=======================Electronic Edition========================
RACHEL’S HAZARDOUS WASTE NEWS #298
—August 12, 1992—
News and resources for environmental justice.
——
Environmental Research Foundation
P.O. Box 5036, Annapolis, MD 21403
Fax (410) 263-8944; Internet: erf@igc.apc.org
==========
The Back issues and Index
are available
here.
The official RACHEL archive is here.
It’s updated constantly.
To subscribe, send E-mail to rachel-
weekly-
request@world.std.com
with the single word SUBSCRIBE in the message. It’s free.
===Previous Issue==========================================Next Issue===
WHAT WORKS–PART 3: HOW TO MAKE GOVERNMENT WORK
When the huge WTI hazardous waste incinerator began construction
in East Liverpool, Ohio, the owners didn’t have all the necessary
permits. Furthermore, the main permit they DID have was illegal
because the landowner had not signed the permit application, a
clear violation of U.S. Environmental Protection Agency’s
regulations.
Nevertheless WTI’s owners began construction, gambling $140
million that U.S. Environmental Protection Agency (EPA) would
wink at major violations. If EPA didn’t play along, the state of
Ohio would get back into the act. Ohio law had changed since the
permit was first issued, and the incinerator was located in a
place that today could not meet Ohio siting criteria. The plant
is being built less than a quarter mile from an elementary school
and technical experts inside and outside government have
testified that large tonnages of toxic and carcinogenic
pollutants will be emitted from the stack. If EPA enforced its
regulations and required WTI to apply for a new permit, the
$140-million project would very likely go down the tubes.
At a meeting November 12, 1991, William R. Muno, EPA’s man in
charge of issuing permits for incinerators throughout the
midwest, rejected citizens’ pleas to make WTI apply for a new
permit. His reason: “We have to treat our constituents in a fair
and equitable manner.” In other words, Muno was admitting flatly
that EPA’s “constituents” are not the public whose health is at
risk, but the hazardous waste facility operator whose money is at
risk.
How could EPA get itself into such a condition? A long-time EPA
employee, William Sanjour, answers this question in a recent
publication, WHY EPA IS LIKE IT IS AND WHAT CAN BE DONE ABOUT
IT.[1] Sanjour sees the problem as deeper than EPA: “…the
problems with EPA are common to all regulatory agencies, both
state and federal. No matter how they start out, they all seem
to end up being more concerned with the interests of the parties
they regulate than the interests of the public.” He says, “The
great liberal dream of establishing a powerful institution to
protect and perfect our lives turns out to be just the same old
nightmare of corruption and abuse. The government is made up of
people, and people will be people.”
But the situation is not hopeless. We just need to write our laws
differently, Sanjour says: “I think the approach to effective
regulatory reform lies in removing the rose colored glasses.
We’ve got to deal with regulatory agencies based on what they
really are and what we know about them, not what we would like
them to be. Realism must replace idealism. It would be chaos to
do without regulatory agencies, but it is folly to trust them.”
Sanjour offers a Baker’s dozen specific suggestions for new ways
to make government (at the state or federal level) work:
HAMMER PROVISIONS. “A fine example of recognizing regulatory
agencies for what they are, can be found in the legislative use
of ‘hammer provisions,’ so called because a figurative hammer
falls if the regulatory agency fails to perform the way the
legislature intended,” Sanjour says. For example, “Frustrated by
EPA’s continually missing deadlines to write regulations to
protect the public from hazardous waste landfills, Congress in
1985 passed a law which would absolutely ban the landfilling of a
long list of chemicals. This “hammer” would fall heavily on the
hazardous waste generators and hazardous waste landfill operators
if EPA failed to meet its deadlines. This was tacit recognition
that EPA would work more diligently to protect the people it
regulates than it would to protect the public. It worked!”
Sanjour says “hammer provisions” could be used much more than
they are. For example, they could be used to enforce goals:
“Usually goal-setting is a meaningless governmental diversion,
since nothing usually happens if the goals aren’t met. The
administrator of EPA and other political appointees could be
appointed with the proviso that specific goals must be met, such
as hazardous waste generation would be reduced by 10 percent a
year, or they would lose their jobs.”
ARM THE PUBLIC WITH INFORMATION. Another powerful idea is to arm
the public with information to help them take appropriate action.
This approach is already embedded in some laws and regulations:
food labeling for content and nutrition; the federal freedom of
information act, allowing access to some government records; the
Toxics Release Inventory in the federal law known as SARA Title
III, requiring companies to report the quantity and quality of
their chemical emissions.
This approach could be taken much further. For example in a
proposed “Fisherman’s Right to Know Act” in Alabama, signs would
be posted at fishing piers and fishing grounds indicating the
kind, amount and the source of the chemicals expected to be found
in local waters as a result of permitted discharges.
