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Blooperfund; that's supposed to be cleanup, not coverup.

Blooperfund That's supposed to be cleanup, not coverup

In the field where her sons Fred and Davey used to play baseball with their friends, Marie Flickinger is examining the ground where no grass has grown for 18 years. She has been watching these patches of soil closely and worries about getting too close. She also worries about her fellow residents of South Bend, a neighborhood near Houston. Engineers wearing protective clothing and breathing through respirators have dug up their backyards and bored holes in their garage floors. There were no health threats, the community was assured; the levels of contaminants weren't dangerous. Since then, one of Fred's friends has had a brian tumor removed, and five of seven pregnancies in a two-block area have resulted in miscarriages or birth defects.

For more than three decades, Monsanto, Amoco, and Arco dumped toxic waste at the Brio Refining Site, which abuts South Bend. But that's all in the past. In the last few years, the polluters have owned up to the hazards they created; they have tested the soil to see the extent of the damage, and they have proposed a plan to clean it up. All this seems like substantial progress. So why has the neighborhood's nervousness deteriorated into terror?

Because the real dangers at Brio were hidden by a terrible compromise. The Environmental Protection Agency spoiled its chance for a thorough cleanup by accepting much less from the polluters than it should have. In its negotiations with the companies, the agency based its cleanup plan on the damage they reported. Legally, that's what it's supposed to do. Congress decreed that this assessment should be done by the polluters. But you can imagine how strong the temptation is for the polluter to underreport the contamination when a lower level will buy a cheaper cleanup. And you can imagine the pressure on the EPA's regulator to take what he can get when the polluter is footing the bill. What you can expect from these cheaper cleanups is that they won't clean up much. Then the EPA will have to return to do a more thorough job. The agency's deals with polluters might only postpone government costs rather than spare them. The danger of the situation is familiar to followers of the S&L scandal: overworked regulators buckling under pressure from corner-cutting corporations. But the South Bend residents aren't just risking their life savings; they're risking their lives.

South Bend over

Flickinger, who runs a community newspaper, has joined her neighbors in a battle to force the EPA to recognize the full extent of the contamination. The Brio site is a barren lot dotted with small buildings and clusters of barrels. When the South Bend houses were built in 1981, prospective homeowners were told the adjacent lot was merely an outmoded refining plant. But in fact, the site had long been a dumping ground for noxious by-products of the refining process. The site's owners scavenged the sludge for anything that could be sold back to the oil companies, leaving the toxic remnants to sit beside a bustling neighborhood.

Enter the EPA, whose job is to identify these sites and rank them with others in the nation. When a populated area like South Bend is situated so near a known toxic dump, the "imminent and substantial" risks to the community make it a Superfund site. That means the EPA does preliminary tests and "scores" the site based on the hazards and their immediate potential harm. Nearly 1,200 Superfund sites have been designated in the program's 10-year history. In its early years, the program's bloated backlog of untreated sites and the haggling over expenses crippled all progress. Quickly and monstrously, Superfund grew out of control.

So in 1986, armed with a congressional mandate, the EPA identified the companies who made the messes, told them what safety levels to attain, and left it to them to decide now they would divide the cost. This "enforcement first" strategy lightened the load substantially for harried EPA regional managers. They no longer needed to manage the cleanups from cradle to grave but only to supervise them loosely.

A brief history of slime

At Brio, a coalition of the polluters who called themselves the Brio Task Force hired a team of engineers to conduct an environmental audit, one that would quantify the site's contamination. The engineers very carefully took samples from areas known to be saturated with toxic sludge. But this polluter-funded engineering left open a very dangerous possibility: The polluter could steer sampling away from areas where the densest concentrations were known to be. For example, if the polluters had dumped toxic tars in a pit six feet deep, the engineers could take samples at one foot and at seven feet below the surface. In the EPA's eyes, the right areas would have been tested, but the results still might not accurately represent the contamination there.

A controversy has erupted over how much of the Brio mess the task force kept from the EPA, and the neighbors have organized to find out. A long list of chemical remnants at Brio called VC1s and PNAs are, to Flickinger, a foul "alphabet soup" of toxic waste. Flickinger's newspaper has educated its readers about which chemicals at Brio cause cancer, which cause mutations, and which make your lungs burn. Much of this schooling has come by way of Jim and Sue Slaughter's suit against Monsanto and others on the Brio Task Force. As a civil claim filed against the polluters, the action doesn't directly involve the government. But it does demonstrate how a community has had to circumvent the government agency designed to protect it. The community had to hire its own lawyers to unearth the many misdeeds that EPA supervisors literally left buried.

