In 1978 I was a branch chief in the newly created Hazardous Waste Management Division of EPA. I was charged with supervising the drafting of regulations to implement the hazardous waste portion of the Resource Conservation and Recovery Act of 1976 (RCRA). On June 15, 1978, my boss, John Lehman, Director of the Hazardous Waste Management Division, met with the entire staff of the Division. His purpose was to explain to the staff the new orders he had received on June 12 from Thomas Jorling, our politically appointed Assistant Administrator, and to present Mr. Jorling’s explanations for these orders. He [Jorling] said there were several recent developments including: President Carter’s directive to reduce the Federal budget to fight inflation; many new congressionally mandated programs in EPA with not enough resources to fully implement them; and the so-called taxpayer’s revolt.
Lehman told us that, according to Jorling, as a result of these presidential concerns, the hazardous waste management regulations of the RCRA would have to be reduced in scope.
In particular, Jorling felt the definition of what waste would be covered by the regulations would have to be changed. The definition could not be based on the characteristics of a waste, such as whether the waste causes cancer, causes birth defects or is poisonous, because by doing that it is not possible to accurately predict how much waste or which industry would be pulled into the program, thus making it difficult to accurately assess the cost to the polluting industries in advance.
Lehman said we would delay implementing the regulations in order to examine alternatives for reducing their scope, and that the staff would be involved in determining the economic impacts of those alternatives as well as their ramifications for other programs within the Agency. This exercise was to consist mainly of cutting things out of the regulations.
Shortly after that, Lehman told his three branch chiefs that Jorling also told him that additionally we were charged to come up with reasonable explanations about why we were doing this.
I told Lehman that these instructions were cruel, stupid and probably illegal. He agreed, but said it was not his job to contradict his boss. Lehman said Jorling would have to answer to Congress for his actions. (However, when that time came, Jorling lied to Congress.)
When Jorling realized that Lehman had divulged their conversation to his entire staff, he had Lehman call in his senior staff (myself included) to warn us that details of the June 15, 1978 meeting were not to be shared with the public. We should instruct the staff that the minutes should not be discussed with the public in any but the most general terms.
The Washington Post later ran an article about the EPA cut backs. It quoted White House press secretary Jody Powell saying “the White House would welcome resignations from officials who oppose the president’s attempts to bring ‘some realism’ to government regulation and to ‘involve the government as a whole in the fight against inflation’”.
I learned several important things about government from this occurrence. To understand the first, one needs to understand the chain of command. As with many, but not all, federal regulatory agencies, the administrator is appointed by the president (subject to the approval of the Senate). He or she serves “at the pleasure of the president,“ i.e. only the president can fire the administrator. This essentially reduces the administrator, despite his or her prestigious title, to little more than a White House staffer. No administrator of EPA has ever, to the best of my knowledge, defied the president. On the contrary, they are enthusiastic boosters of the president’s policies.
So when Congress writes laws instructing the administrator to write certain regulations and enforce them, it usually gives the administrator broad discretionary authority to do so. In reality therefore, Congress is actually giving this broad authority to the president. In this case the president used that authority to sabotage regulations intended “to protect human health and the environment” in order to fight inflation. Clearly this action was an abuse of power and probably illegal. But this kind of abuse of presidential authority is so commonplace and widespread that it hardly gets noticed.
Things did not go the way Jorling wanted. The publicity generated by President Carter’s action brought a groundswell of reaction (helped by me) that spawned prize winning TV documentaries and movies about industrial dumping of hazardous waste and Congressional oversight hearings by Sen. Carl Levin in 1979 and Rep. James Scheur in 1982, to name two. Additionally there were countless newspaper articles, TV interviews, and books about places like Love Canal and its victims.
EPA’s defense against this onslaught of bad publicity was that it did not have enough authority or money to clean up all hazardous waste dump sites. Although this argument was both false and irrelevant, it led to the passage of the Superfund law in 1980 which, ironically, did cost industry billions.
The Capture of EPA’s Waste Management Program
While this illustrates how the president, any president, is an unreliable executor of the laws of Congress, it does not illustrate how EPA’s RCRA hazardous waste program was captured by industry. It was not captured by the big industries which produce much of the wastes but by the much smaller waste disposal corporations such as SCA Services, Waste Management, Browning-Ferris Industries (BFI), Rollins Environmental Services, which one can see daily, extolling their environmental virtues from the sides garbage trucks.
