United States
Environmental Protection
Agency
Office of
Public Affairs (A-107)
Washington DC 20460
Volume 10
Number 2
March 1984
&EPA JOURNAL
Discharging Enforcement Responsibilities
11111 III
-------
Discharging
Enforcement
Responsibilities
This issue of EPA Journal focuses on en-
forcement, one of the key steps in carry-
ing out an environmental protection pro-
gram.
The need for a firm enforcement pro-
gram at EPA was spelled out in remarks
by Administrator William D. Ruckelshaus
to EPA headquarters and regional en-
forcement officials at a National Com-
pliance and Enforcement Conference in
January sponsored by the Agency. Along
with excerpts of the Administrator's re-
marks, the magazine includes an article
on new enforcement strategies being de-
vised at the Agency under the leadership
of Courtney Price, EPA Assistant Ad-
ministrator for Enforcement and Com-
pliance Monitoring.
The sleuthing work being done at
EPA's National Enforcement in-
vestigations Center in Denver to build en-
forcement cases is described in an article
by Contributing Editor Susan Tejada.
Environmental enforcement from an-
other vantage point—the state attorney
general's office—is explained in articles
by the attorneys general of Massachu-
setts, Washington state and Wisconsin.
The views of a partner in environmental
enforcement at the federal level—the
U.S. Department of Justice—are dis-
cussed in a piece by F. Henry Habicht, II,
an Assistant Attorney General. Activities
in the EPA General Counsel's office, an-
other legal arm, are discussed by General
Counsel A. James Barnes in an interview.
An article reports on a new EPA en-
forcement initiative—cracking down on
the hundreds of municipal wastewater
treatment plants out of compliance with
cleanup schedules. Investigations by the
Inspector General's office into fraud in
EPA-assisted sewer line repair work are
explained.
Progress in the courts on EPA's efforts
to clean up dioxin in Missouri, with far-
reaching legal ramifications, is reviewed,
along with enforcement innovations
being undertaken in EPA's Superfund
and Resource Conservation and Recovery
Act programs.
The EPA campaign against fuel switch-
ers who are undercutting the effort to
curb air pollution from autos is ex-
plained, and the magazine includes an ar-
ticle on the Agency's latest steps to pro-
tect public health in the national concern
about the pesticide EDB.
Meanwhile, environmental leaders dis-
...
Mount Rainier in the Cascade Mountains in Washington State reflected in a lake near its
base. Rainier is the center of a national park and a nationally famous environmental land-
mark.
cuss a question that has emerged as
pollution cleanup requirements are
toughened: Do pollution control rules
block industry growth plans? Differing
views are presented by Conservation
Foundation officials and John Quarles, a
former EPA Deputy Administrator.
On other fronts, the $295 million in-
crease for EPA's budget is detailed, and
the Administration's program on acid
rain is explained in congressional testi-
mony by the Administrator.
The regular feature Update summarizes
other developments at EPA, and the
magazine includes Environmental Alma-
nac's discussion of the great Wye Oak,
monarch of the eastern shore. D
-------
United States
Environmental Protection
Agency
Office of
Public Affairs (A-107)
Washington DC 20460
Volume 10
Number 2
March 1984
&EPA JOURNAL
William D. Ruckelshaus, Administrator
Josephine S. Cooper, Assistant Administrator for External Affairs
Jean Statler, Director, Office of Public Affairs
Charles D. Pierce, Editor
John M. Heritage, Managing Editor
Susan Tejada, Contributing Editor
EPA is charged by Congress to pro
tect the Nation's land, air and water
systems. Under a mandate of nation-
al environmental laws, the Agency
strives to formulate and implement
actions which lead to a compatible
balance between human activities
and the ability of natural systems to
support and nurture life
The EPA Journal is published by the
U.S. Environmental Protection Agen-
cy. The Administrator of EPA has de-
termined that the publication of this
periodical is necessary in the transac-
tion of the public business required
by law of this Agency Use of funds
for printing this periodical has been
approved by the Director of the
Office of Management and Budget
through 4/1/84. Views expressed by
authors do not necessarily reflect
EPA policy. Contributions and in-
quiries should be addressed to the
Editor (A-107), Waterside Mail. 401 M
St., S.W., Washington. DC. 20460
No permission necessary to repro-
duce contents except copyrighted
photos and other materials.
Oo
Ruckelshaus Demands
Firm EPA Enforcement 2
Agency Officials Devise
New Enforcement
Strategies 5
EPA Sleuths
on the Trail 7
Public Servants,
Private Eyes 9
Three State Attorneys
General Report on
Their Programs
Massachusetts: Making the
New Cleanup Laws Work 11
Washington State:
Groundwater Quality—The
Next Regulatory Issue 12
Wisconsin: Enforcing En-
vironmental Laws 14
Justice Cracks Down on
Environmental Crimes 16
National Municipal Policy
Set to Protect Water
Quality 18
The Role of EPA's General
Counsel 20
Missouri Dioxin Cleanup
Progresses in Courts 22
Fuel Switching
Doesn't Pay 23
Enforcement Innovations
Adopted for Superfund,
RCRA 24
EPA Acts to Reduce
EDB in American Diet 26
Monarch of the Eastern
Shore 27
Cleanup Rules and
Industrial Growth:
Two Viewpoints 28
Facing the Issue of Acid
Rain 32
$295 Million More
for EPA 35
Skulduggery in the
Sewers 37
Update:
New Developments
at EPA 38
O
Front Cover: American flags flap in
brisk wind at Washington monu-
ment grounds. Looming over hori-
zon is dome of Nation's Capitol.
Photri photo by Everett Johnson.
Photo Credits: Everett Johnson of
Photri, Steve Delaney of EPA;
E. J. White: Jack Boucher. National
Park Sen/ice; Jack Richmond: U.S.
Department of Justice: New York
Department of Conservation: and
Larry Ikenberry, Cascade Photographies.
Design Credits: Robert Flanagan,
Ron Farrah
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Ruckelshaus Demands
Firm EPA Enforcement
Enforcement officials listening at sess:
National Compliance and Enforcement Con-
ference sponsored by EPA in January.
EPA Administrator William D. Ruckels-
haus called for firm but fair enforcement
at a recent National Compliance and En-
forcement Conference in Alexandria, Va.
The conference was attended by high-
ranking officials of EPA from headquar-
ters and the regional offices. Also invited
were top Justice Department officials.
The conference, sponsored by EPA, was
designed to help clarify enforcement
roles and responsibilities in the Agency.
Here are excerpts from the Administra-
tor's remarks at the conference:
"R
Dased on what I have learned, I am
nervous about how we are doing in dis-
charging our enforcement responsibili-
ties. I say 'based on what I know' be-
cause I think my knowledge is imperfect.
What I am looking at are the same data
that I think the Congress, often unjustifi-
ably, looks at—namely these numbers
that come in every quarter showing how
many enforcement actions are being
filed. I am not wedded to those numbers,
but I am also looking at independent re-
ports. I am looking at reports that are
generated by the General Accounting
Office on compliance. When I see what
they are saying and then when I look at
the number of Administrative Orders,
Civil Actions, Criminal Actions, and refer-
rals to the Justice Department that we
are filing, I am nervous.
"I am nervous about what I perceive to
be an apparent lack of action and serious
commitment to ensuring that these laws
and regulations are enforced. This isn't
the first time we've been through this ex-
perience. When EPA was created, we
were authorized by the Office of Man-
agement and Budget to hire an additional
2,000 people. I felt that it was an ex-
cellent opportunity to achieve two gov-
ernmental goals: number one, to hire the
best people we could possibly find to fill
these jobs and secondly, to do a lot bet-
ter than the collective agencies that
formed EPA had done up to that point in
achieving our civil rights, EEOC, minority
and women hiring responsibilities.
"I thought that ought to be simple
enough. We've got 2,000 jobs to fill—all I
need to do is send out some memos and
let everybody know what I think ought to
be done and, sure enough, these jobs
will all be filled by qualified women and
minorities, and we will be a model agen-
cy.
"Well, I was wrong as I could be. I sent
out all kinds of memos. I signaled every
way I knew how what I thought ought to
be done—and nothing happened. Each
month, in would come the same statistics
indicating that we were not doing any
better than we had before. I finally got
frustrated and called in the actual people
who were doing the hiring in the Agency.
I showed them the memos I had sent
out, in case they hadn't had a chance to
read them, and I showed them on the
blackboard how poorly we were doing.
And I asked why?
"As it turned out, they didn't believe
what I was saying in these memos. They
thought somebody else must be writing
them. We spent a couple of hours, and I
think I convinced them I was serious
about it, and that their own jobs were on
the line if they didn't conform. And then
those statistics shot straight up and we
did better. I had been talking either in the
wrong way or to the wrong people in
those first few months. I'm not sure I'm
not guilty of the same thing here with en-
forcement.
"As I set out last year for Washington,
following what was happening at EPA, I
thought to myself how frustrated the en-
forcers in the Agency must be. Here is
this marvelous institution in our society,
created to ensure that the environment
and public health are protected, and it is
being assaulted from every side. It is
being said about them that they are not
doing their job; they are not enforcing. I
thought 'these people are going to be
mad.'
"In fact, I received a call just about a
year ago from a reporter I knew at the
Wall Street Journal who asked, 'What do
EPA JOURNAL
-------
you think about all this going on at
EPA?' At that point, I certainly didn't
have any idea that I'd be here a year
from then, but I do remember saying one
thing, 'I'll bet you what's happening is
that there are more enforcement cases
being filed at every level of government.'
He said, 'Well, why would that happen?'
I said, 'Go check—EPA keeps the best re-
cords of anybody around of how many
enforcement cases are filed. Go back and
look at the files—I'll bet you'll see that
more enforcement cases have been filed
in the last thirty to sixty days than in the
last three years.' He called me back
about an hour later and he said, 'Boy,
you were right!'
"What I was concerned about, frankly,
in coming back here was that we had a
bunch of tigers in the tank, and the min-
ute we took the lid off the tank and said,
'Go get them!' the problem might well be
an over-reaction—that we might start
treating people unfairly, just to show
everybody how tough we were. Well, I
think we opened the tank all right, but on
the basis of what I see here the last few
months, there may be more pussycats in
the tank than tigers. I was fairly certain,
through every signal that I knew how to
send out, that you would understand the
laws EPA administers are supposed to be
enforced not only firmly and fairly, but
also vigorously. I said that at my con-
firmation hearing. I suggested to the Sen-
ate Committee members that confirmed
me, each one of whom expressed con-
cern about enforcement, that there were
three aspects to enforcement: the will,
the capacity, and the organization. And I
said as to will, 'Let me disabuse anyone
who believes EPA, while I am there, will
not have the will and the determination
to enforce the laws as written by Con-
gress.' I meant that when I said it to Con-
gress.
"Since then, I am not sure we have not
gone overboard on fairness and not paid
enough attention to firmness. Through
the summer as we were working on or-
ganizational problems, as new people
were coming on, the enforcement statis-
tics were not exactly overwhelming, but I
assumed that was because of a need for
adjustment.
"I began to get worried in September
as I talked to Courtney Price, Assistant
Administrator for Enforcement and Com-
pliance Monitoring, and EPA Deputy Ad-
ministrator Al Aim and others who were
concerned about enforcement. So I sent
a memo on October 7 to all the Assistant
Administrators and Regional Administra-
tors. I repeated what I said in my con-
firmation hearings, and I indicated in as
clear language as I could that in order to
achieve compliance with the laws and
regulations EPA must have an enforce-
ment program that is credible and effec-
tive. And I emphasized that there should
be no doubt in anybody's mind inside or
outside the Agency, whether regulator or
regulated, that the laws and regulations
of the EPA mean what they say, and they
will be enforced. Since then, I've said
that to the Regional Administrators,
Assistant Administrators, everybody I can
talk to about it.
"Now these statistics I mentioned are
terrible. On the face of it they may be
misleading. ! may be being unfair in
terms of the efforts we are making in en-
forcement. If I'm wrong, tell me. One of
the purposes of this conference, I think,
is to find out if, in fact, these numbers
are misleading. Maybe we are not
measuring the right things. But, if I am
looking at the right things, then these
statistics are terrible—we filed in the first
MARCH 1984
-------
three months of this fiscal year 35 orders
under all the administrative orders of
RCRA, if that's possible. According to the
GAO's report—'General Report on In-
spection and Enforcement of Determining
Activities of Waste Facilities' —80 percent
of the hazardous waste facilities in the
country regulated under RCRA are out of
compliance. We don't really contest that
figure, and yet that has generated only
35 Administrative Orders. There are no
reports coming in, no financial reports,
none of the interim status reports that
are supposed to be coming in. It isn't
that the reports are incomplete, they are
not even there.
"I've asked 'why' for the last couple of
weeks. I've asked a lot of people. I've
asked Courtney Price and her people, I've
asked the people who have been around
this Agency for a long time and I get
reasons, I get a whole lot of reasons why
they think what is going on here is less
than what I believe we should be doing.
I'll give you just a few of the ex-
planations I've heard—'the states are the
ones that are supposed to enforce the
law'—'in RCRA it is unclear who is sup-
posed to enforce'—'the organization is all
wrong'—'the organization is all screwed
up, not working very well'—'we haven't
got enough people'—'we have turf
fights'—'personality fights'—'we don't
have enough guidance.'
"I don't find any of those reasons very
persuasive. The truth is that while the
states do have a larger responsibility to
enforce these laws than they did in the
past, if we are carrying out our oversight
responsibilities, these laws should be en-
forced. We can tell them we're going to
get aggressive about enforcement. Our
primary responsibility is not to get along
with the states, it is to ensure com-
pliance.
Or
^n the organizational question, be-
lieve me, there is no perfect organization,
there is no perfect way to do this or any-
thing else. This organization now will
work if we make it work. We've got in
Courtney Price an absolutely first-rate
person as an Assistant Administrator run-
ning the Office of Enforcement and Com-
pliance Monitoring. Most of the responsi-
bilities for enforcement ought to be out
in the Regions where you are closer to
the problem, and where you can get right
at those people either through an Ad-
ministrative Order or through a court
using the U.S. Attorney's Office. We
argued with the Justice Department
about sending enforcement authority to
the Regions so we can use it more effec-
tively and quickly and make it work bet-
ter. Just as sure as that authority has
gone out to the Regions it will come
roaring back here like a freight train if
nothing happens. I'll tell you one thing; if
we don't start doing a better job in en-
forcement, we're never going to see this
organization structure work; we'll never
give it a chance.
"When we started here at EPA some 13
years ago, we were all accused of having
a lawyer's mentality. ! confess I did. The
country had adopted a standard-setting
enforcement process as a means of
achieving pollution abatement to protect
public health. It's an imperfect process.
Economists all argue that we should
have done something else, but we didn't.
We decided as a society the way we
were going to go about dealing with
these problems was to issue regulations
that we were going to enforce. That is a
two-way approach. If we don't use the
second part, if we don't enforce, we can
set standards until we are blue in the
face and it won't make a bit of difference.
In fact, that's exactly what happened be-
fore EPA was created. The states were
setting all kinds of zero discharge stan-
dards, and nobody paid the slightest bit
of attention to them because they were
never enforced.
On the question of not enough people
and not enough guidance, listen, I first
started in the field back in 1960 in In-
diana. We had a Stream Pollution Control
Board that had about as much spine as a
jellyfish and a law that was even worse. I
brought more enforcement actions with a
panel truck and a few guys with some
grab samples than some parts of this
whole Agency in the last quarter. We
didn't have any guidance, we hardly had
any laws to enforce and we didn't have
any staff. All we had there was me and a
few sanitary engineers with these grab
samples. Jerry Hansler was one of them.
He used to be the Regional Administrator
in Region 2.
"In some parts of EPA, there are some
encouraging things happening. In the
fuel tampering area there are some imag-
inative things going on. I applaud that.
That's what we need to do. We need to
not only use these forms of powers, we
need to use them imaginatively in order
to get compliance.
"The elements of a strong enforcement
program are here— absolutely here—you
not only have my support, you've got my
demand that something be done. I don't
want to see—without a whole of a lot
better explanation than I've got now—
another report like this.
"If the signals aren't clear enough, let's
clear them up right now. We've got a
system that will work. It's a system that
will hold people accountable for what it
is they are doing.
"The states couldn't do this by them-
selves because they had to compete so
strongly over the siting of industry that
they simply were lousy regulators of en-
vironmental health and safety laws. Un-
less they have a gorilla in the closet they
can't do the job. And the gorilla is EPA. If
they open the closet and find nobody
there, or somebody who won't come out,
that doesn't do them any good. They
can't enforce these laws by themselves.
They need us. They'll complain and
scream, but if they don't have us, they
are dead. And we've got to show them
that we are there, that we are willing to
act.
"It is not as complicated as I think we
are making it today. We can find 100
reasons not to do something in terms of
organizational structure, guidance, you
name it. There ought to be 100 reasons
to do something. We have to develop a
certain controlled state of outrage in this
Agency if we are going to get these laws
enforced. And some place along the way,
we have lost that.
"Let me tell you what I think is at
stake. What's at stake is EPA.
"There is a man for whom we now
have a national holiday, and he had a
dream about the way life should be lived
in this country. Well, I have a dream
about this Agency—that when people ask
which is a really good governmental in-
stitution, what they will say is EPA.
That's the Environmental Protection
Agency. Because if in an agency there
are good, excellent people, who are
tough, who are fair, then by God when
they tell you something you can put it in
the bank. And if they tell you you've got
to come into compliance, and you don't
do it, you know exactly where you are
going to end up—in court.
"T
Ihe truth is, if we have that kind of
reputation, there will be an explanation
for these kinds of numbers and that is
because all the people out there are in
compliance. Now I think that kind of
reputation has to be earned; over time it
can be frittered away just as easily in
spite of how long it took to earn it. We
can't risk that.
"I feel deeply about this place and so
do a lot of other people who have come
back here to help put it back on track, be-
cause what we are doing is terribly im-
portant to the country. We have got to
show people that we mean business, that
the regulations and the laws that are
passed by the Congress are statements
of national public policy and will be car-
ried out. With the people we have in this
room and the people we have in this
Agency, my dream can be realized. You
can find yourselves Working for an agen-
cy that gives you a lot of pride—that lets
you hold your head high and lets you
recognize that what you are doing is not
only important but is being done well."
D
EPA JOURNAL
-------
Agency Officials Devise
New Enforcement
Strategies
By Bob W. Pittman Jr.
Courtney M, Price
Major new EPA enforcement strategies
have been developed under the lead-
ership of the Agency's Office of Enforce-
ment and Compliance Monitoring.
The strategies were drafted by task
group committees formed after Mrs.
Courtney M. Price, EPA's Assistant Ad-
ministrator for Enforcement and Com-
pliance Monitoring, was asked by Ad-
ministrator William D. Ruckelshaus and
Deputy Administrator Alvin L. Aim to de-
velop new compliance and enforcement
plans.
Task group committees were formed
for each of the major enforcement pro-
grams at EPA—Air, Water, Hazardous
Waste, and Pesticides and Toxic Sub-
stances. Each of these sub-groups de-
vised a compliance and enforcement plan
for a specific program.
According to Price, these strategies
were developed with three goals in mind.
"First, we wanted to educate upper-
level management about the Agency's
enforcement and compliance programs.
We also wished to provide operational
guidance for managers with responsibili-
ties in enforcement and compliance. But
clearly our most fundamental purpose
was the re-establishment of credibility in
EPA's compliance and enforcement pro-
gram by developing enforcement priori-
ties and goals for each of the Agency's
program offices."
What effect will the new strategies
have on the day-to-day operation of the
Agency's enforcement and compliance
programs?
"Generally," Price answers, "what the
strategy development process did was
this. It gave us the opportunity to step
back, focusing on what the Agency's
compliance and enforcement programs
had accomplished in the last few years,
and to evaluate where the programs
should be headed in terms of EPA's
(Bob W. Pittman, Jr., an attorney, serves as
Special Assistant to the Assistant Adminis-
trator for Enforcement and Compliance
Monitoring.)
priorities. It gave us the opportunity to
'codify' agency strategy in one place for
the first time. But the strategies them-
selves will have no radical effect on the
way we run these programs on a daily
basis."
In addition to devising program specif-
ic strategies, Price and her staff de-
veloped a series of detailed working prin-
ciples which she believes underlie all
EPA compliance and enforcement pro-
grams. Among the topics dealt with in
the principles are identification of the
regulated community, promotion of com-
pliance in that community, the
monitoring of compliance, and response
to violations. Also addressed are the rela-
tionship of EPA with state and local gov-
ernments and evaluation of agency prog-
ress in enforcement and compliance.
The Office of Enforcement and Com-
pliance Monitoring formally unveiled the
results of the task force project before an
audience of some 120 headquarters and
regional EPA representatives attending
the National Compliance and Enforce-
ment Conference in Alexandria, Va. in
late January.
At the conference, Price and her associ-
ate enforcement counsel discussed the
plan for institutionalizing the strategy
process in the Agency.
"We will be translating the priorities
and goals of the strategies into quantifi-
able goals which can be tracked in the
Agency's Management Accountability
System and made part of performance
agreements," Price said. "It will also be
part of our task within the next year to
make certain that strategies are reflected
in operating year guidance and the
budget."
In the past, she noted, the Office of
Legal and Enforcement Counsel or the
Office of Enforcement Counsel has been
primarily responsible for judicial enforce-
ment. The program offices were princi-
pally accountable for administrative en-
forcement and for compliance monitoring
functions.
"The new organization, the Office of
Enforcement and Compliance Monitoring,
has retained the major functions we per-
MARCH 1984
-------
formed as enforcement counsel. We will
continue to serve as legal counsel to the
enforcement function in the Agency,
working very closely with the Office of
the General Counsel to ensure consistent
interpretation of our statutory authority.
