=======================Electronic Edition========================
RACHEL’S HAZARDOUS WASTE NEWS #288
—June 3, 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
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WHAT WE MUST DO–PART 17: NEW TOOLS FOR CITIZENS: ‘BAD BOY’ LAWS
We reported last week that a huge hazardous waste
incinerator–the largest in the world–is being built nestled
among homes and schools on the edge of the Ohio River in East
Liverpool, Ohio. The owner of the furnace is an elusive company
called WTI. The owner of the land is a public agency, the
Columbiana County Port Authority. WTI applied for, and received,
an incineration permit from the federal EPA [U.S. Environmental
Protection Agency]; issuance of the permit to WTI violated EPA’s
own rules, which require both the owner of the furnace AND THE
OWNER OF THE LAND to apply jointly for a permit. When local
activists pointed out this violation to EPA, the agency promptly
placed the name of the landowner (the Port Authority) on the
permit even though the landowner has never applied to become a
party to the permit. EPA has no legal authority to issue an
incinerator permit to someone who does not APPLY for a permit and
the Port Authority definitely has not applied. In fact the
Authority has appealed EPA’s action, aggressively trying to stay
off the permit.
If the Port Authority is enthusiastic about the WTI incinerator,
why does the Authority not want its name on the permit? Hugh
Kaufman, an EPA official who has investigated the WTI matter in
detail, says he believes it may be because Ohio has a “bad boy
law” on the books which requires a background check on anyone
seeking a permit to handle wastes in Ohio. (See Ohio Revised
Code, Section 3734.44.)
The history of Ohio’s bad boy law is typical. In many locations
around the U.S., the waste industry is mob controlled. In other
locations, the industry is peppered with people who are crooked,
incompetent and unreliable, or who lack expertise. To keep such
people out of the waste business, the Ohio legislature in 1988
passed a bad boy law requiring a background check on anyone
seeking a permit to handle waste in Ohio. The law lists 21 kinds
of criminal offenses; anyone convicted of any of the 21 offenses
can be denied a waste-handling permit. Furthermore, indications
of unreliability, incompetence, or lack of expertise in the
waste business are grounds for permit-denial under the law. It is
conceivable that the Columbiana County Port Authority, after a
background check, might be denied the right to hold an
incineration permit in Ohio.
Ohio’s bad boy law reportedly prevented Chemical Waste Management
(Chem Waste), the largest U.S. hazardous waste hauler, from
purchasing the WTI incinerator three years ago. We have documents
signed by officials of Ohio state government, and the federal
government, indicating that Chem Waste came very close to
purchasing WTI in the spring of 1989. Government officials, who
asked not to be identified, said Chem Waste backed out of the
deal because of Ohio’s bad boy law. Citizens were thus spared a
fight with a company known for its wily, no-holds-barred style.
These events demonstrate the power of a bad boy law. In many
locations around the U.S., such laws are being used by
grass-roots activists to punish crooks, to protect the local
environment, to build bridges between environmentalists and “good
government” advocates, and to strengthen local democracy. Bad boy
laws work.
A bad boy law is any ordinance that says companies or individuals
convicted of certain crimes cannot get public contracts or
licenses to do business in your town (or your county, or your
state; there is even a federal bad boy law, described below).
Bad boy laws are being used successfully at the local level to
keep convicted criminals from getting contracts to haul garbage.
Sometimes this can cut the heart out of a landfill or incinerator
proposal.
For example citizens of Palmer, Massachusetts passed a law saying
no person or business entity could be awarded a contract or
subcontract by the Town of Palmer if that person or business
entity:
(a) had been convicted of bribing a public official of Palmer or
“any other public entity” in the U.S.
(b) had been convicted of agreement or collusion in restraint of
freedom of competition, or of agreement to fix prices; or
(c) had pleaded guilty to these crimes or had pleaded NOLO
CONTENDERE [meaning a plea of “no contest,” in which a person
says, in effect, “I am not admitting guilt but I do not dispute
the charges against me.”]
The Palmer law contains language that prevents a business entity
from doing business with Palmer if any of its affiliated
companies are guilty of the prohibited conduct. In the Palmer
law, companies are considered to be affiliated if one controls
the other, if they share management or board of directors, or if
one owns, or partially owns, the other.
The Palmer story reveals the many benefits of a campaign to pass
a local bad boy law. Waste Management, Inc., wanted to build a
regional landfill in Palmer. A local citizen’s group, the Ware
River Preservation Society (WRPS) proposed the bad boy law. WRPS
leader Elizabeth Hancock says proposing the law generated good
publicity for her group, and brought new members, donations, and
better attendance at meetings.