To understand how this small industry captured the RCRA hazardous waste program one must first understand the general structure of EPA and some of its history.
EPA was founded in 1970 by amalgamating several other federal offices. For example, the EPA Air Office was the National Air Pollution Control Administration of the Department of Health, Education and Welfare (HEW). The EPA Solid Waste office (to which I belonged) was split off from HEW’s Public Health Service. Traditionally, the Public Health Service’s interest in solid waste was to teach garbage haulers to use sanitary methods especially in the use and design of landfills. Therefore, many of the Public Health Service officers who transferred to EPA tended to think of the waste management industry as their client. This is just one of many examples of EPA personnel thinking of the regulated industry as their client. Another is the EPA Pesticide Office which came out of the Department of Agriculture where regulatory capture was already well entrenched and many staffers thought of agribusiness as their client. These so-called program offices, e.g. solid waste, air and pesticides form EPA’s horizontal structure. Politically appointed assistant administrators supervise one or more program offices. The main function of program offices is to write regulations. As a result many EPA program offices have undergone regulatory capture including the Water Office.
The vertical structures are the ten EPA regional offices headquartered in Philadelphia, Chicago, San Francisco, etc. The ten Regional Administrators, although nominally subordinate to the administrator of EPA, are appointed by the President, without Senate confirmation, and can only be removed by the President. The position of regional administrator is usually recommended to the President by the leading politician in the region of the same political party as the President. The main function of regional offices is to oversee the enforcement of the regulations, which is mostly done by the states in the region. Thus the regional offices are structured along the same lines as the program offices; i. e. there is an air pollution enforcement office, a water pollution enforcement office, etc.
Whereas personnel in the Washington, DC program offices tend to associate with the industries they regulate, personnel in the regional offices tend to associate with the state governments and the business interests within their region. (In my experience, not too many EPA personnel associate with the people the agency is charged with protecting.)
In the case of the RCRA hazardous waste laws there are two categories of industries regulated, the industries that generate the wastes and the industries that dispose of them. Before the passage of the RCRA in 1976, and for a few years afterward, the philosophy of the Hazardous Waste Management Division, headed by John Lehman, was to write regulations in a way that encouraged industries, especially big industries, to handle their own wastes and not just turn them to someone else to dispose of them. At the time one would see factory designs by engineers showing the layout and flow of various parts of the plant with an arrow coming out labeled “To Waste.” One of our objects was to eliminate that arrow and make waste disposal part of the plant design. This concept was in keeping with the intent and spirit of the RCRA law to reduce the amount hazardous waste generated. The concept was generally accepted (if not completely understood) by our upper management.
There are several reasons why one would prefer hazardous wastes to be handled at the sites where they are produced, if practical, rather than by commercial waste haulers.
+ Since a factory will produce only a limited number of different kinds of hazardous wastes, plant engineers can optimally design safe disposal techniques. On the other hand, commercial hazardous waste disposal facilities handle such a wide variety and ever changing kinds of wastes it is impossible to design an optimal facility to treat all the wastes. Indeed, commercial facilities have a dreadful reputation for breakdowns and blow ups.
+ Commercial hazardous waste treatment and disposal facilities are run by private companies to make money. Their income is derived from the wastes they bring in. Their costs are derived from the treatment of those wastes. Any successful business works to maximize income and minimize costs. Therefore it is in their interest to prevent any reduction in the amount of hazardous wastes generated and to cut corners on the cost of treating those wastes. On the other hand, if factories treat their own wastes, on site, their incentive is to reduce the amount generated. Waste handling is not treated as a profit center, i.e. it is not run to make money for the company.
This policy (among many other things) was abandoned in the tumult that followed Thomas Jorling’s orders to redirect the drafting of hazardous waste regulations in order to carry out the President’s wishes.
The tumult arose because many Hazardous Waste Management Division staffers were upset by Jorling’s actions and a few of us went public with our concerns. After the resulting press coverage and Congressional oversight hearings, our activities were closely monitored by upper management. Jorling’s chief of staff, Gary Dietrich, replaced the director of the Office of Solid Waste Management, John Lehman’s immediate superior. Lehman kept his job for a while but he was no longer making the policy decisions, Dietrich was. I was transferred to a meaningless position.