We will also remain an important source
of technical and legal support for com-
pliance monitoring and enforcement ac-
tion through the National Enforcement
Investigations Center in Denver and our
own staff here in Washington. Further,
we will continue centra! management of
the Agency's criminal enforcement pro-
gram. And finally, we will remain the pri-
mary liaison with the Department of Jus-
tice in the coordination of national cases,
ensuring their legal soundness and focus
on EPA priorities.
"Wh
fhat does change is that my office
will now also be responsible for over-
sight of all of EPA's national compliance
and enforcement efforts for all media and
coordinating all supporting management
systems for these efforts.
"This means that we will evaluate what
the programs are accomplishing in com-
pliance and enforcement and that we will
help the programs to establish meaning-
ful future goals and priorities so that
compliance and enforcement efforts are
coordinated. We will also be responsible
for tracking the programs offices' prog-
ress in meeting the goals and priorities
they have established."
Directing the new Office of Compliance
Analysis and Program Operations will be
Gerald A. Bryan, formerly Director of
Management Operations for the Office of
Enforcement and Compliance Monitoring.
"We are just beginning to implement
these new management functions,"
Bryan declared, "but the strategies are an
important first step for us. First, they in-
volve us in strategic planning with the
programs. Then, they provide us with
goals against which we can begin to
measure program achievements and
manage the compliance efforts of the
Agency. Finally, they initiate a process
which we will use in the future to set
Agency goals and priorities."
• According to Price, "Upon his return to
EPA in the spring of last year, the Ad-
ministrator set forth his priorities for the
Agency. One of the major tasks con-
cerned the restoration of credibility to the
Agency's enforcement efforts. We spon-
sored the national conference in January
to ensure that everyone involved in
EPA's enforcement efforts, both at the
headquarters and regional levels, under-
stands our compliance and enforcement
policies and acts accordingly so that, to
the extent practicable, we can achieve
national consistency."
Even though judicial action is not war-
ranted in all enforcement cases. Price
said she and her colleagues are, never-
theless, committed to fully utilizing that
tool where it is appropriate.
"As I have indicated," states Price,
"compliance is our goal and enforcement
is one tool we can' use to achieve that
goal. Judicial enforcement is one part of
the enforcement tool, one which we must
have the will to use. It is our willingness
to use judicial enforcement, our ultimate
tool, which gives teeth to all of our ad-
ministrative enforcement authorities."
Price pointed out that EPA has made it
quite clear that it is prepared to crack
down on significant violations no matter
how powerful their perpetrators may be.
Recently, EPA entered into a consent de-
cree with ten of the Nation's largest com-
panies, including Dow Chemical Com-
pany, Shell Chemical Corporation, U. S.
Steel Corporation and Exxon Corpora-
tion, to clean up two hazardous waste
sites in Baton Rouge, Louisiana, at an es-
timated cost of fifty to sixty million dol-
lars.
In other cases. Price said "We
have reached a multi-million dollar settle-
ment with Olin Chemical Company for
the cleanup of contamination resulting
from the discharge of the pesticide DDT,
and have filed sizable claims against
several major chemical companies for
failure to comply with the pre-
manufacture notification requirements of
the Toxic Substances Control Act.
"We have also proposed large fines
against the City of Philadelphia, Pa. and
Greenville County, S.C. for fuel switching
and disconnecting of vehicle emissions
control devices by the city police de-
partment and county motor pool," she
added. "These actions are but the tip of
an iceberg of a concerted effort to stamp
out the threat to public health posed by
fuel switching and tampering."
What is EPA's outlook for hazardous
waste enforcement actions in 1984?
"This year," Price says, "I expect a
much more vigorous effort to enforce the
Resource Conservation and Recovery Act
{RCRA). Over the past several years,
EPA's efforts in the hazardous waste area
have been devoted principally to the in-
credibly demanding problems of Super-
fund cleanup. But the RCRA statute is de-
signed to ensure that we, as an in-
dustrialized society, don't continue to
produce Superfund situations. I am dis-
turbed by widespread signs of noncom-
pliance with RCRA. Therefore, it is our
immediate objective to put respect for
the Act into those who would consider
violating its requirements."
Federal-state relations have received
widespread attention at EPA recently as
the Nation moves into a new era with
many implementation and enforcement
functions of the environmental and pub-
lic health laws shifting to the states. Price
noted.
"Much of our success in securing fu-
ture environmental advances will be a di-
rect function of our ability to forge a
mutually reinforcing partnership with our
allies at the state and local level. But, ul-
timately, EPA has oversight responsibility
to ensure that the laws are complied
with. We are the 'gorilla in the closet,' as
the Administrator is fond of saying.
Where the states are unable or unwilling
to take appropriate action to bring viola-
tors back into compliance with the law,
then we at EPA must step in to do so."
What signal would Price like to send
from the Office of Enforcement and Com-
pliance Monitoring? "I would simply say
that using the various enforcement tools
available to EPA is only one of the activi-
ties in which the Agency is engaged.
Some may even say that it is not the
most important activity. But, if we don't
do well in enforcing the law, nothing else
we do will be noticed, or even matter.
And, though it can be argued that there
have been credibility problems in EPA's
past enforcement efforts, we are dedi-
cated to curing that by showing, in our
words and in our actions, that we are
committed to enforcing the law."
Price, a 41-year-old native of Jackson,
Miss., was confirmed by the Senate last
October as EPA's Assistant Administrator
for Enforcement and Compliance
Monitoring.
Ohe came to EPA from the Department
of Transportation's National Highway
Traffic Safety Administration where she
had served most recently as Associate
Administrator for Rulemaking.
As Assistant Administrator for Enforce-
ment and Compliance Monitoring, Price
oversees EPA's far-reaching enforce-
ment and compliance effort. The duties
of her office cover case referrals from the
Agency's ten regional offices to the De-
partment of Justice, review of consent
decrees, direct involvement in cases with
multi-regional implications or precedent-
setting potential, docket management,
development of policies and procedures
for judicial enforcement and oversight of
the Agency's entire administrative en-
forcement program.
Price is also the national manager for
EPA's fledgling criminal enforcement pro-
gram, n
EPA JOURNAL
-------
EPA Sleuths on the Trail
by Susan Tejada
Behind this locked door, EPA's National
Enforcement Investigations Center keeps
evidence for presentation to a grand jury.
In the darkness of night, a large, un-
marked silver truck backs into position.
The rear door opens and a strange-
looking machine slides out, pointed sky-
ward. Someone inside the truck peers
through a telescope, searching for stray
aircraft in the machine's target range.
Finding none, he gives the all-clear signal
to his partner at the computer console in
another part of the truck. The partner
flicks the right switches, aims, and
shoots.
This shadowy scene comes, not from a
James Bond thriller, but from an EPA en-
forcement investigation. The console
operator is shooting laser beams, not
bullets. And his mission, to measure
something he cannot see, is not impos-
sible.
The EPA operators in the truck are
using a technique of light detection and
ranging — LIDAR for short — to measure
the opacity of a smoke plume. State im-
plementation plans, required under the
Clean Air Act, set opacity limits for emis-
sions from every smokestack. Before
LIDAR, EPA relied exclusively on visual
observation to check compliance with the
limits. This had certain drawbacks, not
the least being that visual observation of
smoke opacity is possible only during
daylight. But LIDAR contains its own light
source, a laser transmitter which emits a
short pulse of light, so it can function day
or night. This can be an effective law en-
forcement weapon against companies
suspected of deliberately exceeding opac-
ity limits at night, when they least fear
detection.
At EPA's National Enforcement In-
vestigations Center (NEIC) in Denver,
Col., LIDAR is just another tool of the
trade. The Center relies on a combination
of sophisticated equipment and old-
fashioned investigative techniques to do
its job: gather evidence that can be used
to enforce all the laws that EPA adminis-
ters. That evidence must be thoroughly,
exhaustively documented so that it will
hold up in court. The Center must always
(Susan Tejada is Contributing Editor to EPA
Journal.)
be ready to "tell it to the judge."
The National Enforcement In-
vestigations Center is part of EPA's Office
of Enforcement and Compliance
Monitoring. According to Director Tom
Gallagher, the Center responds to re-
quests for assistance rather than in-
itiating programs of its own. The re-
quests come from EPA regional offices
and from state and local governments.
Requesters often do not have the ex-
pertise, the equipment, or the time to
carry out the investigation themselves.
The Center, Gallagher explains, typical-
ly accepts those cases that have national
or regional significance and the potential
for setting a precedent. Center staff can
join in an investigation as it begins, or
can provide support even after the legal
process has started.
The nondescript two-story building in
which the Center is housed belies the
dazzling array of paraphernalia and ex-
pertise inside. Criminal investigators, en-
gineers, attorneys, hydrologists, chem-
ists, all have years of specialized experi-
ence. Roomfuls of computers provide in-
vestigators with access to more than two
dozen information systems and millions
of pieces of literature. Several laborator-
ies provide x-ray fluorescence spec-
trometry, ion chromatography, x-ray dif-
fraction analysis, high resolution gas
chromatograph mass spectrometry, and
other highly advanced methods to an-
alyze samples gathered during in-
vestigations. In an even more nondes-
cript building about a mile away, mechan-
ics construct new tools for specialized
investigations, like a stainless steel de-
vice for sampling substances con-
taminated by reactive materials or a re-
mote drum opener that can pry the
bungs off barrels of hazardous waste
from as far as 100 feet away.
The Center uses the gadgets and skills
at its command to come up with valid
scientific and technical evidence for EPA
enforcement cases. "We're just technical
guys trying to net a job done," Gallagher
explains. The Center's work at Denver's
Lowry landfill is a case in point.
At the site of the old Lowry Air Force
MARCH 1984
-------
Base, now deeded to the City of Denver,
is located a municipal landfill and three
ponds for industrial waste disposal. The
ponds are lined with a layer of sand
sandwiched between two layers of clay.
In 1981, the company operating the
facility found fluid in the sand layer of
one pond. The company did not report
the discovery, but drained the pond.
About a year later, when a state inspector
spotted the fluid in a sump which drains
the sand, the company said it was not
leachate but rainwater that had been
trapped there during construction. EPA's
regional office in Denver asked the Center
to conduct an investigation.
Investigators took samples of the fluid
back to the lab and compared them with
samples from the pond sump, from the
adjacent ponds, and with previous
sampling data. Their chemical detective
work established that the fluid was pond
leachate, not rainwater.
Center personnel can respond quickly.
According to Barrett Benson of the tech-
nical evaluation staff, private consultants
had worked without success for 10
months to identify the mysterious fluid at
Lowry. Investigators from the Center
identified it in four weeks. Larry Walz of
the Center's Compliance Investigations
Branch recalls the time a drum ruptured
at the Lackawanna Landfill in Old Forge,
Pa., and the fumes necessitated an
evacuation. "We got a call for help on
Tuesday, and left for Pennsylvania that
night. We met with state and regional
people on Wednesday. On Thursday our
equipment arrived, and on Friday we
started digging." And Charlene Swibas of
the Information Services Branch remem-
bers an urgent call she received from in-
vestigator Jim Hatheway, on site in
Texas. "The team didn't know if it was
safe to open up a drum for sampling be-
cause they didn't know what was inside,"
Swibas says. "Jim said the name on the
label looked French. While he held the
phone, I checked the Foreign Trades In-
dex on our computer and found that the
firm was an Algerian company that man-
ufactured only inorganics. So in a few
minutes, we were able to determine that
it was okay to open the drum."
Helping the regions prepare enforce-
ment cases is an important function of
the Center. Staffers adhere to the Cen-
ter's extraordinarily detailed policies and
procedures, which cover everything from
protection of confidential information to
use of waterproof ink on sample tags.
Quality assurance officer Robert Laidlaw
sees to it that chain of custody and docu-
ment control procedures are followed.
The profusion of procedures is necessary
to assure that any findings will be
admissible during subsequent enforce-
ment actions. "The grunt work is
amazing," says Laidlaw of the document
control work. "You just plod along with
all this paper. But the results are what
count." And the results of a properly con-
trolled paper chase can be a conviction.
Center staff rountinely serve as expert
witnesses in support of enforcement ac-
tions. No matter how many times this
happens, however, "You always get but-
terflies when you go into court," Benson
maintains. "You ask yourself, 'Did I cover
everything?' Fortunately our attorneys
grill us to get us as ready as we possibly
can be."
Enforcement support is the Center's
main goal. "We look for an enforcement
end point in all the work we do," Gal-
lagher stresses. But, because of its
unique capabilities, the Center provides
other services as well. Staffers train re-
gional office personnel in investigatory
techniques and chain of custody pro-
cedures, and state agency officials in
hazardous waste site investigations.
Laboratory staff assists other agency
programs. "We provide backup support
to 42 state pesticide enforcement pro-
grams," says Dr. Ted Meiggs, Assistant
Director for Laboratory Services. "We
help them develop their labs so they can
do reliable pesticide product analyses.
We can also do PCB and asbestos anal-
yses for the toxics enforcement program.
And we help the mobile source enforce-
ment program by analyzing gasoline for
lead or methanol," either of which can
render a car's emission control system
ineffective.
Perhaps the Center's most unique lab-
oratory facility is the Regulated Sub-
stances Lab. Here workers treat potential-
ly high hazard samples so that they can
be safely tested in regional or contractor
laboratories. Most of these samples, says
Meiggs, come from Superfund sites.
There are strict safety procedures in this
laboratory — workers must wear pro-
tective clothing, and the air discharge
from hoods in the lab is filtered to pre-
vent the escape of any contaminants
should an accident occur. These pro-
cedures, Meiggs explains, prevent con-
tamination of workers, the facility itself,
and any low level environmental samples
tested in the Center's other laboratories.
Lab analysis, establishment of a paper
trail, use of specialists: the Occidental
Chemical case illustrates how the Center
manages to pull these resources together
in an investigation.
Occidental is a pesticide manufacturing
facility in Lathrop, Calif. In the course of
its normal operations, the company
turned out "off specification" products —
process wastes, cleanup residues, and
bad lots. These wastes were buried on
site, some in the groundwater table
Handle with care: In the Regulated Sub-
stances Lab, technicians in protective clo
thing work with potentially high hazard
samples.
EPA JOURNAL
-------
Sky watching: An investigator uses a las-
er transmitter to measure the opacity of
smokestack emissions, day or night.
where they migrated and contaminated
the aquifer. Residents began complaining
about their drinking water. The State of
California investigated, found evidence of
contamination, and requested assistance
from EPA's regional office in San Francis-
co, which in turn requested help from the
Center.
Carroll Wills, Chief of the Center's En-
forcement Specialist Office, explains
what happens next. "NEIC sent in a team
of hydrologists, geologists, and chemists.
For three weeks, they ran an on-site in-
vestigation. They interviewed people to
reconstruct what had occurred. They in-
spected the facility, took samples to de-
termine where the waste streams were
generated. They examined company re-
cords to find out about its waste disposal
practices, past and present."
As a result of the investigation find-
ings, a complaint against the company
was filed. The firm eventually signed a
consent decree, agreeing to drill wells to
determine the extent of contamination, to
submit a remedial plan for abating fur-
\
'
ther contamination, to implement the
plan, and to allot funds to universities
over a 10-year period for environmental
research studies. In conformance with
the consent decree, the company has
built and is now operating a waste treat-
ment facility, and will perform studies of
its effectiveness.
When the consent decree was filed, in
February 1981, it was the largest mone-
tary settlement a company had agreed to
in an EPA civil case. It was also the first
major hazardous waste settlement
requiring a company to do an extensive
plan of study. As such, says Wills, it set a
precedent within the Agency, and the
Occidental consent decree is being used
as a model in several other major cases
now in negotiation.
The workload at the National Enforce-
ment Investigations Center is heavy.
Many investigators are on the road at
least 60 percent of the time. Still, turn-
over fs low and job satisfaction is high.
Why?
"We have a clear mission, and a sense
that we're doing something worthwhile,"
says Meiggs. Barrett Benson elaborates.
"You can't sell the environment short,"
he says, "and that's where the Center
won't budge." D
Public Servants,
Private Eyes
It seemed like a good idea at the time.
For four bucks apiece, Mr. Epifanio Mar-
tinez of Espanola, N.M. bought about 35
empty barrels from a waste oil processor
in Albuquerque. He hoped to make a lit-
tle money reselling the drums to neigh-
bors for use as burn barrels and barbe-
cue pits.
But Mrs. Martinez, his wife, was
worried about the CAUTION labels that
remained on a few of the drums. She
called the New Mexico Environmental
Improvement Division to find out what
the labels meant. Thus began a lengthy
criminal investigation that eventually
resulted in corvictions of two individuals
and a company, Nuclear Engineering
Services, Inc., for conversion of govern-
ment property, contract fraud, mail fraud,
felony false statements, and violations of
the Toxic Substances Control Act.
EPA's National Enforcement In-
vestigations Center {NEIC) ran the in-
vestigation. Criminal investigator Kirby
O'Neal was the special agent in charge.
He retraces how the Center became in-
volved and how the paper trail he fol-
lowed led him to Nuclear Engineering.
The state officials contacted by Mrs.
Martinez, O'Neal recalls, got in touch
with EPA regional officials in Dallas. They
teamed that the words McC/ellan AFB
appeared on some drum labels, and in
turn called EPA regional officials in Cali-
fornia, where the Air Force base is lo-
cated. The California office turned to the
Center for investigative help. O'Neal, a
longtime criminal investigator for the
U.S. Customs Service but new to the
Center, was assigned the case his first
day on the job.
The Defense Property Disposal Service,
part of the U.S. Department of Defense,
is charged with disposing of hazardous
waste generated by the U.S. military. The
Service had let a contract to Nuclear En-
gineering Services, Inc. of Antigo, Wis. to
dispose of PCB-contaminated oil from
various military installations throughout
the United States. Barrels of the highly
toxic oil were shipped to McClellan from
all over the country. From there, Nuclear
Engineering was to transport them to
sites in Texas and Alabama licensed to
dispose of PCBs.
The Texas facility accepted the wastes
for disposal. But the Alabama facility did
an on-the-spot analysis of the wastes and
found that they contained more than 500
MARCH 1984
-------
parts per million (ppm) of PCBs although
they were falsely presented as containing
less. The facility rejected the drums since
it was not licensed to dispose of wastes
with a concentration higher than 500
ppm.
Accompanied by Nuclear Engineering
president Vernon Baseman, truck driver
David Faulkner left Alabama. He headed
back west with his poisonous load. In
Albuquerque, he sold the drums cheap to
a waste oil processor, telling him that
they contained ordinary, non-toxic waste
oil. The Albuquerque dealer drained the
drums and sold the oil to another waste
oil processor in Denver, who in turn sold
it to asphalt paving contractors in the
Denver area. The Albuquerque dealer
also sold the empty drums, with traces of
contaminants, to anyone who wanted to
buy them. That's how they ended up in
Epifanio Martinez's backyard.
O'Neal had to find all this out and prove
it with evidence that would stand up
in court. In Wisconsin, he interviewed
state environmental officials who had
had previous experience with Nuclear En-
gineering. At McClellan, he interviewed
military personnel who had supervised
the loading of the PCB-contaminated oil
onto Nuclear Engineering's trucks. In Ala-
bama, he took sworn statements from
people who had talked to Faulkner and
Baseman, and reviewed the files of the
on- spot waste analysis. In New Mexico,
he interviewed the waste oil processor
who had purchased the oil, took state-
ments from other witnesses who had
seen the transaction and could identify
the company truck, and obtained a truck
repair invoice proving the truck had been
there. In Utah, at offices of the Defense
Property Disposal Service, he obtained
the original contract between the Defense
Department and the firm, and fraudulent
documents the firm had later submitted
for payment.
The false invoices, forged manifests,
and other evidence O'Neal collected were
enough to convince a New Mexico grand
jury, which last year handed down a
unanimous indictment against Baseman,
Faulkner, and the company. But, O'Neal
explains, something even more impor-
tant than the indictments and subsequent
convictions has come from this case.
As a result of the Nuclear Engineering
investigation, the Defense Property Dis-
posal Service now gives EPA's National
Enforcement Investigations Center a copy
of every hazardous waste disposal con-
tract that it writes. The Center reviews
each contract, looking at the reputation
of the contractor, any record of previous
violations, the type of hazardous waste
involved, and the contractor's disposal
plan. This new procedure has already
produced indictments of two Florida
firms that, like Nuclear Engineering, sold
PCB-contaminated oil falsely represented
CAUTION
OF CONTAINERIZATION Ot,T
' NUMBER--2,3^7
EPA I.D. NUMBER
DOCUMENT NUMBER: *
,,J.R'S NAME AND ADDRESS nW
'ARDOUS WASTE - FEDERAL LAW
DISPOSAL. IF FOUND CONT/>'
nUCE OR PUB' "TV AU
/
as ordinary waste oil to asphalt paving
contractors. Four more similar cases are
under investigation, and many others in-
volving mishandling or accidents rather
than criminal intent are being taken care
of administratively.
Criminal Enforcement
Agencywide
According to Courtney Price, Assistant
Administrator of the agency's Office of
Enforcement and Compliance Monitoring,
EPA's enforcement apparatus prior to
1982 focused almost exclusively on de-
velopment of civil and administrative
cases. The agency had no trained crimi-
nal investigators, and most of the crimi-
nal cases EPA did refer to the De-
partment of Justice for prosecution were
turned down for insufficient case de-
velopment or lack of prosecutive merit.
With growing public awareness of the
problem of illegal hazardous waste dis-
posal, and with the maturation of other
environmental statutes, EPA considered
establishing a professional criminal case
development capability within the agen-
cy. In May 1982 the agency began
recruiting investigators. By October of
that year, 23 had been hired.
The new investigators have extensive
experience with other law enforcement
agencies like the U.S. Drug Enforcement
Administration, the Federal Bureau of In-
vestigation, and the Internal Revenue
The first clue: Investigators found this
damaged label on an empty drum in a
backyard in New Mexico. It started them
on the trail of a company that had dis-
posed of PCBs illegally.