Late in the trial, Monsanto hauled in six boxes of documents it had earlier claimed not to have. The boxes contained records of pollution in the soil and underground water wells as calculated by REI, an engineering firm hired by Monsanto to test the Brio site. The test statistics show that the polluters reported to the EPA only half the concentration of poisons they found. And the discrepancies aren't just the result of misdirected testing--there seems to be falsification of data. A pit containing dangerous levels of toxic sludge is located only 18 inches from the fence that separates the Brio property from a South Bend family's backyard. Here, engineers found toxins three to six inches from the surface--not at six and one-half feet, as Monsanto had told the EPA. The most outrageous discrepancy involved 111 million pounds of toxic tars that Monsanto reported to have dumped at Brio over the decades. Monsanto's papers showed the total to be closer to 750 million pounds.

"It makes no difference," EPA regional manager Lou Barinka told Flickinger when these new figures surfaced. Felony charges may be brought against Monsanto for lying to the federal government; but Barinka's boss, Sam Becker, the one to whom Monsanto lied, still says the discrepancies were never an issue and aren't now. Becker says that the EPA can't possibly expect the engineers to have sampled all the soil and determined how severe the contamination was at each level for the entire Brio site. That's certainly true. But the EPA should expect to see the correct figures from all the samples engineers did take as well as from Monsanto's history of toxic dumping. EPA Administrator William Reilly should have been ashamed of his salute to Monsanto the same week the fudged data became known. In a speech to the Natural Resources Defense Council, Reilly lauded environmentally minded corporations. He recognized Monsanto's efforts "to reduce by a very large percentage certain kinds of waste products."

The South Bend community is seething over the polluters' duplicity--EPA supervisors should be mad, too. EPA officers seem not to have noticed how they were manipulated by Monsanto.

When the cleanup digging begins, fumes from the toxic sludge will waft into the backyards of Brio. The contaminated soil could be churned up for as many as 30 years before the site is clean. Had the EPA known the total pounds Monsanto dumped, it could have taken precautions--such as putting up a plastic bubble to trap the toxic vapors shovels release into the air. The agency also might have been more insistent on the polluters' using more permanent means to rid the area of pollution.

The trial prompted more anxiety over the mysterious bald patches in the neighborhood, the ones tested and deemed safe. A former Brio employee testified that he witnessed the spraying of waste where houses now stand. A soil scientist who reviewed the site testified that toxins seeping into the underground water wells have traveled beyond the boundaries of the Brio site. The poisoned streams now run under many of the 600 South Bend homes and are heading toward Houston's water supply.

Marie Flickinger's staff is going door to door collecting the health records of South Bend residents and former residents. With only 25 percent of the homes polled, already there are a staggering number of cases of leukemia in small children, as well as rare forms of cancer in yound adults. Cheryl Findley, another South Bend housewife and mother, has taken on the grim task of compiling what the pollers found: Out of 130 homes surveyed, there were 13 cases of birth defects and 8 of cancer, including one of only 11 non-Hodgkins lymphoma cases in the country, and cervical and testicular cancer patients younger than the national average. Children have proven particularly vulnerable: Many are growing at slower rates and learning at slower speeds; some must breathe with the assistance of machines. These 130 homes represent only about 550 of the 3,200 residents and former residents Findley expects to contact. Flickinger worries about other communities near Superfund sites who have put faith in the EPA's ability to protect them. "We're having to protect ourselves from the EPA. We were naive, and it's taken us three years to realize it."

Toxic shocks

Environmentalists and community activists are preparing a barrage of complaints for 1991, the year Congress must vote to keep Superfund alive. Each month has brought a new report, including one by the offices of Senators Frank Lautenberg and David Durenburger and another by the Office of Technology Assessment (OTA) that demonstrates how lenient the EPA has become with polluters. Most reports document the tougher standards the EPA holds itself to when it can find no responsible party to negotiate with--ironically, its leniency in cleanup standards kicks in only when the polluter is paying. Some sites from Dr. Joel Hirschhorn's years of investigation for the OTA show just how soft the EPA's "enforcers" are on self-policing polluters:

* The Gould site in Oregon housed dangerous levels of lead from decaying batteries. The law insists that this type of pollution must be dug up and recycled. But the EPA didn't press for this in negotiations with the polluters, even though when it was paying for the cleanup it had once said the same amount of lead "represents a health threat."