The hazardous waste management industry, particularly Waste Management Inc. (WMI), took advantage of this opportunity to lobby even more strongly, especially with Gary Dietrich.
The waste management industry had been busy buying up landfills in anticipation of a windfall in new business and was not entirely happy with the direction the hazardous waste regulations had been going. They wanted strong regulations requiring generators of hazardous waste to use their services but weak regulations on how they could dispose of the wastes. The regulations, when eventually written, in July 1982, accommodated them. (Gary Dietrich left EPA in 1982 for a lucrative position as an expert consultant on hazardous waste.)
Before 1978 it had been EPA policy to discourage landfilling hazardous waste, but with the implementation of RCRA came the explosive growth of the landfill operators, with Waste Management Inc. (WMI) in the forefront.
Wayne Huizenga, WMI’s founder, was driving a garbage truck in Florida when he bought his own, in 1962. In 1968 He formed WMI. By 1969 his single truck had become a fleet. The company’s growth was marked with allegations of ties with organized crime; bribery; unfair competition practices; illegal political contributions; and disregard for the environment. Huizenga’s net worth in 2017 was estimated at $2.6 billion.
RCRA gives the Administrator of EPA no authority or responsibility for creating, promoting, or siting, hazardous waste disposal facilities. Under the law, the Administrator’s responsibility is limited to drafting and enforcing regulations for such facilities so as to “protect human health and the environment.” This limitation probably stemmed from the experience with the Atomic Energy Commission, which was abolished in 1974, but whose authority to both promote and regulate the nuclear power industry created an obvious conflict of interest.
Nevertheless, by 1980, as EPA executives started flocking to lucrative jobs in the hazardous waste disposal industry, EPA actively promoted hazardous waste landfills with ineffective controls and no insurance. It also did little to support alternatives to landfills. In fact, the EPA Administrator did not just promote facilities but, as it will be shown later, he actually required specific facilities to be built.
Under Gary Dietrich’s supervision, EPA finally published woefully weak regulations for the treatment, storage, and disposal of hazardous waste on May 19, 1980, which also established the basic “cradle to grave” approach to hazardous waste management that exists today. On one hand EPA was promulgating regulations requiring industries with hazardous wastes to register and fill out manifests and use only licensed waste haulers to dispose of their hazardous waste. On the other hand there were very few safe places to dispose of them. Into this vacuum poured the waste management industry. Firms like WMI scrambled to buy up old sites and create new ones. As Michael Brown put it:
“Like an imported animal species let loose on virgin soil, the waste brokers have proliferated throughout the nation, settling into a lagoon complex in one place, a landfill in another, and focusing their attention on highly industrialized states—California, Illinois, Indiana, Ohio, Texas. Several of them—SCA Services, waste Management, Browning-Ferris Industries, Rollins Environmental Services—have reached the proportions of conglomerates, gobbling up independent landfill operations and spreading themselves on vast sites.”
Waste disposal became the growth industry of the 1980s and made lots of fortunes. Its practices were sloppy, their sites were often no better than the ones portrayed in The Killing Ground, and there were credible reports of connections with organized crime. Companies bullied, lied, and bribed their way into poor rural communities who were bamboozled by them[i]. Their money corrupted EPA. Top EPA executives, including five Chief Administrators , numerous Deputy and Assistant Administrators (political appointees) and civil servants were pigs to a trough, taking lucrative jobs in the waste industry.
In order to illustrate the regulatory capture of EPA’s hazardous waste program consider the chart below. On the left side are listed several policies pertaining to hazardous waste management. The first column asks whether the policy was in the public interest. The second column asks whether the policy benefited the landfill operators and the third column asks whether EPA supported the policy.
Public opposition to EPA and the waste industry
It is seen that except in the first case, the policy interests of the landfill operators were not in the public’s interest yet EPA always supported the landfill operator’s interest. And from what I hear, they still do.
The only force opposing the waste industry juggernaut and EPA was the NIMBYs. In this context the NIMBYs (Not In My Back Yard) were local grass root organizations opposed to existing or prospective commercial hazardous waste facilities, usually landfills, in their area. They were frightened at the prospect of an industrial hazardous waste dump the size of several football fields in their “backyards”. They felt they were being given a snow job by the landfill operators, the politicians, the EPA, and local businessmen, who, in many instances, had a financial stake.