Service. They are public servants, but pri-
vate eyes.
Since their hiring in October 1982, the
scope of EPA's criminal enforcement has
increased significantly. As of December
1983, there were 134 open cases on
EPA's criminal case docket, and Justice
Department rejection of EPA referrals had
been virtually eliminated. In fiscal year
1983, indictments were obtained in 13
cases against 34 corporate and individual
defendants, equalling the number of de-
fendants indicted in the three previous
years combined. Also in fiscal year 1983,
convictions of 28 corporate and in-
dividual defendants were obtained in 12
prosecutions.
In October 1983, the criminal in-
vestigative staff was made part of EPA's
National Enforcement Investigations Cen-
ter. "The record of accomplishments,"
said Price in a memo to regional
administrators, "can only improve
through this change."
Carroll Wills, Chief of the Center's En-
forcement Specialist Office, agrees.
"There is a strong effort now to get the
criminal enforcement initiative in-
corporated in regional enforcement pro-
grams," Wills says. "The regions, we
hope, will use criminal enforcement as
another tool in their enforcement toolbox
to achieve compliance with environmen-
tal laws." D
10
EPA JOURNAL
-------
Francis X. Bellotti
Three State Attorneys
General Report on Their
Programs
What are the challenges in enforcing environmental laws at the state level?
EPA Journal asked the attorneys general in three states, Massachusetts
on the East Coast, Wisconsin in the Midwest, and Washington on the West
Coast, to comment. Here are their views:
Making the New
Cleanup Laws
Work
By Francis X. Bellotti
Attorney Genera/
Massachusetts
In response to increasing public concern,
the Massachusetts General Court has re-
cently enacted legislation designed to
forestall the illegal disposal of hazardous
wastes.
As do the laws of other states, these
statutes impose criminal as well as civil
liability on those who handle hazardous
waste improperly; they establish a man-
ifest system to allow for the tracking of
hazardous waste "from cradle to grave,"
they hold landowners, generators, trans-
porters and other responsible parties
strictly liable for any release of hazardous
material, provide for treble damages in
the event of such a release and establish
a rebuttable presumption that a violation
entails irreparable harm to the public
health and the environment.
Together with pre-existing water and
air pollution laws, these new statutes
provide most of the currently identifiable
basic tools that I and other law enforce-
ment officials in this state need to protect
the environment and the health of our
citizens. In this state at least, the legisla-
ture and the citizens who have pressed
for tough environmental laws have done
their part. It is time for the officials who
have authority to administer and enforce
these laws to prove that these efforts
were not futile.
Effective enforcement of environmental
statutes is, despite their stringent pro-
visions, no easy task. Judges are, for the
most part, not familiar with environmen-
tal legislation and need to be educated,
both through formal training and through
the familiarity bred by frequent exposure
to environmental claims and to the strict
terms of existing laws. Case law must be
developed which is consistent with the
clear legislative desire to impose liability
on and reach the assets of all parties
accountable for violations. Difficult de-
cisions must be made to ensure that the
limited resources available to law en-
forcement agencies are used in the man-
ner most likely to encourage widespread
compliance with the law.
In recognition of the difficulty of es-
tablishing the causal connection between
contamination of a water supply and a
particular unlawful handling of chem-
icals, statutes may hold parties liable for
any improper use of those chemicals or
introduction of them into groundwater.
But those strict provisions are to no avail
if judges, accustomed to imposing liabil-
ity for concrete, observable harm directly
traceable to particular conduct, insist that
such a connection be made before they
impose liability; likewise, provisions for
civil penalties in the context of a civil
lawsuit.
And our efforts will lead to empty judg-
ments if judges are not willing to pierce
corporate veils, hold corporate officers
personally liable and grant pre-judgment
attachments where they are appropriate.
The common law which has developed in
each of these areas in other types of
cases must be applied to environmental
litigation as well if there is to be any
hope of relieving innocent taxpayers of
the burden of paying the large sums re-
quired to abate and remedy the damage
caused by environmental infractions.
Law enforcement officials must be
more willing than ever to seek criminal
sanctions for deliberate environmental
violations. So long as monetary penalties
are all that is at stake, there are always
those who will simply count that risk as a
cost of doing business. Criminal prosecu-
tion should not be limited to the most
egregious "midnight dumping" case. Es-
pecially with the new reporting and man-
ifest requirements which the federal gov-
ernment and many states now impose,
there is a class of violations which can
and should be treated as routine mis-
demeanors. Far less labor-intensive than
the more celebrated "midnight dumping"
MARCH 1984
11
-------
prosecutions, such routine criminal cases
would quickly alert individuals and busi-
nesses throughout a state to the fact that
stiff statutory and regulatory require-
ments are more than mere verbiage.
In the civil arena, as well, there is a
need for more routine, relatively small-
scale litigation. Much of the focus to date
has been on large-scale litigation over
abandoned hazardous waste sites. This
type of litigation, while it is clearly impor-
tant, is a tremendous drain on the legal
and technical resources of enforcement
agencies and does little to discourage the
smaller-scale violations which, in the
aggregate, pose a major threat to the en-
vironment. Efforts should be made to
identify those less serious matters which
require relatively little in the way of re-
sources and to develop routine pro-
cedures for pursuing them. This routine
litigation will also serve to familiarize the
judiciary with environmental litigation.
There is a tremendous need for
cooperation and coordination among
state law enforcement agencies and be-
tween state and federal agencies to en-
sure that limited public resources are ap-
plied in the most effective manner possi-
ble. Every effort should be made to avoid
duplication of effort or, what is worse,
actions at cross-purposes. Knowledge
and experience in this relatively new field
should be freely shared. District Attor-
neys, who have not historically had the
expertise available to them to bring en-
vironmental prosecutions, should be
placed in contact with environmental
agencies and referred cases suited to
their resources.
Given the limited resources which are
available, decisions as to both civil cases
and criminal prosecutions should be
made in part on the basis of expected re-
gional impact, for a well-chosen, well-
tried case can go far in encouraging
voluntary compliance by others. Appro-
priate efforts should, of course, be made
to publicize actions taken so that people
are in a position to learn from the mis-
takes of others.
Finally, and most importantly, law en-
forcement officials must vigorously pur-
sue violators, seeking the maximum re-
lief that is available and appropriate to
the case. In this connection. Attorneys
General and District Attorneys can bring
at least two things to environmental
litigation that the agencies charged with
administering environmental laws often
do not. First and most obvious is pro-
secutorial judgment. It is my experience
that an agency charged with enforcing a
single set of statutes is almost never cap-
able of viewing violations of those laws
in the same way as the public and the
courts. Nothing can doom a systematic
environmental enforcement effort more
effectively than turning loose on the
judiciary a group of single-minded
zealots with no sense of what is serious
and what is not. If we expect judges to
impose severe penalties when the cases
warrant them, then we must first con-
vince those judges that we can identify
serious cases.
Second, agencies accustomed to the
give-and-take that typically characterizes
the relationship between regulator and
regulated often find it difficult to shed
that perspective and assume the position
of an advocate at the point where litiga-
tion is necessary. Unfortunately, the
agency often enters the litigation still
playing its quasi-judicial, compromise-
seeking role, and fails even to ask the
court for substantial punitive relief. Given
the natural propensity of judges to strike
a compromise between the positions
advocated by the parties to a suit, the
agency is encouraging through this
approach a result which affords less re-
lief than what it already perceived as a
compromise.
The public is entitled to more vigorous
advocacy on its behalf. The more
seriously those enforcing environmental
laws treat infractions, the more seriously
courts will treat them, provided of course
that we properly identify serious cases.
We should not be reluctant to prosecute
"legitimate businessmen" who continue
to violate environmental laws. The public
is no longer willing to tolerate business
activity that sacrifices the environment
for economic gain. It is perhaps the
greatest challenge facing law enforce-
ment officials today to ensure that the
public and legislative determinations of
the past several years have a profound
effect on the way this Nation conducts its
business. It will be the task of the pro-
secutors to ensure that we meet that
challenge by making balanced, pro-
fessional judgments. D
Groundwater
Quality:
The Next
Regulatory
Issue
By Ken Eikenberry
Attorney General
Washington State
(Jver the past two decades, the spotlight
of environmental protection has shifted
perceptibly from one area of regulation
to another. From the mid-1960s through
the early 1970s, the federal and state
governments centered their attention on
development of comprehensive water
and air pollution control programs. Gra-
dually, during the early 1970s, they were
replaced on center stage by federal and
state "shoreline" and "coastal zone"
management programs and by efforts to
protect the marine environment from oil
spills. In turn, the later 1970s and early
1980s has been a period of focus on the
regulation and cleanup of "hazardous"
wastes and the difficult task of con-
trolling the disposal of radioactive
wastes.
The spotlight of environmental protec-
tion activity will be shifting shortly, in my
view, to the regulation of groundwater,
especially the protection of its quality.
The signs of increased governmental
emphasis on this important subject cut
across federal and state government
lines. In the west, several states, e.g.,
Montana and New Mexico, have recently
begun new groundwater protection initia-
tives under their water pollution laws.
The Department of Ecology of my state is
presently designing a comprehensive
groundwater quality program of
ambitious proportions.
Nationally, Congress has under con-
sideration a number of groundwater-
related bills among the most prominent
of which is one establishing a National
Groundwater Commission. The federal
executive is also active. Recently, the
U.S. Environmental Protection Agency,
after several years of internal evaluation,
has circulated a draft "strategy" to state
officials setting forth the path that the
Agency proposes to follow in protecting
groundwater quality.
12
EPA JOURNAL
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Ken Liker,:
The Need to Protect Groundwater
In light of the wide array of existing
legislation designed to protect water
quality, it is surprising to many that there
is a present need to emphasize the pro-
tection of groundwater quality. The ques-
tion might well be asked: Hasn't that
issue already been addressed?
Part of the answer to the lack of gov-
ernment action in this area is the "out-of-
sight, out-of-mind" notion. The public,
for the most part, has neither perceived
nor enunciated any environmental con-
cern that has been translated to a call for
government action. Further, government
effort has been nonassertive generally for
a very practical reason. Facts available to
groundwater managers concerning the
geo-hydrologic condition of most aquifer
systems, especially in terms of water
quality and contaminant contribution, are
not only very limited but often attainable
only at great expense. In sum, the re-
sources necessary to run an effective reg-
ulatory effort have not been provided to
the administrators
A significant shift in public sentiment is
now underway both in my state and
nationally. Domestic water users,
whether they derive their water from a
municipal supply or their own private
well, are now aware of serious con-
tamination threats to their supplies and
have become deeply concerned. One
measure of magnitude of the concern
centers on the fact that an estimated 50
percent of my state's residents, including
500,000 rural residents, rely on
groundwater for domestic supply. More-
over, 34 percent of all water used by mu-
nicipal systems and 22 percent by in-
dustry is derived from groundwater
sources. Nationally the figures are just as
significant. According to an EPA study,
approximately 117 million Americans
obtain their drinking water from
groundwater supplied by 48,000 commu-
nity public water supply systems and by
12 million individual wells.
Existing Controls
The federal system's regulatory pro-
grams that touch upon groundwater
quality protection are, today, split up and
largely uncoordinated administratively.
Many states' longstanding all-
encompassing water pollution control
statutes have been, as to groundwater, in
the semi-dormant operating condition of
Washington's. While these statutes ex-
pressly cover protection of groundwater,
their various mandates and requirements
have not been applied to groundwater in
any effective, comprehensive manner. (Of
course, as noted earlier, a number of
states have recently activated or are
about to activate them.)
Turning to the federal level, there are
at least nine recently enacted regulatory
statutes that deal with one aspect or an-
other of groundwater quality regulation.
The fundamental flaw in this array of
federal government programs is that,
taken together, they constitute neither a
comprehensive groundwater regulatory
program nor, for the most part, even a
coordinated approach to the subject.
The Challenge
Against this background of a piecemeal
federal statutory setting coupled with
long authorized but slow-starting state
efforts, the challenge today is to develop
a comprehensive program that protects
all federal and state interests in the reg-
ulated resource.
Historically, the cornerstone of federal
water policy has been written in terms of
longstanding "deference to" and "prima-
cy of" state law based programs. In
terms of water quantity programs. Con-
gress has consistently deferred, for more
than a century, to comprehensive state
water right codes for the allocation of
surface and ground waters among var-
ious users and to beneficial uses. Like-
wise, Congress has enacted major water
pollution control statutes over the years.
Since its active involvement in that reg-
ulatory area, the federal legislature has
repeatedly emphasized the primary role
of the states in the field.
The foundation for these federal poli-
cies centers primarily upon the solidly-
based proposition that, in terms of our
federal system, the successful man-
agement and protection of a water re-
source can be best achieved through a
comprehensive, unitary regulatory pro-
gram administered by a single agency.
The federal policy of deference to state
primacy in water quality and quantity
regulation is also founded on the
recognition that state interests in water
generally outweigh federal interest.
The challenge to each of the states is
to establish an effective groundwater
quality program. If a state program is to
reach that objective, all legitimate federal
interests in groundwaters of a state must
be protected. In this regard, federal inter-
ests in groundwater bodies, while
appearing to be substantially less than in
surface waters, do center upon two dis-
tinct areas of legitimate concern: (1) pub-
lic health, and (2) interstate ground
water.
An Effective State Model
The first element to be initiated in any
water quality protection program is to
determine the level of protection a water
body is to receive in terms of quality. To
make that determination, it is necessary
to decide what beneficial uses are to be
made of the water body. Thereafter,
measurable receiving water quality
criteria must be established to insure that
the water quality is satisfactory for the
chosen beneficial uses.
Some may argue that a "nondegrada-
tion" policy should be applied to all
groundwaters. That is, water quality
criteria for all groundwater bodies should
be set so that no deterioration below ex-
isting quality of a body would be
allowed. For the most part, it would
appear that all groundwater bodies that
are now "drinkable" should be protected
in that condition. However, it may not be
reasonable to retain naturally "polluted"
waters in their natural condition where
they have already been despoiled by
human acts and are not remediable at
reasonable cost. (This general approach
was set forth in an address by Arizona
Gov. Bruce Babbitt in an American Bar
Association workshop on groundwater
regulation January 11.)
After water quality criteria are set for
each receiving water body, the next ele-
ment required of a state program is the
inclusion of a range of regulatory and en-
forcement tools sufficient to insure that
the water quality standards will not be
violated. These tools are likely already
contained in the codes of many states.
Earlier, I noted several federal
groundwater management programs. In
order to achieve the successful im-
plementation of a state administered uni-
tary system, it will be necessary for
federal agencies to tailor their im-
plementation to insure that they are fully
MARCH 1984
13
-------
compatible with the dominant state pro-
gram. Further, where existing federal
programs mandate actions or decisions
contrary to those of the state program,
federal statutory modifications should be
enacted.
The EPA's groundwater strategy draft
describes the strategy as being struc-
tured "around four main needs" and
then, commendably, states the first need
as "building and enhancing institutions
at the state level." Immediately thereafter
the draft provides:
EPA will set aside program funds
to support state program de-
velopment. EPA will draw ear-
marked funds from existing
appropriations to reinforce states
with the interest and com-
mitment to develop their own in-
stitutional capability. These
funds will support necessary in-
formation gathering and plan-
ning,...
The point made by the EPA is an impor-
tant one. No program of groundwater
quality protection can be successfully im-
plemented unless far more is known
about physical conditions underground
than is now known. Financial support,
provided by the EPA to states, is certainly
meritorious.
EPA also suggests that it plans to
move with some dispatch in the exercise
of its existing statutory powers. In so
doing, I urge that the Agency follow a
policy that contemplates exercises of
power which are designed to meet the
standards and use objectives set by the
state for such waters. Further, this ex-
ercise should take place only when state
efforts to achieve those ends are not
being effectively pursued. In the long
run, a p.olicy of state dominance, as es-
poused by the EPA, cannot be realized
unless it and other federal agencies are
willing to carry out their programs in
fashions which recognize that the basic
objectives to be reached are those es-
tablished by the state.
The Bottom Line
Groundwater quality protection programs
must be implemented effectively and
soon.
Within our federal system, responsibil-
ity for their implementation is, in my
view, primarily the role of each of the
states. This is a heavy responsibility.
Each state is challenged to develop and
aggressively pursue a program that pro-
motes and protects all legitimate public
interest including federal interests. The
challenge to the EPA and other federal
agencies is equally heavy. Their efforts
should center upon actions of encourage-
ment to and support of states that are
willing to meet their primary regulatory
roles. In such situations, federal pro-
grams should be implemented, whenever
legally possible, so that state programs
are indeed dominant.
If a combination of federal and state
government efforts is pursued in a spirit
of goodwill, unitary state programs can
effectively protect groundwater con-
sistent with all legitimate national and
state interests. D
Enforcing
Environmental
Laws
By Bronson C. La Follette
Attorney General
Wisconsin
I he Wisconsin attorney general has
unique opportunities to shape environ-
mental law through enforcement. This ar-
ticle will explain what I view my role to
be, as head of the Wisconsin Department
of Justice, in setting and implementing
Wisconsin's environmental policies, both
through state agency representation and
through litigation initiated by the attor-
ney general. My philosophy is that an
elected attorney general must constantly
weigh the desires of the state agencies
he represents against the public interest:
the two don't always coincide.
The Wisconsin attorney general's 417-
person staff is small as state agencies go
and refreshingly understructured. I try to
keep the bureaucratic layers thin to keep
me in touch with staff and allow good,
prompt decisions. The Department of
Justice Legal Services Division, charged
with the state's litigation responsibilities,
consists of 89 assistant attorneys general
organized in eight "units" of expertise.
Nine of these assistant attorneys general
work in the environmental protection
unit, and I have appointed two others as
"public intervenors" authorized by Wis-
consin statutes to protect public rights in
the environment.
The Wisconsin Legislature has
assigned most of the responsibilities of
environmental protection to the De-
partment of Natural Resources (DNR).
Criticism of DNR ranges from the redneck
{"Damn Near Russia") to well-reasoned
debate as to whether the agency is ade-
quately protecting the environment. By
statute, the attorney general represents
DNR when it is sued. More significantly,
we also prosecute DNR enforcement ac-
tions in EPA-delegated programs (Clean
Water Act, RCRA, Clean Air Act) and in
other state-run environmental enforce-
ment programs (conservation, fish and
game, Wisconsin Environmental Policy
Act, wetlands and other water-regulatory
programs.)
Apart from the issuance of administra-
tive orders, DNR lacks authority to force
compliance with environmental laws
through court action. Only the attorney
EPA JOURNAL
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Branson C. La Follette
general has that power. This is what
gives the attorney general the responsi-
bility — and unique opportunity — to
shape state environmental policy in ways
that meet the public's, not just the agen-
cy's needs. As an elected constitutional
officer the attorney general not only must
represent his client but also a much
broader interest —the public interest. I al-
ways try to remind our staff that we are a
Department of Justice in every sense of
the word. In my opinion, the lawyer's job
— and this is no less true when "the
client" is a sprawling agency — requires
him or her to sometimes steer the client
in other directions. And sometimes the
attorney's job is to just say "no."
In representing DNR, we steer our
client in at least three ways. First, we
represent the client to the best of our
abilities when we agree to take the case.
Second, we decline to represent the
agency when we believe it has erred le-
gally or has exercised its powers unfairly.
This forces the agency to the unpleasant
chore of asking the governor to appoint
special counsel — after the attorney
general has stated in detail his reasons
for declining representation. Since most
agencies dread losing face almost as
much as a paper shortage, DNR seldom
requests special counsel. A happy conse-
quence is that DNR usually consults us
before it makes major decisions that may
result in litigation so that we can engage
in preventive law if need be.
Our third steering mechanism is the
attorney general's authority to settle
cases on his terms. While the agency
must be consulted before settlement, the
attorney general has the final word.
The fact that the attorney general
calls the shots in litigation makes for a
much more coherent statewide enforce-
ment strategy than if each case pro-
ceeded autonomously, tuned only to the
needs of the agency program.
The delicate balance between our two
agencies well serves the people of Wis-
consin, with few exceptions. An example
of real cooperation and coordination be-
tween DNR and my staff is the recent
$500,000 judgment we obtained against
Weyerhaeuser for its water pollution at a
paper mill in central Wisconsin. Another
is our continued push against Milwaukee
to provide 20th-century water pollution
abatement. Our staffs are working
together on groundwater protection
legislation and enhanced penalties for
hazardous waste violations. Ongoing
litigation and negotiation in hazardous
waste, air and water pollution absorb
most of the environmental protection un-
it's energies, borne out by court-awarded
pollution cleanup remedies and the near-
ly $2 million in statutory forfeitures the
unit has collected as a result of litigation
over the past two years.
The attorney general's environmental
enforcement responsibilities do not end
with DNR representation, however. We
also advise and represent the Radioactive
Waste Review Board, which is primarily
responsible for negotiating agreements
with the U.S. Department of Energy for
activities in Wisconsin relating to the dis-
posal of radioactive waste. We appear on
Wisconsin's behalf before the Nuclear
Regulatory Commission on facility siting
and other issues of deep concern to Wis-
consin citizens. We actively seek amicus
opportunities in other states' U.S. Su-
preme Court cases, most recently the
California nuclear moratorium case; the
Karen Silkwood case; In re Kovacs, which
is a case dealing with use of the bank-
ruptcy laws to impede environmental
cleanup; and the Natural Resources De-
fense Council's challenge to EPA's inter-
pretation of new air source review stan-
dards.
The Wisconsin attorney general also
has limited authority to initiate litigation
without an agency request (or over agen-
cy objection). One example of attorney
general-initiated environmental litigation
is State v. Quality Egg Farm, a public nui-
sance case which resulted in an unprece-
dented Wisconsin Supreme Court deci-
sion applying the common law of nui-
sance to agricultural odors. More inter-
esting than the closure of the chicken
farm, however, was the spinoff of chick-
en manure jokes, puns and paraphernalia
that still keep rolling six years after the
case began.
