To complicate an already involved scenario, the primary EPA
attorney on
the case, Barbara Magel, after negotiating the consent agreement via what clearly
appeared to be an illegal procedure circumventing fundamental procedural
requirements of both the Superfund statute and the National Environmental Policy
Act, left EPA and joined Mr. Karaganis' firm in Chicago. Mr. Karaganis assured
all that Ms. Magel would not work directly on the Bloomington case.
Applicable Provisions of the ABA Model Code
of Professional Responsibility
This paper addresses the issues of 1) whether the EPA's, City's, and
Westinghouse's attorneys' conduct constituted one or more ethical violations,
and 2) how the matter should be resolved. The primary applicable provisions of
the ABA model code are discussed below.
A. Simultaneous Clients with Different Interests
Model Code Canon 5 states that "a lawyer should exercise independent
professional judgment on behalf of a client." EC 5-1 states that the
professional judgment of a lawyer should be "free of compromising influences" and
loyalties." "Neither his personal interests, the interests of other clients, nor
the desires of third persons should be permitted to dilute his [her] loyalty to
his client." The facts described above allow a reasonable inference that the
financial interests of CWM and WM in the ash contracts from the experimental
incinerator, and in the promotion of the idea of garbage as a fuel for hazardous
waste incineration, may have influenced the City and Westinghouse attorneys to
either suggest the garbage-fueled incineration remedy or to be predisposed to
accept it uncritically, without properly evaluating the proposal in light of
their clients'(the City and Westinghouse respectively) interests. The remedy
selected is not only highly unusual (experimental and unique), it has obvious
environmental liabilities such that it normally would not be expected to survive
assessment of environmental impacts nor would it survive an objective analysis
of feasibility compared with available alternatives. The fact that the decision
was made in private and that the statutorily required studies of impacts and
feasibility were conveniently omitted raises obvious concerns.
More specifically, EC 5-14 states that the required maintenance of
independent judgment precludes a lawyer accepting or continuing employment "that
will adversely affect his judgment on behalf of or dilute his loyalty to a
client." "This problem arises whenever a lawyer is asked to represent two or
more clients who may have differing interests . . . ." This would include
situations in which the attorney would, on behalf of one client, have a duty to
contend for that which a duty to another client would require her to oppose. See
ABA Canon 6. In the present case, the attorney representing the City would have
a duty to critically review the proposed incineration remedy to avoid
environmental and financial costs to the taxpayers, while the same attorney's
simultaneous employment by WM, whose interest is in acquiring ash disposal
contracts and in promoting the idea of garbage-fueled incineration, may influence
him to be predisposed to accept the proposed remedy and overlook the costs to
taxpayers. This would appear to be differing interests within the meaning of EC
5-14.
EC 5-15 advises that a lawyer should normally avoid taking employment from
clients with potentially differing interests. However, EC 5-15 further states
that there are instances where a lawyer may properly serve multiple clients
having potentially differing interests in matters not involving litigation. In
the instant case, the attorneys involved may argue that their simultaneous
representation of WM and the City or Westinghouse falls into this exception to
the general prohibition since WM was not a party to the litigation resulting in
the cleanup settlement.
However, EC 5-16 requires full disclosure by each attorney to each
client
of the implications of the common representation and allows continued
representation only after the client consents upon full disclosure. Further
discovery would be useful in the present case, but it appears from preliminary
investigation that the full extent of the City attorney's involvment with WM was
not disclosed when the attorney appeared before the City utility board during the
City's inquiry into the potential conflict. More certainly, there is nothing in
the record indicating any disclosure by the City attorney or the Westinghouse
attorney of the potentially differing interests of their common client WM, and
the interests of the City and of Westinghouse. There was no disclosure that WM,
having stockpiles of both municipal garbage and hazardous waste and large ongoing
contracts to dispose of great quantities of both, had an interest in promoting
the use of garbage as a fuel for hazardous waste incineration since they could
save millions in disposal costs by using their own garbage to burn their own
hazardous wastes.
There is no evidence in the record of any disclosure to anyone by the
Westinghouse attorney of her employment with WM. Such disclosure, had it been
made, might have not only influenced Westinghouse's decision to retain her, but
might also have resulted in the City viewing Karaganis' WM employment as more
significant as a potential conflict, knowing that a 2nd of the three key
attorneys who negotiated the settlement worked for WM also.