Several organizations gave the NIMBYs technical and moral support, support in how to organize and fight. Organizations such as Greenpeace, the North Carolina Waste Awareness and Reduction Network, The Southern Organizing Committee for Racial and Economic Justice, and the Citizens Clearinghouse for Hazardous Waste (CCHW). The latter was founded by Lois Gibbs, the brilliant organizer from the Love Canal toxic waste dump site in upstate New York, who, after victory, moved to the Washington area to create CCHW in 1981. She travels around the country teaching NIMBYs how to organize and fight and she recruited me as an unpaid technical advisor. The NIMBY movement was very successful in thwarting and frustrating the efforts of the hazardous waste management industry and EPA.
On July 26, 1982, also under Gary Dietrich’s supervision, EPA finally issued landfill standards required by RCRA in 1976. During that period scientific and technical evidence accumulated to show that beyond any reasonable doubt that there is no such thing as a secure hazardous waste landfill and that no one knew how to build one. The preamble to the regulations acknowledged as much. Nevertheless, EPA published regulations which would continue a practice which EPA knew would not work and which will ultimately cost the nation dearly both in terms of health and money.
A hazardous waste landfill is an underground dump which contains thousands of tons of poisonous industrial wastes, most of which remain poisonous forever, and which will dissolve in the rainwater which inevitably passes through it. Throughout the years many technologies have been tried to keep the wastes contained and none have succeeded. On the other hand, EPA has demonstrated many alternative technologies capable of safely recycling, destroying or detoxifying these wastes. Technologies which are readily available but underutilized.
Dumping is popular because it is cheap. It is cheap because unlike the competing alternatives, the real cost of dumping is not borne by the producer of the waste or by the disposer but by the people whose health and property values are destroyed when the wastes migrate onto their property and by the taxpayers who pay to clean it up, such as happened at Love Canal. It was in order to pander to this demand for cheap disposal that the politicians running EPA kept trying to find ways to continue the dumping of hazardous waste in landfills, despite the compelling evidence that it doesn’t work.
The July 26 regulations admit that landfills will leak and cannot be relied on to protect human health and the environment, as required by law. But Dietrich’s solution was that, rather than phasing them out, EPA would provide emergency relief and remedial action when a landfill fails. This is analogous to the Federal Aviation Administration issuing an airworthiness certificate to an airplane it knows to be unsafe but promising additional fire trucks and more hospital beds.
Passed as a response to public anxiety, The Superfund Law (the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)) was, by 1984, in full force. The act created a fund, paid for by the chemical industry, to clean up past, and often abandoned, hazardous waste dump sites.
Within EPA the Superfund program was managed by the same office that managed RCRA. In other words, the Superfund program, started out captured by the waste management industry and turned out to be still another windfall for it. Pressured by the waste management industry to spend Superfund money as fast as it could, EPA was paying millions to move pollution from one leaking dump site to another. Thousands of tons of dangerous Superfund clean-up wastes were moved to sites that were themselves leaking hazardous waste into the environment. It was inevitable that some sites to which Superfund wastes have been taken would also become Superfund sites.
One case was the Stringfellow dump site near Riverside, California, which had been designated a Superfund site. A firm called BKK was hired by the Superfund program to haul millions of gallons of hazardous waste from the Stringfellow site to BKK’s own landfill in West Covina, California. However, the BKK facility was also reported to be leaking. Moreover, BKK was one of the parties named as responsible for dumping hazardous wastes into the Stringfellow site in the first place. Thus, BKK was paid to dump hazardous wastes in Stringfellow, where it leaked into the environment, and then paid again to haul the wastes from Stringfellow to the BKK facility where it was leaking again. Later the BKK facility also became a Superfund site.
Aided by such shenanigans, Superfund funds soon ran out and had to be replenished. The legal concept of “joint and several liability” was applied (though later reversed by the Supreme Court) to help pay for cleanup. This meant that any one of the many polluters of a dump site could be held responsible for the entire cleanup costs. (Whoever paid could then sue the other polluters for their share of the costs.) This caused a major change in the behavior of the giant corporations, who generated a great deal of the hazardous waste, since the costs of cleaning up these old sites was significant. The concept of big industry handling its own wastes, while at first promoted and later rejected by EPA, was now taking hold, to the consternation of the waste management industry.
