Comments by William Sanjour on The Environmental Protection Agency: Asking the Wrong Questions, Chapter 4, by Marc K. Landy, Marc J. Roberts and Stephen R. Thomas.

P. 90. "It [RCRA(1)] was about creating new disposal sites in the face of community opposition ..."

COMMENT. There is no reference in RCRA to the need to create new disposal sites in the face of community opposition. The authors give no citation for this statement. Although the problem of siting hazardous waste facilities in the face of community opposition was frequently discussed prior to the passage of RCRA(2), including at legislative hearings, the fact that it is not mentioned in the Act or the committee report(3) would tend to indicate that Congress did not want to get the federal government involved in the issue.

P. 93. "The EPA never formally commented on the various drafts that were sent to them."

COMMENT. John R. Quarles Jr., Deputy Administrator of EPA, testified on behalf of the administration before Congressman Rooney's committee on April 17, 1975, urging him not to pass his proposed hazardous waste bill(4) (see attached excerpt from Solid Waste Report of April 28, 1975).

P. 94. "Thus, the harm caused by any hazardous waste depends on the circumstances of its disposal. These, in turn, will determine the concentrations in the environment, the doses humans are exposed to, and the resulting effects. Under RCRA this feature of the world is ignored."

COMMENT. There is nothing in RCRA that precludes taking these considerations into account. The decision not to do so , was an EPA decision(5). This is acknowledged later in the book on p. 105 where the authors state: "Once the Agency decided to establish a single class of hazardous wastes, everything from cyanide to sewage sludge to salt water (brine) had to be treated alike [emphasis added]." EPA had given the "degree of hazard" idea serious consideration and even written a 109 page background document on how it could be accomplished(6).

P. 95. "The practical difficulties of deciding what was hazardous were as great as the conceptual problem. How, for example, was one to decide on the test for toxicity without some notion of the relevant dose? ... Designing a good test was, therefore, an astonishingly complex and difficult task." etc.

COMMENT. Such problems are fairly commonplace in government regulations and have been dealt with many times. The Department of Transportation has regulations on the transportation of hazardous materials which are far more detailed than anything EPA has issued under RCRA(7). EPA itself has faced and solved similar problems in the SARA Title III regulations for emergency planning and notification for extremely hazardous substances(8) and hazardous chemical reporting(9), the Superfund Hazard Ranking System which determines the ranking on the National Priorities List(10), and the CERCLA Reportable Quantities Rule which requires the reporting of spills of hazardous substances(11). Indeed, even in RCRA regulations, EPA has mastered the technique of toxicity testing in it's delisting rules(12).

EPA's decision not to rely on testing had less to do with its complexity that with its political acceptability, as the authors themselves later point out on p. 102.

Jorling's major concern was over the scope of the program. He wanted waste sources to know up front whether or not they would be required to comply with the regulations under the Act. ... Jorling insisted on shifting the focus from testing to listing.
As further evidence that the so-called "complexity" of testing was not at the heart of the issue is the fact that one of the tests dropped by Mr. Jorling was for radioactivity, for which the Geiger counter was readily available.

A more believable explanation of Mr. Jorling's actual motives was given by Mr. A. Blakeman Early, testifying in the Senate for the Sierra Club, in a document extensively cited by the authors(13).
Tom Jorling ... knows that if he asks for more resources to administer the hazardous waste program, OMB is likely to take those resources out of one of his other programs, rather than granting a net increase in funds to the EPA.

Therefore he has little incentive to fight for more resources for the hazardous waste program. Mr. Jorling in particular has little incentive to cut the water pollution program, since he was one of its authors when he served on Senator Muskie's subcommittee staff.

His alternative therefore is to reduce, in whatever way possible, the scope of the hazardous waste program in order that it may fit in the resources available.

P. 97. "When RCRA was first passed in 1976, there were twenty one people assigned to relevant activities."

COMMENT. There were more than twenty-one people in my branch alone, and there were three branches in the Hazardous Waste Management Division and three divisions in the Office of Solid Waste. Furthermore, the source cited for this mis-information, Thomas Jorling, was not even in EPA in 1976.

P. 98. "Furthermore, the underlying knowledge of the problem was appallingly limited. No one, inside or outside EPA, even knew what wastes were being generated or by whom, let alone how they were being disposed of or what hazards they posed."

COMMENT. On the contrary, in the years preceding the passage of RCRA, EPA had spent tens of millions of dollars gathering data on these very subjects and dozens of reports had been written, none of which are cited in the author's 210 citations at the end of the chapter. See the attached memo from John Lehman dated February 9, 1976, which summarizes these activities.

P. 103. "Implementing Jorling's changes, and meeting his standards of draftsmanship, put added strain on the relatively small group writing the regulations. Apparently less [sic] than fifteen individuals were involved, ... Normally such a complex regulation writing process would have involved four to six times as many individuals"

COMMENT. In fact there were closer to one hundred people working on the RCRA regulations. See the attached memo from Edward F. Tuerk dated February 3, 1977. The authors may have been confused with the fact that they were working on fifteen regulatory actions.