DR 5-101(A) states that except with the consent of the client "after full
disclosure, a lawyer shall not accept employment if the exercise of his
professional judgment on behalf of his client will be or reasonably may be
affected by his own financial, business . . . interests." At issue here is
whether Karaganis' and/or Bernstein's business and financial interests in
continued employment with WM affected or could reasonably have been considered
as possibly affecting their professional judgment on behalf of the City or
Westinghouse respectively. If WM were known to have expressed an interest in the
outcome of the Bloomington litigation or settlement, then the answer would be a
clear yes. In the absence of evidence that WM actually had such an interest,
other than the hypothetical one, the answer is maybe.
DR 5-105 is directly on point. Section A of DR 5-105 requires
that an
attorney decline employment if the exercise of his independent professional
judgment on behalf of his client would be impaired, or if the employment would
involve him in representing differing interests. Section B of DR 5-105 requires
an attorney to discontinue multiple employment under these same circumstances.
Section C of DR 5-105 allows continued multiple employment only if it is obvious
that the attorney can adequately represent the interests of each client, and if
each consents to representation after full disclosure of the possible effects on
the exercise of his independent professional judgment. The facts in the present
case do not demonstrate that the necessary full disclosure was made to any of the
clients involved. Nor was disclosure made to the public which, while not
explicitly required by the Code, should be the practice when a government client
conducting the public's business is involved.
B. Post-Representation Employment with Opposing Counsel
DR 5-105(D) requires that when a lawyer is required to decline employment
or withdraw from employment under a Disciplinary Rule, no partner or associate,
or any other affiliated lawyer, may accept or continue such employment.
DR 5-107(A) states that "except with the consent of his [her] client after
full disclosure, a lawyer shall not:
- Accept compensation for his legal services from one other
than his client.
- Accept from one other than his client any thing of value
related to his representation of or his employment by his
client."
DR 9-101(B) requires that a lawyer should avoid even the appearance of
impropriety, and therefore mandates that a lawyer shall not accept private
employment in a matter in which he had substantial responsibility while he was
a public employee.
On the facts of this case, EPA attorney Magel, after negotiating the
settlement with Westinghouse and the City, left EPA to join the private firm of
the City's attorney. Facts have not been made public which would show that Magel
accepted any thing of value from the City or Westinghouse or WM related to her
representation in the settlement, other than employment by the City's attorney's
firm. Accepting money from another party's attorney during the negotiations, for
example, would be a clear violation of DR 5-107(A).
Further, the City's attorney Karaganis, who hired Magel, claimed
Magel
would not have substantial responsibility for the ongoing Indiana case, which if
true, avoids a clear violation of DR 9-101(B). The facts here may involve an
unusual violation of DR 5-105(D), however. Consider that had Magel joined
Karaganis' firm prior to the Karaganis firm's representation of the City,
Karaganis, as a partner of Magel, would not have been able to have taken on that
representation due to Magel's past role in the case for EPA. The question is,
can a private firm hire a government attorney who had a lead role for an opposing
government party in an ongoing litigation with the private firm, on the rationale
that the ex-government attorney will only do unrelated work? Doesn't such
conduct at a minimum create the appearance of impropriety and undercut public
confidence in the profession?
Even if there is found no clear violation of DR 5-105(D) in the
fact that
Magel's now partner Karaganis continued, after Magel joined Karaganis' firm, to
represent the City in litigation that Magel led for EPA and therefore could not
accept herself, there is still another troubling question. If, under DR 5-107(A)
a lawyer can not accept any thing of value from one other than the client related
to representation of the client, wouldn't accepting a job with opposing counsel
at a higher rate of pay be the same class of violation as accepting a direct and
immediate cash payment during negotiations? Is the fact that the payment is
deferred or not in simple cash, but rather is cash in the guise of employment,
significant enough to classify post-representation employment as not a violation
where a simple cash payment during the representation would be a violation? Does
it matter whether the job offer occurred during the initial litigation with the
future employer or after the litigation? What of cases such as here, where there
is continuing litigation and a court ordered consent decree which involves a plan
that the court will be overseeing for years?
The disciplinary rules do not appear to speak directly to this
situation.