* The Coshocton landfill in Ohio was brimming with various hazardous solvents and resins. The EPA allowed the polluters to use a "capping" method, in which the surface contaminations are topped with layers of soil and concrete. This means waste might still continue to spread downward and perhaps reach underground streams--as has happened at Brio. In addition, the EPA allowed the polluters a privilege similar to the one they allowed at Brio: It's the polluter who monitors the groundwater.

* The Big Three automakers, among others, dumped deadly PCBs and dioxins at the Rose Township site in Michigan. The EPA sought incineration of the 50,000 pounds of contaminated soil. But after negotiations with the polluters, the agency approved a plan to merely blast the top layers of soil with water jets instead, even though soil-flushing generally just erodes the layer it seeks to cleanse.

* Broderick Wood Products Co. dumped toxic tars and oils on its Colorado property. The EPA has enforced an incineration plan in this case, but it still has pulled a major punch: EPA instructions call for burning oils and tars on the surface along with only the "visible" contaminants found underneath. The invisible--but no less dangerous--toxins that are dug up will be stockpiled on-site indefinitely.

While the EPA should encourage polluters to develop less expensive cleanup technology, it can't afford to let them practice on Superfund sites when a cheaper method's effectiveness is unproven. Health threats at a site should be considered before costs.

EPA whistleblower Hugh Kaufman, one of the authors of Superfund, said too many cleanup compromises look good--and inexpensive--on paper but quickly prove ineffective. He described the Vertac dump in Jacksonville, Arkansas, where daily watering on the site was meant to prevent wind-blown toxic dust from settling off-site. But the cleanup engineers weren't bothering with this, not even on sunny, gusty days. Kaufman said that such laziness is widespread; cheaper, less stringent protection is no more than "linguistic detoxification" that deteriorates into no protection at all.

In 1986 Congress empowered the EPA to go after polluters and make them pay. But the agency doesn't flex that statutory muscle as much as it could. With the legislation came tough deadlines to speed what had been a glacial pace in past cleanup efforts. Under the Bush administration, the "enforcement first" strategy trumpeted by Reilly has succeeded at the negotiating table in producing signed settlements with polluters. But less-than-clean cleanups are not what the EPA should bargain for.

The EPA's willingness to negotiate comes from a reluctance to spend government money. With tough deadlines looming, Superfund is too strapped for cash to pay for all the assessments on the nation's immense caseload of hazardous waste sites. But according to OTA, when the EPA must hire its own engineers to check the tests polluters conduct, the agency often squanders almost as much as if it had paid for the tests itself.

If polluters initially refuse to pay for the messes they made, then the EPA must pay for the entire cleanup out of its own pocket. But Congress included a tough clause in its legislation to make sure the EPA would get back any money it doles out--and then some. The agency can call on the Justice Department to clamp down on polluters and demand triple damages and a $20,000 per day penalty for delay. And EPA can hold each polluter at a Superfund site liable for the total cost of the cleanup.

The department of a fence

These are hefty weapons, but the General Accounting Office says the agency hasn't pointed them at the obvious targets. Apparently, the EPA would just as soon not get into messy legal squabbles, in which it might have trouble justifying the overly technical point scale it uses to rank the 1,200 top-priority hazardous waste sites. Polluters' lawyers would expose permissiveness in the hazy "imminent and substantial endangerment" standards by which EPA ranks a site. After all, how imminent can the problem be, lawyers could argue, given the agency's years of delay in responding? And such legal battles take time--time the EPA complains it just doesn't have. Last summer, EPA senior administrators lamented the conflict between "the expectation of prompt cleanup" and "the need for full and responsive public participation in the cleanup process." They can't deliver both, they've decided.

In its rush to settle, the EPA has lost the crucial skepticism needed to keep the polluters' cost-cutting strategies in check. And the polluters have made a break for the holes in the EPA's enforcement strategy. At a seminar for hazardous materials managers last November, "Corporate Strategist" John Ronan spelled out to polluters that when you hire engineers to do the testing, you "control the site assessment." The agency admits in its 90-day Superfund management review that it's up against polluters who "try to economize and propose only the most minimal remedial selection." The point is that EPA needn't accept the minimum; it should require the maximum.

The agency considers it a real victory merely to have begun these cleanups as quickly as was ordered. But why set weak precedents when the EPA has such a strong statutory deterrent to scare the polluters into action? If the EPA won one resounding legal battle and collected big penalties, wouldn't that make other polluters snap to attention when they are pegged for cleaning up other sites?