Recently in another attorney general-
initiated environmental lawsuit, we per-
suaded the U.S. District Court for the
Western District of Wisconsin to enjoin
the Navy from proceeding with an expan-
sion to the Project ELF (Extremely Low
Frequency) submarine communications
system in northern Wisconsin. We suc-
cessfully argued that the Navy should
have written a supplemental environmen-
tal impact statement to address recent
medical research suggesting human and
animal health impacts from the
electromagnetic fields ELF generates.
This victory (and the controversy it
generated) underscores that there is a
need for attorneys general to occasional-
ly step outside of routine agency repre-
sentation and try out new ways to en-
gage in environmental enforcement.
A discussion of the Wisconsin attorney
general's environmental enforcement au-
thority must include a few words on the
Office of the Public Intervenor. The public
intervenors are assistant attorneys gener-
al designated and charged under Wiscon-
sin statute to intervene in Department of
Natural Resources proceedings for the
protection of "public rights" in the state's
natural resources. Since its creation in
1967 and reorganization in 1976, the
office has evolved into a leading advo-
cate for environmental protection in Wis-
consin. Directed by a citizens advisory
committee appointed by the Attorney
General, the intervenors have initiated
and been key participants in environmen-
tal legislation and administrative agency
policy making.
They actively file actions in the courts
and state agencies on behalf of pollution
victims, local governments, citizen
groups, business people and farmers
who have sought the intervenors' help in
environmental matters.
The intervenors not only help preserve
the adversarial process needed to im-
prove state agency decisions that affect
environmental quality, but they also are a
unique and valuable asset to Wisconsin
citizens trying to live and work in a
healthful environment.
Finally, in addition to the many in-state
environmental enforcement responsibili-
ties the attorney general assumes, we try
to help maintain good working rela-
tionships with other states and the EPA.
Generally, EPA already has a
longstanding relationship with DNR in
each of its program areas. The attorney
general's own enforcement perspective
and objectivity, though, enable us to help
mediate problems between EPA and the
state when they arise. In addition, we are
now assisting DNR in developing a Su-
perfund program that meets both Wis-
consin and federal needs. At times, too,
we look to EPA for assistance when
litigation raises new technological en-
forcement [>' -klems. We continue to seek
out ways to effectively handle the some-
times overwhelming environmental prob-
lems this Nation faces. [_.',
MARCH 1984
15
-------
Justice Cracks Down on
Environmental Crimes
By F. Henry Habicht, II
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
IVK
.
ly staff and I recently had the opportu-
nity to attend the EPA's National Com-
pliance and Enforcement Conference held
in Alexandria, Virginia. It was an impor-
tant event which underscored the signifi-
cance of our mutual work in the area of
environmental enforcement. Although
our vantage point is from the Department
of Justice, my staff and I feel that we are
part of EPA's enforcement mechanism, a
feeling which the recent Enforcement
Conference underscored. We support the
effort which the EPA is making to enforce
the important environmental laws under
the Agency's jurisdiction.
EPA is often thought of only or primari-
ly as a regulatory agency. And of course
a large and important part of the Agen-
cy's work is in the area of rule-writing
and standard-setting. But EPA is also a
law enforcement agency. It is clear that
the best crafted rules would be virtually
meaningless if they were not obeyed.
Likewise, the evidence, unfortunately,
demonstrates that without an active en-
forcement program reliance upon volun-
tary action alone will not result in com-
pliance with environmental statutes.
Thus, there has always been, and in my
view will always continue to be, a need
for an active, aggressive enforcement
program at EPA.
With that in mind, I would like to share
my thoughts about enforcement and re-
late it to our joint effort. First, environ-
mental enforcement is a part of the over-
all responsibility of the President to see
that the law is enforced. There are
obvious reasons for this. Vigorous en-
forcement in this important area of public
concern is not only important to the
credibility and effectiveness of EPA's reg-
ulatory program, but is also important to
promoting public respect for law enforce-
ment in all areas. The Attorney General's
historic role as the attorney and prosecu-
tor for the United States places a special
obligation on him to insure that the laws
are vigorously enforced. This is a role
which we at the Department welcome
and consider to be among our highest
priorities.
Second, failure to enforce environmen-
tal statutes often confers a substantial
competitive advantage on law-breakers.
Firms which fail to comply gain an unfair
multimillion dollar edge over competitors
who have complied. It is difficult to ex-
plain to the good corporate citizen why it
should spend millions of dollars on pollu-
tion control equipment when its competi-
tor down the road has not.
Third, the public demands and de-
serves to know that the Executive Branch
is following the mandates of its elected
representatives. Congress writes the laws
we enforce. There may be legitimate poli-
cy differences between the Executive and
Legislative Branches, but once the laws
are on the books they should be obeyed
and enforced as written.
Fourth, law violators must be deterred
and punished whenever appropriate. This
does not, in my view, merely mean that
they should be required to do what
everyone else has been doing all along.
There should be a real sting for the viola-
tor. In that regard, we favor the assess-
ment and collection of penalties as well
as injunctive relief in our cases. We seek
to insure that our settlements account for
the advantage which violators have re-
ceived from non-compliance.
I ifth, a prosecutor clearly must be
"fair" by not overreaching or dis-
regarding the rights of a defendant, but
we must recognize that our first duty is
to serve the public welfare by enforcing
the law as enacted by Congress and the
President.
There has been a !ot of talk about the
meaning of the term "fair" within the
context of EPA's enforcement program. I
think we must be fair in our treatment of
defendants. But fairness connotes con-
sistent treatment for those similarly situ-
ated. Moreover, Congress undoubtedly
advanced a conception of fairness to the
public in seeking by law to shift the eco-
nomic and public health costs of pollu-
16
EPA JOURNAL
-------
tion control from the citizens to those
who have created the problem. There will
always be policy differences between the
government and defendants. Each is enti-
tled to its viewpoint, but sometimes the
law as written by Congress and inter-
preted by the Executive Branch and the
Courts may result in what some de-
fendants would call "unfair" results. The
remedy for those defendants is to appeal
to the Congress, not to the prosecutor.
This issue frequently comes up in
hazardous waste cases. Defendants have
said that the government's position on
joint and several liability under Super-
fund is "unfair." District courts which
have examined this question disagree
with them. Defendants have a policy
view based upon understandable self
interest. The positions we have taken in
our Superfund cases, in turn, reflect the
government's interest in vigorously and
effectively advancing the public health
and enforcement goals set forth in this
important statute, including ensuring that
responsible parties, rather than the pub-
lic, bear the costs of response to the ex-
tent possible.
CJur joint record of achievement during
the past fiscal year is something to be
proud of. EPA referred 143 cases to the
Department. We filed 200 cases in FY
1983 alone, cutting into a then-existing
backlog of cases. We obtained 105 settle-
ments during the same year, including 15
in hazardous waste cases totaling nearly
$70 million.
In the past few years EPA and the De-
partment have also started some impor-
tant new initiatives. The Department's
Environmental Crimes Unit which works
with EPA's Office of Criminal Enforce-
ment obtained more indictments and
more convictions than in all previous
years combined. I strongly support this
effort. There simply is no excuse for
chronic and serious violations of environ-
mental laws. Moreover, respect for the
law will inevitably erode if the most se-
vere sanctions are not brought against
the most deliberate, serious violators. In
one of our cases last year in Region 1, we
obtained convictions against the company,
its president, vice-president and other offi-
MARCH 1984
cials. While the jail time was probated,
the Court imposed the largest fines ever
in that district. I think the message has
gotten out that EPA and the Department
are serious about criminal enforcement.
We will continue to work with EPA's fine
investigative and enforcement staff to ex-
pand our criminal enforcement effort. We
will seek jail time for individuals charged
with criminal violations of the environ-
mental statutes.
An important element of any enforce-
ment program is the knowledge by viola-
tors that they will be swiftly prosecuted.
We at the Department have worked hard
to expedite the referral and filing of en-
forcement cases. We understand EPA's
frustration about delays in case analysis
and filing. In that regard, I am happy to
report that the average time between re-
ferral from EPA Headquarters to the Land
and Natural Resources Division and filing
last year was 70 days. The new proce-
dure of direct referrals from Regions to
the Department is intended to streamline
the existing system even more. It will be
important to the success of this trial pro-
gram that all offices of both Agencies
work hard to insure that litigation reports
are complete, accurate, and updated as
new information is received. We are
committed to staying in close contact
with both Regional and Headquarters
personnel to ensure that we are respon-
sive to any of EPA's program or case-
specific concerns, and that our winning
ways continue.
The Land and Natural Resources Divi-
sion is growing more effectively to serve
EPA's enforcement needs. We currently
have 192 attorneys and 166 support staff
for a total of 358 personnel. Of this total,
86 persons are devoted to doing environ-
mental enforcement work. These cases
are resource intensive. But they are too
important not to devote necessary re-
sources to make them succeed. The
Lands Division attorneys understand that
vigorous prosecution of these cases is
necessary and have instructions to move
them quickly to trial. In our view, once
we receive a case from EPA, our joint
efforts are aimed at the litigative process.
We want to settle them and avoid un-
necessary litigation if we can. But we can
only negotiate from strength if we are
pushing the other side in the litigation
and demonstrate to the other side, as we
have with great success in several recent
cases, that we are ready and able to try
the case if an adequate remedy cannot
be negotiated. This sort of commitment,
whether the case is settled or tried, will
send a strong signal and pay significant
dividends in future cases.
Administrator Ruckelshaus has urged
top EPA management to redouble their
efforts in the enforcement area. I want to
echo this sentiment. Both agencies' staffs
are comprised of superb public servants
who have the ability and the resolve to
give the public the environmental protec-
tion it deserves and demands. We are at
the cutting edge of the environmental
law and the public is looking to us to
protect their health and environment.
Just as the Administrator has pledged his
support for environmental enforcement, I
want also to observe that this is an im-
portant area of law enforcement general-
ly. We at the Department look forward to
working with EPA and are confident that
the EPA's efforts and accomplishments in
the coming year will be exemplary. D
17
-------
National Municipal Policy
Set to Protect Water
Quality
EPA Administrator William D. Ruckels-
haus has approved a new policy to
make sure that all publicly owned
wastewater treatment plants comply with
Clean Water Act requirements as soon as
possible.
Latest estimates show that more than
400 major and 1,300 minor publicly own-
ed treatment works(POTWs) are not op-
erating in compliance with their pollution
control limits. In addition, a large number
of municipalities still need to build treat-
ment facilities (more than 1,300 major
and 3,400 minor public sewage treatment
plants) in order to come into compliance.
Under the National Municipal Policy,
owners of public sewage treatment facili-
ties that aren't meeting the law will be
required to submit schedules spelling out
steps they will take to comply with their
discharge permit requirements. The
Agency's goal is to have enforceable
schedules established for all such munici-
palities by the end of Fiscal Year 1985.
Where extraordinary circumstances
make it impossible for a municipality to
meet the July 1, 1988, deadline, EPA will
work with the affected state and
municipality to establish a schedule for
achieving compliance as soon as possi-
ble thereafter. Such municipalities will be
required to do all they can in the mean-
time to abate pollution from their treat-
ment facilities.
Ruckelshaus explained, "EPA is com-
mitted to a course of action that fulfills
the intent of Congress and results in
maximum improvement in water quality.
We also are committed to protecting the
public's very large financial investment in
these facilities. This policy with its
enforceable compliance deadlines will
help the Nation achieve these goals."
The policy requires all publicly-owned
sewage treatment plants to meet statu-
tory requirements whether or not they re-
ceive federal funds.
Since the Clean Water Act was passed
in 1972, EPA has provided approximately
$37 billion in construction grants which
has been allocated to communities to
build improved wastewater treatment
facilities. This program is one of the
largest non-defense public works projects
in U.S. history and has resulted in sub-
stantial progress in protecting the Na-
tion's water quality.
However, many treatment plants have
not met deadlines set by the Act for com-
pliance with effluent limits.
The National Municipal Policy states
that EPA regional offices will cooperate
with the states to develop strategies for
bringing facilities into compliance. Such
strategies should include developing an
inventory of noncomplying facilities,
identifying the affected municipalities
and describing a plan to bring them into
compliance as soon as possible but no
later than July 1, 1988. Regions and
states then will use the annual state pro-
gram grant negotiation process to agree
on specific actions needed to carry out
the strategies.
According to the policy, one of the
.following plans must be developed:
A municipality that has already con-
structed a treatment works which is not
now in compliance with its permit
effluent limits must develop a Composite
Correction Plan. This should describe the
causes of noncompliance, outline correc-
tive actions needed, and provide a pro-
posed schedule for completing the re-
quired work.
A municipality that needs to build a
treatment facility or upgrade the existing
facility to achieve compliance must de-
velop a Municipal Compliance Plan. This
should describe the necessary treatment
technology and estimated costs for con-
struction and operation, outline the pro-
posed sources and methods of financing
the facility (both construction and opera-
tion and maintenance costs), and provide
a schedule for achieving compliance as
soon as possible.
The policy declares that the authority
issuing the permits (either the EPA re-
gional office or a state) will use the in-
formation in the plans and work with the
municipalities to develop a "reasonable
schedule for compliance." Where a
municipality is unable to achieve com-
pliance promptly, the authority will set a
schedule for achieving full compliance
and ensure that the facility takes interim
steps that lead to this goal as soon as
possible. Where extraordinary circum-
stances make it impossible to meet the
July 1, 1988 deadline, the authority will
work with the municipality to set an
enforceable, fixed-date compliance
schedule.
The Clean Water Act originally set July
1, 1977, as the deadline for municipal
facilities to comply with either water
quality-based or technology-based permit
requirements. However, Congress later
authorized EPA to extend the deadline for
some municipalities, under certain con-
ditions, but no later than July 1, 1983. In
1981, Congress recognized the need to
provide additional time for eligible facili-
ties and again authorized an extension
of the deadline to no later than July 1,
1988. Any municipality that is not now in
compliance with its permit requirements
and has not received such an extension
is in violation of the July 1, 1977, statu-
tory deadline. It is this deadline that a
large number of facilities have not met.
18
EPA JOURNAL
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In 1981, the Act also was amended to
allow municipalities to install less costly
facilities to meet secondary treatment re-
quirements. EPA later published pro-
posed regulations providing design
criteria for such "equivalent" secondary
treatment works.
The National Municipal Policy takes in-
to account these deadline extensions and
the new, more reasonable treatment re-
quirements for certain types of facilities.
In setting priorities for the enforcement
effort, the National Municipal Policy de-
clares that EPA will focus on treatment
works that previously received federal
funding assistance and are not currently
in compliance with their applicable
effluent limits, on all other major plants
and on minor facilities that are con-
tributing significantly to impairment of
water quality.
Once compliance schedules are in
place, the responsible authority will
monitor progress and take follow-up ac-
tion as needed. EPA Headquarters will
oversee the process to ensure that the
policy is being followed and that munici-
palities are making progress in meeting
statutory deadlines and achieving the
water quality objectives of the Act. Q
A 5>;i •
handling v
•
MARCH 1984
19
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The Role of
EPA's General Counsel
(An Interview with A. James
Barnes, EPA's General
Counsel)
What is your most important role
as General Counsel?
f^' There are several roles that I con-
sider equally important. First, the General
Counsel needs to be an effective mana-
ger. The recruitment, training, advance-
ment, motivation and direction of the
attorneys and staff in the office are crit-
ical. I believe OGC is most likely to de-
liver high quality legal service to the
Agency if it has first-rate people who are
given an opportunity to perform to the
maximum of their ability and who can
take professional pride in their roles and
the contributions they make.
Second, as the Agency's chief legal
officer, the General Counsel has an
obligation to work closely with EPA's
policy and program officials to make sure
they are aware of the limits and obliga-
tions of the law. At the time a policy
maker is considering various possible
courses of action, OGC should advise
him or her of the legal strengths and
weaknesses of the alternative actions.
Once the policy option is selected, we
should work to enhance its
defensibility — and if it is challenged, to
defend it. In short, OGC's job is "to pro-
vide knowledgeable counsel to help the
policymakers implement EPA's man-
date."
f\
How many suits are pending now
against EPA?
Several hundred at present.
Who brings most of these suits?
f^- The lawsuits are brought primarily
by trade associations and environmental
groups. It is not unusual to have chal-
lenges by both to major regulations pro-
mulgated by the Agency.
\JL. Is all this activity a sign that the
Agency is still a vital force?
f^. It certainly indicates the Agency is
making decisions that are regarded as
critical to the protection of the Nation's
public health and the environment and
that those decisions can have a very sig-
nificant impact on industry, on various
communities, and on individuals.
Q.
How does your office relate to the
Office of Enforcement and Compliance
Monitoring?
A\. In the 13 years of EPA history, the
enforcement function and the general
counsel function have been combined
and split several times. When he re-
turned to EPA last May, Bill Ruckelshaus
concluded that both of these functions
could be more effectively performed if
they were separated and placed under
two Presidential-level officials. I concur in
that judgment. As you know, the Office
of Enforcement and Compliance
Monitoring now has the lead in establish-
ing enforcement policy for the Agency, in
providing guidance to the Regions, and
for tracking the Agency's compliance
efforts. It also has the primary responsi-
bility for working with the Department of
Justice to prosecute enforcement actions
in federal court.
The General Counsel's office shares a
number of areas of interest with the en-
forcement office. On questions of sub-
stantive law we work closely with them
to make sure we are consistent in our
interpretation of EPA's statutory au-
thorities. We also share an interest in the
quantity and quality of the legal staff in
the Regional Counsel offices. Although
we have been separated, we have tried
to retain a close and effective working re-
lationship with the enforcement office.
20
EPA JOURNAL
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What is your philosophy in han-
dling freedom of information requests?
.r\« First, we should be responsive to
the intent of Congress. Congress has
made it clear that, with a few specified
exceptions, citizens are to have access to
the work product of the government they
are financing. Those exceptions include
documents that involve, among other
things, confidential business information,
personnel information and national
security. The Administrator's
philosophy— that the Agency operates
best in the open so that the public can
have confidence it is doing its job
properly—further buttresses our view of
how the Freedom of Information Act
should be implemented by the Agency.
Q.
Has the Agency lost its zip?
rA- No. The protection of public health
and enhancement of the environment are
critical and vital issues in American life,
and I think the Agency is doing a pretty
good job of responding to its mandate.
One of the things that has impressed me
on my return to EPA is the number of
dedicated people I knew before who are
still here. Many of them are still working
long hours and bringing expertise and
judgment to address some of the most
complicated and difficult problems our
society faces.
Q.
Why did you return to EPA when
you held a key post in the Agriculture
Department as General Counsel?
f^* Frankly, it was not an easy deci-
sion for me to make. At USDA I had one
of the most enjoyable jobs I have ever
had. The Department probably has the
broadest range of issues of any Gov-
ernment agency—international trade,
housing, food safety, welfare and feeding
programs, economic regulation, utility
financing, and natural resources, among
others-and the work was enormously
interesting. Yet having been at EPA at its
inception, I have deep affection for the
Agency. I want to see it succeed, to be
respected and to have credibility. When
Bill Ruckelshaus and the White House
asked me to return to EPA, I was
attracted by the challenge. There was an
opportunity to help the Agency perform
its mission and to convince people that
the Agency was being responsive to its
mandate to protect public health and the
environment.
Q
How many attorneys are there in
the General Counsel's office?
'"*• Approximately 100 in the Washing-
ton office and about 200 in the ten Re-
gional Counsel offices.
What kind of future do you see
ahead for practice of environmental law?
While the growth days for environ-
mental law may well be over, it should
remain a very solid area of legal practice
for the foreseeable future. The range and
nature of current environmental
problems—and the emergence of new
problems—indicate the need for lawyers
who specialize in environmental law.
Q.
nays?
Is it a good field for aspiring attor-
Yes. It is an area in which many
issues can have a direct effect on the kind
of world we live in and our children will
inherit. Another point to consider is that
the legal issues in the environmental field
are among the most intellectually
challenging in the field of law.
\J.. Do you think Bill Ruckelshaus is
enjoying his current term at EPA?
f^* He, of course, is the best one to
answer that question, but I suspect that
he is enjoying it in a different way than
when he first served as Administrator in
the early 1970s. The challenge of setting
up a new agency, trying to address the
problems effectively and working to es-
tablish credibility with the public was ex-
hilarating. Now the Agency is more ma-
ture and the problems we face seem to
be more complicated. Either we got the
easy issues out of the way the first
time—or we now know a lot more and
realize better what we don't know—or a
little of both. !n the early days the issues
arrived in such a steady stream that he
tended to pick them off one by one. Now
I see Bill Ruckelshaus being more selec-
tive in deciding which issues require his
personal attention. He marshalls his time
very deliberately to focus on major prob-
lems and issues where he can make a
maximum contribution: issues such as
acid rain, EDB, risk assessment and risk
management, and reauthorization of
EPA's statutory authorities. Effective
communication of major agency
decisions—and targeted efforts to edu-
cate the public—are also notable features
of his second stint as Administrator. Con-
sistent with his selective focus on issues,
he delegates extensively to the Assistant
Administrators and Regional Adminis-
trators, expects them to do the same to
their subordinates, and holds them
accountable for the results. Thus, I hope
he is taking satisfaction from the know-
ledge that he is using his impressive
public managerial skills as well as his
prior experience to maximum advantage
to help the Agency deal with some very
complex and important societal issues. D
MARCH 1984
21
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Missouri Dipxin Cleanup
Progresses in Courts
The Department of Justice and EPA re-
cently announced a civil suit against 19
individuals and nine companies to force
the cleanup of dioxin contamination at
six sites in Missouri. EPA Assistant Ad-
ministrator for Enforcement Courtney M.