However, interpreting such conduct involving post-representation employment with
an opposing counsel or party as not an ethical violation under DR 5-107(A) leaves
the door wide open for flagrant circumvention of DR 5-107(A) by use bribes in the
form of employment offers, and clearly creates the appearance of impropriety.
Post-representation employment poses two ethical concerns only one of which is
clearly addressed by DR 9-101(B). DR 9-101(B) precludes the sort of ethical
conflict that arises when someone is hired by a private firm to work on the same
issue that they worked on in their prior position in government. This avoids
misuse of confidential or inside information and avoids the use of personal
influence on behalf of the new private employer by the ex-government attorney
with officials still working on the matter. DR 9-101(B) does not address the
ethical problem of use of employment offers as bribes to improperly influence the
government attorney's conduct while that attorney is still with the government.
DR 5-107(A) should be construed to cover this situation with the employment
offered seen as falling within the scope of "any thing of value."
C. Illegality, Misrepresentation and Fraud on the Court
DR 1-102(3)(4) and (5) prohibit a lawyer from engaging in illegal conduct
involving moral turpitude, conduct involving dishonesty, fraud, deceit, or
misrepresentation, and conduct prejudicial to the administration of justice. The
EPA attorney clearly, and the other parties' attorneys apparently, engaged in
conduct that was both illegal and deceitful. The EPA attorney directed the
signing of the record of decision which constituted final selection of the remedy
prior to taking public comment on the "proposed" remedy. Public comment is
clearly required both under Superfund and NEPA prior to final remedy selection.
In representing a client, a lawyer may not conceal or fail to disclose that
which he is required by law to reveal. DR 7-102(A)(3). Likewise, a lawyer may
not knowingly make a false statement of law or fact. DR 7-102(A)(5). A lawyer
may not counsel or assist his client in conduct that the lawyer knows to be
illegal or fraudulent. DR 7-102(A)(7). Neither can a lawyer knowingly engage
in other illegal conduct. DR 7-102(A)(8).
A lawyer who receives information clearly establishing that his client has,
in the course of the representation, perpetrated a fraud upon a person or
tribunal shall promptly call upon his client to rectify the fraud, and if the
client does not do so, the lawyer shall reveal the fraud to the affected person
or tribunal, unless the information constitutes a privileged communication. See
DR 7-102(B).
Actual and Recommended Resolution of the Problem
Who is the client for an attorney representing a government: the officials
involved, the person(s) in the highest position of authority in that government,
or the public? In the exercise of the lawyer's professional judgment in handling
a legal matter, a lawyer should always act in a manner consistent with the best
interests of her client. See EC 7-9. What does the lawyer do when the
individual officials involved who have arranged her retainer appear to have
interests different than the interests of some higher official body or of the
public?
THE BURNING QUESTION; TRASH, HAZARDOUS WASTE, AND INCINERATION:
A Policy Analysis of Bloomington,
Indiana's Flawed Efforts at Public-Private Cooperation
James R. Simmons
Iowa State University
Abstract. In recent years cities facing growing municipal trash and hazardous waste crises have attempted to develop innovative
public-private sector relationships in order to resolve their multiple environmental problems. In this paper I will
argue that the PCB Consent Decree recently negotiated between Westinghouse Corporation and three levels of government
in Bloomington, Indiana, represents a seriously flawed effort at this form of issue resolution. Neither the experimental
technology chosen for the cleanup nor the novel form of local control mandated for this process can be projected to live
up to the expectations of the Decree's advocates. This agreement also leaves a number of other pressing and interrelated
social issues unresolved. If other communities adopt this "Model," they can expect to be confronted with the kinds of conflict
and continuing controversies facing Bloomington public officials.
INTRODUCTION
Disposing of the nation's growing volume of waste is gaining
the attention of the public and govemment decisionmakers
as a result of such widely publicized incidents as
the New York garbage barge, Love Canal, Time's Beach,
and the numerous local disputes over our rapidly diminishing
landfill space. This public saliency of both municipal
and hazardous waste has generated a search for innovative
disposal technologies as well as more satisfactory publicprivate
relations in efforts to develop an adequate response
to an issue that may soon reach crisis proportions (Lester,
1983). Obviously, new policies must be developed, and a
concensus seems to be emerging in some industry and
government circles that waste-to-energy incinerators built
through some form of cooperative partnership may be the
"solution" to the waste problem.
