Saturday, November 29, 2008

There’s something wrong with the EPA.

There’s something wrong with the EPA.

Nobody should really be surprised by this—the Bush administration repeatedly made headlines over the last eight years by seeding the agency with political loyalists like Stephen Johnson and George Gray, who repeatedly overruled technical experts in the face of overwhelming evidence on matters of great import. President-elect Obama has short-listed a number of decidedly more open-minded people with extensive experience in environmental matters, including Kathleen McGinty, secretary of the Pennsylvania Department of Environmental Protection, Mary Nichols of the California Air Resources Board, and Ian Bowles, who heads the Massachusetts Executive Office of Energy and Environmental Affairs.

Agencies of the US federal government are supposed to be nonpartisan and impartial agents of the executive, but unfortunately things never seem to work that way. Granted, things have been much worse lately than hitherto—the Department of Defense and its antecedents have never been innocent of cronyism and peculation, but it’s a relatively novel thing for the Justice Department to be converted into an instrument of political assassination (q.v. Don Siegelman) and a legal firewall for the White House. The EPA has had a rather blotchy record in that respect. On the one hand, yes, it oversaw a massive and relatively rapid change in the nation’s environmental policies and attitudes. On the other hand, most of its more important actions, such as Superfund or the Oil Pollution Act, were only undertaken after massive public pressure or a singular disaster; in the case of Superfund, it was Love Canal, and in the case of the Oil Pollution Act, the Exxon Valdez disaster. The government did not lead, but was pushed from behind.

A federal agency such as the EPA is virtually by definition a political entity, particularly at the upper echelons staffed by presidential nominees. This is, in a sense, unfortunate—the EPA has very little autonomy in some respects, and it is very common for outside influences or outright cronyism to inform the agency’s personnel, regulations, and decisions.

More recently, however, the agency has had to be dragged kicking and screaming into taking action on a variety of front, from risk management standards for industrial chemicals, to long-delayed site cleanups, to matters touching on global warming and the petroleum economy. It’s a new thing for the agency to be not just slothful on an issue, but to be actively resisting actions which the available data indicate are urgent, such as arsenic in drinking water, or emissions standards for automobiles.

Public pressure matters, especially since environmental policies directly impact the health, welfare, and safety of virtually everyone in the country. For example, In March 2001, the Bush administration retracted the new 10 part per billion standard for arsenic in drinking water, put into effect only a few months earlier in the waning days of the Clinton administration, and restored the previous standard of 50 parts per billion, arbitrarily set in 1942, and which the EPA knew to be inadequate to protect public health. This regulation applied to organizations that supplied drinking water to consumers, such as municipalities and water companies, and regulated the amount of arsenic that could be present in the water when it came out of the tap in someone’s home. The European Union and most of the other developed nations have adopted the 10 part per billion standard, which is also endorsed by the World Health Organization. In one of the more twisted examples of people not understanding these issues, Senator Pete Domenici (R, NM) expressed glee over the decision, crowing that "Communities faced with the daunting task of finding the money to adhere to the stricter standards can breathe a sigh of relief." Granted, this could be an expensive issue for a community to address, but do financial concerns automatically trump matters of public health? One must wonder what the Senator’s constituents will think in the event that arsenic-derived illnesses spike in their community.

The Bad Old Days

The modern environmental movement is often described as an outgrowth of the 1960s, inspired by books such as Rachel Carson’s Silent Spring (1962) which popularized knowledge of chemical toxicity and its effect on the natural world, incidents such as the Cuyahoga River catching fire, or the biological catastrophe of Lake Erie, when most of the lake’s aquatic life died as a result of massive algae blooms caused by fertilizer runoff and the sewage discharge from 120 cities and towns. In that sense, the environmental movement was notionally part of the overall social change of the 1960s, and the changes in social attitudes and public policy on everything from race to the Vietnam War and premarital sex.

The generations-long cold war between right and left in the politicized atmosphere of Washington, however, created a continental divide on environmental issues, between ‘business’ and ‘green,’ between conservative America (whether blue-collar or white collar) and “the hippies.” Environmental protection and the profitability of businesses were assumed to be mutually-exclusive things. In the view of three out of the four administrations to occupy the White House since 1980, the peer reviewed findings of toxicology studies, engineering studies, and the work of thousands of field scientists and technicians in a dozen disciplines fell on the same side of that divide as did the radicals who chain themselves to trees.

This ‘sudden appearance’ historiography isn’t entirely true, however; the environmental effects of industrial pollution and other issued had been common concerns in the engineering, industrial hygiene, and water supply fields since the early 1900s, when public outcry over water pollution first became a significant issue. For a concise but detailed analysis of who knew what when, I defer to Craig E. Colten and Peter N. Skinner’s The Road to Love Canal: Managing Industrial Waste Before EPA (University of Texas Press, 1996). For a brief overview, consult this article.

Bear in mind that although there is a history of federal regulations on environmental matters extending back to the late 1940s (or earlier, in cases such as the Army Corps of Engineers’ oversight of the nation’s navigable waterways), most of these regulations were essentially toothless, lacked punitive authority, and had no real guidelines or performance standards; they were, in large part, hot air. These were backed up by voluntary regulations promulgated by trade groups such as the Manufacturing Chemists Association, probably honored more in the breach than in the observance, and a plethora of local bylaws.

For most of the 20th Century, as the 1973 EPA report warned, nobody had any idea how much hazardous material there was, where and how it was stored, or what happened to it. Most of it was simply buried in landfills, or dumped into rivers. If you wanted to dump thousands of gallons of industrial waste into a hole in the ground next to a house that used a well for drinking water, odds are you could go right ahead and do it with nothing to stop you but your conscience (q.v. the Picillo Pig Farm in Rhode Island and the A.L. Taylor dump in Kentucky). Even if the government did hear of it, they would likely do nothing because there was no jurisdiction for them, no enforcement mechanism, and most of all, no real informed reason to care about dumping or pollution.

The primary recourse of people whose persons or property were damaged by pollution often had no recourse but suing the offender, and even then case law had numerous precedents both in favor of and against environmental liabilities. When contaminants released from the Rocky Mountain Arsenal chemical weapons plant in Colorado ruined crops for miles around, the government acknowledged responsibility—for the damage to the crops.

