Lead Astray: How The EPA Let One Get Away
Madlin, Nancy
Lead Astray: H m THE EPA LET ONE GET AWY BY NANCY MADLIN The Environmental Protection Agency has been getting a lot of bad press lately, and for good reason. With Jim Watt sound-alike Anne...
...It isn’t, and the nation’s air and water are demonstrably cleanerthan theywerein 1971,theyeartheagency was created...
...In fact, for Non-Ferrous, EPA’s strategy proved profitable: during the company’s decade-long pollution spree, total fines collected by the government amounted to about $ I 5,000...
...The $15-million fine was based on a penaltyof$25,000aday, beginning with the discovery of the violationsand multiplied by two because EPA considered the company’s violations “willful...
...The “cure” for lead poisoning is a treatment known as chelation, which captures lead in the blood and releases ‘it through the urine...
...And because its tests showed thecompany emitted over 100 tons a year in lead and other pollutants, EPA considered Non-Ferrous a major polluter and a “possible health hazard...
...Then, in January 1980 EPA ordered Non-Ferrous to turnonits pollutioncontrol equipment within 30days orfacefinesof$25,000a day...
...Boycott meetings...
...If that sounds like second-hand evidence, it is...
...The National Center for Health Statistics estimates four percent of the nation’s children-about 500,000-have high levels of lead in their blood, For urban minority children, the figure jumps to almost 20 percent...
...With Jim Watt sound-alike Anne Gorsuch at its helm, hardly a week passes without another report of EPA perfidy...
...They were extremely stubborn...
...Most of us were proud, if not a bit selfrighteous about our work...
...Were the fines threatened by the agency paid in full, or even paid at all...
...This August, a month after an internal EPA memo surfaced that concluded lead pollution levels were probably much higher than measurement techniques indicated, the agency reversed its position and proposed toughening those standards...
...Nancy Madlin is a New York writer...
...But one wonders who was cooperating with whom...
...for every day it illegally spewed toxic lead into the air, the company paid a penalty of less than $4...
...This isn’t the worst of it...
...Non-Ferrous’s main pollutant is lead, a particularly nasty substance as far as air pollutantsgo, completely foreign to the human body...
...It’s a simple strategy, and one that’s well-knownand time-tested in the toxic emissions fraternity...
...This meant EPA itself was responsible for insuring compliance with the law, rather than state and local government officials assigned to monitor smaller polluters...
...Though the tests occurred while the EPA was threatening Non-Ferrous with lawsuits, the agency had the decency to tell the company beforehand when the tests would occur...
...But of those companies willing to challenge EPA’s bluster, many found they could avoid compliance for years, with little or no consequence...
...Speedy Resolution Tests show that the air around Non-Ferrous is somewhat cleaner now that the company at least has turned on its old pollution controlequipment...
...The case seemed unambiguous-the environmental equivalent of “Dragnet” ’s Jack Webb trackingdown a heroin dealer plying his trade at a neighborhood grade school...
...This is why the case of Non-Ferrous is even more dismaying than it might originally appear...
...And while a note or phone call from an OSHA official to his EPA counterpart might have suggested that EPA take a look, that didn’t happen...
...More important than whether EPA’s regulations are lax or strict is the agency’s willingness to enforce them in the first place...
...Never promise actually to do anything unless it’s absolutely necessary...
...Of course this one example shouldn’t suggest that EPA is a totally impotent agency...
...The black hat is now being worn by the Office of Management and Budget, which is trying to water down the regulations...
...The emissions continued...
...Incorporated in 1968 and now employing about a dozen people, the company reprocesses materials such as wire and batteries by melting them down...
...Nor was the EPA the only one responsible for this sorry affair...
...After I quit the agency and moved to New York City, mycuriositygotthebetterofme...
...Non-Ferrous had repeatedly violated several pollution statutes, emitting, by the company’s own estimate, up to 40 pounds of lead an hour from its small factory...
...Impressive...
...Stephen Schultz, medical coordinator of the Lead Poisoning Control program in the city’s health department...
...One finally came in May 1982, but wasn’t effectiveuntil mid-July, after it was printed in the Federal Register...
...Although neither ever took legalaction, their statements had one great effect: inflammation...
...It was at this point that Non-Ferrous began to get a little nervous-nervous, not scared...
...The DEP finally stumbled upon the company in 1973...
...The evidence, however, didn’t point conclusively to Non-Ferrous...
...We don’t have a computer system,” a city clerk told me...
...Were the enforcement orders effective, or were they later watered down, or simply ignored...
...At a community meeting, EPA representatives were shouted down by angry residents...
...As watchdogs go, this one has alwqvactedasifit were halfblind, lame, and afraid of its own shadow...
...Not to Non-Ferrous...
...The engineers, about the only heroes in this story, took some initiative and checked up on the company...