Even more bad news for the waste management industry and its EPA allies came in the form of the Hazardous and Solid Waste Amendments of 1984 (HSWA). Drafted in response to EPA’s poor performance, HSWA directed EPA to phase out land disposal of hazardous wastes, expanded the public’s ability to sue EPA, and dictated that should EPA miss regulatory deadlines, statutory “hammers” would fall putting into effect strict legislated rules.
New developments in hazardous waste
The waste management industry tried to cope with these new Congressional constraints by promoting a new breed of “scientific” waste management facilities. But the NIMBYs were not fooled.
In 1985, a company called GSX applied for a permit to build a commercial liquid hazardous waste treatment plant in Scotland County, North Carolina, which had a largely poor population of blacks and Native Americans. This was the beginning of a new wave of hazardous waste facilities. Wastewater from the plant would be discharged into the Lumber River, upstream of the drinking water intake of the town of Lumberton. It turned out to be a long, involved case with many unexpected twists, too long to be included here, but there are two especially relevant features of this story.
The first concerns the EPA Administrator under the first President Bush. William Reilly was a professional environmentalist and president of the World Wildlife Fund at the time of his appointment. One of Reilly’s first acts, in April 1989, without any explanation or public discussion, was to reopen the proceedings to withdraw North Carolina’s authority to manage the RCRA hazardous waste program.
North Carolina had written a law in 1987, which prevented construction of the GSX facility, in order to protect public health and the environment. Then GSX and its allies petitioned EPA to withdraw the authority of the State of North Carolina to administer the federal hazardous waste program because, they claimed, the state law unreasonably imposed a law more stringent than the federal law. The regional EPA administrator, Jack Ravan, who later left EPA to become President of Rollins Environmental Services, the country’s second largest hazardous-waste company, supported and promoted GSX. EPA had never faced this kind of dilemma so the administrator, Lee Thomas, commissioned a study (which cost $1.2 million). It was completed in December 1988, when, shortly before leaving office, Thomas issued a policy memo, based on the study, which, among other things, conceded North Carolina’s right to act as it had. One would think that that was the end but it was only the end of round one.
The environmental community was confused, even outraged at Reilly’s decision to reopen the proceedings that his predecessor had closed. The Winston-Salem Journal wrote:
“The criticism of Reilly yesterday came from five of Reilly’s former colleagues — the presidents or executive directors of the Sierra Club, the National Wildlife Federation, the Audubon Society, the Environmental Policy Institute and the Natural Resources Defense Council.
Reilly had been the president of the Conservation Foundation and the World Wildlife Fund until February, when he became the first professional environmentalist to head the EPA.
Reilly said yesterday in Washington that he was surprised that Jay D. Hair, the president of the National Wildlife Federation, was among his critics.
“Jay Hair hosted the breakfast at which I was lobbied to do the very thing that we are doing,” Reilly said. He said that one of the people who spoke to Reilly at that breakfast was Dean Buntrock, the chairman of Waste Management Inc. of Oak Brook, Ill., the nation’s largest hazardous-waste management company.”
Buntrock was accompanied by two previous EPA executives who by then worked for Waste Management Inc.
So the motivation for Administrator Reilly’s strange behavior was doing some powerful friends a favor. An unnamed EPA official was once quoted as saying “Reilly’s always looked up to rich people, and he’s infatuated by money and prestige. He’s Jay Gatsby.” (from Bill Gifford, “The Life of Reilly,” (February 27, 1990), the Village Voice, New York, NY)
The other relevant feature were the hearings, called by Reilly, to disenfranchise North Carolina’s hazardous waste program, which took place before EPA Administrative Law Judge Spencer T. Nissen.
I sat in on one session of the proceedings. It was a sad spectacle. The lawyer from the EPA Office of General Counsel was accompanied only by lawyers for the waste management industry. Indeed, the industry lawyers answered most of the questions Judge Nissen addressed to EPA. Sitting on the other side, opposed to the industry and EPA, were not only the attorneys for North Carolina, but also two representatives of national environmental organizations, and a representative of a grass-roots citizens group. It was obvious to any observer that EPA was being led in these proceedings by the hazardous waste management industry.