Three local decision-makers opposed the law but that put them in
the position of having to explain why they favored doing business
with convicted criminals. Discussions surrounding the proposal
brought out the dark side of Waste Management’s history–a
corporate record so outstanding that Greenpeace in late 1991
published the 285-page third edition of WASTE MANAGEMENT, INC.:
AN ENCYCLOPEDIA OF ENVIRONMENTAL CRIMES & OTHER MISDEEDS.[1]
After the Palmer bad boy law was proposed, newspapers felt more
secure discussing the seamier side of Waste Management’s history.
Waste Management mounted a campaign attacking the proposed law.
They hired a prominent local attorney and took out full-page
newspaper ads denouncing the proposal. They extolled the virtues
of their recycling programs, even though they were aiming to
establish a large dump. But in the end, the ordinance passed. If
Waste Management and its hundreds of subsidiaries can keep their
noses clean for three years (something they have never done
before), then they will become eligible to do business with the
Town of Palmer.
There are four key points to consider when drafting your own
local bad boy ordinance.
1. Mandatory action for defined violations; for example, the
Minnesota Department of Transportation has regulations saying “a
business MUST BE DEBARRED when one or more of the grounds set
forth [in a different section of the regulations] are established
at a hearing or opportunity for hearing….”
Debarment means disqualifying someone from receiving a contract
with a public agency, or from serving as a subcontractor under
such a contract.
The federal government has debarment regulations (see FEDERAL
REGISTER Vol. 52, May 29, 1987, pgs. 20363-20369) which basically
give government officials the right to debar people and companies
that have been convicted of “any offense indicating a lack of
business integrity or honesty which affects the present
responsibility of a participant.” The regulations then list
various contract crimes.
Contract crimes generally include violations of state or federal
antitrust laws, fraud, theft, embezzlement, bribery, forgery,
misrepresentation, making false statements, falsification or
destruction of records, or other criminal offense in connection
with obtaining, attempting to obtain, or performing a public or
private contract or subcontract.
The federal regulations give government officials some leeway in
debarring convicted criminals. We favor giving government
officials less discretion, since history shows that they tend to
wink at contract crimes.
2) It is important that your ordinance require debarment of one
business entity for crimes committed by all affiliated business
entities. Otherwise, criminals will simply set up create new
organizations when existing ones are convicted of crimes.
3) Your bad boy law should punish crimes during the recent past
(3 to 7 years) not the distant past, to make the law more
defensible and easier to enact.
4) At a minimum, your bad boy law should hold criminals
responsible for “no contest” pleas as well as “guilty” pleas and
convictions. It is even possible to write a law that debars
companies and individuals when there is evidence of a crime, even
if no one has been indicted or convicted.[2]
Bad boy laws can be used for debarment, but they can also be used
to deny permits to companies trying to operate incinerators,
landfills and transfer stations. The Ohio law, mentioned above,
works this way. The federal Surface Mining and Control Act of
1977 [Section 510(c)] contains some of the strongest language:
WHERE… INFORMATION AVAILABLE TO THE REGULATORY AUTHORITY
INDICATES THAT ANY SURFACE COAL MINING OPERATION OWNED OR
CONTROLLED BY THE APPLICANT IS CURRENTLY IN VIOLATION OF THIS ACT
THE PERMIT SHALL NOT BE ISSUED UNTIL THE APPLICANT SUBMITS PROOF
THAT SUCH VIOLATION HAS BEEN CORRECTED OR IS IN THE PROCESS OF
BEING CORRECTED… AND NO PERMIT SHALL BE ISSUED TO AN APPLICANT
AFTER A FINDING BY THE REGULATORY AUTHORITY… THAT THE
APPLICANT, OR THE OPERATED SPECIFIED IN THE APPLICATION, CONTROLS
OR HAS CONTROLLED MINING OPERATIONS WITH A DEMONSTRATED PATTERN
OF WILLFUL VIOLATIONS OF THE ACT.
In New Jersey last year a company called National Waste Disposal
was permanently barred from the waste business; in this instance
the concept of the bad boy law bled over into a related
concept–taking away a convicted felon’s right to do business at
all, effectively canceling a company’s corporate charter. [See
RHWN #308, #309, #316.] We will write more about this tactic in future
The Citizens Clearinghouse for Hazardous Waste (CCHW) in Falls
Church, Virginia, has been leading the campaign to help local
groups pass (or enforce existing) bad boy laws.[2] For an
excellent “fact pack” on bad boy laws for $3.50, contact them at
(703) 237-2249.
–Peter Montague, Ph.D.
Descriptor terms: bad boy laws; wti; epa; port authority; hugh
kaufman; oh; cwmi; cchw; enforcement; penalties;