On the flip side of that coin, though, one of the most common excuses or rationalizations offered by historic polluters is that they did not know a substance was dangerous. This excuse is demonstrably false in virtually every case in which it has been offered, and appears to reflect the views of PR flacks and lawyers looking to protect a company’s name and assets, as opposed to the chemists and engineers who worked with the stuff. Hooker Electrochemical Corporation, the company which created the notorious Love Canal toxic waste dump, knew full well over many years (as corporate records show) that their waste (a soup of residues from the manufacture of pesticides, industrial solvents, explosives, caustics, and many other things) was dangerous, and to their credit they tried to protect the public from it. Hooker actually selected the Love Canal site because the site’s geology consisted of a dense clay that offered a strong potential to keep the waste isolated. The permeability of such clay, incidentally, is so poor that water under ambient hydrostatic pressure will move barely a foot through it in thirty thousand years. After the city of Niagara Falls, NY pressured Hooker into selling the site to the city, the municipality repeatedly breached the clay ‘box’ that Hooker had created, building sewers through it, putting a school on top of it, selling parts off as residential lots, and essentially doing everything Hooker had repeatedly and specifically warned the city not to do. Ironically, for all that they were hounded as criminals, Hooker was by far one of the more responsible chemical companies; not only did they handle their waste carefully, but they also offered consulting services to other firms on waste management.

It remains, however, that after a period of several decades during which matters of pollution and hazardous waste management were treated lightly when they were treated at all, environmental conservationists, anti-pollution activists, and persons concerned about potential threats to public health found their way onto the bandwagon afforded them by the general late-60s/early 70s outcry over topics ranging from nuclear weapons to the Vietnam War down to civil rights, women’s rights, and so on. The end result was a new public awareness of environmental matters that had been largely absent from the public dialogue since the 1930s, when the desperation of the Great Depression and the frantic years of the Second World War and Cold War had prompted industry and the federal government to throw most of the existing environmental regulations to the winds in the name of employment, war production, and the postwar economic growth and Cold War military/industrial complex.

Even William Ruckleshaus, a recurring director of the EPA (as well as the FBI), wrote in the October 1984 issue of the EPA Journal that "ten years ago [meaning 1974], for all practical purposes, we were unaware that there was a hazardous waste problem." This statement is conspicuously false, as Ruckleshaus likely knew full well, and was widely criticized; in 1973, during Ruckleshaus’ own first tenure as EPA administrator, the EPA had submitted to Congress a 110-page report on the burgeoning hazardous waste problem, and had compiled a list of 400 sites around the country at which hazardous waste was known to be a threat to public health and to the environment. The report was subsequently published to the public, and can be found on the EPA website (Publication SW115) after a few seconds diligent Googling. Most of those 400 sites wound up on the Superfund list, and many are still being cleaned up today.

In 1976, the House Committee on Interstate and Foreign Commerce summarized matters concisely: “Current estimates indicate that approximately 30-35 million tons of hazardous waste are literally dumped on the ground each year. Many of these

substances can blind, cripple, or kill. They can defoliate the environment, contaminate drinking water supplies, and enter the food chain under present, largely unregulated disposal practices.”

The 1979 Eckhardt Survey, performed after the Love Canal disaster entered the national stage, was essentially a poll of major industries on how they had used, stored, and disposed of hazardous wastes. Conducted at the behest of Representative Bob Eckhardt (D, TX), the survey polled the country’s 53 largest chemical manufacturers and covered over 1,600 separate facilities, or roughly 14% of the nation’s chemical industry. The response was unexpectedly frank, and highlighted the need for regulation of hazardous wastes. Since 1950, the firms polled had disposed of some 762 million tons of chemical process wastes at over 3,300 locations, including disposal in pits or lagoons at the manufacturing sites themselves as well as abandoned quarries and landfills. 4.8 million tons of waste had simply disappeared—nobody knew where it had gone. (Dawson and Mercer, Hazardous Waste Management, 1986, page 231) This series of problems, which government and society perceived as sudden emergencies even though they were the products of decades of inappropriate actions which had in most cases been known about for many years, inspired enough public outcry that the federal government got serious about cleanup and enforcement actions.

These early conclusions generally fell on deaf ears, but whether or not they were willfully deaf is another matter. President Nixon initially fiercely opposed the National Environmental Policy Act, though later he claimed full credit for it.

Something’s Gotta Change

The EPA is a relatively new government agency; it was established in July 1970 through an Executive Order issued by President Nixon; this order essentially reorganized various bits and pieces of other federal agencies into the EPA. In the beginning, the agency was charged with overseeing federal laws and regulations that had already been enacted, including the 1965 Solid Waste Disposal Act, the Endangered Species Act (passed 1966, amended 1969), and the Clean Air Act of 1963.

Federal environmental regulations began to grow teeth as a barrage of new laws were passed during the 1970s in the light of the EPA and Eckhardt reports. These included the ‘Big Four’—the Clean Air Act of 1970, the Clean Water Act in 1972, the Resource Conservation and Recovery Act (RCRA) of 1976, and the Toxic Substances Control Act (TSCA) of 1977. The first two regulated discharges of pollutants into the air and water, RCRA regulated the storage, handling, and disposal of hazardous materials, and TSCA regulated or banned the manufacturing of chemicals that posed a risk to human health, such as industrial solvents and pesticides.

Out of political expediency many of these new laws were actually passed and enacted as ‘amendments’ to earlier laws. For example, the 1976 Resource Conservation and Recovery Act was officially an amendment to the much weaker 1965 Solid Waste Disposal Act, which was concerned primarily with landfills and municipal solid waste—“garbage.” This regulatory tightening was a hotly-contested process; many corporations, trade groups, and other concerns lobbied and litigated furiously against stricter regulations, citing unconstitutional status, complaining about restraint of trade, and howling about the expense of it all.

Given that the US economy was experiencing a sharp decline during the 1970s, and most of the nation’s historic industrial sector had passed into the ‘Rust Belt’ afterlife, it is understandable to an extent why industries resented what they perceived as an arbitrary and capricious burden forced upon them by Washington liberals. That said, however, most of the requirements were not severely onerous once an initial capital investment had been made in air and water pollution control systems, employee training, and the like. The most significant changes were in areas where certain processes or materials were banned; in the case of feedstocks, this could require manufacturing processes to be redesigned from the ground up, but if the banned chemical was a product that the company sold, regulation could essentially wipe out a profitable business.

