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#298 - What Works -- Part 3: How To Make Government Work, 11-Aug-1992

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 CITIZENS 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

=====

[1] William Sanjour, WHY EPA IS LIKE IT IS AND WHAT CAN BE DONE ABOUT
IT. (Annapolis, Md.: Environmental Research Foundation, 1992); $15 from
E.R.F., P.O. Box 5036, Annapolis, MD 21403-5036; phone (410) 263-1584.

Descriptor terms: wti; east liverpool, oh; epa; william sanjour; hammer
provisions; liability; bad boy laws; incineration; whistle blowers;
revolving door;