Price called the step "part of a
government-wide strategy to reduce di-
oxin contamination in Missouri."
The government filed the suit against
companies and individuals whose former
manufacturing, storage or disposal prac-
tices led to dioxin contamination at four
horse arenas and two additional sites,
the Bliss Tank Site in Frontenac, Mo., and
the Rosati site in St. James, Mo.
leanwhile, in another dioxin case in
Missouri, a Federal district judge has
ruled that EPA is entitled to recover some
dioxin cleanup costs from a defunct
chemical manufacturing company, its
officers and a waste hauler. EPA had
sued to recover the costs it has incurred
in cleaning up a dioxin-contaminated
waste disposal site near Verona, Mo. It
sought $400,000, including the fees of the
attorneys who brought the suit.
In 1980, the site, a trench on the farm
of James Denney near Verona, was dis-
covered to contain eighty five 55-gallon
drums of waste with high concentrations
of dioxin. The chemicals had been buried
there, with Denney's consent, in 1971 by
Ronald Mills, a waste hauler hired by the
Northeastern Pharmaceutical and Chem-
ical Company, Inc. (NEPACCO).
Defendants in the new suit filed by the
government include NEPACCO, which
produced dioxin-contaminated wastes as
a byproduct of its manufacture of hex-
acholorophene in Verona in the early
1970s, and Russell Bliss, who sprayed
dioxin-contaminated waste oil from
IMEPACCO's wastes to control dust.
Price said the government is asking the
defendants to take immediate joint action
to prevent further exposure to con-
taminated soil at the sites. In addition,
Price said, the government is requesting
long-term remedial relief at each site, in-
cluding disposal, treatment or removal of
the substances, restoration of the sites
and continuous monitoring of the sites
after cleanup. EPA will maintain over-
sight of these activities, she said.
"It is important to point out here,"
Price said, "that, in line with Bill Ruckel-
shaus' policies, the Agency will not enter
into protracted negotiations at hazardous
waste sites, but will move quickly to pur-
sue either enforcement actions or Super-
fund remedies in the cleanup of all
sites." Settlement negotiations with
those named as defendants in the Mis-
souri case had not proved fruitful, she
added.
In the event the defendants fail to clean
up the sites under this enforcement ac-
tion, EPA will clean them up using Super-
fund monies, recovering costs from the
responsible parties through additional
legal channels, Price said.
"We are moving as quickly as possible
to clean up dioxin contamination
throughout Missouri," Price said, "com-
bining both Superfund resources and
available enforcement measures against
responsible parties. We still have a great
deal to do, but the people of Missouri
can be assured that the federal gov-
ernment is moving as expeditiously as
possible to bring this widespread con-
tamination to an end."
The dioxin cleanup suit was filed by
the Justice Department in U.S. District
Court in St. Louis, Mo., on behalf of EPA.
It alleged that the defendants' former
manufacturing or disposal practices led
to the dioxin contamination at the sites.
Assistant Attorney General F. Henry
Habicht II, head of the Justice De-
partment's Land and Natural Resources
Division, said the suit was filed under the
Resource Conservation and Recovery Act
and the Comprehensive Environmental
Response, Compensation and Liability
Act, frequently referred to as the Super-
fund law. In addition to cleanup of the
sites, the suit seeks reimbursement of the
government's costs in connection with
the sites.
"This action is particularly significant,"
Habicht said, "because resolving dioxin
contamination is an important element of
EPA's Superfund program. In addition, it
reflects the strong shared commitment of
the Department and EPA to use all our
resources to enforce the Superfund law
and to bring lawsuits to secure prompt
cleanup of hazardous waste contamina-
tion nationwide."
The following six sites were the targets
for dioxin cleanup in the suit:
• The Bliss Tank Site in Frontenac, Mo.,
a suburb of St. Louis, where hazardous
wastes and substances were stored in
bulk tanks;
• The Rosati site, a number of properties
in Rosati, Mo., allegedly contaminated
when substances being transported by
truck were sprayed, leaked or otherwise
deposited on them;
• Shenandoah Stables, a horse arena near
Moscow Mills, Mo.;
• Timberline Stables, a horse arena near
New Bloomfield, Mo.;
• Bubbling Springs Ranch, a horse arena
in Imperial, Mo.; and
• Saddle and Spur Club, a horse arena
hear High Ridge, Mo.
The horse arenas are structures for the
stabling, exercising and showing of
horses. Dioxin-laden oil was sprayed at
the arenas to control dust, the suit said.
All of the dioxin wastes at these sites,
according to the suit, were generated as
by-products in the manufacture of hex-
acholorophene by NEPACCO at its Ver-
ona plant. These wastes, the suit said,
were subsequently transported from that
facility by Independent Petrochemical
Corp. and Russell Bliss.
The dioxin at the six sites remains a
hazard, according to the suit. EPA has
confirmed the presence of dioxin in the
soil at all six sites.
Trichlorophenol, another hazardous
substance, is present at some of the
sites, the suit said.
At the Denney farm, the waste site in-
volved in the recent district court deci-
sion, the concentration of dioxin was as
high as 319 parts per million.
Officials of EPA predicted that the deci-
sion would create an incentive for chem-
ical companies to clean up sites them-
selves.
David R. Tripp, regional counsel for
EPA in Kansas City, Mo., said, "It would
seem that it would be cheaper for the re-
sponsible parties to do the cleanup them-
selves, because the court has now given
EPA the legal right to recover all in-
vestigative and litigation expenses in-
volved in cleanup suits." In its decision in
favor of EPA, the court also gave the
Agency the right to recover future costs
of monitoring and assessing the ongoing
maintenance at the farm site.
The government had considered the
Denney farm case as a test case with ma-
jor implications for its efforts to clean up
toxic waste sites, including 37 dioxin
sites in Missouri.
The ruling by Russell G. Clark, chief
judge in the U.S. Western District in Mis-
souri, came in a non-jury trial, which was
one of the first to involve the Superfund
created by Congress in 1980 to clean up
toxic waste sites. The Act also provided
that the government could seek to recov-
er its money from those responsible for
creating the waste sites.
The government had sought to recoup
about $400,000 that it spent from 1979 to
the present at the Denney farm. But
Judge Clark ruled that it was only enti-
tled to reimbursement for expenses in-
curred after Dec. 10, 1980, when the Su-
perfund law became effective. D
EPA JOURNAL
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Fuel Switching
Doesn't Pay
OUCH
It may look like the smart thing to do.
Just make the unleaded-only opening
bigger, or use a funnel, and put in some
old-fashioned regular leaded gasoline. It
will save a little money and make that car
run like a dream.
It doesn't work. EPA is trying to alert
the public to the fact that fuel switching
not only hurts a car's performance but
could wind up costing more than it
saves.
It isn't a trivial problem. EPA is
alarmed at statistics showing that 13 per-
cent of American motorists are fueling
their unleaded-only cars with leaded
gasoline.
Fuel switching may have once boosted
performance or fuel economy, concerned
EPA officials say, but cars are engineered
differently now and the wrong fuel may
actually harm their efficiency.
Meanwhile, an even bigger worry to
EPA is that leaded gas seriously damages
the catalytic converter put on most mod-
ern cars to control exhaust emissions.
EPA officials say the damage can in-
crease emissions from a car by as much
as eight times, devaluing the big national
investment in cutting pollution from
automobiles and hobbling EPA's clean air
efforts.
To illustrate the importance of the fuel
switching threat, EPA officials point out
that parts of 31 states won't meet nation-
al air quality standards for carbon mono-
xide or ozone and that a big part of the
problem is due to auto emissions.
Following up on its concerns about fuel
switching and related steps that disable
emission controls, EPA is cracking down.
Last November, for instance, the Agen-
cy told the County of Greenville, S.C.,
that it would be fined $630,000 for 90
alleged instances of misfueling in county
cars. At the same time, EPA announced
that it intends to fine the City of Philadel-
phia $327,500 for allegedly dis-
connnecting emission-control systems on
131 police vehicles.
I hen in early December, EPA filed a
complaint against the Atlantic Richfield
Co. of Philadelphia charging that the re-
finer removed 12 catalytic converters
from company-owned vehicles and that
leaded gasoline was used on numerous
occasions in 28 vehicles which require
unleaded fuel. The requested civil penalty
is more than $330,000. The same day,
EPA charged that Lew Smith Muffler and
Parts, Inc. of Covington, Ky,, had re-
moved catalytic converters from 46 of
their customers' vehicles and had en-
larged the gasoline filler inlets on seven
of the vehicles so they could use leaded
gasoline. The government is seeking
$132,500 in fines in the case.
Continuing its enforcement measures,
EPA in early January issued notices of
violations against 17 gasoline blenders in
the Detroit area for allegedly selling
gasoline containing alcohol levels ex-
ceeding federal limits. EPA proposed
fines totaling $550,000. Alcohol is used in
place of lead to boost octane, but EPA
officials believe that too much of it re-
sults in increased auto emissions and
higher smog levels.
EPA faces a limit to what it can do to
stop the damage to emission controls—
the Clean Air Act didn't make it illegal for
individuals to switch fuels or tamper with
catalytic converters. Forty states have
made the activities illegal for their resi-
dents although the rules are proving
tough to enforce.
To deal with this hurdle, EPA is taking
educational measures, pointing out that
according to oil industry tests, unleaded
gasoline is easier on cars and means
lower maintenance bills for carburetors,
exhaust systems, spark plugs and oil
changes. The net result, EPA is ex-
plaining to the dollar-conscious, is that
the pennies that might be saved by fuel
switching and emission control
tampering are unimpressive compared to
the repair cost savings from sticking to
good pollution control practices.
EPA officials emphasize that education-
al steps—such as requiring offending gas
stations to post signs praising the bene-
fits of good emission control behavior—
could have more impact over the long
run than simply fining violators. Enforce-
ment and education are both needed to
get the message across, EPA believes. D
MARCH 1984
23
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Enforcement Innovations
Adopted for Superfund, RCRA
(The following article is excerpted from
remarks by Lee M. Thomas, EPA Assis-
tant Administrator for Solid Waste and
Emergency Response, to EPA's recent
National Compliance and Enforcement
Conference.)
"We are instituting a number of new
ideas that we think will help us to ad-
dress the unique aspects of Superfund
and its mission.
"The first is the process of site man-
agement planning, in which the in-
dividual aspects of each facility on the
National Priority List are taken into
account in developing site-specific re-
sponse, cleanup and enforcement strat-
egies. The states, the public, EPA's re-
gional counsels, the technical enforce-
ment personnel and others all contribute
to the development of the site man-
agement plan for each of these projects.
"We recognize the need for careful
planning and effective resource allocation
processes in managing and conserving
the Superfund. After all, while $1.6 billion
is a sizable sum of money and a major
responsibility, we already have learned
that it is far less than we will need to ad-
dress all sites currently on the National
Priority List. Keep in mind that in the
years to come, this list may grow to in-
clude well over 1,000 sites.
"An effective enforcement mechanism
is a cost-effective technique for ensuring
sound site cleanup, and we will rely on it
increasingly in the future. By developing
a strong enforcement posture in negotia-
tions with responsible parties, we can
provide a necessary incentive for private-
party settlements and discourage costly
cleanup delays. We are learning that re-
sponsible parties are much more inclined
to perform voluntary cleanups when they
know they face a credible and de-
termined agency enforcement policy. In
the years ahead, we anticipate that as
many as half of all site cleanups will be
conducted voluntarily by responsible par-
ties, due in no small measure to the
effect of a commitment to enforcement.
"A second effort we now have
underway is the development of a Super-
fund case budgeting process to help us
utilize our legal resources more efficient-
ly. Through case budgeting, we will plan
how we will use the contract resources
we have available to support the de-
velopment of litigation, coordinating with
the EPA Office of Enforcement and Com-
pliance Monitoring and the Justice De-
partment. We will identify the cost ele-
ments of case development, establish
known standard costs and use these data
to set our priorities.
"We have learned that we do not work
in a 'budget-free' environment under Su-
perfund. We recognize that we must live
with resource constraints, and we see
case budgeting as a way of undertaking
more effective enforcement planning ac-
tivities.
"The Resource Conservation and
Recovery Act (RCRA) established a more
traditional regulatory program, with a
built-in state role as well as permitting
and compliance components not unlike
those of several other primary EPA sta-
tutes. We fully recognize the need for an
effective federal/state partnership in
order to ensure the widest compliance
with RCRA standards throughout the
waste management community.
"We have developed a process for
turning over significant authority to the
states to manage their own hazardous
waste programs. Recently, Delaware be-
came the first state to achieve final RCRA
authorization. Many more are seeking to
follow Delaware's lead in earning full au-
thorization for their programs. Forty-four
states and territories and the District of
Columbia currently operate programs
under the interim authorization pro-
visions of RCRA.
r\s we move toward granting final au-
thorization to more states, I am especially
sensitive to the need for high-quality pro-
grams if we are to make RCRA serve the
public interest as Congress intended. Last
October, I established a task force within
the Office of Solid Waste and Emergency
Response to examine this issue and to
develop a formal policy on RCRA pro-
gram quality. This task force, chaired by
Carl Reeverts, has developed a draft poli-
cy which I have distributed to the EPA
Regional Administrators. The draft policy
is being widely discussed and modified
to reflect input from a variety of head-
quarters, regional and state sources.
"Basically, the policy will establish a
national framework for overseeing the
quality of state RCRA programs under
final authorization. It will be consistent
with the fiscal year 1985 agency program
guidance and will be the basis for head-
quarters oversight of regional activities
with respect to state programs.
"Overall, a quality program capable of
enhancing and complementing federal
activities is one that knows and under-
stands the regulated community; leads to
the permitting or closure of all treatment,
storage and disposal facilities as quickly
as possible; achieves compliance; and
fosters a strong EPA/state relationship.
Enforcement will be a significant element
of any quality program, for those in the
regulated community must be convinced
that there is risk involved in non-
compliance. Those who comply willingly
must be assured that their good faith ac-
tions will not put them at an economic
disadvantage with competitors who make
no attempt to meet our regulations.
"As far as state enforcement programs
are concerned, the criteria we plan to use
to determine quality are the following:
(1) the level of compliance; (2) existence
of a multi-year compliance monitoring
strategy that delineates the number and
types of compliance monitoring activi-
ties; (3) operation of the program in ac-
cordance with the monitoring strategy;
(4) inspections and record reviews that
are thorough and properly documented;
and (5) enforcement actions that are
timely and effective.
"Once this program quality policy is
established, a series of supplemental en-
forcement guidance documents will be
developed and distributed throughout
1984. This series of guidance packages
will address federal enforcement actions
in authorized states, the definition of
Class I violations, oversight inspections,
groundwater compliance evaluations and
closure/post-closure and financial com-
pliance evaluations. An inspection man-
ual also will be prepared.
Opecific performance measures and
expectations are being developed for
each enforcement criterion. We will use
these measures to operate an enforce-
ment program which achieves the levels
of compliance we feel are necessary to
protect public health and the environ-
ment as early as possible.
"The first criterion we will address is
the level of compliance. Is it improving
over time, thus showing promise of a
high rate of compliance in the future? We
will measure success in this area using a
straightforward evaluation formula.
"Perhaps most important of all, in this
area, will be the determination of just
how sound a given state's compliance
numbers are.
24
EPA JOURNAL
-------
'
me
"We also want states to have a multi-
year monitoring strategy in place that de-
lineates annual numbers of inspections,
record reviews and followup inspections.
Annual work programs specify com-
pliance monitoring priorities. A state
strategy should call for inspections of all
permitted and non-permitted major facili-
ties each year. In addition, multi-year
time frames should be provided for com-
pleting inspections of all generators,
transporters, and non-major facilities,
focusing on those which pose the
greatest public health and environmental
threats.
"We will be looking for states to in-
spect a certain percentage of all per-
mitted facilities annually, to evaluate and
verify all facilities that submit closure
plans or request withdrawal and to iden-
tify those facilities that have not provided
notification, as well as those operating
without permits or manifests.
Otate inspections should be con-
ducted in accordance with the com-
pliance strategy. We will look at the actu-
al number and types of inspections and
record reviews conducted quarterly as
they relate to the planned number and
types promised in state grant agree-
ments. We expect evaluations and ver-
ifications for all facilities that submit clo-
sure plans or withdrawals.
"Inspections and record reviews must
be thorough and properly documented.
By reviewing state files, we will check to
see that quality assurance program pro-
cedures are followed and that the inspec-
tion checklist for each has been com-
pleted. Inspectors should undertake in-
depth evaluations of groundwater
monitoring, financial responsibility and
closure/post-closure plans for major faci-
lities. Files are to be maintained and
made readily accessible. All major viola-
tions should be identified and thoroughly
documented.
"Finally, enforcement actions, in order
to foster compliance, must be timely and
effective. Initial enforcement action,
which may include the assessment of
penalties, should take place soon after
the detection of violations. Class I viola-
tions should be resolved, or a com-
pliance schedule negotiated and agreed
upon, within a set period of time. If the
Class I violation is not resolved or a com-
pliance schedule agreed upon ex-
peditiously, or if the agreed-upon sched-
ule is not met, enforcement action should
be escalated, including the assessment of
penalties.
Another measure of enforcement pro-
gram effectiveness will be the ratio of
criminal and civil actions filed in court to
the number of cases referred to legal au-
thorities. We will also look at the average
length of time it takes to resolve
groundwater monitoring, closure post-
closure and financial responsibility viola-
tions.
"EPA regional offices will use these
criteria and performance measures to
monitor state programs for quality and
effectiveness. Where the region feels
state performance has been satisfactory
or better, it will be encouraged to reduce
its degree of oversight in that jurisdic-
tion. For example, if the state's in-
spections consistently follow the es-
tablished procedures, the region may re-
duce the number of oversight inspections
it conducts. This will give the state a
greater sense of autonomy and allow the
region to focus its attention on problem
areas.
"On the other hand, where a state fails
to meet performance criteria, the regional
office will take corrective action ranging
from a modest increase in federal over-
sight or providing formal written com-
ments on proposed state actions to a di-
rect EPA enforcement response, de-
pending upon the frequency and extent
of failure. The appropriate response ac-
tion will be determined upon examina-
tion of the particular circumstances of the
situation.
"Where a state is not authorized for
certain or all activities, and EPA is thus
responsible for the hazardous waste
management program, the Agency's re-
gional office will be expected to meet the
criteria I have listed.
"Regional evaluations conducted by
headquarters will emphasize these
criteria, and headquarters may increase
or decrease its oversight based upon re-
gional performance. In the enforcement
area, if the region consistently fails to
meet performance criteria, headquarters
may take a direct role in enforcement
either by initiating its own actions or by
requiring concurrence on some or all re-
gional actions.
"Our purpose here is to respect the in-
tegrity of state and regional enforcement
programs while, at the same time,
assuring the quality of those programs as
a guarantee that the goals of public
health and environmental protection will
be achieved.
Let me say in closing that, while our
programs are new and our experiences
in the enforcement arena are limited, we
have already learned a number of things.
We know that inspections alone do not
ensure compliance. We know that follow-
up is critical. Where violations are de-
tected, it is necessary to come back ex-
pediliously with some type of enforce-
ment action. It may be the issuance of a
warning letter or a compliance order and
penalty. Or, if warranted, it may require
that we take aggressive action in court.
"The regulated community must see
that we have a credible enforcement pro-
gram and that violations of hazardous
waste management laws and regulations
will not be tolerated. Our compliance
goals require that we be flexible in how
we implement our laws and regulations.
Our purpose, after all, is to help those
who are regulated to meet our protective
standards. But there must also be a cost
imposed on violators, and that cost must
exceed the benefits of ignoring gov-
ernment requirements.
"Program quality is an important key
to success in achieving compliance and
building a credible enforcement capabili-
ty. We will pursue it." D
MARCH 1984
25
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EPA Acts to Reduce EDB
in American Diet
"If we act carefully, calmly and responsi-
bly, we can work our way through this
bleeding out of EDB from the public di-
et," EPA Administrator William D. Ruckel-
shaus said recently.
At a press conference Feb. 3, he an-
nounced the immediate emergency sus-
pension of the pesticide, ethylene di-
bromide, for use as a grain fumigant and
recommended residue levels for grain
and grain-related products to protect the
Nation's food supply from EDB con-
tamination.
"We are not faced with a public
emergency," Ruckelshaus cautioned. The
danger, he said, is not from eating one
cupcake or a grapefruit. "It's a lifetime of
exposure that we're concerned about."
The actions Ruckelshaus announced at
the Feb. 3 press conference call for:
• effective immediately, the emergency
suspension— the strongest action the
Agency can take under the law — of the
use of EDB as a fumigant for stored grain
and grain milling machinery, halting at
once all further sales and uses of the
chemical;
• the establishment of recommended
maximum acceptable residue levels for
raw grains, milled grain products and
finished ready-to-eat products;
• initiation of a rulemaking process to re-
voke the exemption that currently pre-
vents the Agency from setting tolerance
levels enforceable by the Food and Drug
Administration.
Ruckelshaus said, "The most important
thing we're doing is getting EDB out of
the food chain." With the actions EPA is
taking, EDB will disappear from grain
products in the American diet in three to
five years, Ruckelshaus said.
The Administrator noted that the ac-
tion, "coupled with our emergency sus-
pension of EDB's use as a soil fumigant
this past September, will eliminate about
97 percent of the chemical's agricultural
use."
"I expect the residue levels on all grain
products will begin to decline almost im-
mediately as a result of the actions we
are announcing" Ruckelshaus said. "In
fact, in the very near future, that rate of
decline should become quite pro-
nounced." He added that he believes the
guidelines EPA is recommending to the
states for levels of EDB "are fully pro-
tective of public health."