James R. Simmons came to lowa State University in 1987 as Assistant
Professor of Political Science and teaches Organizational
Theory and Administrative Politics. Formerly he taught at De
Pauw University and Indiana University, where he received hi
Ph.D. in 1983. He has published articles on Indiana and contem
porary American democracy and is currently investigating toxir
waste disposal practices from the community and govemmental
standpoints.
Requests for reprints may be addressed to James R. Simmons, Assistant
Professor, Political Science Department, lowa State
University, Ames, IA 50010.
THE ENVIRONMENTAL PROFESSIONAL Vol 10 pp.223-233
1988 Printed in the USA. All rights reserved.
Because of the public and private sector interest in incineration,
an assessment of this technological response
and its ramifications seems long overdue. As an increasing
number of cities begin to consider this method of waste disposal,
it is important that we evaluate now the costs and
benefits of such incinerators and that before more communities
adopt them, we project their likely social,
economic, and political impact. Such an effort seems particulary
necessary because, given the great expense for this
kind of solution, local officials will in the future be pressured
to continue to operate incinerators even if new
evidence proves that they create more problems than they
resolve.
In this paper I will attempt to develop some generalizations
about the suitability of incineration and corporate operations
as a response to the waste issue. My analysis will
focus on the recent agreement in Indiana between Westinghouse
Corporation and three levels of Bloomington
government. This agreement is being touted not only as the
optimal resolution to the city of Bloomington's massive
PCB contamination problem, but also as the answer for
other communities facing similar crises. I will argue, based
on a careful examination of the Bloomington Consent
Decree and the efforts at implemention, that public officials
should reject the form of public-private cooperation
represented by the "Bloomington Model," unless they can
achieve an agreement that has been designed without the
flaws of the Indiana settlement. Furthermore, even if the
cleanup efforts and technological approach chosen for
Bloomington develop as planned, there will still remain
political issues for which agreements such as the Consent
Decree have no ready answers.
THE BLOOMINGTON PCB CONTROVERSY:
BACKGROUND AND CHRONOLOGY OF EVENTS
On October 11, 1983, Bloomington Mayor Tomi Allison
called a news conference to announce that the end was in
sight to the PCB contamination problems that had plagued
the city for eight years. Westinghouse Electric Corporation
and the city had just agreed "in principle" on the broad outlines
of a settlement that would ensure the removal of
polychlorinated biphenyls from six sites-including two
owned by the city-in a high temperature incinerator that
would also burn refuse from Monroe County homes and
businesses. At this conference the mayor indicated that the
agreement gave credibility to the case that "environmental
problems can be solved through close cooperation between
government and industry." Even though the final settlement
was not to be revealed until over a year later, the
mayor's statement did illustrate the hope by local of ficials
that public-private negotiation and compromise would
replace the politics of confrontation, regulation, and litigation
that had characterized the PCB issue since the outset
of the controversy.
The Consent Decree that was finally approved on August
22, 1986, by U.S. District ludge S. Hugh Dillen represented
the culmination of hundreds of hours of closed-door
meetings between attorneys for Westinghouse and those
serving the city, state, and federal authorities who had sued
the corporation for its contribution to the region's PCB
contamination problems. Four Superfund sites, a waste
treatment plant, and three river tributaries are covered by
the cleanup agreement, which became
operational this past year-this in the face of local opposition
that grew to massive proportions during the four
months of public hearings, in spite of approval votes by
government bodies, and which continued to mount
throughout the recent municipal election campaign.
Despite this widespread and vocal criticism, most public
of ficials have hailed the decree as the largest cleanup ever
successfully negotiated under the seven-year-old federal
Superfund law.
Even though Westinghouse has undertaken its first concrete
interim cleanup measures at the contaminated
landfills and is proceeding with its plans to build the
"resource recovery" facility, there are few signs that the
controversy over the PCB issue has ended or that there is
now sufficient confidence in the corporation for a truly
cooperative effort to proceed. Recent events such as complaints
by area residents about the quality of the preliminary
work done by the contractor hired by Westinghouse,
the city's open criticism of the company's risk assessment,
and the demand by the County Commissioners for the inclusion
of other toxic sites in the project, all indicate that
the passage of the consent decree did not signal the end of
the debate, but only a restructuring of the framework within
which the debate will be conducted. Indeed, given the history
of the issue in Bloomington (see A History of PCBs)
and the past behavior of Westinghouse, it is difficult to imagine
how public-private cooperation might be expected to
develop as the mayor had optimistically forecast.