...There was nothing unusual about its strategy for evading the law, no fancy legal footwork or secret payoffs, no flexing of political muscle...
...How right they were...
...While emissions at the plant continued to exceed standards, progress continued until June 198 1, when a tentative settlement finally was reached...
...The location of the children’s homes indicated that the Brooklyn-Queens Expressway, not the plant, wasthemainsourceofthe lead poisoning (leaded gasoline burned in automobiles is the largest source of airborne lead...
...OSHA didn’t bother to determine if this actually had happened...
...In children, long-term exposure to even small amounts of lead has been linked to numerous behavioral problems, from poor school performance to hyperactivity...
...From Stempler’s position, there’s good reason to be evasive...
...These findings sent EPA’s vast enforcement apparatus whirring-sort of...
...These companies discovered something most EPAwatchers overlook: More important than whether specific emission standards are lax or strict is the agency’s willingness to enforce those standards in the first place...
...But that was a bit difficult, considering that until 1979 EPA hadabsolutely no idea the company existed...
...As in a previous war, the body counts in this one seemed suspect...
...The 1970 Clean Air Act set specific standards for numerous air pollutants, many of them much less harmful than lead...
...During much of that period, the EPA and the state and local government officials involved in the case were totally ignorant of Non-Ferrous’s existence...
...The October 1980 lawsuit came only after Non-Ferrous had violated the air pollution statutes for over a decade...
...The Carter administration had long made clear to EPA officials that “plea bargaining” was the preferred course in all such lawsuits...
...The article began: “The Federal EPA filed a $15-million damage suit yesterday against the Non-Ferrous Processing Corporation of 55 I Stewart Avenue, Brooklyn, which was accused of discharging heavy concentrations of lead oxide into the air...
...But that’s not OSHA’s department...
...The company repeatedly has violated the EPA standard-a 1979 EPA test showed the air around Non-Ferrous containing three times the permissible amount of lead-and never complied with the New York law...
...Negotiations with Non-Ferrous began in December 1980...
...To help prove Non - Ferrous’s operations actually were harming people, the EPA convinced the New York City Health Department to test the blood of 1,200 children living near the plant...
...In May its inspectors toured the factory and found so many serious violations of health and safety standards it didn’t need to bother with the trivial ones...
...But EPA knew that even before it ordered the blood tests...
...Non-Ferrous had made itself invisible by means of a simple stratagem: it refused to get the required permit...
...Despite the lack of a specific lead standard from 1970 to 1977, the Clean Air Act still required NonFerrous to obtain a federal emissions permit...
...The Clean Air Act as it’s now written puts such a heavy burden of proof on the agency that an emergency health injunction is almost impossible to get...
...No, there aren’t any zeros missing from that figure...
...Assemblyman Joseph Lentol pledged that he would “immediately obtain an injunction against the company...
...Most important, OSHA discovered all ten of the company’s line employees had lead in their blood in amounts exceeding the public health standard of 40 micrograms per 100 milliliters...
...It went on to say that 21 children living near the company’s factory showed “elevated lead levels” in their blood...
...Non-Ferrous officials, no doubt sensingachancefor much more favorable treatment, finally showed up for a few meetings...
...While other federal employees might be shuffling memos back and forth in some bureaucratic backwater, we could boast of serving a noble cause: the war against environmental degradation...
...This is the equipment the law required the company to have in 1977, when the lead standards took effect...
...Gorsuch told them that when the regulations came up soon for review she intended either to relax them or abolish them...
...The company could have been shut down for this offense, but with the EPA making no effort to track down Non-Ferrous, even after the I977 standards went into effect, company officials figured the money saved from avoiding government regulation outweighed the cost of being discovered...
...As proof, the lawyer pointed to tests conducted in the summer of I980 and the spring of 1981 that showed the company had turned on its old-albeit inadequate-pollution control equipment...
...I speak from personal experience...
...At this point all the necessary paperwork disappeared into the nether regions of the bureaucracy...
...So EPA should have been watching NonFerrous from 1970...
...We’re just waiting for headquarters to dot the i’s and cross the t’s,”an EPAlawyerassured me in January 1982, six months later...
...The expensive-to-operate pollution control equipment remained idle...
...Administering the therapy without a medical license is illegal, for a very good reason: “He could have overdosed people, damaged their kidneys, or they could havegoneinto trauma from an allergic reaction,” according to Dr...
...For practicingmedicine without a license, it fined Worth $400...
...For its litany of repeated violations the agreement stipulated a penalty against Non-Ferrous of $ I2,500--less than one tenth of one percent of the originally threatened fine...
...With polluters who were sincere about obeying the laws or genuinely fearful of the consequences of breaking them, this approach might work...