Ruckelshaus said he was
recommending the following maximum
permissible residue levels for EDB on
grain and grain-related products:
• for raw grain intended for human con-
sumption — wheat, corn, oats, etc. — the
level should not exceed 900 parts per bil-
lion;
• for intermediate level products such as
flour, various mixes for preparing baked
goods, soft cereals, and other products
that require cooking before eating, the
recommended residue level is 150 parts
per billion;
• for ready-to-eat products such as cold
cereals, snack foods, bread, and all baked
goods, the residue levels should not ex-
ceed 30 parts per billion.
"Many of the data upon which these
guidelines were built were provided to us
> by a number of states," Ruckelshaus
said. "I hope now that our three recom-
mended levels will help those and other
states effect a consistent, coherent
approach to what is clearly a national
problem." Additional data were provided
by the U.S. Department of Agriculture,
the Food and Drug Administration, the
Grocery Manufacturers Association and
other industry groups. On Sept. 30, 1983,
National Standards
for Permissible Levels of EDB
SOOppj
150ppb
SOppb
Consumer Products
Requiring Cooking
Raw Grain
Consumer Products
Ready to Eat
EPA announced the suspension of the
use of EDB as a soil fumigant to control
nematodes {root worms), which
accounted for an estimated 90 percent of
its pesticide uses in agriculture. At the
same time, the Agency ordered cancella-
tion of its uses as a fumigant for stored
grain and on grain milling machinery.
Nine parties appealed the cancellation of
grain uses and asked for s hearing before
an Administrative Law Judge. By statute,
the products subject to that hearing can
continue to be used until the hearing is
concluded and a final order is issued —
typically a two-year process.
In its Sept. 30 order, the Agency also
called for cancellation by Sept. 1 of this
year of EDB's uses as a quarantine fumi-
gant on citrus fruits, tropical fruits such
as mangoes and papayas and other fruits
and vegetables which can be host to trop-
ical fruit flies.
Ruckelshaus said most of the
remaining three percent of EDB is used
as a quarantine fumigant on fresh citrus
and other tropical fruits. However, he
added that the majority of fresh citrus
grown in this country is not treated with
EDB. Generally less than two percent of
the total fresh citrus consumed in the
U.S. is treated with EDB, most of it im-
ported.
The six states which have fumigation
requirements to control fruit fly infesta-
tion are Florida, California, New Mexico,
Texas, Arizona and Hawaii.
EDB, a persistent halogenated hydro-
carbon, has been registered as a pesti-
cide since 1948. At the time of last year's
suspension order, over 280 million
pounds (140,000 tons) of EDB were being
produced annually in this country. Of
this, some 20 million pounds were used
as a pesticide, and the remainder as an
additive in leaded gasoline. Exposure to
EDB from its use in gasoline, however, is
minimal compared to that from its use as
a grain fumigant, because virtually all of
the EDB in gasoline is destroyed in the
combustion process.
Studies in laboratory animals have in-
dicated EDB to be a carcinogen and
mutagen that can cause reproductive dis-
orders. D
26
EPA JOURNAL
-------
Environmental Almanac
Monarch of the Eastern Shore
In a rural hamlet on Maryland's eastern
shore a champion oak tree will soon be
offering its young green leaves once
again to the sun, signalling another
triumph for the continuity of its life force.
The new leaves attest to the defeat of
another winter's destructive ice and cold
by this approximately 400-year-old oak at
Wye, Md., some 25 miles east of An-
napolis, Md.
A symbol of permanence in an age of
trendy fads this ancient oak was, after
careful measurements, declared by the
American Forestry Association in 1909 to
be the largest white oak in the United
States.
The circumference of this massive tree
is more than 37 feet when measured at a
height of four and a half feet above its
base. Its vast leafy crown shades approx-
imately half an acre.
The relatively low height of the tree of
95 feet is characteristic of white oaks
which tend to spread out their growth
when not cramped by the presence of
other nearby competing trees.
The tree's growth pattern has led to
speculation that it may have developed
from an acorn which took root in a clear-
ing in the woods made by Indians in pre-
colonial days. Hunting by the Indians
could also have kept in check the rabbits
and deer which frequently kill or stunt
young saplings by eating their bark in
winter.
Donald E. Peattie, a noted authority on
trees, has written that "the great oak of
Wye is a monarch of superbly sym-
metrical beauty with a spread of 184 feet,
a dimension unequaled by any other
oak...." He added that this oak's appear-
ance of great antiquity is enhanced by
great growths or "knees" three or four
feet high that mark its base.
These large burls may have been
caused by injuries to the roots from the
hooves of horses once tethered to a
country store located near the giant tree.
The present good condition of the tree is
a result of the special care it has received
since it was found to be the largest white
oak. Tree experts now promptly trim any
dead branches. Approximately 50 cables
have been stretched in the tree's enor-
mous crown to help prevent the stiff
limbs from cracking during storms.
Foresters feed approximately 900
pounds of fertilizer to the roots every two
years. A lightning rod was placed high in
the crown many years ago to help pro-
tect it from a bolt from the sky.
The inside of the Wye Oak's lower
trunk was eaten away by a fungal attack
many years ago and is now hollow. A
molded steel sheet seals off the trunk
opening at the base. A manhole in the
sheet permits a forester to enter per-
iodically to apply insecticides and fungi-
cides. Charcoal has been placed in the
opening to help absorb excess moisture.
In another step to preserve this ancient
oak, Maryland has purchased 21 acres
surrounding the tree for use as a state
park. The park is just south of Wye Mills,
Md., on State Route 622. Pictures, de-
scriptions and measurements of the Wye
Oak are recorded in the "Hall of Fame"
of the American Forestry Association and
in such publications as "The Big Tree
Champions of Maryland."
The Wye Oak was a fair-sized tree
when Maryland was founded as a colony
in 1634. Its growth has been unaffected
by either the storms of nature or the de-
pressions and wars that burdened the
human race over the last four centuries.
Long a symbol of strength and in-
domitable resistance to outside forces,
the oak has an enormous tap root and
spreading root branches which help it
withstand buffeting by winter winds.
The Wye Oak's glory is the great
spread of crown foliage which provides
leafy shade for the people who seek
shelter from a burning sun on a
sweltering summer day. In the evenings
as emerging stars spangle the night sky,
visitors to the tree are lulled by a great
chorus of music from the cicadas, katy-
dids and other insects.
A white oak is a tree you can tip your
hat to. The Wye Oak, in particular, pro-
vides a rare opportunity for the legiti-
mate use of such adjectives as "grand,"
"majestic," and "splendid."
Yet like all living things, it awaits the
inevitable hour when it will at long fast
thunder back to the earth from which it
grew. Meanwhile, the young year is pro-
ducing this oak's first yellow catkins
which will spread their golden pollen by
spring breezes to help start a new
generation of oaks. — C. D. P.
MARCH 1984
27
-------
Cleanup Rules
and Industrial
Growth:
Two
Viewpoints
Are pollution control rules stalling con-
struction of new plants and slowing
down economic growth? This question
has emerged as the country has begun to
clamp down on pollution. Two leaders
with somewhat different views about this
question are William K. Reilly, President
of The Conservation Foundation, and
John Quarles, a Washington, D. C., attor-
ney and former Deputy Administrator of
EPA. The Foundation prepared a report
on the subject. Quarles is a leading
spokesman for the National Environmen-
tal Development Assn., a group of in-
dustries which has concerns about some
portions of the Clean Air Act.
EPA Journal asked Reilly and Quarles
to express their positions about this issue
in a pro and con format.
' i in fl • • .
vironmon:
,
28
EPA JOURNAL
-------
Growth Without
Environmental Sacrifice
By William Reilly
I he environmental decade of the 1970s
witnessed impressive strides in cleaning
up the Nation's air and water, but it
closed with an increasing number of peo-
ple asking hard questions about the eco-
nomic impact of environmental laws and
regulations. Critics, with visions of car
queues at gas stations in their heads,
claimed these laws were hobbling the
Nation's search for secure energy sup-
plies. Others expressed some very un-
American gnawings:
The United States no longer seemed to
be the number one industrial power.
Many mainstays of the economy—steel,
autos, mining, and smelting—appeared
unable to compete with firms from Japan
and emerging industrial countries in the
Third World, industrial leaders pointed an
accusing finger at the panoply of en-
vironmental regulations with which
domestic firms had to comply. Cele-
brated battles over the siting of big ener-
gy and industrial facilities—the trans-
Alaskan pipelines, oil refineries on the
East Coast, and a Dow Chemical complex
in California—seemed to confirm the
worst fears:
The same regulations that led to en-
vironmental progress were stifling
needed investment in industry and
eroding the U.S. competitive position
internationally. The regulatory system, it
was alleged, did not work because it was
put together and implemented by people
who do not understand its effect on in-
dustry, particularly on planning and
building big manufacturing and energy
projects.
A careful review of these complaints
indicates that some of them are quite
correct, although the extent of adverse
impact, and the role of environmental
regulations relative to other factors in-
hibiting U.S. economic competitiveness,
have been exaggerated.
These exaggerations or myths, we be-
lieve, are obscuring the real path to effec-
tive reform.
Myth No. I: Environmental quality regula-
tions cause industry to flee to other
countries. Our research failed to turn up
any credible evidence that environmental
regulations have precipitated, or are
about to precipitate, a widespread ex-
odus of American industry. In decisions
about whether to build abroad or contin-
ue operating a facility in the United
States differentials in environmental-
control costs are generally outweighed
by production and other capital costs. For
the most capital-intensive and polluting
manufacturing industries, pollution con-
trol costs are only a small fraction of to-
tal capital investment and production
costs. In 1981 environmental control costs
for selected sectors came to 6.2 percent
of capital costs for the chemical industry,
6.4 percent for paper, 8.5 percent for
petroleum and 13.5 percent for the pri-
mary metals industry. Thus, even if en-
vironmental control costs could be elimi-
nated completely (which Mr. Quarles and
others in industry recognize is not possi-
ble), savings would not greatly reduce to-
tal capital costs. Moreover, other tradi-
tional locational factors such as access to
markets, proximity of supplies and natu-
ral resources and political stability are
almost always far more important than
environmental regulations. At most, such
regulations affect a decision only when
all other factors are equal—which is rare-
ly the case.
Myth No. 2: Environmental lures lead to
interstate industrial flight. The issue of
regional competition based on weak en-
vironmental laws and lax enforcement
helped persuade Congress to adopt uni-
form national pollution control standards.
Lately the issue has flared again, the con-
cern being that lax enforcement of these
supposedly uniform regulations by some
states and enactment of additional state
and local laws might give some jurisdic-
tions a competitive advantage over
others. Again, the research by The Con-
servation Foundation's Industrial Siting
Project says no: a margin of relative lax-
ity or stringency in pollution control is
not an important locational determinant.
(Obviously, severe differentials in en-
forcement and standards among states
and regions might well lead to a different
result; but uniform national standards
preclude such gross regional disparities.)
No evidence of a migration of industry
from one state to another in search of
"pollution havens" was unearthed, and,
during the 1970s, there was no significant
correlation between an individual state's
environmental "stringency" and the
number of manufacturing jobs it
attracted or lost.
Myth No. 3: Environmental red tape is
strangling industrial development. From
a sampling of recent headlines, articles
and speeches, it might seem that in-
dustrial projects no longer get built in the
United States, thanks to environmental
laws and other assorted regulatory ills.
The research for The Conservation
Foundation's Industrial Siting Project,
however, contradicts this conventional
wisdom: environmental and land-use
regulations are not the primary cause of
long delay in most industrial de-
velopment. In fact, a significant number
of industrial facilities have been built rel-
atively quickly over the past decade with
few or no serious environmental prob-
lems. For the record, it is well to recall
that the number of manufacturing es-
tablishments in the United States rose
from 311,000 in 1967 to 360,000 in 1977
(the latest year for which figures are
available). Success stories are often over-
looked in the clamor over celebrated
siting battles. Even in the headline-
making disputes, delays caused by en-
vironmental quality regulations are often
less significant than those attributable to
financing problems, labor disputes, con-
struction and equipment delivery snafus,
lack of consensus regarding need, and
regulatory hurdles not associated with
environmental protection. When regula-
tions do cause delay, that delay may be
essential to protect legitimate public
interests. Moreover, a good deal of the
regulatory delay of the 1970s can be at-
tributed to "teething pains" that are likely
to ease as the players in the siting game
learn the new rules.
It is worth considering the implications
of these findings and the acknowledg-
ment of their validity we have had from
many in industry, including Mr. Quarles.
Because most people, including environ-
MARCH 1984
29
-------
Regulatory
Delays
By John Quarles
mentalists, do not fully understand how
firms develop industrial projects and the
role of environmental regulations therein,
they are often at a loss to counter de-
mands that environmental standards be
lowered to facilitate needed industrial de-
velopment, even in the absence of evi-
dence that such standards have caused
delays and impeded the siting of new in-
dustry or expansion of existing facilities.
We believe our findings should help
quiet that debate and refocus national
concern on the real problems in the reg-
ulatory process. There are compelling
reasons to avoid complacency. We agree
with Mr. Quarles that the United States
cannot ignore the significant costs of en-
vironmental protection, just as it cannot
ignore the important benefits. And, as
Mr. Quarles points out, businesses may
decide against significant new in-
vestments because of the mere prospect
of environmentally induced delays—what
might be called "stillborn" projects.
There is no real way to measure this phe-
nomenon, although the theme recurs fre-
quently in discussions with industry rep-
resentatives.
What we have learned about the real
problems in the regulatory system is sur-
prising and at the same time reassuring.
When we began the project, our eyes
were cast, quite frankly, toward problems
generally associated with government
regulation— overlapping and con-
tradictory permit reviews, changing laws
and regulations, and never-ending judi-
cial review. We have found that there are
a number of ways government can im-
prove {and we discuss these methods at
length in the book Environmental Regula-
tion of Industrial Plant Siting). An impor-
tant element in effective government re-
form will be to eliminate the dearth of
properly trained government personnel
overseeing the siting regulatory process.
Experienced regulators should have in-
centives to stay in their positions. Their
jobs must be given greater prestige, and
they must be better paid. But we have
concluded that government cannot do it
alone. Companies, too, have an essential
role to play. They have an obligation to
understand better the demands on reg-
ulators and to improve the way they plan
and execute big industrial projects. With-
out improvements by the private sector,
true relief will never come.
Perhaps most important, the United
States must avoid'the lure of panaceas
that promise to cure all of our regulatory
ills quickly with little pain. Experience
shows clearly that the path to success
lies in "quiet" reforms that do not ignore
citizens, override or weaken laws or pre-
empt government agencies.
We are encouraged by the fact that
companies and government agencies are
adapting, learning from their experi-
ences, and overcoming the teething
pains of the 1970s, when traditional in-
dustrial expectations clashed with untried
environmental policies. Already some of
the most innovative government agen-
cies and the most progressive corpora-
tions have begun exciting initiatives that
hold promise to improve not only the
way environmental laws work but also
their effectiveness in protecting the en-
vironment.
We believe the issue here is not
whether industrial growth will occur, but
how. Industrial development in the
United States benefits not only the
American—and, indeed, the world—
economy, but also the environment.
Replacing old industrial plants with new
capacity offers the promise of reducing
pollution. Failure to do so may increase
the technological obsolescence of U.S.
industry, exacerbating an already serious
economic situation and forsaking prog-
ress in cleaning up the environment. Our
work indicates that environmental quality
regulations need not stand in the way of
this growth, nor need they be sacrificed
on the altar of recovery. Q
(This article draws on information in a
1983 report by The Conservation Founda-
tion titled "Environmental Regulation of
Industrial Plant Siting: How To Make It
Work Better." The report was prepared
by Christopher J. Duerksen, a senior
associate at the Foundation.)
The interrelationship between environ-
mental regulations and economic
growth has been distorted by exaggeration
on both sides. There is a need to put the
whole subject in perspective. We need to
begin with a few basic realities.
The first point is that industrial mod-
ernization is beneficial—not detrimental—
to environmental quality. This is almost
universally overlooked. Yet the truth is
that new plants are clean plants. New
plants incorporate the latest and most
advanced pollution control technology.
The law requires this, and it is com-
monplace.
This point was highlighted by the re-
port, "America's Industrial Future: An En-
vironmental Perspective," released in
1982 by The Conservation Foundation.
The Foundation's press release on that
report opened with the statement, "The
modernization of U.S. industrial capacity
is important for the environment, not just
the economy." The report itself con-
cluded that "Replacement of old in-
dustrial capacity with new, whether
through reconstruction of old plants or
building new ones, promises to signifi-
cantly reduce the amount of pollution per
unit of output."
A second point of fundamental im-
portance, insofar as the Clean Air Act is
concerned, is that its regulatory
framework reflects an irrational pre-
occupation with restrictions on new in-
dustrial facilities. One of its basic pro-
visions, Section 111, establishes the
sound principle that all new plants
should be built in accordance with tight
emssion control standards. It is in Parts C
and D of Title I of the Act, however, that
one encounters the full sweep of pro-
visions designed to make certain that no
new plant or plant expansion has an
adverse effect on air quality. Here are
found the requirements of PSD (preven-
tion of significant deterioration) and
nonattainment. The complexities of these
requirements are notorious. In areas
meeting the air quality standards, they
include requirements to demonstrate
compliance with "increment" limitations,
in addition in some cases to obligations
to analyze possible effects on visibility,
;o
EPA JOURNAL
-------
on soils and on vegetation. Nonattain-
ment areas entail requirements to come
up with offsets, and in some instances
the need to demonstrate that the benefits
of a proposed expansion will "significant-
ly outweigh" its environmental and social
costs.
Without undertaking here to critique
these manifold requirements, it seems
beyond dispute that in the Clean Air Act
we have created an elaborate set of reg-
ulatory screens which a project must
pass through before it can be built. The
most conspicuous elements of these reg-
ulatory constraints are added on top of
the sound technological requirement that
every project must incorporate the best
available control technology.
I hese features of the Clean Air Act
place a disproportionate emphasis on
new sources, with relatively less detailed
emphasis on cleaning up existing
sources, even though those plants are far
more serious contributors to actual air
pollution problems. We need to ask: Why
all this worry over new construction?
When one examines actual facts it is
striking that the emissions from new
sources, even over a period of many
years, typically represent only a tiny frac-
tion of emissions in any given area. As
obsolete facilities are replaced, the net
effect of new plant construction is highly
beneficial to the achievement of cleaner
air. One would think the Clean Air Act
should encourage the ^industrialization
of America, rather than to retard it.
It is important to note that the Clean
Water Act does not place such burden-
some restrictions on new industrial
growth. Yet it may well represent a more
effective regulatory framework. The con-
trast underscores the questionable value
of these features of the Clean Air Act.
Turning to the effects of such regula-
tion on economic growth, the first state-
ment to make is that such regulation is
not a dominant factor. It is absolutely
clear that environmental regulation in
general, and the Clean Air Act in particu-
lar, do not prevent industrial de-
velopment from occurring.
Having said that, it is important to look
more closely at the way the regulatory
process impacts on the dynamics of in-
dustrial development. The most signifi-
cant of these effects is on the lead time
of corporate decision making. The per-
mitting process does interpose delays in
the schedule for designing and con-
structing new facilities. Those delays may
be as short as a few months or as long
as several years.
In some instances the regulatory proc-
essing can occur simultaneously with
other steps in the developmental sched-
ule, but often it cannot. Much of the reg-
ulatory processing cannot begin until the
engineering design work has been
finished. That is the point at which a
project is essentially ready to go into
construction, but the regulations prohibit
the commencement of construction until
air quality and other permits have been
obtained. Therefore, most of the process-
ing time is a direct addition to total lead
time for industrial projects.
In evaluating whether these regulatory
delays and uncertainties are inhibiting
capital investments, one must under-
stand the basic nature of industrial deci-
sion making. In corporate America, every
investment decision requires a demon-
stration that the project promises an ade-
quate return on investment. These de-
cisions are tied to prospective profitabil-
ity.
The direct costs of environmental con-
trols have an obvious impact on these
calculations. More subtle, but I suspect
more important, are the effects of regula-
tory delay. The key point here is the ex-
tension of lead time before a proposed
project can reach completion and bring
products to market. If two years are
added to the lead time, that can cause
severe effects on both the arithmetic of
projected return on investment and also
the confidence backing up such arithme-
tic. For any project the near term pro-
vides the most solid part of projected re-
turn. Beyond five years, projections are
highly uncertain. Any factor that delays
project completion and chews up a cou-
ple of years at the front end severely
erodes the foundation of projections on
which corporate investment decisions
can be made. Environmental regulatory
requirements have exactly that effect.
Much is made of the fact that few proj-
ects have been blocked during the reg-
ulatory review of their permit applica-
tions and that in those cases where ap-
plications have been withdrawn the deci-
sion was largely made for economic
reasons. That misses the point: All in-
vestment decisions are made for eco-
nomic reasons. What counts is the man-
ner in which the economic attractiveness
of a project may be negatively affected
by either the additional costs or the addi-
tional delays of regulation. If a project
becomes economically unattractive
during the regulatory delays, the country
loses that project—and those jobs—
however it may be rationalized.
liar more likely than the public defeat
of a project, however, is the private deci-
sion never to propose it. Corporate ex-
ecutives will not deliberately repeat
others' mistakes. Both the costs and the
delays of environmental regulation are
now well known. The effects of regula-
tion have been incorporated into the
internal corporate screening mechan-
isms. Projects which cannot sustain the
add-ons of pollution control costs, reg-
ulatory delays, and permitting un-
certainties never see the light of day.
This critical review is not intended to
suggest that specific environmental re-
quirements should be removed. It is de-
finitely sound national policy, in my view,
that all new industrial projects should in-
corporate excellent, albeit costly, pollu-
tion controls. This also entails a need for
a preconstruction permitting process with
thorough, and public, review of proposed
plans. Yet there is no free lunch. This
process entails a cost, and the cost is a
drag on economic vitality.