P. 104. "Sanjor [sic], who had come to EPA from HEW [Department of Health, Education, and Welfare] with the Bureau of Solid Waste ..."

COMMENT. Mr. Sanjour had never been with HEW. He came to EPA from private industry.

P. 105. " ... Hugh Kaufman testified before the Oversight Subcommittee of the House Commerce Committee. He had been told, he said, not to look for new sites of possible hazardous waste contamination. From the viewpoint of top EPA officials, this was part of an effort to reduce unproductive duplication of effort among Kaufman's group, the Office of Enforcement, and the regional offices."

COMMENT. There was no duplication as the attached agreement between A.E. Conroy of the Office of Enforcement and John P. Lehman, dated October 10, 1978, shows. The Office of Solid Waste, not the Office of Enforcement, had the responsibility for making the initial assessment of the potential environmental problems at dump sites, which is precisely what Mr. Kaufman had been doing before he was told to stop.

P. 106. "As we shall see, Sanjor [sic] and Kaufman became increasingly vociferous in subsequent months. By the following summer they were official "whistle blowers, protected by the law designed to insulate internal dissidents who go public from retaliation by their superiors."

COMMENT. These events took place in 1978. The Whistle Blower Protection Act was not passed until 1989. There was no such thing as an official whistle blower nor any protection afforded by law. My only protection was that I had not violated any EPA rule or regulation.

P. 106. "To this day, however, those superiors characterize the pair [Sanjour and Kaufman] as poorly performing employees who sought protection in whistle blowing to prevent themselves from being demoted or dismissed."

COMMENT. The authors cite Messrs. Costle and Jorling as their source. In fact I became an outspoken critic of the agency in 1978 only after Mr. Jorling ordered the cut back of the RCRA implementation program. Prior to that, I had been in very good standing, as the attached performance evaluation for 1977 shows, and was in no danger of being demoted or dismissed. Even during the years of bitterest confrontation, 1978 to 1980, my performance evaluation was never less than "satisfactory". My latest evaluation was "outstanding".

Mr. Jorling made a similar false statement to The New York Times in July 19, 1979 for which he was forced by the Agency to write me the attached apology dated August 8, 1979. In it he admits that he had me transferred for my "dissenting views".

P. 107. "But this approach reflected as well the agency's inability to delineate precisely what it was that made a mixture hazardous."

COMMENT. The agency certainly knew what made a waste hazardous. As the authors pointed out (see the comments above in reference to p. 95), the agency made a political decision not to use such information and deleted it from the regulations. The working draft regulations of March 6, 1978 for the definition of hazardous waste contained:

    A. Characteristics for:
        1. Ignitable Waste
        2. Corrosive Waste
        3. Infectious Waste
        4. Reactive Waste
        5. Radioactive Waste
        6. Toxic Waste, which consisted of
            a. Test protocols for mutagenicity
            b. Test protocols for bioaccumulation
            c. Presence of toxic chemicals in B.1. & B.2.below
            d. Presence of substances in NIOSH register at specified concentrations
                and LD50s
            e. Presence of substances at specified concentrations and fish LC50s
    B. Lists:
        1. List of maximum concentration of 44 toxic chemicals
        2. List of maximum concentration of 20 phytotoxic chemicals
        3. List of 13 hazardous wastes
        4. List of wastes from 48 processes

When the regulations were proposed in December of 1978 (43 FR 58946), most of the above items were eliminated. Dropped were items A.3., A.5., A.6.a., A.6.b., A.6.d., A.6.e, B.1., and B.2.. Only A.6.c. was retained from the toxic waste characteristic but the list was replaced by a short list of maximum concentrations of 14 toxic chemicals which was (and is) referred to as the toxic characteristic.

In October 30, 1978, oversight hearings were held by then Congressman Albert Gore Jr. to explain the cut back. The following discussion took place between Mr. Gore and Mr. Jorling(14). In it, Jorling admits that the draft regulations he threw out determined whether a waste was hazardous or not.

Mr. Gore. ... You have recommended a couple of changes in the June 12 meeting this year. You told your staff that you wanted certain changes in the regulations. No. 1, don't use characteristics or test procedures to identify hazardous wastes.

Mr. Jorling. ... my motivation there is that the formula that was in the draft placed the responsibility entirely on the possessor of the waste to determine that his waste was or was not hazardous in order to come into the program. It created an incentive for the person to stay outside the system. He would litigate, he would question our judgment as to whether or not his tests showed he met it or not. Therefore, we shifted to the direction of listing waste streams so that as soon as these regulations are issued, those who fall subject to them must begin to carry out the practices that the statute requires.

I wanted to leave as little uncertainty between the possessors of the waste and the government as possible. That is why I think moving in the direction of specific identification of waste streams to be included is the preferred route [emphasis added].