...In addition, a 1980 study by the National Academy of Science concluded that lead levels in this range were “even more dangerous than previously thought,” capable of causing chromosomal abnormalities and malfunctions of the reproductive system...
...New York State Assemblyman Joseph Lentol says an employee for the city once told him Non-Ferrous had been fined “between $25 and $300 over and over again since 1973...
...Once again it wastime to shift tactics...
...In May 1980itdumped thecaseon New York State’s Department of Environmental Conservation with instructions to negotiate a settlement with the company...
...The company ignored our lettersand canceled the meetings we set up to discuss the problem,”recalls Richard Cahill, EPA’s chief press officer...
...Keep a low profile...
...By October 1980, one year after discovering Non-Ferrous, EPA was back at square one...
...Here, I thought, was an apt occasion for a case study that could resolve my doubts about the agency’s effectiveness...
...One also can’t help but wonder how upset the EPA will be if Non-Ferrous doesn’t live up to the agreement...
...After taking nine years just to discover Non-Ferrous’s pollution, EPA took almost three more years to force it to obey the law...
...Whether Non-Ferrous will live up to its agreement is another matter...
...Its bluff called, EPA beat a hasty retreat...
...The cost of the equipment will be defrayed partially by tax credits...
...Since its creation the EPA has preferred the roleof the’koft cop,” trying to persuade polluters that obeyingthe law is in their own best interests...
...Employees were working around vats of splashing, molten lead without the required eye and face protection equipment...
...Visit, But Don’t Breathe the Air The Non-Ferrous Processing Corporation operates a dilapidated factory that squats beneath an expressway in the Greenpoint neighborhood of Brooklyn...
...In July, powerlesseven to go into the factory and test the stack, the state shuffled the case back to the EPA...
...The air in the factory never had been tested despite the known presence of large amounts of lead and asbestos...
...What’s more, EPA could have shut the plant down anyway because NonFerrous still had no permit...
...It can also kill fetuses, produce premature births, and cause birth defects...
...It took EPA five more months to come up with its next tactic, which turned out to be conditional surrender...
...The injunction move actually was an effort to arouse public indignation in hope of forcing the company to comply with the law without EPA’s playing the heavy...
...EPA reported immediate progress: it had “set up a dialogue” with the company...
...When Reagan was elected in 1980 pledging to loosen onerous environmental regulations, an actual day in court seemed even less likely...
...To enforce this standard, New York State passed a law requiring companies such as Non-Ferrous to remove 99 percent of the lead from their emissions...
...Nonetheless, EPA accidentally discovered Non-Ferrous on its own -nine years late...
...The factory was vandalized...
...In the meantime, the company needn’t worry about being prosecuted...
...My reasoning was straightforward: if the EPA couldn’t handle a case this easy, it might as well turn in its badge...
...Other government agencies-local, state, and federal-did their best to ensure Non-Ferrousdidn’t receive the punishment it deserved...
...Four more months passed, with no final agreements...
...After more than a decade, “cooperation” has finally triumphed...
...Twenty-one showed dangerous amounts of lead, two severe enough to require hospitalization...
...Though Worth refused to return a half dozen phone calls I made to him over the course of two years, a lawyer for the company assured me that Non-Ferrous really fiantedto cooperate with the EPA...
...The EPA produced a computer model suggesting NonFerrous’s lead emissions were much higher than originally thought...
...One health department official described the atmosphere as “hysteria, culminating in a vigilante mentality...
...Perhaps it’s a “voluntary compliance” regulation allowing industries to monitor their own dangerous carcinogens, a relaxation of standards for deadly chemicals, or yet another crippling budget cut in EPA’s enforcement staff...
...While the Health Department concluded that Non-Ferrous’s emissions contributed to the problem, EPA knew the evidence wouldn’t stand up in court...
...Protective clothing worn by workers was strewn about the lunchroom, which meant employees, in effect, were eating lead with their sandwiches...
...And perhaps more important, other polluters probably are drawing yet another lesson from this story...
...What 1 discovered was far worse than I’d imagined...
...Lead breathed into the lungs enters the bloodstream to attack many essential body functions, such as the blood-producing system and the kidneys...
...finding no permit on file, it fined Non-Ferrous $300 and ordered it to get one...
...When Lentol, the EPA, and I tried to get records to verify these fines, none could be found...
...Yet I always had a vague feeling that despite all the releases I was writing, something was amiss...
...In 1979 the city’s Department of Investigation concluded not only that the DEP had been “remarkably lenient” in levying fines, but that less than half those paltry sums was ever collected...
...The truth, however, is even less comforting...
...During the Carter presidency-an era that now seems enshrined in the collective memory as some sort of EPA “Golden Age”-I was a public information specialist in EPA’s Chicago office, where I kept busy writing press releases announcing “notices of violation,” enforcement orders, and fines the agency issued to companies breakingairpollution laws...