Moreover, some of the regulatory con-
trols are excessive. The overall effect of
the regulatory framework, especially
several features of the Clean Air Act, un-
necessarily discourages private in-
vestment. In so doing it slows down the
^industrialization of this country. It costs
us jobs. It also retards environmental
progress. D
MARCH 1984
31
-------
Facing the Issue
of Acid
Helicoi
Mou:
Const-'
rain.
Recently EPA Administrator William D.
Ruckelshaus testified before the Senate
Committee on Environment and Public
Works on acid rain. Excerpts of his com-
ments follow:
"As the President said in his State of
the Union speech, there is great concern
in this country and in Canada about the
problem of acid rain, i share that concern
as does the President. I am determined
to forge an understanding of the causes,
effects and solutions to acid rain as
quickly as possible. Several members of
this Committee already believe we know
enough about the problem to fashion a
solution. This belief is shared by many in
the country. Others in and out of the
Congress believe otherwise. On the basis
of the current state of scientific know-
ledge, the Administration is not prepared
to recommend additional sulfur oxide
controls.
"That does not mean the door is
closed. It simply means that before
launching the country on an expensive
and potentially divisive control program,
we feel we need more scientific informa-
tion.
"Such questions as the scope and pace
of the damage are at the top of the list of
our research agenda. In addition, a better
understanding of the mechanism where-
by deposition affects sensitive areas and
of the acidification process itself would
be helpful in finalizing any control strat-
egy. We do not believe that pursuing
these scientific puzzles as diligently as
possible will cause an unacceptable de-
lay. The Administration is in favor of
finding a solution to the complex prob-
lem of acid rain. When the fundamental
scientific uncertainties have been re-
duced, this Administration will craft and
support an appropriate set of measures
to solve the acid rain problem.
"Based on my study of this problem
over the last few months, I would
summarize what we know about acid rain
at this time by the following major
points:
• The northeastern United States and
southeastern Canada receive rainfall that
is, on average, more acidic than rainfall
elsewhere in the country. Rainfall in
much of the Northeast has a pH of 4.2
compared with rainfall with a pH of ap-
proximately 5.0 to 5.6 elsewhere.
• This same region is located downwind
from the area in the U.S. and Canada
which has the greatest density of sulfur
oxide emissions.
• There are acidified, clear lakes (other-
wise unaffected by man's activities) in
areas which receive heavy acid deposi-
tion. In contrast, there are few, if any,
affected lakes where acid deposition is
less.
• Most scientists active in the field be-
lieve that acidic deposition has been a
major contributor to acidification of these
lakes.
• Not all areas in the eastern United
States are sensitive to acid deposition.
The areas at risk are those which both re-
ceive high levels of acidic deposition and
have limited alkalinity or buffering capac-
ity.
• We are seeing damage to some tree
species in parts of the United States.
Several environmental stresses, including
acid rain, ozone, trace metals, and
drought, may be interacting or acting
alone to cause these effects.
"Let me highlight a few of the areas
where the unsettled state of knowledge
appears to be particularly important to
the development of policy.
The Scope of the Problem: We really do
not know the extent of damage to our
aquatic resources from acid deposition.
Based on the data available, we know of
approximately two hundred lakes, almost
all of which are in the Adirondacks, that
are acidified nationwide. This covers a
very small percentage of the surface
water of the country. I have no doubt
that others will be identified as acidic,
but we have not yet made a systematic
search for them. Certainly our water
quality models would suggest that such
additional surface waters susceptible to
damage by acid deposition do exist. We
need to get a more accurate picture of
the scope and extent of this damage.
Trends: Our knowledge of the pace at
which the environment is changing is
very thin.
"There are four components of the en-
vironment where trends are particularly
important: (1) the sulfate and nitrate con-
centrations in deposition, (2) the pH (a
measure of acidity) of rainfall, (3) the sul-
fate and nitrate concentration in water
bodies, and (4) the rate at which water
bodies are becoming acidified.
"In the area of deposition trends,
efforts to monitor trends began in
earnest in the United States during the
late 1970s. Today, the National Trends
network includes 120 monitoring sites in
48 states, including most of the early
monitoring sites established in the 1970s.
Several more years of data are needed
before any conclusions can be reached
from this network about trends in the sul-
fate and nitrate concentration in pre-
cipitation.
"Longer time trend analysis has been
made on the basis of results from the
Hubbard Brook Ecosystem Study, which
ran from 1963 to 1977. The Hubbard
Brook data indicate a decrease in sulfate
concentrations and an increase in nitrate
concentrations in rainfall, but the data
did not indicate any trend in pH in the
rainfall during the same period.
"These limited deposition data suggest
that sulfate and nitrate concentrations in
deposition reflect changes in emissions
and that the net result of decreasing S02
emissions and increasing NOX emissions
has been a relatively stable average pH
of precipitation.
"Turning to the sulfate and nitrate con-
centration in water bodies, the
U.S.Geological Survey recently published
its study of water-quality records col-
lected over a 10-to 15-year period from
the Hydrologic Bench-Mark Network, a
nationwide network of sampling stations
in predominately undeveloped stream
basins. The data indicate declines in
stream sulfate in the Northeast and in-
creases in sulfate in a number of sites in
the Southeast and the West. The U.S.G.S.
concluded that the geographic trends in
sulfate concentrations at Bench Mark Sta-
tions approximately coincides with trends
EPA JOURNAL
-------
in emissions of S02 during the period
from 1965 to 1980. In contrast, the trends
in pH did not follow any pattern. Among
the explanations for the lack of a pH
trend are the possible effects of nitrate
deposition on pH and the neutralizing
capacity of many basins which resist
changes in pH.
"Our knowledge of the trends in the
number of water bodies becoming acidic
is even thinner. Recent data show a num-
ber of lakes having low pH and high sul-
fate concentrations. Most scientists be-
lieve that condition to be the result of
acid deposition. We have other data
which identify a number of acidified lakes
in areas of high acid deposition. These
data show a number of other lakes with
low alkalinity measurements. But we do
not have any long-term data to indicate
how the present chemistry of these lakes
was established, or over what time peri-
od.
"Obviously whether we are dealing
with a rapidly deteriorating situation or a
decades-long phenomenon is important
in deciding what to do.
Source/Receptor Relationships: No dis-
cussion of acid rain would be complete
without a discussion of the relation be-
tween the sources of emissions and the
sensitive receiving areas. Our present
knowledge is based, as you know, on
very simplified transport'transformation
models. The recent National Academy of
Sciences panel dealt with this issue at
length. Everyone, including the Academy,
agrees that further research in this area
is important. It is fair to say that current
models and data analysis cannot accur-
ately predict the impact of a particular
group of emission sources on particular
receiving areas several hundred miles
away. The assumptions upon which
these models are based tend to produce
results which indicate that local sources
are more important than distant sources
of the same size. The relative importance
of local versus distant sources as well as
many other factors have to be addressed
in order to adequately predict source/
receptor relationships.
The Role of Dry Deposition: Related to
the transport/transformation issue is the
quantitative and qualitative relationship
between 'wet' and 'dry' deposition. To
date most of our data relate to 'wet'
deposition in rainfall. We do not know
the extent of 'dry' deposition that is
occurring because reliable field
monitoring techniques are not yet
available.('Dry' deposition is acidic gases
and particulates settling on a surface.)
From the data available, we estimate that
the amounts of dry deposition occurring
may be from one half to 7 times the level
of wet deposition, depending upon the
particular location. In remote areas, es-
timates are that the dry deposition con-
tribution ranges from equal to half that of
the wet deposition. We should learn
more about all forms of deposition, par-
ticularly dry deposition, if we are to con-
trol the precursors to acid rain effectively
and efficientty.
The Acidification Process: Over the last
year and a half, as the result of new
knowledge from our present acid rain re-
search program, an issue has been
emerging from the scientific and academ-
ic communities; it involves two different
hypotheses about how the acidification
process actually takes place in water-
sheds and at what pace. For the purpose
of this discussion, I'll call them the 'de-
layed response' hypothesis and the 'di-
rect response' hypothesis.
"The 'delayed response' hypothesis
holds that the acidification of lakes is a
long-term process. The accumulation of
MARCH 1984
-------
acid deposition over many years even-
tually depletes the available acid
neutralizing capacity in the surrounding
watershed. As that point is reached,
more and more acidity will flow un-
neutralized into the waterbody leading to
rapid acidification.
"The implication of this hypothesis is
that unless acidic deposition is de-
creased, we will see more and more
lakes and streams becoming acidic as the
neutralizing capacity is depleted in in-
dividual watersheds.
"The 'direct response' hypothesis is
suggested as especially applicable to the
Northeast. It holds that acidification of
lakes is more immediate than long-term
in nature. Under this hypothesis, the
sensitivity of a watershed depends upon
the rate at which it can neutralize acidity,
not upon some limited neutralizing
alkalinity capacity. Equilibrium between
the rate of acid input and output is es-
tablished fairly rapidly as precipitation
passes through the receiving soils.
"This hypothesis implies that the
acidification which has already occurred
in our lakes and streams is all that will
occur unless future levels of acidic depo-
sition increase. I am told by our scientists
that there is not enough empirical evi-
dence today to substantiate either of
these hypotheses. There are obvious
policy implications if the latter hypothesis
is true.
Effects on Forests: The final area where
additional research is especially impor-
tant is that of effects on forests. Beyond
knowing that there has been an apparent
decline in the condition of some of our
forests, we know little about the scope of
the problem or its causes. Acid deposi-
tion may be a primary cause, and then
again it may not. We need to examine
not only the direct impact of the deposi-
tion on the foliage but also the indirect
impact of deposition through changes in
chemistry of the soils.
Future Actions
The budgetary history of the National
Acid Precipitation Assessment Program is
impressive:
Fiscal Year
1980
1981
1982
1983
1984
$ million
$11.5
$13.0
$18.2
$22.6
$27.6
1984 SupplementalRequest $ 5.5
1985 Request $55.5
TOTAL:
$153.9
This money is aimed at increasing our
knowledge of the causes and effects of
acid rain.
"Important to a cost-effective control
strategy will be success in developing
new technology. The Administration's
budget includes $67 million for this pur-
pose in Fiscal Year 1985.
"The President has also committed $5
million for an experimental program to
help restore the buffering capacity that
has been reduced in affected lakes over
the years. This program, to be admin-
istered by the Fish and Wildlife Service,
will be closely tied to our overall re-
search effort and will build upon existing
experience. Several countries in Scandi-
navia have had some experience in
employing lake restoration techniques.
The states wit) be involved in the design
and implementation of this program. It
will involve restoration of a number of
lakes. We will seek to protect certain
sensitive lakes from further deterioration
and help others recover from dangerous-
ly low pH levels. White we do not view
restoration as a permanent or long-term
solution to the acid rain problem, it may
prove to be an essential component to
addressing acid rain now as well as in
the future.
"With the $55.5 million for the inter-
agency research effort, $5 million for
effects mitigation, and $67 million for
control technology research, the
President is requesting a total of $127.5
million in FY 1985 for efforts to address
acid rain.
New Research Initiatives:
"Now I would like to focus on how we
have been using our research resources
to fill some of the key information gaps I
have already identified. Scope: To impr-
ove our knowledge of the effect that acid
rain has had on the Nation's aquatic re-
sources, I directed the EPA staff last
November to immediately begin the de-
sign and implementation of a National
Lake Survey to measure the water quality
of some 2000-3000 lakes located in areas
of the Nation we believe are potentially
sensitive to acid deposition. This includes
lakes in all of the sensitive regions of the
United States, Pilot sampling has already
been carried out in New England and
New York to test out field procedures.
These water quality measurements are
scheduled to be completed by the end of
!984 and will be the first phase of a
planned three-phase program. The
second phase will extend the survey to
the chemistry of streams in these areas
and will also include a biological survey
of a subset of the lakes in the initial sur-
vey. The final phase will be the long-term
monitoring of a representative number of
lakes and streams to record trends in the
chemistry and biota of these waters as
well as acid deposition.
"This study is designed to answer
these important questions: (I) How many
surface waters today show evidence of
acidification? (2) What influence does
acid rain have on surface water chemis-
try and biota? (3) what percent of these
sensitive surface waters now support
fish? and (4) what impact do changes in
acid deposition levels have on lake acid-
ity over time?
Trends: Our planned research program
includes several major elements de-
signed to fill the gaps in trend data which
I outlined earlier:
Sulfate and Nitrate Concentrations in
Deposition: In fiscal year 1985, the wet
deposition monitoring effort will expand
the number of wet deposition monitoring
sites under the National Trends Network.
The original network was to have had ap-
proximately 150 sites established by the
end of 1985. With the additional research
funding, the network will be expanded by
40 to 50 additional sites within the same
time period. The expanded number of
stations will provide the deposition data
required at the long-term lake and ecolo-
gical monitoring sites.
"Up to this time we have had no meas-
ured data on dry deposition. The re-
search program calls for the es-
tablishment of a number of pilot dry
deposition sites. These sites will be part
of an accelerated effort to develop and
validate dry deposition monitoring tech-
niques, and they wil1 provide the first
data on dry deposition irt 1985.
pH of Rainfall: This same expansion of
the National Trends Network wilt give us
much better information on the trends in
pH of rainfall across the country.
Sulfate and Nitrate Concentration in Re-
ceptors, Including Water Bodies: Current
plans call for the establishment of 40 to
50 long-term environmental effects
monitoring sites. These will include Lake
Survey 'phase three ' sites and a number
of additional sites where we will monitor
for terrestrial, soil and surface water
effects. They will be coordinated with the
additional National Trends Network wet
deposition monitoring sites. These data
will provide extensive information at the
process level on trends in chemistry and
effects. These sites will be established in
1985 and will be designed to provide an
early warning of any dramatic environ-
mental changes that might occur.
Number of Water Bodies Becoming Acidi-
fied: The National Lake Survey to be car-
ried out this year will provide us a base-
line of water bodies now acidified. It will
also provide us with the information to
select long-term monitoring sites, which
will be representative of watersheds
nationwide for the purpose of discerning
trends in lake acidification.
V,
EPA JOURNAL
-------
Source^Receptor Relationships: To at-
tempt to help resolve important ques-
tions regarding sources and receptors we
plan to conduct field studies to try to re-
late pollutant sources to acidic deposi-
tion. Studies now under way should heip
us understand the processes that govern
the formation of acidic pollutants in the
atmosphere and their transport and
deposition in sensitive areas.
"We are planning a large-scale atmo-
spheric investigation to obtain empirical
data on source/receptor relationships. As
part of this research, a major experiment
has just been completed in which inert
tracers were released in the Midwest and
Canada and then tracked in air masses
moving across the Northeastern U.S. and
Southeastern Canada. Initial findings will
be available later this year.
The Acidification Process: We are asking
the National Academy of Sciences to
convene a scientific meeting as soon as
possible to review the two hypotheses
regarding aquatic acidification (the "de-
layed reponse' and 'direct response' hy-
potheses) and determine whether they
are legitimately in dispute, and, if so, to
recommend additional research initia-
tives to help resolve the areas of dis-
agreement.
Effects on Forests: In order to learn more
about possible terrestrial effects, we are
planning extensive long-term studies to
determine whether acid rain has caused
damage or changes in rate of growth and
species composition in forests. Detailed
planning for the forest survey began in
1983. The forest survey is being designed
now, and it should be available for im-
plementation in about a year.
"The FY 85 research program includes
a large expansion of the effort on terres-
trial effects. In addition to the forest sur-
vey which I just described, the program
calls for extensive new research to exam-
ine problems of nutrient leaching, metal
mobilization, solid chemistry, and the
physiology and pathology of trees.
Obviously this testimony cannot include
all the research in which we are engaged,
but I have sought to highlight how we
are attempting to fill some gaps in our
knowledge important to the development
of policy." D
$295 Million
More for EPA
President Reagan has proposed a $4.2
billion fiscal 1985 budget for EPA, in-
cluding a 27 percent boost for enforce-
ment and a 7 percent overall increase.
The general raise for EPA is one of the
largest proposed percentage increases in
the domestic federal budget for the
coming year.
The EPA budget "recognizes the high
priority the environment has with the
President, the Congress and the Amer-
ican people," Administrator William D.
Ruckelshaus said.
The proposed EPA budget is $295 mil-
lion more than the 1984 budget of $3.9
billion. It calls for spending increases in
nearly all of the Agency's programs, in-
cluding a 124 percent increase in
spending for acid rain research. Other in-
creases in the budget include:
• Spending for the Superfund program
grows to $640 million, up $230 million
from the 1984 budget of $410 million, or
an increase of 56 percent. The President
is also asking for an additional $50 mil-
lion for the Superfund program for fiscal
1984.
• The Agency's operating budget in-
creases by 9 percent to $1.2 billion, $95
million more than last year's $1.1 billion
budget.
• EPA's research and development
budget grows to $278 million, $33 million
more than the 1984 budget, or 14 per-
cent.
• EPA's funding for enforcement in-
creases to $152 million, $32 million over
the 1984 budget.
• EPA's support for the Chesapeake Bay
cleanup program increases to $10 mil-
lion, a $5.8 million gain over last year's
budget.
• Funding for municipal sewage treat-
ment construction grants remains stable
from last year's budget at $2.4 billion.
Ruckelshaus said the expanded budget,
together with the $295 million provided
in the amendment to the President's 1984
budget, increases EPA's resources by
$590 million since he returned as Ad-
ministrator of the agency.
"My long-range priorities reflect specif-
ic charges the President gave me when I
returned as Administrator last May, and
the press of problems—some old, some
new, and all difficult—that the Agency
EPA operating budget up 27 percent;
S4.249
Operating
Programs
Superfund
Construction
Grants
(Sin millions)
$3.659
$949
S310
$2,400
$3.954
$1,114
$410
$2.430
$1.209
$640
$2.400
Up 27%
Up 106%
Stable
FY 1984 FY 1984 FY 1985
President's Budget Current Estimate President's Budget
MARCH 1984
35
-------
must try to solve in carrying out its man-
date," Ruckelshaus said. "Our 1985
budget represents careful analysis by
myself and top Agency managers to
focus our resource investment to achieve
specific environmental improvement.
"EPA's 1985 budget is the result of the
second set of budget-related decisions
and initiatives I have taken since
becoming Administrator. With the help of
Congress and the strong support of the
Administration, we were able to signifi-
cantly increase the Agency's budget for
the fiscal year that started in October
1983. Our 1985 budget continues a peri-
od of expansion for the Environmental
Protection Agency, an expansion neces-
sary for the Agency's talented employees
to do their job and to restore the public's
trust in EPA."
Ruckelshaus said the budget reflects
the Reagan Administration's commitment
to the cleanup of hazardous wastes, as
well as its intention to seek reauthoriza-
tion of the Superfund program. Most of
the 56 percent increase in the Superfund
budget over current 1984 levels will be
used to support a threefold increase from
last year in the number of sites where re-
medial cleanup will begin. Other pro-
posed Superfund program increases
would fund EPA's expanded enforcement
efforts, particularly for cost recovery and
for Superfund research and development.
In addition, the President's budget also
requests a 1984 supplemental budget of
$50 million to support the continued ex-
pansion of the Superfund program. The
increased funds will provide for more site
investigations, design and construction.
Based on current EPA estimates, there
will be sufficient funds to support the Su-
perfund program through the end of fis-
cal 1985, when Superfund taxing author-
ity expires. Ruckelshaus will submit a
study recommending changes in the Su-
perfund Act to Congress by the end of
this fall, as required by taw.
"The control of hazardous waste con-
tinues as the environmental issue of
most concern to Americans," Ruckel-
shaus said. "It is a technically complex
and highly emotional issue. Unless we
address the most critical needs in an effi-
cient and effective manner now, our
course will be set by the crisis of the mo-
ment. We must manage these challenges
in a thoughtful and rational way."
President Reagan's budget also more
than doubles EPA's funding of acid rain
research to $34.3 million in 1985, and it
calls for a 1984 supplemental increase for
acid rain research of $5.5 million to sup-
port the National Lakes Survey. The
Lakes Survey will measure acid rain dam-
age to approximately 3,000 lakes around
the country. Funding for acid rain re-
search throughout the federal gov-
ernment, including EPA, would also
double to $55.5 million from $27.6 mil-
lion in 1984.
"Many questions still remain un-
answered about the causes, effects and
methods of mitigating or controlling acid
rain," Ruckelshaus said. "In 1985, we will
expand the basic research program in
order to develop the necessary data to
fully understand the sources and charac-
teristics of acid rain, to define the extent
of damage caused by acid rain and—
most importantly—to provide realistic op-
tions for mitigating its effects."
Under the proposed budget, EPA's
Office of Research and Development
would receive additional resources to
strengthen research in four areas: acid
rain, risk assessment of toxic and
hazardous chemicals, the assessment of
technology for the control of pollutants
and the human health effects of environ-
mental pollutants.
Ruckelshaus said EPA's proposals to
increase its research resources "seek first
to improve the management of our re-
search efforts, and second to strengthen
the resource base where it is needed and
where it can be used effectively to
achieve measurable environmental bene-
fits."
EPA's budget includes dramatic in-
creases in the funding of the Agency's
enforcement efforts, 60 percent of which
will be directed toward the Superfund
program. And it increases the Agency's
resources for toxic substances enforce-
ment to support additional inspections
and case development for polychlorin-
ated biphenyl (PCS) and asbestos-in-
school rules. So that industrial and mu-
nicipal dischargers have permits in time
to comply with water statute limits, EPA's
increased enforcement budget is aimed
at eliminating the backlog of major water
permits by the end of fiscal year 1985.
The 1985 budget contains an initiative
to clean up the Chesapeake Bay. "We are
proposing a $10 million program for the
Chesapeake Bay, designed to support the
Bay states through cost-sharing grants
while continuing EPA's role in monitoring
and modeling," Ruckelshaus said.