P. 112. "He [Jorling] declared that in fiscal year 1977 there were twenty-one people working on hazardous waste ..."

COMMENT. In a document which the authors extensively cite(15), the actual number of positions in EPA for the solid waste program for FY 1977 was given as 184. The bulk of these positions was assigned to hazardous waste. As mentioned before, the attached memo from Edward F. Tuerk indicates one hundred man years were assigned to hazardous waste regulations in FY 1977.

P. 113. "Jorling has since argued that the agency was able to negotiate with industry "from a position of strength" because of rising public concern with hazardous waste."

COMMENT. The authors fail to point out, or are unaware, that such "ex parte" negotiations are in violation of the law.

P. 113. "Earlier in 1979 Sanjor [sic] had written a series of letters to John Lehman detailing his disagreements with the proposed regulations. The EPA, at first, had excluded these comments from the public docket on the grounds that as Sanjor [sic] was an agency employee, these papers were internal documents. This was reversed under protest from Sanjor [sic]."

COMMENT. The agency did not reverse it's decision, the letters were not restored to the public docket, and they are not in it today. Furthermore, there is nothing in the reference cited by the authors to indicate that the decision was reversed.

P. 114. "In August [1979], EPA proposed adding ... all human carcinogens listed by the International Agency for Research on Cancer to the list of hazardous wastes."

COMMENT. The authors neglect to mention that this proposal has never been carried out.

P. 116. "The one agency that did raise substantial objections to the RCRA rules was the Office of Management and Budget (OMB), which was very concerned about the possible paper work implications of the manifest system. The OMB asked EPA to both simplify the scheme and repropose the regulations so that it could comment on the issue for the record.

"Costle met with the OMB director Jim MacIntyre in March of 1980 to try to resolve the issue. The OMB stood firm. As Costle later reported to Judge Gesell, OMB agreed to review EPA's rules on an expedited basis, but EPA had to agree to reopen the public comment period to receive these comments.

"The somewhat ironic outcome of this story is indicative of the complexity of the issues RCRA raised and the difficulty of being a dilettante with regard to them. The OMB did finally get EPA to simplify the manifest forms. But many states adopted the more extensive California version. Thus, OMB inadvertently undermined the goal of nationally uniform record keeping."

COMMENT. This statement makes no sense. If Costle met with MacIntyre in March of 1980 to discuss EPA's manifest system regulations, it could only be to discuss EPA's final (not proposed) rule governing manifest requirements of February 26, 1980 (45 FR 12722). This rule was amended on May 19, 1980 (45 FR 33140), but the amended rule contained no changes in the manifest requirements. The preamble to the amended rule, signed by Costle, specifically said that OMB had approved of all the provisions in the February 26, 1980 regulations(16). Furthermore, contrary to the above statement, subsequent to March, 1980; 1) the regulations were not reproposed(17), 2) the public comment period was not reopened, and 3) there were no specific manifest forms required in the regulations, hence there could be no simplification of the forms.

P. 120. "Protected by the whistle blower law, William Sanjor [sic] continued to find fault."

COMMENT. As mentioned earlier, there was no such law.

1. The Resource Conservation and Recovery Act of 1976.

2. e.g. John P. Lehman, Regulatory Aspects of Siting Hazardous Waste Treatment and Disposal Facilities, U.S. Environmental Protection Agency, 1975 (Presented at the Fourth National Congress on Waste Management Technology and Energy Recovery, Atlanta, Georgia, November 12, 1975).

3. Resource Conservation and Recovery Act of 1976, Report of the Committee on Interstate and Foreign Commerce, U.S. House of Representatives on H.R. 14496, September 9, 1976.

4. Waste Control Act of 1975, Hearings Before the Subcommittee on Transportation and Commerce of the Committee on Interstate and Foreign Commerce, House of Representatives, Ninety-Fourth Congress, First Session, April 8, 9, 11, 14, 15, 16, and 17, 1975. Serial No. 94-28, U.S. Government Printing Office, Washington, 1975, p.757.

5. 45 FR 33164, May 19. 1980.

6. Background Document on "Degree of Hazard", Environmental Protection Agency, Office of Solid Waste, April 1980.

7. 49 CFR 172.

8. 40 CFR 355.

9. 40 CFR 370.

10. 40 CFR 300 Appendix A, and 53 FR 51962 (December 23, 1988).

11. 40 CFR 302..

12. 40 CFR 260.22.

13. Senate Committee on Government Affairs, Subcommittee on Oversight of Government Management, Oversight of Hazardous Waste Management and the Implementation of the Resource Conservation and Recovery Act, 96th Congress, 1st Session, August 1979, p. 316. (Hereafter referred to as Senate Hearings.)

14. U.S. House of Representatives, Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce, Serial No. 95-183, October 30, 1978, p. 439.

15. Senate Hearings, p. 329.

16. 45 FR 33142, May 19, 1980.

17. The manifest rules were later reproposed in 1982, but that was in a different administration, long after the author's interview with Douglas Costle on July of 1981, on which the statement is based.

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