Opponents of the new regulations weren’t entirely unsuccessful in limiting their applicability and scope—it was in large part due to massive lobbying by the oil industry that the ‘petroleum exclusion’ was included in CERCLA, although in all fairness it sounds like a bigger loophole than it is, since it applies only to petroleum products, such as fuel oil or gasoline, that are not specifically listed as CERCLA hazardous chemicals (e.g. acetone, toluene, etc) and that are not mixed with CERCLA-regulated materials, e.g. a mixture of regulated halogenated industrial solvents and non-regulated diesel fuel.

Some corporations resorted to outright criminal behavior in order to protect their name and business markets, even to the extent of destroying records or committing fraud. Monsanto, for example, deliberately and knowingly deceived the public and the federal government on the toxicity of polychlorinated biphenyls, or PCBs. As a matter of record, Monsanto, the sole US manufacturer of PCBs since 1929 (having bought the previous sole manufacturer, Swann Chemical, and having gone on to produce over 600,000 tons of PCBs), had been informed that PCBs were toxic after a 1937 study by the Harvard School of Public Health, and together with General Electric and other corporations had elected to suppress that information. Copious internal documents from the 1960s, disclosed in subsequent legal actions, demonstrate that corporate officers were aware of the substances’ toxicity (e.g. that skin exposure could cause liver damage) and environmental effects even while the manufacturers proclaimed PCBs’ safety and lobbied to have them required under fire codes as insulating fluids for electrical equipment. Never mind that when burned, PCBs produce extremely toxic dioxin-containing chemicals, and can that standard PCB products can contain up to 10 parts per million of hyper-toxic dioxins or dibenzofurans just as manufacturing impurities. In 1968, PCBs were accidentally introduced into rice oil in Japan, causing had led to an epidemic of illnesses; Japan banned the use, manufacture, or import of PCBs in 1972.

As was usual for chemical and pharmaceutical manufacturers during the late 1960s and early 1970s, Monsanto launched a ‘product-defense’ campaign by commissioning a series of supposedly independent studies by Industrial Bio-Test Laboratories between 1970 and 1975. IBT was one of the largest industrial labs in the country at the time, and very popular with major chemical and pharmaceutical manufacturers because IBT’s scientific studies of potential hazards on tens of thousands of consumer products always managed to vindicate the product in question. As might be expected, the studies conducted on behalf of Monsanto asserted that polychlorinated biphenyls (PCBs) were not toxic, and Monsanto paraded the IBT information before the public and Congress alike. The FDA, EPA, and other parties investigated and discovered that not only had the Monsanto study been conducted by Monsanto personnel hired by IBT for the duration of the study, but that actual test results had been falsified and even the final reports had been reviewed and edited by Monsanto prior to publication. Doctor Paul Wright, a Monsanto employee who spent several years seconded to IBT, directed the study and was later convicted of fraud after a prolonged trial for which Monsanto paid his legal bills. The gross falsification and fraud involved in most of the tens of thousands of product-safety studies IBT performed between 1965 and 1977 became a major scandal, and resulted in numerous criminal cases and civil lawsuits. One year later, the Toxic Substances Control Act specifically banned PCBs from domestic manufacture, essentially shutting down the profitable but extremely dangerous industry Monsanto had broken the law to protect.

Enforcement was, naturally enough, the biggest problem. Previous federal environmental regulations had been generally toothless things, and industry by and large did not react well to a sudden spate of new and stringent regulations. For several years it was all the EPA could do to enforce the relatively simple requirements of the Big Four, and focused on eliminating the economic benefit of noncompliance—in other words, the fines were calculated based on the money a factory saved by breaking the law, any profit thus derived. The actual amount of fines levied was surprisingly small- an average of $10 million per year. Opening up potentially thousands of contaminated sites and forcing cleanups, the price tags for which could run into the hundreds of millions of dollars, was something else entirely.

Many future Superfund sites were known to be ticking (or sometimes long-exploded, in the case of the Rocky Mountain Arsenal, once widely known as “the most polluted square mile on the planet”) time bombs during the early and mid 1970s, but there was no impetus to do anything about them. The EPA was not granted authority to take action against imminent hazards until 1976-77, with the passage of RCRA and amendments to the Clean Water Act (eg, Section 311 of the CWA and Sections 3013 and 7003 of RCRA) that authorized the federal government to take action to address conditions that directly threatened sources of drinking water, or to order private entities to do so. Neither of these were perfect solutions—extensive litigation resulted about whether the government was exceeding its statutory authority, there were disputes over whether the hazard was imminent or not, and the government resorted to suing the responsible parties for the cleanup costs.

Significant enforcement of most of the environmental regulations had to wait until the 1980s and the passage of CERCLA (the Superfund regulations) and other legislation tailored to enforcement, legal recourse, and cleanup. For example, the RCRA hazardous waste generation regulations looked good on paper in 1975, but it wasn’t until the EPA began seriously enforcing the RCRA Corrective Action program in the 1980s (under the 1984 Hazardous and Solid Waste Amendments to RCRA), together the inception of many state environmental oversight and cleanup programs, that preventative measures and cleanups began to be taken seriously at non-Superfund sites. RCRA evolved into a check-in/check-out system under which every pint of hazardous waste must be accounted for, from the moment it is generated until the moment it is formally disposed of in an appropriate fashion—the diametric opposite of the state of affairs identified in the Eckhardt report.

The 1984 amendments to RCRA, as passed by Congress, also essentially twisted the EPA’s arm into tightening up regulation of wastes, including banning some materials from landfills and forbidding ‘dilution as the solution,’ as a direct response to the Reagan administration’s attempts at deregulation.

Superfund – Taking the Lid Off

Superfund is the ne plus ultra of environmental enforcement, perhaps best described as a millstone that grinds very slowly, but which notionally grinds things very finely indeed. This description is certainly half-right. It is an admittedly ponderous, anal-retentive, and lengthy process, and one which is for better or for worse intended to address only the most severe, dangerous, or problematic sites, and of all the federal environmental programs, it is by far the most controversial and contested.