...When the federal government finally discovered Non-Ferrous in 1979, it wasn’t EPA that got there first, but OSHA...
...Nonetheless, the Non-Ferrous case illustrates some important failings in the nation’s efforts to protect the environment, failings that Gorsuch’s antics have made it easy to overlook...
...Ironically, the company owes its existence to the market for recycled materials that emerged from the environmental movement ofthe late 1960s...
...Again, the company ignored the order...
...With All Deliberate Speed With such hazards inside the plant, it wouldn’t have taken a great leap of logic to suspect something dangerous was coming out of Worth’s plant...
...When company president Samuel Worth found out his employees were victims of lead poisoning he treated rhem himself: And he did so, according to a later OSHA report, without notifying them of their condition or the dangers of the therapy...
...The first thing they discovered was that Non-Ferrous still had novalid permit on file...
...If recalcitrance really does pay, and the punishment for years of illegally spewing poisons into the air is less than what the company could make in a single week, why bother to cooperate...
...After the authorities discovered the company and its polluting ways, their efforts to enforce the law were so anemic the company ignored them with impunity...
...The city’s air enforcement chief, Samuel Stempler, simply offered a “no comment” to my inquiries...
...The company ignored the order, which resulted in more fines...
...But rather than use the new estimate in pressing its lawsuit, theagencydecided to seek an emergency court injunction to close the plant down as a “health hazard...
...In November 1979 two EPA engineers were checking another plant in Greenpoint and noticed suspicious-looking smoke rising from Non-Ferrous...
...On October IO, 1980 I ran acrossa two-inch story buried in The New York Times headlined, “Brooklyn Company Sued Over Pollutant...
...I could never tell, because, not surprisingly, my superiors did not regularly feed me information for releases headlined “EPA’s $25,000 Fine Reduced to $350,”or “EPA Enforcement Order Ignored for the Seventh Time...
...Don’t return EPA’s phone calls...
...The problems produced by lead in the blood do not stop when thesource isremoved...
...But while I’m as upset with the EPA as the next person, what I find disturbing is the implication in all this that Gorsuch somehow has taken an agency that was once a crusading, vigilant watchdog of the public’s health and safetyand turned it into a compliant lap dog of industry...
...As a fallback, the agency ordered the company to test its smokestack within 30 days, or face more penalties...
...But when the company again balked at the thought of a stack test, the state threatened more fines, at which point Non-Ferrous walked out of the negotiations...
...Gorsuch isn’t exactly a stickler for legalities when it comes to lead pollution, an attitude revealed last December when accounts of a meeting with a New Mexican gasoline refiner were leaked to the press...
...1 wouldn’t even know where to look...
...Two months passed without action...
...The tactic produced public indignation, but not much else...
...According to OSHA’s standard text on industrial materials, “Lead levels in the 30-40 microgram range will produce headaches, dizziness, abdominal pains, vomiting, insomnia, pallor, weight loss, and amnesia in almost all cases” (emphasis added...
...As one EPA spokesman told me, “Believe it or not, this case actually moved faster than many other casesdo...
...This view pervades most press accounts of the EPA, from lengthy New York Times exposes to the despondent EPA bureaucrat in “Doonesbury” who perched himself ona window ledge and threatened to jump because of Gorsuch’s policies...
...Officials of theThriftway Company asked Gorsuch to exempt it from a pending regulation requiring it to reduce the lead in its gasolines...
...They also discovered that the company had pollution control equipment but was not using it...
...For the EPA, that seems to be enough...
...Cooperation between government and business was the watchword...
...To tell you the truth,” admitted a DEC engineer, “the only thing we can do in a factory is check for illegally bagged deer...
...The agreement also called for the company to spend $250,000 on air pollution control equipment by July 1984-two years after the effective date of the agreements...
...There was no need for a waiver, Thriftway officials said they were told...
...However, strong industry lobbying kept lead off this list and it was not until 1977 that a lawsuit by environmental groups forced the EPA to come up with a lead standard...
...actually punishing someone for breaking the law, even if he did it repeatedly, was usually considered vengeful and inappropriate...
...In other words, Non-Ferrous was finally answering EPA’s phone calls and showing up at meetings...
...Brooklyn Councilman Abraham Gerges offered to lead a movement “to close the place down...
...Slow Motion Enforcement With EPA asleep at the wheel, responsibilityfor Non-Ferrous fell to New York City’s Department of Environmental Protection...
...The residents of Greenpoint who’ve been exposed to the plant’s toxic offerings for that time understandably don’t take much solace in this belated victory...
...At this point the agency finally filed its original lawsuit against the company-the one mentioned in the brief Times account...
...Leadaccumulates in the bones and teeth, and during stress or fever it may be released, causing acute poisoning long after the initial exposure...
Vol. 14 • October 1982 • No. 8