The legal track is risky and slow, but right now it's the only honest and firm option for the EPA. The agency should stand firm against these shortcut strategies, not only because it legally can but because it has to. If these cleanups are anything but complete, the threats will return. Then, the EPA's hurried and lenient settlements will have blown the one chance it had to get the polluters to pay. The sweep-it-under-the-rug mentality has become increasingly institutionalized, with the result that in many communities the only thing separating families from a contaminated lot is a chain link fence.

The EPA has set itself up for a mess very much like that of the troubled Federal Home Loan Bank Board, which struggled to keep up with high-rolling savings and loans. The engineers who test sites--many of whom are inexperienced--are effectively controlled by the polluters who hire them. Chances are that the polluters are polluting elsewhere and will want to rehire the engineers who have helped them minimize their costs in the past. Chances also are good that the EPA, under pressure to settle, will continue to accept what it can get. As it is, the engineers testing for toxins fear losing a big client if they report all that they find--just like the accountants reviewing overspeculated S&L deals. The young EPA regional overseers who review tests must put too much faith in what engineers say they've found. Many times, the engineers were once EPA regional overseers themselves, and tend to exercise a territorial seniority over the new project managers. Many times, underpaid, overworked regional overseers will later come looking for jobs in the same engineering firms--just like the S&L regulators and accountants who jumped ship to the businesses they monitored.

Con Brio

The strains on the regional regulators led originally to the logic of polluters assuming cleanup responsibility. But when the polluter is given so much responsibility, it's as if the warden has handed a convict the cell-block keys. Superfund enforcement official Lew Crampton has made the unfortunate comparison between Superfund and supertankers. He suggests both are perilously difficult to steer. The danger for the public is compunded when there are captains of industry like Monsanto at the helm. When Monsanto negotiated the Brio cleanup with the EPA, it was evident just where the company wanted to steer the agency.

One experimental cleanup method, biotreatment, has been advertised as a "permanent" solution. This claim came from ENSR, a consulting firm for polluters, and Celgene, a biotech company, who have teamed up to market this new method. The plan uses microorganisms "to convert hazardous organic contaminants into harmless, nontoxic materials." The polluters selected this plan to clean up some of the mess at the Brio site, even though no test has ever demonstrated that it would destroy all the site's contaminants as effectively as incineration would.

Why biotreatment was recommended is as clear as the names signing the assessment: ENSR used to be REI, the company who took the original Brio soil samples. American Hoechst, one of the Brio site polluters, owns Celgene, whose CEO is the former chairman of--surprise--Monsanto. Weston, the engineering firm that the EPA hired to oversee the tests, has a big client at other sites whose business it wouldn't want to lose. That client? Monsanto.

Unless this framework is changed fundamentally, the conflicts of interest and cost-cutting tactics will continue to undermine Superfund's goal of effective and permanent cleanup. The EPA cannot oversee the polluter-funded testing with 100 percent certainty that the test results reflect all the risks that exist. Since its goals depend on that assurance, it will have to hire the engineers itself. The agency's enforcement staff will have to get tough with griping polluters and collect money up front to fund the testing. OTA has pointed out that an entire research and development wing might be added to verify new cleanup technology and to tailor appropriate cleanups to specific messes. Without streamlining Superfund, the newly promoted EPA could become the instantly crippled Department of the Environment.

The pressure on the EPA is coming from both sides, the polluters and the communities. But the EPA can extract itself from this squeeze and not alienate either party. Innovative cleanups should be considered, implemented, and refined so that they'll be more effective and less expensive for future sites. Still, where people's lives are at stake, the EPA must guarantee that cleanups will be as effective as possible no matter how great the pressures of time and money.

The economic climate is good for businesses that want to reverse the planet's decay. But before cleanup plans can be "marketed" to the world economy, the government must define clearly and firmly how clean it expects the land to be. Georg Bush is in a position to usher in these new priorities and to provide new corporate incentives for cleaning up the world. So far, his record is not promising; witness his proposed Clean Air Act, which could allow plants posing the greatest cancer risks to be exempted from shutdowns.

Next summer at a summit in Houston, bush will welcome the world's economic leaders to discuss, among other things, new strategies for the environment. Just two miles from Ellington Airfield, where the heads of state will arrive, lies the Brio site--a lesson for them all.
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Author:Martel, Ned
Publication:Washington Monthly
Date:Apr 1, 1990
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