"Our budget proposals are most sig-
nificant in that they are very clearly fo-
cused on the emerging needs of the
Agency," Ruckelshaus said. "With these
resources, we will be able to achieve the
objectives that the President, the Con-
gress and the people have set for the
Agency. These resource needs are a solid
foundation for the policies and strategies
we as a Nation must pursue to assure
continued progress across the spectrum
of environmental challenges." LI
650
181
62
119
52
142
118
72
31
23
25
47
18
18
76
116
33
FY 1985 Increase
260
Number of EPA Employees Increasing Sharply
194 (FY 1984 President's Budget vs. FY 1985)
18
75
185
192
31
161
3bO
300
Air Water Quality Drtnk.Water
36
Pest. Rad. Inter-Disciplin. Toxics
TOTAL WORKYEARS
Energy Hazard.Waste MGMT. Superfund
EPA JOURNAL
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Skulduggery in the Sewers
Last year, when investigators from
EPA's Office of the Inspector General
excavated sewer lines in three states,
they dug up more than the pipes them-
selves. They unearthed evidence of
fraud, and the fraud smel/ed as bad as
the sewers.
This article describes how the Office
of the Inspector General f/GJ uncovered
a scheme to defraud the United States
of mi/I ions of dollars.
Six years ago, Congress passed the In-
spector General Act of 1978 to prevent
and detect fraud and abuse in certain
government programs. The law es-
tablished independent units to audit and
investigate the operations of 14 major
federal agencies, including EPA. An In-
spector General's unit is located within
each agency itself but, to preserve in-
dependence, the law states that no one
in the agency "shall prevent or prohibit
the Inspector General from initiating,
carrying out, or completing any audit or
investigation, or from issuing any sub-
poena during the course of any audit or
investigation." Only the President of the
United States can appoint an Inspector
General, or remove one from office.
EPA established its Inspector General's
Office in 1980. Today, under the lead-
ership of current Inspector General John
C. Martin, the office is initiating a major
effort to combat fraud in the wastewater
construction grants program.
Sewers cam
That effort paid off in a big way in Jan-
uary this year, when three persons were
fined and sentenced to prison in one of
the largest fraud cases EPA has in-
vestigated.
The three were officers of a firm called
Municipal and Industrial Pipe Services,
Ltd. (MIPS). The case involved a scheme
to defraud the United States and state
and local govenments of some $8 million
for sewer rehabilitation work, much of
which was never done at all.
Sewer rehabilitation can save tax-
payers money. To clean up the Nation's
waterways, EPA, under the Clean Water
Act, provides federal funding for con-
struction of sewage treatment facilities
and installation of sewer pipe. But the
Agency also funds "rehab" of existing
sewer systems if this is determined to be
more cost-effective than upgrading ex-
isting facilities or building new ones.
The MIPS investigation began in Octo-
ber 1981. Two former employees told city
officials in Marietta, Ga., that David
Wirt, company owner and president, was
defrauding the federal government on an
EPA-funded sewer rehabilitation project
in Marietta. According to court docu-
ments, they said they had observed "de-
liberate pinching of test hoses and the
failure of grout to be used in sealing
sewer lines." They also testified that, at
MARCH 1984
37
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Update
A review o
AIR
the time they were hired, Wirt had told
them that the sewer rehabilitation busi-
ness "was just a scam anyway,"
EPA's Office of the Inspector General,
Southern Division — which is based in
Atlanta and covers 13 southern states —
began a criminal investigation. When evi-
dence showed that about half of the
company's contracts were with U.S. mili-
tary installations, the Inspector General's
office requested assistance from the De-
fense Criminal Investigative Service of
the Department of Defense.
Rehabilitating sewer pipe involves
cleaning by high-pressure water jet, fol-
lowed by television inspection with re-
mote cameras drawn through the pipe
from one manhole to the next by cable,
air-testing each joint for leaks, and
sealing leaking joints with two liquid
compounds that, when combined, gel in-
to a grout substance. Televising, testing,
and sealing are accomplished from inside
a van parked near one of the manholes.
City inspectors monitor these procedures
while sitting beside the TV operator in
the van.
Wirt manipulated his contracts when-
ever possible to provide for payment
according to the number of pipe joints
found to be defective by air-test and
requiring sealing. His main effort
thereafter was to thwart inspection
efforts — to keep inspectors off the
trucks, to "blitz" job sites with more TV
trucks and crews than there were in-
spectors to monitor them, to spread out
his trucks and crews as far as possible
over the project, to keep inspectors in
travel status between units, to fake
equipment breakdowns when inspectors
approached a unit, or to devise strategies
to make the inspectors extremely un-
comfortable in the TV trucks.
When these and other tactics failed, re-
pair crews and Wirt himself at times re-
sorted to intimidation of the inspectors,
sometimes threatening violence, physical
injury or lawsuits.
To corroborate the testimony of former
employees, sewer pipes were dug up at
Air Force bases in Mississippi and Texas
and at an EPA-funded project in Moultrie,
Ga. Analysis of pipe samples at EPA's
National Enforcement Investigations Cen-
ter in Denver showed that, in places
where grout was said to have been ap-
plied, there was actually little or no grout
at all.
Fraud
in the family
In the spring of 1982 a federal grand jury
in Atlanta began hearing evidence in the
case. In November 1982, the grand jury
returned a 47-count indictment against
Wirt, his wife Judith, company secretary
and treasurer, and his son Gordon, com-
pany vice-president. The indictment listed
32 locations around the world where the
company had defrauded the government,
involving S8 million in contracts. Of the
47 counts, 24 involved EPA-funded proj-
ects.
The indictment charged that the Wilts
had falsified reports to indicate comple-
tion of work that had, in fact, never been
done. Other counts included claiming to
have sealed defective sewer pipe joints
with grout when none was applied;
faking equipment breakdowns or other
delays until inspectors left job sites, and
installing hidden switches in the com-
pany's television inspection trucks to re-
route grout back into the truck tank while
the meter registered it as going to seal
sewer pipe joints. There were also sever-
al counts of mail fraud with respect to
city funds.
On January ",3, 1984 — 27 months
after the case was first brought to the
attention of EPA and 14 months after the
indictment was handed down — U.S. Dis-
trict Court Judge Robert L. Vining sent-
enced the three Wirts to prison terms
and fined each one $10,000.
In this case, investigators from the In-
spector General's Southern Division had
arranged for actual excavation, with
backhoe and shovel, of EPA-funded
sewerline projects. According to In-
spector General John Martin, this was
the first time EPA had conducted such an
investigation. "Our investigators took soil
samples from the area surrounding pipes
for lab analysis to determine whether or
not the joints had been grouted as
claimed," Martin explains. "This com-
pany had been defrauding the gov-
ernment for 10 years in the belief that no
one would ever start digging for evidence.
Martin said he hopes the convictions will
have a chilling effect on any other com-
panies out to defraud the Environmental
Protection Agency. D
Clean Air Sanctions
A proposal was recently an-
nounced by EPA to withhold
federal highway construction
funds and air quality planning
grants from Fresno County,
Calif.
EPA is taking this action be-
cause it is the Agency's opin-
ion that county officials have
not made reasonable efforts to
have a motor vehicle inspec-
tion and maintenance (I M)
program implemented in Fres-
no County as required by the
Clean Air Act.
Under the Act, six areas of
California were required to in-
clude I M programs in their
1979 State Implementation
Plans to meet federal ozone
and/or carbon monoxide stan-
dards. These areas include the
Los Angeles air basin, the San
Francisco Bay Area air basin,
the Sacramento area, and San
Diego, Ventura, and Fresno
counties.
Fresno County is the only
remaining California area not
meeting the standards for
ozone and or carbon monoxide
which, as yet, has not re-
quested implementation of the
I'M program. Because state
law requires such a request be-
fore the program can be im-
plemented, EPA is proposing
to withhold certain federal
funds as required by the Clean
Air Act.
Service Campaign
Subaru of America will con-
duct a voluntary campaign to
improve the performance of
the emission control system on
certain 1979 model vehicles,
EPA recently announced. The
campaign will include approx-
imately 78,000 vehicles.
The service campaign in-
cludes all 1979 models, except
those registered in Arizona,
Hawaii, Idaho, Montana, Neva-
da, Ncrth Dakota, Oregon,
South Dakota, Washington and
Wyoming. California vehicles
also are not included in this ac-
tion because they do not use
leaded gasoline.
The vehicles, which are de-
signed to use leaded or un-
leaded gasoline, tend to devel-
op deposits in the exhaust gas
recirculation (EGR) system.
EPA said a build-up of the de-
posits on some of the vehicles
has clogged the EGR system
EPA JOURNAL
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recent major EPA activities and developments in the pollution control program areas
which reduces the gas flow
and increases nitrogen oxides
emissions from the tailpipe.
The degree of clogging
appears to be related to the
concentration of lead in leaded
gasoline which the vehicles
have used during their lifetime.
The system operates by
recirculating a small fraction of
exhaust gases from engine
combustion back through the
combustion process.
Subaru has volunteered to
correct the problem at no cost
to the owners by cleaning the
EGR system or replacing parts
if necessary. Subaru has sent
notification to the owners of
the approximately 78,000 vehi-
cles it estimates to be involved.
Diesel Standards
EPA is postponing for two
years more stringent standards
for diesel particulate emissions
from passenger cars and light
duty trucks.
A final rule signed by EPA
Administrator William D. Ruck-
elshaus moves the compliance
schedule for additional reduc-
tions of particulates from 1985
to the 1987 model year for the
vehicles.
EPA said it has determined
that the delay is necessary to
provide adequate lead time for
manufacturers to complete de-
velopment and testing of trap-
oxidizer systems which will be
required for many light-duty di-
esels in order to meet the stan-
dards.
The Agency said little en-
vironmental harm should result
from the delay, since it is lim-
ited just to the 1985 and 1986
model years. Light-duty diesel
vehicle sales have dropped to
about two percent and should
not rise significantly in this
interim period. In addition,
many light duty diesel vehicles
are actually emitting levels well
below current requirements.
Videotape on Bicycling
"Bicycling to Work", a
videotape which encourages
bicycle commuting as a way of
reducing urban air pollution, is
being released by EPA.
"Bicycling to Work" features
bicycle commuters who tell
about finding a good bike
route, safety, bike parking,
keeping a professional appear-
ance, commuting equipment,
maintenance and rain and
night riding.
EPA also has available an in-
formation packet about how to
put on a bicycle commuting
seminar. "Bicycling to Work" is
part of the presentation. The
packet describes the logistics
and content for a seminar.
Commuting seminars can be
organized in conjunction with a
"Bike Day," for which EPA also
has an information booklet:
"How to Organize a Bike Day."
The "Bicycling to Work"
videotape (3'4 inch) may be
borrowed from any of EPA's
Regional Offices and from
EPA's Headquarters. The "In-
formation Packet" and "How to
Organize a Bike Day" are also
available at any of these loca-
tions. Those who would like a
permanent copy of the
"Bicycling to Work" tape may
either copy from the loan tape
or send a blank tape, any for-
mat, to N. Dianne Rowe, EPA
(ANR-445), Washington, D.C.
20460.
HAZARDOUS WASTES
Waste Site Investigation
EPA recently announced an
award of $698,589 to the State
of California to determine pos-
sible sources and the extent of
contamination by PCBs
(polychlorinated biphenyls) and
heavy metals at the Purity Oil
Sales site in the town of Mala-
ga, located two miles south of
Fresno, Calif.
The state will also look for
possible air pollution hazards,
since nearby residents have
complained about strong odors
emanating from the six-acre
waste site.
Purity Oil Sales is one of 546
sites targeted for priority action
under EPA's Superfund pro-
gram. Oily liquids and sludges
have been disposed of at the
site for many years, and some
liquid wastes remain in storage
there. An unknown sludge-like
substance is oozing from filled
areas and has entered adjacent
properties.
Soil samples containing sig-
nificant concentrations of
PCBs, lead, copper, zinc, and
various volatile compounds
have been collected by EPA at
the site, which was a waste oil
refinery and reclaiming facility
from 1940 until it was closed
almost 10 years ago in 1974.
Toll-free Telephones
Plans were announced by EPA
to upgrade significantly its toll-
free telephone service, which
provides information on the
Agency's Superfund cleanup
and hazardous waste regula-
tory programs.
Under a new three-year, $1
million contract awarded to
Geo-Resource Consultants of
San Francisco, the hotline will
become a computerized in-
formation management system
capable of storing data on in-
quiries and responses for quick
access and reference.
The toll-free number can be
used by anyone with a ques-
tion concerning the federal
hazardous waste management
activities carried out under the
Resource Conservation and
Recovery Act (RCRA) and the
Comprehensive Environmental
Response, Compensation, and
Liability Act (Superfund). A
separate toll-free number is
available to report spills and
other releases of hazardous
substances.
Under the new Hotline con-
tract, five specialists will be
available to handle the approx-
imately 3,500 questions per
month over four toll-free lines
and two local lines.
The RCRA Superfund Hotline
service is located at EPA head-
quarters in Washington, D.C.
Phone lines are open from
8:30 am to 4:30 pm Eastern
Time, at (800) 424-9346. For
callers from the Washington,
D.C., metropolitan area or out-
side the United States, the Hot-
line number is (202) 382-3000.
The numbers to report
hazardous substances spills
and releases are (800) 424-8802
nationally and (202) 426-2675
in the Washington, D.C. metro-
politan area.
PESTICIDES
Action on DBCP
EPA has moved to ban the
remaining uses of the soil
fumigant DBCP on pineapple
fields in the Hawaiian Islands
after obtaining significant new
information showing
groundwater contamination by
the pesticide.
Accordingly, the Agency has
proposed its intention to cancel
registration of pesticide prod-
ucts containing DBCP (di-
bromochloropropane), a pesti-
cide used to control nema-
todes (root worms) which
damage pineapple plants.
EPA is taking this action after
new evidence was produced
from two years of groundwater
monitoring that shows detect-
able levels of DBCP in
groundwater at approximately
eight new sites. The
monitoring program, under-
taken with the State of Hawaii,
has identified wells and shafts
which tap aquifers in Oahu and
Maui as being contaminated.
Such aquifers are the principal
source of fresh water in
Hawaii.
Under EPA's proposal, DBCP
products registered for use on
the pineapple fields in the
Hawaiian Islands would be
cancelled. This is the only
remaining use of this pesticide.
All other uses were cancelled
on March 5, 1981.
Use of existing stocks of
DBCP would be permitted until
Dec. 31, 1986, only on the
island of Maui and only on
fields where it has been de-
termined that contamination of
drinking water will not occur.
The proceedings to ban the
soil fumigant are based on in-
formation showing that male
plant workers exposed to
DBCP had experienced low and
zero sperm counts. Laboratory
animal test data indicated that
the substance is a carcinogen.
In addition, laboratory studies
have demonstrated that DBCP
causes genetic damage which
is capable of being inherited.
Pesticide Exemption Rules
EPA held public hearings in
January on its regulations
which grant emergency ex-
emptions for using pesticides.
The Agency is planning to
revise its regulations for
emergency exemptions and is
soliciting public comments
prior to publishing any pro-
posed changes.
Requests for emergency ex-
emptions are for using pesti-
cide products not registered by
the Agency or, if registered, for
application in emergency con-
ditions.
The following are some of
the issues that are being con-
sidered:
• the criteria for risk and eco-
nomic loss which must be
shown to support a claim of
emergency exemption;
MARCH 1964
39
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• the exemption criteria for
use of cancelled and sus-
pended pesticides, for limiting
the length of time exemptions
may be granted for the same
pesticide and for requests of
multiple chemicals to combat a
single pest;
• requirements for information
concerning available registered
alternative pesticides when an
exemption is sought;
• reporting and enforcing re-
quirements;
• the addition to the regula-
tions of a description of how
the agency considers potential
risk in the processing of ex-
emption requests.
TOXIC SUBSTANCES
New Toxics Rule
EPA is taking its first action
under Section 5(f) of the Toxic
Substances Control Act to
regulate immediately human
health risks.
The Agency's action, signed
by EPA Administrator William
0. Ruckelshaus on Jan. 19, and
published in the Federal
Register Jan. 23, was effective
immediately.
The 5(f) action involves pro-
posing a rule to protect metal-
workers from unreasonable
health risks by prohibiting the
addition of nitrites to a new
chemical substance intended
for use as a corrosion-
inhibiting additive in fluids
used in metal cutting.
Under Section 5 of TSCA
any manufacturer of a new
substance must notify EPA at
least 90 days before man-
ufacture begins. If EPA identi-
fies health or environmental
risks, Section 5(f) gives the
Agency the authority to regu-
late those risks immediately.
In this case the Agency has
evidence that nitrosamine com-
pounds are carcinogenic and
are formed when nitrites or
other nitrosating agents are
mixed with cutting fluids con-
taining certain amines, such as
this chemical. Workers would
be exposed to the carcinogenic
nitrosamines during machining
operations. Nitrosamine de-
rivatives are known animal car-
cinogens. The route of expo-
sure for workers is through the
skin, the lungs and gastrointes-
tinal tract.
The new rule is the first of
three related steps under way
in EPA to address nitrosamine-
related health risks from
metalworking shops. As a
second step, the Agency will
soon issue a Chemical Advi-
sory to warn about the risks of
nitrosamine formation associ-
ated with the addition of
nitrosating agents to all amine-
based metalworking fluids.
The final step will be to issue
a general rule under Section 6
of TSCA to control the forma-
tion of nitrosamines in
metalworking fluids.
Chemical Imports Policy
EPA issued a policy an-
nouncing how it will assist in
enforcing the U.S. Customs
Service's chemical substances
import rule. EPA's policy state-
ment on the new Customs Ser-
vice regulation explains the
means by which an importer
may fully meet all certification
requirements and sets forth the
actions the importer should
take to verify the identity of the
imported chemical and how to
determine if it is subject to the
rules of the Toxic Substances
Control Act (TSCA) which EPA
administers.
The Customs' rule requires
all importers of chemical sub-
stances in bulk or mixtures to
certify on entry documents or
invoices that each shipment
complies with all applicable
rules and orders under TSCA.
Importers of chemicals not
subject to TSCA must certify at
the port of entry that the ship-
ment is being imported for
non-TSCA use (for example, as
a pesticide).
WATER
Aquifer Designations
Six aquifers have been desig-
nated by EPA as sole or prin-
cipal sources of drinking water.
The designation will provide
additional protection to aquif-
ers serving parts of New
Jersey, Massachusetts, Rhode
Island, New York, and Arizona.
The purpose of the de-
signations is to provide an ex-
tra level of federal protection
to sources of drinking water, in
addition to other federal, state,
and focal laws guarding
against contamination of
drinking water.
As part of the protection of
sole source aquifers, EPA is re-
quired after designation to re-
view projects funded by the
Federal government's assis-
tance programs, such as high-
ways, sewage treatment works
and large housing de-
velopments, to determine if
they would have an adverse
effect on the aquifer. The EPA
Administrator is authorized by
law to veto such a federal
project if he finds that it may
contaminate the aquifer
through a recharge zone so as
to create a significant hazard to
public health.
Although the veto has not
been employed to date, a num-
ber of projects have been mod-
ified to incorporate greater
ground water protection fea-
tures as the result of EPA re-
views.
Waste Pond Report
A national Surface Im-
poundment Assessment Report
is being published by EPA. The
study, based on data collected
between 1979 and 1980,
assesses the magnitude and
severity of groundwater prob-
lems posed by nearly 181,000
waste ponds identified in the
survey.
The study is the most com-
prehensive look at this practice
on a nationwide basis that has
been done to date. The re-
port's descriptions of state pro-
grams, while accurate for the
time the study was done, have
been superceded by changes
that have been made in many
state programs in recent years.
In view of potential threats
to groundwater by surface im-
poundments and Con-
gressional interest in
regulating these facilities, the
Agency plans to conduct a
follow-up study to assess cur-
rent state regulatory programs
and to define the problem in
greater depth.
EPA initiated the report in
1978 and provided grants to
the states to conduct the
assessment.
It is expected that this report
will be useful in development
of future policies to protect the
Nation's groundwater supplies.
Copies of the full report are
available from the EPA Press
Office.
AGENCYWIDE
Appointments
Paul G. Keough was recently
named Deputy Regional Ad-
ministrator of EPA's Region 1
office in Boston. Keough's pre-
vious service with EPA in Re-
gion 1 included experience as
Acting Deputy Regional Ad-
ministrator, Acting Regional
Administrator, Senior Policy
Advisor and Director of the
Office of Public Affairs. Before
joining EPA he had worked as
press secretary to the Gov-
ernor of Massachusetts, press
secretary to the Massachusetts
Senate President, news direc-
tor for the Newton
Broadcasting Company in
Newton, Mass., and reporter
for the Patroit Ledger in Quin-
cy, Mass. He graduated with a
B.A. degree from Northeastern
University in 1968 and an
M.P.A. from this university in
1975.
Douglas P.J. Rentschler Blazey
was named Regional Counsel
in EPA's Region 2 in New York.
His previous jobs include chief
counsel for the Pennsylvania
Department of Environmental
Resources, director of the
Bureau of Administrative En-
forcement in the Department,
chief of the Eastern Division in
the Bureau of Litigation in the
Department, Special Assistant
Attorney General in the Penn-
sylvania Department of Health,
an attorney in a Philadelphia
law firm and a teacher in the
Trenton, N.J., public schools.
He graduated with a B.A. de-
gree from Wesleyan University
and a law degree from Yale
Law School. L
40
EPA JOURNAL
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View of frozen Lake Superior from one of
the islands in Apostle Islands National
Lakeshore in northern Wisconsin
Back cover: A male wood duck photo-
graphed by Steve Delaney of EPA's Office
of Public Affairs.
-------
United States
Environmental Protection
Agency
Washington DC 20460
Third-Class Bulk
Postage and Fees Paid
EPA
Permit No. G-35
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Penalty for Private Use
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