The Carter administration launched the Superfund program in response to a series of high-profile problems which appeared on the public stage in the late 1970s, although each of these crises was decades in the making. These included:

  • The Love Canal emergency in Niagara Falls, New York, where part of a neighborhood and a public school had been built on a known toxic waste dump that subsequently began to leak.

  • The A.L. Taylor site in western Kentucky, better known by its Hollywood-style nickname “The Valley of the Drums,” a facility that had collected chemical wastes from paint, fertilizer, and pesticide plants in Tennessee and Kentucky for twenty years and disposed of them by simply burying the drums in pits, or pouring them out onto the ground

  • The town of Times Beach, Missouri, where an entire town had to be evacuated after a contractor treated the roads for dust reduction using oil that contained extremely toxic dioxin, as well as other industrial chemicals.

  • The Chemical Waste Management landfill in Emelle, Alabama, the largest hazardous waste landfill in the United States (receiving nearly 800,000 tons of waste in 1989 alone) and the site of almost innumerable spills, accidents, fires, blatant lawbreaking, and other problems which rendered the surrounding town almost uninhabitable, and which contaminated the aquifer on which the landfill was located (it opened in the late 1970s) despite the dictates of good engineering practices and sheer common sense. This site continues to operate, and is owned by Waste Management, Inc.

There was also no shortage of less well-known problems, such as the Picillo Pig Farm on Piggy Hill Lane in the peaceful town of Coventry, Rhode Island. This instance could almost be mistaken for a parody of a Superfund site—the owner of the property had turned about eight acres of land on his farm into a toxic waste dump, and was accepting hazardous material that was shipped in bulk from the Mid-Atlantic, most of it later determined to be substances shipped out of state illegally in order to avoid stricter disposal requirements in the states of origin. The Picillos were taking the waste, off the books and no questions asked, for about a dollar per barrel. In the view of many companies, this was simply too good an opportunity to pass up; in some cases, freight companies took the waste to the Picillo farm while claiming they had shipped it to a licensed facility, and pocketed the cash difference. Tons of waste, including PCBs, industrial solvents, pesticides, acids, caustics, phenols, metal-plating compounds laden with cyanide, explosives, experimental pharmaceuticals, and many other types of material were then either buried or simply tipped out onto the ground. Neighbors lodged complaints about odors and traffic, but it was not until September 30, 1977 that the full extent of the problem became known. That was the day the dumping area’s soil, which was saturated with flammable materials, caught fire in a days-long blaze that could be seen for miles, visible from Providence and Newport. The follow-up investigation by state and federal authorities discovered nearly 16,000 buried drums on the 8-acre site, and extremely dangerous concentrations of hazardous chemicals in the soil. To date, the state and federal governments have spent nearly thirty million dollars on the Picillo cleanup.

The result was CERCLA, which established a legal framework for enforcement actions, created the liability responsibilities, and created a slush fund of cash generated from taxes on industries that generated hazardous waste—this is what earned it the nickname “Superfund,” even though it’s a part of the thing, rather than the whole. CERCLA was initially instituted as a five-year program, set to expire in 1985, but was renewed and established as a permanent program. The ‘action arm’ of CERCLA is the National Contingency Plan, which sets forth the procedures to be followed in conducting a cleanup. State regulations can be more strict than CERCLA and NCP requirements (and many are), but not less strict. Many of them follow the same general model of the federal regulations, and the hazardous substances governed by CERCLA are typically incorporated specifically or by reference in regulations such as the Massachusetts Contingency Plan or the Connecticut Remediation Standard Regulations.

Superfund liabilities are the ultimate hammer for hazardous waste issues; the purpose of the slush fund was to provide money for emergency action or for ‘orphan’ sites where no responsible parties capable of paying for cleanup could be identified, while in the long term the costs would be recouped through legal action against the parties determined to be responsible for the mess. Under the “strict, joint and several” liability provisions, the federal government can essentially hold responsible and/or sue any person or corporation who contributed to what becomes a Superfund site (prior to the Clinton administration, this potential liability included banks who held loans or mortgages on the site) for up to three times the cost of the related cleanup. There are no statues of limitations; CERCLA liability does not go away. If a cleanup crew finds a drum labeled as ‘Property of the Catholic University of America Department of Chemistry’ and dated 1953 in a Pennsylvania drum dump in 2008, the EPA could put the university on the list of Potentially Responsible Parties and sue the school for part of the cleanup costs—potentially the entire cleanup cost for the entire site, with punitive damages equal to triple the cleanup costs, although this latitude is not generally exercised in practice. Your waste is always your problem.

For all that it gave the EPA a great deal of power and opened the door to a lot of cleanups, when taken as a whole Superfund had a rather spotty record for the first twelve years of its existence. It started many cleanups during the 1980s but completed very few of them (only 155, out of approximately 1,500 as of 1990), though granted if a site is large, severe and complex enough to belong on Superfund in the first place, it’s almost a certainty that cleanup will take years, if not decades. A Superfund site can include hundreds of acres with a wide variety of types of contaminants all mixed together, and treatment of contaminated groundwater is just intrinsically difficult.

Superfund does have plenty of room for push-back on the part of responsible parties—the contentiousness of the program was also part of the reason for so little progress.

Many individuals and corporate entities that found themselves involved in or in fear of Superfund action fought back fiercely, either by openly disputing the facts of the case, the scientific information, or legal and regulatory authority. Some of these litigation and negotiation processes have gone on for nearly thirty years, as in the case of the General Electric plant in Pittsfield, Massachusetts, and tend to make the already time-consuming cleanup process even slower. General Electric avoided doing any substantial cleanup work on the Pittsfield site for almost fifteen years, by repeatedly appealing EPA decisions, until the bipartisan threat of a Superfund listing, stemming from a hotly-contested senatorial race in which both the Democratic incumbent John Kerry and the Republican candidate William Weld vociferously championed a NPL listing for the site. At approximately the same time, the public learned of the true extent of the contamination—GE had historically given away contaminated material as fill, resulting in contamination of hundreds of residences and a public school property, and had buried this information for decades. This threat of Superfund prosecution forced General Electric into acquiescing to a stringent negotiated settlement, under which GE will conduct cleanup operations subject to state and federal approvals for each cleanup action. Today, eight years after the consent agreement went into effect, work is advancing slowly.

