May 11, 1990

Hon. John D. Dingell, Chairman
House Committee on Energy and Commerce
Subcommittee on Oversight and Investigation
Rayburn House Office Bldg.
Room 2323
Washington, DC 20001

Attn: Debra A. Jacobson

Dear Rep. Dingell:

    On April 11, 1990, EPA Administrative Law Judge Spencer T. Nissen issued his decision the "Proceedings To Determine Whether To Withdraw Approval of North Carolina's Hazardous Waste Management Program" (attached).

    When EPA first joined with the hazardous waste management industry in starting these proceedings in 1987, we met with and wrote to previous Administrator Lee Thomas and Assistant Administrator Winston Porter(1) to advise them that these proceedings were probably illegal and were certainly indicative of widespread corruption within the agency. Even more importantly, however, it was promoting a policy of commercial hazardous waste management which was contrary to the best interests of the United States. Opposition to the proceedings were shared by many in Congress and the environmental community and eventually, after months of agency review and analysis, in December, 1988, Mr. Thomas brought a halt to the proceedings.

    When Mr. Reilly became Administrator in 1989, he was lobbied intensely by EPA Region IV and the hazardous waste management industry to re-open the proceedings. We wrote to him in a similar vein(2). Nevertheless, after (as Mr. Reilly admitted to the press) being lobbied by the CEO of Waste Management Inc., Mr. Reilly decided to re-open the proceedings against North Carolina.

    Because of the corruption involved in re-opening these proceedings, we filed charges with the EPA Inspector General against Administrator Reilly and Region IV Administrator Greer Tidwell(3). The Inspector General's investigation proved to be a clumsy and blatant cover-up, further demonstrating how far the rot had spread within EPA. As a result, we and Richard Wagner of the Inspector General's Office filed additional charges(4) which have been forwarded to your committee for investigation.

    This brings us to Judge Nissen's findings and the purpose of this letter. Judge Nissen found against EPA and for North Carolina. His 122 page decision is a rather sweeping rejection of almost every EPA/hazardous waste management industry position. We think there are many aspects of his findings which support our charges against the agency and we would like to enumerate them here.

1    EPA has been intentionally misleading the public by pretending that Mr. Reilly, by re-opening the proceedings,. was merely continuing the process started by his predecessor, Lee Thomas. For example, the Winston Salem Journal of May 12, 1989 says:

Reilly said that Thomas had simply put the hearing on hold for further review and consultation with the congressmen who had objections. "We have done that, and now we're going forward with the hearing," he said.
A similar lie was put out in the FEDERAL REGISTER(5). However, Judge Nissen did not accept these stories. His finding(6) was that:
Then Administrator Lee Thomas issued a policy memorandum on December 22, 1988, which was interpreted within the Agency as requiring or leading to the withdrawal or cancellation of the instant proceeding.
Why was it necessary for the agency to try to deceive the public? We believe it was because the agency knew it was acting improperly in re-opening the hearings and wanted to keep that fact from the public.

2.    EPA gave to itself authority under 40 CFR 271.4 (a) and (b) (attached) 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 these regulations were probably illegal because they ignored the clear message from Congress in the Bumpers Amendment that allows states to adopt more stringent hazardous waste laws than the federal program especially in regard to siting of facilities(7). EPA had never incorporated this law into its regulations while 271.4 was written without any specific Congressional authority or mandate.

    We believe that these machinations are a clear illustration of the agency doing the bidding of the commercial hazardous waste industry even to the point of drafting regulations which ignore the law and for which there is no authority.

3.    EPA claims that the proposed GSX facility, which it was promoting, was environmentally adequate and, therefore, the North Carolina law requiring more stringent environmental standards adds nothing to the protection of human health and the environment. Judge Nissen disagreed and found ample justification for North Carolina's more stringent standards(8). 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(9) Furthermore, several witnesses, including EPA's own experts, testified that even the North Carolina law may not be sufficiently stringent(10).

    Clearly there must have been a tremendous motivation for the agency to go to court and publicly defend an anti-environmental line of reasoning which its own experts had refuted.

4.    EPA violated its own prohibitions against the use of dilution(11) as a waste treatment technique

5.    EPA has almost no standards for siting hazardous waste facilities but nevertheless they tried to prevent North Carolina from having standards of their own(12).

6.    EPA claimed that commercial hazardous waste facilities are 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(13).

7.    EPA claimed that North Carolina's standard is "arbitrary", but the finding was that EPA's own standards are just as "arbitrary" as it claims North Carolina's are(14).