Both the second thoughts by public officials over the merits
of the agreement and the continuing heated opposition by
groups outside government suggest that the basic policies
outlined in the Consent Decree deserve reexamination.
Thus this critical review seems to be particularly relevant
at this time. Even though most elected and appointed of ficials
along with their consultants continue to defend the
results of their long and painful negotiations, they are at
present posing questions about the settlement and directing
at Westinghouse specific criticisms that bear an ironic
resemblance to complaints formulated by the Decree's
most outspoken critics. In fact, the tone and content of
recent city correspondence with the corporation has been
so contentious that Westinghouse has complained that
"either the City doesn't understand the Consent Decree, or
doesn't like it (1987)."
PUBLIC-PRIVATE SECTOR RELATIONS:
THE BLOOMINGTON MODEL
The 108-page Consent Decree is a complex document, but
its basic contents can be summarized as follows: under the
terms of this agreement Westinghouse will excavate approximately
650,000 cubic yards of contaminated
materials from six of ficially designated areas, transport this
matter to a temporary storage facility, and burn it in a hightemperature
incinerator that the company will design,
build, and operate over the projected twenty-year duration
of the operation. After having removed the contaminants
from the affected streams and landfills, the corporation will
have to maintain short- and long-term remedial measures
at these sites, including closing them properly against
leakage and then monitoring them continuously in order to
determine whether the groundwater has been tainted.
Should the water supply show signs of pollution, Westinghouse
must provide residents with access to an alternate
drinking water supply.
City authorities can impose additional conditions on the
design and operation of the incinerator beyond those required
by state and federal regulations, if they determine
that "they are necessary to mitigate or prevent an unreasonable
risk of injury to human health or the environment."
Westinghouse retains the right of administrative
appeal and can challenge the city's conditions in court. The
corporation can also use technologies other than incineration
to dispose of PCB wastes, if it can demonstrate to the
other parties and the court that they are safe and effective.
On the other hand, the corporation must pay for an independent
consulting firm hired by the city and provide external
monitoring devices in order to ensure local of ficials
that the incinerator is operating properly. When all of the
contaminants have been incinerated, the city can buy the
facility, have the corporation dismantle it, or come to
another agreement with Westinghouse for the continuing
disposal of area garbage.
Bloomington and Monroe County are to provide trash to
fuel the incinerator, which will also use oil- or gas-fired
burners to maintain the approximately 2,200 degrees Fahrenheit
temperature that some authorities claim is necessary
to destroy PCBs. Westinghouse will charge "tipping
fees" for the acceptance and disposal of this solid waste,
but these fees are subject to review and cannot exceed the
fees charged at the Monroe County landfill. Such fees
would also be placed on the resulting byproducts of the
process. Non-hazardous ash could be disposed of on the
grounds of the city's Dillman Road sewage plant, which
will be leased to Westinghouse as the incinerator site, or at
another landfill provided by one of the parties. Hazardous
ash, on the other hand, shall be disposed of at
Westinghouse's expense at a federally licensed hazardous
waste facility. In addition, Westinghouse can sell whatever
steam or electricity is generated by the process at the
market rate.
No regulated wastes or materials not described in the Consent
Decree are to be bumed in the incinerator, except for
materials from additional PCB sites found "in and around
Monroe County" that have been approved by city, county,
state, and federal authorities. The inclusion of additional
sites would, of course, require a mutual agreement by
the parties involved and be endorsed by the court. Westinghouse
takes responsibility for all claims against the city and
county over PCB exposure from sites covered by the agreement,
the operation of the incinerator, or the implementation
of the cleanup. Furthermore, the firm agrees to pay the
city $250,000 as partial reimbursement for cleanup, legal,
and consulting expenses, as well as $900,000 over four
years as rent for the use of city property for a waste storage
facility. In return, each party agrees not to sue any other
party over the issues that had initiated the original litigation,
if each of the parties meet their obligations under the
decree. The burden of proof of non-performance and omission,
however, is to be placed on the party seeking enforcement
or claiming a violation.