The prospect of lengthy legal battles was an intimidating one. The EPA was essentially operating on a frontier, without the decades of precedent necessary to establish an ironclad case; an influential article discussing legal defense strategies, published in 1983, is available here as a PDF. In view coupled with the uncertainty of support from the White House and Congress during the 1980s and early 1990s, the EPA generally avoided using the formidable but largely untried powers at its disposal, and settled for taking emergency measures to eliminate immediate hazards, and then turning the long-term cleanup over to the responsible parties and their cleanup consultants, who were understandably in no hurry to spend big money on this front. Without the grass-roots agitation of angry neighboring citizens-- and by 1985, the EPA estimated that one in four Americans lived within four miles of a Superfund site—raising hell, writing their Congressmen, filing civil suits, and ruthlessly hounding and critiquing the EPA, it is likely that even less would have been accomplished.

One of the major weaknesses of the program in the 1980s was the lack of clear standards for what constituted a risk, or what the appropriate cleanup standards were, which in turn governed how extensive (and expensive) a cleanup had to be. Some of these standards had to be determined on a case-by-case basis, which typically developed into a complex and wearisome give-and-take between the EPA and the responsible parties—the EPA might set an action threshold for cleaning up everything above ten parts per million, while Monsanto might respond by producing a toxicological study performed on Monsanto’s behalf, which argued that 500 parts per million was perfectly acceptable. The textbook case for this sort of toxicological dispute is the group of five related Superfund sites in Bloomington, Indiana, where Westinghouse (now part of CBS) has been disputing the cleanup of vast areas contaminated with PCBs, and matters have devolved to the point of dueling teams of toxicologists and geologists.

As a side note, the sheer contentiousness involved with Superfund liabilities and legal wrangling directly affect the work done in the field—all i’s must be dotted and all t’s crossed, complete with massively detailed scopes of work and data quality plans specifying laboratory and sampling procedures to the nth degree, because of the history of defendants attacking the data used in support of the decisions. The Brio site in Texas—which required the permanent evacuation of an entire neighborhood-- consumed a billion dollars in litigation before any cleanup was done. Monsanto was tied up in this site too, and was caught hiding information and falsifying data yet again.

As with virtually any government program, Superfund’s cleanup slush fund and discretionary powers were extensively abused during the Reagan administration. For example, the government of American Samoa managed to have the interior of a three-room farm warehouse and a trailer classified as a Superfund site in order to get the federal government to cover the tab of getting rid of containers of old pesticides and fertilizers.

The Reagan Administration was decidedly unenthusiastic about enforcing Superfund, as well as environmental regulations in general, and this was reflected in the people chosen to run the department. Most of the agency’s top positions were staffed with political appointees such as Anne Burford, who headed the agency between 1981 and 1983, and Rita Lavelle, the agency’s assistant administrator who oversaw CERCLA. Burford, Lavelle, and many others were connected to the Republican party and major business concerns; Lavelle had worked for Reagan when he was governor of California, and was a personal friend of Ed Meese.

Burford was a controversial figure—under her oversight, the agency’s budget was cut by $200 million and staffing cut by nearly one-fourth, (the enforcement division was cut from 311 persons to 75) both of which severely limited the agency’s ability to accomplish its statutory duties; efforts to support the Safe Drinking Water Act, including grants to states and inspections of water supplies, dropped virtually to nil. This led to allegations that Burford, Lavelle, and others had been appointed by the Reagan administration to dismantle the EPA and its regulations from within, and led to the agency being nicknamed the ‘Industry Protection Agency.” Burford, Lavelle, and about twenty other top officials were cited for Contempt of Congress and forced to resign after Burford refused to provide documents explaining the EPA’s decisions to Congress. Lavelle was sacked by the president and convicted of perjury, fined $10,000 and imprisoned for six months. She was also convicted in 2004 of wire fraud in an unrelated matter.

Both Burford and Lavalle were implicated in the gross misuse of Superfund money and major conflicts of interest during the cleanup of a Superfund site in California, as well as making ‘sweetheart deals’ with responsible parties that relieved them of costs and liabilities, e.g. the enormous disaster otherwise known as the Seymour Recycling Corporation facility in Indiana, where Burford and Lavelle advocated a voluntary settlement which left the cleanup in the polluters’ hands, even though EPA had no authority to enforce a voluntary agreement if the polluters renege on their promises.

In the most conspicuous case of abuse, Lavelle insisted on handling a case involving a former employer of hers, Aerojet-General, despite having been repeatedly warned about conflicts of interest. Aerojet-General was partly responsible for the contamination at the infamous Stringfellow Acid Pits, a massive abandoned hazardous waste dump described as the most contaminated place in California, and Lavelle had in fact run a PR campaign for Aerojet-General intended to mend the company’s image as a massive polluter. Unsurprisingly, Lavalle let her old employer off with a slap on the wrist.

The EPA re-investigated both Seymour Recycling and the Stringfellow site after Burford and Lavelle left office in disgrace, and issued a binding Consent Decree in order to remedy the problems left behind by both the responsible parties and the EPA leadership. Burford was replaced by William Ruckleshaus, who served a second term as Administrator.

Congress subsequently passed the Superfund Amendments and Reauthorization Act in 1986. In addition to major revisions to the Superfund program, the SARA legislation was also intended to light a fire under the Reagan-era EPA leadership and to try to get things moving.

Superfund enjoyed something of a renaissance during the Clinton administration, however. Between 1997 and 1999, the EPA completed cleanup at 260 sites, an average of 85 sites per year, and more than the total for the first twelve years of the Superfund program.

During the first years of the George W. Bush administration, however, this dropped by nearly half, and funding for the program was virtually halved through the withholding of appropriations. As Mark Haggerty noted in a 2003 article, of the 81 Superfund sites at which the EPA was trying to conduct cleanups in 2003, 20 had to be wait-listed due to lack of funds, and the processing adding sites to the list was effectively stopped—out of over three thousand sites awaiting decision in 2003, only two were added to the list. (Haggerty, 2003)

One of the key provisions of Superfund was, naturally, the ‘superfund’ itself, which was to be maintained by taxes on petroleum and other things, supplemented as needed by appropriations from general revenue. The tax provisions lapsed in 1995, and the Republican-dominated Congress flatly refused to renew them. The Bush administration appears never to have seriously considered the issue of reinstating the taxes. The trust fund has been completely drained since the end of 2003, and work is currently funded entirely by Congressional appropriations from tax revenues, allowing Congress essentially to exercise the power of the checkbook over Superfund by starving it of funds. The end result is that tax revenues now pay for what polluters were originally supposed to pay for, and in the absence of Congressional appropriations, work stops. The EPA’s enforcement efforts to get PRPs to pay for cleanups, and to spur along cleanups that have stalled, have also effectively ceased.