8.    The hazardous waste management industry and EPA have been clamoring for uniform (i.e. favorable) treatment of commercial hazardous waste management facilities throughout the country. However, Judge Nissen said:

Although RCRA may be said to contemplate an integrated national program for the management of hazardous waste with the federal requirements as a floor, it does not demand uniformity of permit results(15).
9.    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's finding was that EPA has no business looking beyond the stated purpose of the law, which was to protect the environment(16). We might add the two motives are not contradictory since the citizens living near the proposed site feared for their health and environment if this commercial facility were built, EPA's assurances notwithstanding.

    Long before Judge Nissen gave his ruling, it was obvious to any observer that EPA was conducting, or rather, being led, in these proceedings by the hazardous waste management industry. We sat in on one session of the proceedings on September 5, 1989. It was a sad spectacle. The lawyer from the EPA Office of General Counsel was accompanied only by lawyers for the waste management industry who did most of the talking for him. Indeed, the industry lawyers seemed to be answering most of the questions Judge Nissen addressed to EPA. Sitting on the other side, opposed to the industry and EPA, we saw not only the attorneys for North Carolina, but also two representatives of national environmental organizations, and a representative of a grass-roots citizens group.

    If, as EPA would have us believe, they are protecting public health and the environment against, what they have labeled "the onslaught of political influence", why is it that not one single environmental organization has come out in support of EPA's position while many have voiced opposition to it? The only support EPA has received is from the waste management industry. It is in the interest of that industry, we believe, that EPA has carried out this attack on North Carolina's health, environment and sovereignty.

    We feel that it is important to recognize and root out the corruption within EPA, so that agency can be put on the right track for controlling hazardous waste. The way the agency is proceeding is costing the public a fortune in new superfund sites without solving the hazardous waste problem. For decades, EPA (and even its predecessor agency, the Public Health Service) has preached the necessity for waste reduction as the preferred approach to hazardous waste management. Your own Congressional Office of Technology Assessment has shown that hazardous waste can be considerably reduced.(17)     Yet the agency continues to promote the profligate waste management practices of the commercial waste management industry.

    Hazardous waste is the business of the commercial hazardous waste management industry. As a business, their income is produced by taking in wastes through the gates of their facilities. The more the better. Expense is incurred by treating the waste so as to protect human health and the environment. A successful business maximizes income and does everything it can to reduce expenses. These goals are just the opposite of the goals of society and the stated goals of EPA, which are to reduce hazardous wastes (hence income) and maximize protection of human health and the environment (expenses)

    Serious waste reduction would be the death of this extremely profitable industry. This industry has gone to great lengths to reduce their liabilities by passing the ultimate cost of their poor waste management practices on to the public. But most relevant to the present issue, they have used their considerable influence, power and money to cajole, browbeat, corrupt and infiltrate EPA and state environmental agencies to make a mockery of government oversight and regulation of their industry, as this case of North Carolina illustrates.

    We therefore urge you to investigate EPA's "special relationship" with the hazardous waste management industry.

Sincerely yours,

        /s/                                                                                     /s/

William Sanjour                                                             Hugh B. Kaufman



1. Letters from W. Sanjour and H.B. Kaufman to Lee J. Thomas, November 6, 1987 and Winston Porter, January 19, 1988.
2. Letter from W. Sanjour and H.B. Kaufman to William Reilly, March 31, 1989.
3. Memorandum from W. Sanjour and H.B. Kaufman to John C. Martin, May 17, 1989.
4. Memoranda from W. Sanjour and H.B. Kaufman to John C. Martin, September 28, 1989, and October 17, 1989. Letters from J. Richard Wagner to John D. Dingell, October 18, 1989 and November 28, 1989.
5. 52 FR 49303 (November 17, 1987).
6. Nissen, Spencer T. "Proceedings To Determine Whether To Withdraw Approval of North Carolina's Hazardous Waste Management Program", USEPA Office of the Administrative Law Judge, April 11, 1990,  p. 6.
7. Nissen p. 107.
8. Nissen pp. 99 (summary 5) , 100 (summary 4A), also pp. 47 et seq., & 116.
9. Nissen p. 70.
10. Nissen p. 71.
11. Nissen p. 70.
12. Nissen p. 102 (summary 5).
13. Nissen p. 98 (summary 2), also pp. 55, 84. & 111.
14. Nissen pp. 76, & 110.
15. Nissen p. 113.
16. Nissen p. 114.
17. U.S. Congress, Office of Technology Assessment, Serious Reduction of Hazardous Waste,
OTA-ITE-317 (Washington, DC: U.S. Government Printing Office, September 1986).

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