.
Waste Management Inc.: An Encyclopedia of Environmental Crimes and Misdeeds ($20), and the same study in abstract form, Trash Into Cash ($5), are available from Greenpeace USA. 1436 U St., N.W., Washington. DC 20009.
William Sanjour's home page