Under the Bush administration, the Superfund program has also been steered towards the disturbing practice of performing cost/benefit analyses of proposed cleanup work. Risk analysis is one thing—determining whether a cleanup is justified, or the type of cleanup warranted, based on the potential for the contamination to affect human health or the environment is a valuable tool in evaluating and prioritizing cleanup work. Cost/benefit analyses are an entirely different matter. The general concept is that if a proposed remedy costs more than the value of the aggregate lives and property it would protect, it need not be implemented. In a sense, this reverts back to the old “how clean is clean enough” dispute, but discards the previous model of deliberate overkill in the name of protecting human health and the environment, and validates the use of “it’s too expensive” as an excuse in addition to “the stuff is harmless where it is.” Incidentally, during George Gray’s tenure as Assistant Administrator for Research and Development, the EPA cut the value of a human life, as used for cost/benefit decisions in evaluating risks to human health, from $8 million to $7 million.

This state of affairs raises interesting questions about the proper relationship between government and business, and the views of the Bush administration and other elements of the Republican party apparatus—should it be the responsibility of the federal government to pay out of pocket for cleanups made necessary by corporate entities, and should the parties responsible for the contamination bear financial responsibility for the cleanup costs? More simply, should the federal government serve as the cleanup crew for big businesses who get off scot-free?

There is widespread support in some sectors, primarily among business interests affected by Superfund and other federal regulations, to do away with Superfund entirely. Many of these objections are not new, and could as easily have been raised in the early 1980s. To list two examples of relatively recent adherents of the repeated meme, James DeLong of the libertarian Cato Institute think tank growled in 1997 that “the same question EPA asks concerning Superfund sites, (Should they be contained or eliminated completely?) should be asked of the Superfund program itself. . . . its toxic effects on the economy necessitate its elimination." In simpler terms, Superfund is a burden to industry and should be eliminated in the name of economic growth. Ironically, DeLong lodged his complaint at the time when Superfund was being heaved entirely onto the taxpayer balance sheet while still at its peak of actual efficiency, as discussed below.

More typical is the complaint of Dupont's corporate counsel Bernard J. Reilly, who dismissively opined, "I question whether we should be spending hundreds of millions of dollars because we'd sort of like to see a stream cleaned up. I'd like to see it cleaned up too, but we're talking scarce resources."

[Quotes obtained in primary and from Mark Haggerty’s June 2003 article in the Journal of Economic Issues, Superfund: The Ascendance of Enabling Myths]

The Bad New Days

The Bush Administration certainly proved a windfall to the energy and industrial sectors; active enforcement and prosecution activities ground virtually to a halt, and the White House also actively scrapped many longstanding environmental policies and brought a halt to new measures, including the arsenic standard mentioned above as well as water fluoridation, pesticide regulation, mercury emissions from power plants, and greenhouse gas control. The misnamed Clear Skies Act of 2003 served little purpose but to undo most of the Clean Air Act amendment of 1990, including weakening, delaying, or eliminating altogether many requirements for pollution controls on power plants.

It’s no secret at all that the Bush Administration White House, for all the energy it has put into obfuscating matters to the public as a whole, has maintained an open-door policy too the energy industry. In one notorious instance in 2002, a well-connected Texas oil executive named Ernest Angelo wrote directly to Karl Rove, expressing his opposition to a new EPA rule requiring groundwater pollution safeguards at oil drilling sites. The White House Office of Management and Budget, which was preparing the rule for publication, promptly revised the rule (without EPA input) to be less onerous to the oil producers by eliminating most of the proposed safeguards.

In a move even more disastrous for the environment and public safety as a whole, the White House and the Republican-dominated Congress exempted hydraulic fracturing from the Safe Drinking Water Act (SDWA), a decision in which the Office of the Vice President was directly involved, and which saw the EPA negotiating directly with the energy industry before finalizing its findings in a 2004 report which gave a green light to fracturing, even though the 424-page document noted numerous problems with the process and the potential affects to groundwater. The SDWA is a very important statute, intended to protect public water supplies by a combination of regulations for the design and operation of water supply systems, and a strict ban on processes that inject hazardous substances into the ground. Approximately half of the US population’s drinking water is extracted from groundwater, whether through a municipal system or through private wells. This percentage is even higher in rural areas and the Midwest. At the same time, ingestion is the most dangerous exposure route for hazardous substances—a quantity of material ingested is generally much more dangerous than a comparable quantity inhaled or exposed to the skin.

‘Frac-ing’ is a process used as part of natural gas drilling, in which products containing hazardous substances are injected into coal beds or oil-bearing strata in the ground to essentially ‘loosen’ the target material (natural gas is mostly methane) and make it easier to recover. This process is used at roughly 90% of the oil and gas production sites in the continental United States, and can allegedly increase the yield of a well between 33% and 200%, depending on which source is consulted. The drawback is that these chemicals can easily migrate into aquifers used for drinking water supplies, and roughly a thousand cases of such contamination have been identified in Colorado and Wyoming, where oil wells are frequently installed without regard to the proximity of water wells. Injecting chemicals into the ground is normally strictly forbidden, for reasons that should be painfully obvious, especially when the chemicals used are trade secrets—Halliburton, one of the major suppliers of frac technology, refuses to provide any description more detailed than “a proprietary phosphate ester,” but the 2004 EPA report noted diesel fuel, benzene, and toluene as frequent components of frac fluids. Please note that benzene and toluene are both CERCLA-listed hazardous substances. As of 2008, Halliburton, which is connected to Vice-President Cheney, earns about $1.5 billion annually from hydraulic fracturing services. Weston Wilson, an EPA engineer, applied for whistleblower status after disclosing potential effects of the frac process to the public.