On April 11, 1990, Judge Nissen dropped his bomb. He found for North Carolina and against EPA. His 122-page decision was a sweeping rejection of almost every EPA/hazardous waste management industry position. Some of his specific findings were:
+ EPA gave to itself authority to essentially preempt state laws which are more stringent than EPA’s and which interfere with the expansion of the commercial hazardous waste management industry. Judge Nissen suggested that EPA was overreaching by ignoring the clear Congressional message of the Bumpers Amendment that allows states to adopt more stringent hazardous waste laws than the federal program, especially in regard to siting of facilities.
+ EPA claimed that the proposed GSX facility, which it was promoting, was environmentally adequate and, therefore, the North Carolina law requiring more stringent environmental standards added nothing to the protection of human health and the environment. Judge Nissen disagreed and found ample justification for North Carolina’s more stringent standards. In order for EPA to reach the conclusion that the North Carolina law was unnecessary it had to ignore the advice of its own experts that the GSX site was, in fact, a threat to the drinking water supply of Lumberton, NC.
+ EPA violated its own prohibitions against the use of dilution as a waste treatment technique. EPA had almost no standards for siting hazardous waste facilities but nevertheless tried to prevent North Carolina from establishing standards of its own. EPA claimed that North Carolina’s standard was “arbitrary”, but the finding was that EPA’s own standards were just as “arbitrary”.
+ EPA claimed that the real intent of North Carolina’s statute was to block the construction of any commercial hazardous waste facility and that the state’s assertion of an environmental protection motive was a sham. The judge found was that EPA has no business looking beyond the stated purpose of the law, which was to protect the environment.
+ Judge Nissen debunked the EPA/hazardous waste industry’s claim that commercial hazardous waste facilities were no different than non-commercial ones and should be treated no differently. Judge Nissen’s finding was that commercial hazardous waste facilities can be far more dangerous than non-commercial facilities and a more stringent standard for them is justified.
In conclusion, stopping GSX was important. It was not the end of the hazardous waste industry’s dominance of EPA’s hazardous waste management program but it put a brake on the expansion of the industry. By running EPA and cowing state governments, the industry was planning on having dozens of sites like GSX all over the country. After the defeat of GSX the industry’s ambitions were more modest and the battle for each site harder fought.
In April 1990 Browning-Ferris Industries, headed by former EPA Administrator Ruckelshaus, discontinued all hazardous waste business. Expansion of the commercial hazardous waste industry would have retarded the impetus of industry to design and operate its factories so as to eliminate or safely treat or dispose its waste on site and reduce or recycle wastes. That was the goal of EPA before it got taken over by the hazardous waste industry. That this goal has been somewhat achieved was due to Superfund, HSWA and Judge Nissen; not EPA. Unfortunately though the defeat of GSX did not change EPA.
William Reilly, Gary Dietrich, Thomas Jorling, Jack Ravan, and many others have violated many specific EPA ethics provisions. These rules state that: “Employees may not use their official positions for private gain or act in such a manner that creates the reasonable appearance of doing so. “Employees therefore must not …. take any action, whether specifically prohibited or not, which would result in or create the reasonable appearance of: (1) Using public office for private gain; (2) Giving preferential treatment to any organization or person; ….. (4) Losing independence or impartiality of action; (5) Making a Government decision outside official channels; or (6) adversely affecting public confidence in the integrity of the Government or EPA.”
Every one of these rules were violated in the cases discussed here but I know of no EPA executives who were punished for it. Indeed they have all prospered. On the other hand, EPA employees had their careers ruined for pointing out such violations.
Authors note: I consider this a prequel to an earlier paper I wrote for Independent Science News titled “Designed to Fail: Why Regulatory Agencies Don’t Work.” This paper tells the story of one instance of regulatory capture while Designed to Fail suggests ways to prevent regulatory capture.
William Sanjour retired from the U.S. Environmental Protection Agency in 2001 after 30 years, most of it spent in regulations. He has written and published articles about why regulatory agencies don’t work and what can be done about it. He has have been invited to testify at numerous Congressional hearings and at state legislatures and citizens groups around the country as well. He presently sits on the Board of Directors of the National Whistleblowers Center. This article and others can be found on the Web at http://sanjour.info.
This article originally ran on Independent Science News.