ALLOW CITIZEN SUITS WITH TREBLE DAMAGES. Citizens with a good
case against a polluter should be able to get a lawyer on a
contingency basis and bring action directly against a violator
without having to go through any regulatory agency. Result: the
polluter pays a fine equal to three times the damages, which is
split between the citizens and their lawyer. The law would thus
be enforced at no cost to government.
And government should aid the citizens. Sanjour says, “In a very
real sense victims of industrial poisoning who bring toxic tort
suits (lawsuits for damages caused by chemicals) are really doing
the government’s job, therefore it seems reasonable that the law
should require that government assist the public in bringing tort
suits by such measures as making its own experts and test
facilities available at cost and giving technical assistance
grants for legal fees.”
CITIZEN ENFORCEMENT. The general principle that Sanjour is
promoting is this: “I would like to see laws passed which would
give the public a lot more direct power to implement the law and
not just limited to the courts. For example, in the case of
EPA-regulated facilities, when dozens of citizens see black smoke
coming out of a plant and smell horrible odors or are coated with
soot or see illegal discharges into a stream, that should be
sufficient basis for an enforcement action. It should not be
necessary to call a bureaucrat from out of town who shows up
long after the incident is over and then only after notifying the
plant that he is coming. A simple sentence should be attached to
law which says: ‘Any violation witnessed and sworn to by any
person over 18 years old and mentally competent, shall have the
same status as if it were witnessed by an official government
inspector.’” This could be initiated at the state level. In
addition, private Attorney General Acts could allow individuals
to bring criminal actions before local grand juries, Sanjour says.
TAKE AWAY MUCH OF EPA’S DISCRETION. Regulations should be modeled
on the traffic ticket. You violate the law, a cop writes you a
ticket. You can either pay the fine or tell it to the judge.
Congress has given the EPA administrator discretion to write and
enforce rules as he or she wishes. The result is literally
thousands of pages of regulations giving EPA wide latitude in
negotiating settlements with crooks. Congress should treat the
EPA administrator more like a traffic cop–less discretion to
negotiate with criminals.
LIABILITY. Liability should be strict, meaning that no showing of
negligence is necessary and that required proof of cause and
effect is minimal. And liability should be joint and several,
meaning each liable party is potentially responsible for the
entire situation. This is the way liability works in the
Superfund law, where “These provisions are so effective that
industry and their insurance companies have spent millions to try
to get rid of them. They would prefer that funds for cleanup by
pooled and paid out on a ‘no fault’ basis. There’s nothing like
strict liability to convert a capitalist into a socialist…. The
fear of liability is a much greater incentive for industry to do
the right thing than the fear of EPA,” Sanjour says.
BAD BOY LAWS. It’s simple and clear: Government should not be
allowed to do business with crooks. (See RHWN #288.)
THE REVOLVING DOOR. “It should be perfectly clear that a person
cannot serve the public faithfully in a regulatory agency if he
views the agency as a stepping stone to a better paying job with
the people he regulates.” Sanjour says, “I would propose a law to
restrict political appointees and senior executive service
personnel from accepting any form of direct or indirect
compensation from any person regulated by their agency for a
period of five years after they left government service, and this
would include lawyers.”
CONFLICT OF INTEREST. Sanjour points out that EPA has no
legislative mandate to provide waste disposal capacity for
industry, yet “Every administrator of EPA has felt it his duty to
tell the public that they are terrible people if they don’t let
some get-rich-quick huckster build a landfill or incinerator in
their backyard.” The WTI incinerator is a perfect example. It’s
as if the administrator of the Food and Drug Administration (FDA)
were hawking cigarettes. Sanjour’s remedy: Congress can pass a
one-sentence law which says, “No regulatory agency may spend
appropriated funds to promote, or to advocate the use of products
or services which it regulates.”
REWARD WHISTLE BLOWERS. “Congress ought to consider not merely
protecting whistle blowers but rewarding them. When a whistle
blower’s charges prove correct, he should be given a promotion
and a cash reward in proportion to the importance of the
revelation, with a maximum of say $100,000. This would greatly
increase the number of whistle blowers and decrease the amount of
waste, fraud and abuse.”
LET CITIZEN SUE GOVERNMENT OFFICIALS. Congress should “open
government officials up to civil suits for damages caused by the
failure to do their duty.”
AWARD FINES TO GRASS-ROOTS GROUPS. “A portion of the fines
collected in environmental suits could be turned over to
grass-roots environmental organizations instead of it all going
to the treasury.” Polluters now pay fines as a routine cost of
doing business, but if they knew their fines were funding their
adversaries, paying a fine would take on new meaning. And of
course this would give citizens new incentive to ferret out
violations.
–Peter Montague, Ph.D.
Descriptor terms: wti; east liverpool, oh; epa; sanjour; hammer
provisions; liability; bad boy laws; incineration; whistle
blowers; revolving door;