The current Congress is seeking to close the fracturing loophole with a resolution identified as HR 7231. This resolution may have to wait for the Obama administration before it can be passed into law.

The Bush administration also intervened in two wars between the EPA and the Department of Defense; perhaps unsurprisingly, in both cases it came down firmly on the side of the Pentagon and not only sent the EPA packing, but treated the agency as occupied territory.

The Department of Defense is, in all likelihood, the single largest polluter in the nation’s history. Of the 1,255 current Superfund sites, one in ten (129, to be precise) is a military base. Consider the number of military bases in the country, and consider too how dependent the military is on technology, whether it’s jeeps or ballistic missiles or bombers or aircraft carriers. All of that hardware requires repair and maintenance, and most of that involves hazardous materials ranging from motor oil to industrial degreasing solvents such as the trichloroethylene and perchloroethylene that polluted the Camp Lejeune water supply in North Carolina, a potential cause for thousands of illnesses for Marines and their families. Then add fuel, pesticides, explosives, laundries for uniforms, and the dozen or so other types of waste unique to the military. Perchlorate, a constituent and byproduct of many types of high explosive, is a major contaminant of concern due to its potential to affect the thyroid gland, and is found in drinking water supply areas in 35 states.

The DOD flatly refused in 2008 to proceed with cleanup operations at over a dozen major contaminated sites, most of which are on the National Priorities List and some of which involve vast plumes of contamination in aquifers used for drinking water supplies—one plume originating at the Twin Cities Ammunition Plant in Arden, Minnesota covers 25 square miles. Many of these are active bases at which no cleanup has even been attempted—and in the case of Camp Lejeune, the military continued for years to use a water supply they knew to be contaminated to such a degree that it should have been abandoned; the contamination was discovered in 1980, but not announced until 1985. The DOD appealed to the Bush-dominated Department of Justice with a claim that the EPA had no authority to issue the orders, despite legal powers granted under the 1986 amendments to CERCLA. The issue has not yet been resolved.

The base cleanup issue dovetails directly into another important matter in which the Bush-era EPA has compromised public health and safety in the name of political cronyism. The EPA launched a long-term research project in the mid-1990s aimed at evaluating the health risks associated with chlorinated hydrocarbons such as trichloroethylene and perchloroethylene. The preliminary report, prepared by a team of respected toxicologists and published in 2001 after four years of research and testing, concluded that these compounds were significantly more dangerous than previous research had indicated, possibly responsible for tens of thousands of birth defects and cancers, and that the regulatory standards for PCE, TCE, or other chlorinated hydrocarbons should be revised and made much more strict—for example, reducing the allowable concentration for one contaminant from fifteen parts per million to ten parts per billion. The current standard for PCE is based on data twenty years old, and the field of toxicology has advanced a great deal since then.

The DOD, supported by a phalanx of major defense contractors such as General Dynamics, objected to the proposed revisions for obvious reasons—most of these entities have major contamination footprints, and any more stringent requirements for cleanups meant increased cleanup costs—up to $1.5 billion for the Air Force alone. After two years of haggling, which saw the DOD behaving in much the same way Monsanto had regarding PCBs, to the extent of the Air Force accusing the EPA scientists of fabricating evidence, the Pentagon took its case directly to the White House, which promptly overruled the EPA scientists and installed new administrators, such as George Gray, to keep the rebellious scientists in line. The White House then removed the entire matter from the EPA and transferred it to a working group from the National Academy of Sciences, which reported directly to the White House. Two years later, the NAS working group agreed with the EPA’s assessment of the dangers of TCE and PCE, but the Pentagon and the White House ignored them too.

By 2004, the entire matter was thoroughly stonewalled. The proposed 1 part per billion standard for perchlorate was likewise buried. Beset from without by veteran bureaucratic warriors and from within by a fifth column deployed by the White House/Pentagon alliance, the EPA finally threw in the towel and announced in 2007 that it wouldn’t even attempt to regulate perchlorate in groundwater.

By 2004, many states essentially gave up on waiting for the EPA findings and promulgated their own new standards. This is somewhat ironic, given that one of the arguments frequently cited against federal regulation of a given subject is that the matter should be left to the states. The states indeed inherited the matter, but chose exactly the course of action that the White House opposed.

One of the most noisome instances of political meddling in the EPA is the matter of carbon regulation in a world where global warming has become a major issue of public consciousness, as well as national and international policy. The EPA already regulates a list of ‘criteria air pollutants’ under the National Ambient Air Quality Standards; these include lead, nitrogen dioxide, sulfur dioxide, ozone, carbon monoxide, and particulate matter. Numerous states and environmental groups petitioned the EPA over the years to include carbon dioxide as a pollutant, but the Bush-era EPA refused, claiming that it lacked the authority to do so. The supposed Clean Air Interstate Rule of 2005 was eviscerated by federal courts, and was so poorly handled that it’s a valid question as to whether it was a straw-man enterprise to begin with—perhaps set up to fail, creating a legal precedent against further regulation.

Massachusetts, California, and a dozen other states sued, and the ensuing four-year legal battle ensued, culminating in two hearings before the Supreme Court of the United States during 2007. The Court found in favor of the states, determining that the EPA indeed had the authority to regulate CO2. Conservative justices in one case, including both Bush appointees, attempted to block the court from hearing the case at all, citing a supposed lack of legal standing on the part of the plaintiffs—in other words, that the states had no right to bring the case before the court because they had supposedly not been wronged.

Beginning in 2002, the state of California sought to tighten the limits on pollutants that could be discharged in automobile exhaust by 30%, in effect creating a standard more stringent than the Clean Air Act. This law applied to cars sold in California, but as California is one of the largest regional markets in the country, and it would be outlandish for Ford to manufacture a line of cars just for California, a restriction on cars that could be sold in California naturally had impact on all cars manufactured for sale anywhere in the US. The state sought a routine waiver of the Clean Air Act, effectively asking the EPA for permission to use the state law instead of the relevant part of the Clean Air Act, but the Administrator, Stephen Johnson, denied the waiver in December 2007, complaining that it would create a ‘patchwork’ of regulations. Subsequent investigations revealed that Johnson had issued his decision over the objections of his own staff and after receiving a series of memos from the White House. The Alliance of Automobile Manufacturers, which represents the three remaining corporations that make up the troubled domestic auto manufacturing industry, commended Johnson’s decision.

Even when EPA officials attempt to enforce laws, there is a very real risk of a politically-motivated backlash. This was the case when the White House forced out Mary A. Gade, the EPA Regional Administrator for the northern Midwest (EPA Region 5), after a dispute spawned by a Superfund site in Michigan. Ms. Gade, who ironically had been a staunch Bush supporter, was stripped of her authority on May 1 and told to resign by June 1 or be fired. The site at issue is a 1,900-acre Dow Chemicals plant in the town of Midland, where soil, groundwater, and sediment in the Saginaw River, which extends into Lake Huron was contaminated with hazardous materials, including the highest concentrations of dioxin ever discovered in the United States. Dow has acknowledged responsibility for the contamination, which became public knowledge in the 1980s, but has refused to do cleanup work and has disputed the size of the contaminated area. Matters came to a head in 2007, when the EPA Region 5 office and the Michigan Department of Environmental Quality issued emergency orders to Dow, ordering that the company begin cleanup operations immediately in heavily contaminated areas. Local residents and officials applauded, Dow fulminated. Johnson sacked Gade. The EPA stonewalled at a May 7 Congressional hearing on the subject, leading one exasperated Congressman to lampoon EPA Assistant Administrator for Research and Development George Gray’s “ability to say preposterous things and be completely straight-faced throughout."

In one of the more comic-opera battles the EPA has ever been part of, the agency has finally adopted a modern and realistic method for evaluating gasoline mileage for motor vehicles, thirty years after the old method was first criticized as unrealistic. The old method also became even more outdated during the 1980s, when increases in urban stop-and-go traffic, differences in typical fuels, and the change in highway speed limits from 55 miles per hour to 65 miles per hour rendered the basic assumptions of the mileage calculations completely irrelevant. The revised method was in the process for some years, opposed by domestic auto manufacturers who objected to the possibility of stricter standards that could force redesigns of vehicles, steer customers to more efficient Japanese or German cars, or damage the highly profitable truck and SUV sectors, especially since many automakers have come to tout the EPA mileage rating in their advertising. Consumer Reports concluded that when both the old and the new methods were used to evaluate the same vehicle, the miles per gallon ratings for roughly 90% of the automobiles tested were less under the new system by an average of 30%, so that a car that was previously rated at 30 mpg could now be rated at 21 mpg. Re-calculated mileage ratings for model years 1985-2008 are available here.

What next?

This essay has focused primarily on the agency’s shortcomings rather than its successes, not to denigrate the agency or the good work that it does, but because these problems need to be exposed and remedied. In the interests of full disclosure, I work for a private environmental engineering firm, and while I have never worked for the EPA in any capacity, I have consulted and worked with the EPA Region 1 office in Boston regularly over the past four years.

As a matter of historiography, please note that I did not spend as much time on the George H.W. Bush or Clinton administrations as I did on other administrations, and that the course of this essay could perhaps read as a “bad old days golden age decline and fall hope for the future” sequence. This is not to exculpate the elder Bush or the Clinton administration from mistakes or cronyism; there were certainly plenty of environmental scandals between 1988 and 2000. The distinction is, however, that for those twelve years, the White House essentially left the EPA alone, and did not seriously interfere in its operations or policies to the great extent that the Reagan or George W. Bush administrations did, insofar as it appears that the Reagan and George W. Bush administrations intentionally tried variously to starve, dismantle, hobble, and sabotage the primary federal environmental regulatory agency out of ideological convictions harking back to the ‘continental divide’ mentioned above. If business profitability and environmental integrity were mutually exclusive—which is an emphatically false assertion, unless one is manufacturing PCBs—the conservative administrations of the recent past have consistently put profit above the environment, and in this context the term ‘environment’ inescapably also covers human health and safety as well as ecological concerns.

The willingness of the autocratic and arbitrary cabal in the White House and its agents, such as Stephen Johnson and George Gray, to simply overrule scientific findings or regulations based on political, economic, or personal considerations is also severely troubling. Given the wide swath of matters over which the EPA currently holds sway, including such basic things as clean air and water, do we really want this government agency handled in the same way as FEMA and Homeland Security, by the equivalent of Michael “Heckuva job” Brown, or Michael Chertoff, who didn’t know about the plight of the refugees in the convention center even after most of the country had seen them on CNN, and who spent most of his term in office touting a bizarre color-coded terrorist warning scheme?

In the long run, perhaps, one could see the recent drastic decline of the EPA’s effectiveness and assertiveness in fulfilling its statutory role as a symptom of the Bush administration, which has in many federal agencies deliberately weakened enforcement mechanisms by appointing persons ideologically opposed to certain programs into positions of authority over those programs (notably the Department of the Interior), or deliberately underfunding agencies or programs and starving them of their ability to function. This last behavior resonates very strongly with the piously expressed sentiments of conservative pundit and activist Grover Norquist, most famous for claiming he wanted to “shrink government down to a size where it can be drowned in a bathtub.” The last several years have seen that statement often juxtaposed in the media with images of a flooded New Orleans.

One of the questions I raised during the latter days of the 2008 presidential campaign was that if Senator John McCain, like so many conservatives before him, argued that “Government is not a solution to our problem, government is the problem,” why did they want to be put in charge of that government? I have not yet received an intelligible answer, but the general response of the financial community to the economic collapse in September and October of 2008 echoed—perhaps answered-- the rhetorical question I asked above regarding the proper role of the federal government. For all that the federal government is damned as a disastrous drag on business and the free market, the disasters created by business and the free market make the federal government an indispensable organ of damage control, cleaning up the messes created by the private sector. That, if nothing else, is why government will never go out of business.

As a final note, I should point out that most of those individuals short-listed for the position of Administrator of the EPA, including Ian Bowles and Mary Nichols, were directly involved in several of the most contentious battles with the Bush-era EPA over greenhouse gas regulations and other issues, and it would certainly be apropos if one of them should replace Administrator Johnson.

It’s time for some change we can believe in.

It’s time for some change we can believe in.

1 comment:

Tom said...

Ye gods, somehow I forgot the Safe Drinking Water Act of 1973.... the Big Four is really the Big Five!