EVALUATION AND CRITIQUE
Any prudent review or critical assessment of the
Bloomington Consent Decree must center on at least three
primary considerations: the adequacy of the experimental
technology chosen by Westinghouse and approved by all
parties to the agreement; the potential costs and risks to the
local community that are likely to be produced by the
decree's implementation; and the extent to which the
agreement's "local control" provisions provide government
of ficials with an effective means of public oversight.
Each of these interrelated topics will be discussed in some
detail.
Viability of the Technology
Westinghouse Electric Corporation has devoted over a
year to a public relations effort and more than 600 pages
of a company-issued risk assessment in its efforts to
demonstrate that the trashburning incinerator it plans to
build south of Bloomington will operate as planned with
almost no impact on public health. Most city officials also
argue that the proposal the company has submitted can,
with some modifications, fulfill the Decree 's requirements.
Indiana University professor David Parkhurst, for example,
has stated in his capacity as city consultant (H-T,
1987):
I think it's a pretty thorough and effective job. But
it does have some parts, I think, that should be
redone before we can accept the results whole hog.
The city's satisfaction with the Westinghouse projection of
the incinerator's performance is conditioned by the assumption
that a rigorous program for monitoring the
machine can be developed.
The case for the technology promulgated by industry
authorities contains the following arguments:
Incineration, they claim, is an old and proven technology
that is, furthermore, the only means available for dealing
with Bloomington's specific problems. The Westinghouse
risk assessment claims that the projected facility will
operate at a temperature consistently high enough to
destroy all forms of waste at a 99.9999% efficiency and
reduce the volume of these materials by 90%. It also says
that the risk of burning the wastes for residents from breathing
airborne emissions, eating food grown in the area, and
drinking local water would pose almost no increase in the
region' s risk of cancer and other potential health problems.
Finally, the company claims that this process will generate
significant low-cost energy and create jobs that will help
promote economic development in the area.
Although city officials are more cautious and are demanding
additional data before they will endorse incineration,
they insist that the Decree allows them to challenge the
technology, should future evidence indicate that the
corporation's assessment is faulty.
Despite the seeming unanimity among local experts, concern
over the chosen technology is growing. Recent incidents
have shown that existing incinerators break down,
cause air pollution, and are subject to in-plant accidents
(Beychok, 1987; Envirocon, 1984; Petzinger, 1985). The
worst problem seems to be that some wastes such as heavy
metals are not eliminated by burning, while other compounds
such as dioxin and furans pose a significant health
risk with any level of exposure. The emission and dispersal
of threatening quantities of microscopic particles may
plague operating incinerators because according to F.W.
Karasek (1987):
Evidence of the presence of most of the PCDD
(dioxins) at high parts- per-billion levels has been
found in each fly-ash sample analyzed, regardless
of the type of garbage, the design of the incinerator,
or the detailed composition of the mixture
of the more than 400 organic compounds
found absorbed or the particles.
The doubts about the O'Conner combuster design that
Westinghouse proposes are particularly strong. Although
rotary kilns are relatively versatile in that they can burn a
large quantity of a wide variety of wastes, practice has
shown that this form of incineration demands high costs
for installation and operation, produces low thermal efficiency,
and is subject to changes in feed pressures that
may force unburned wastes out the seal plates.
Westinghouse claims that the design planned for
Bloomington will not be subject to the problems exhibited
by conventional rotary kiln technology. And despite the
disappointing performance of many on-line facilities, both
the EPA and the waste-abatement industry conte.ld that a
modern incinerator which is well engineered and equipped
with scrubbers and fabric filters (ESPs) will operate reliably
with little acid gas, particulate, heavy metal, or organic
emissions. Unfortunately, the scientific evidence to support
this contention is mixed. Some research (Commoner
et al., 1987) indicates that there is no reliable relationship
between temperature, combustion efficiency, pollution
control device and incinerator emissions. A recent study of
three New York Incinerators (Visali,1987), however, finds
that an appropriate furnace temperature of 1400 to 1500 F
can indeed minimize dioxin and furan flue gas concentrations.
On the other hand, even the latter study argues that
there are trade-offs to be considered. Higher temperatures
tend to volatize greater amounts of heavy metals like lead,
cadmium, and chromium. Furthermore, the New York data
show a curvilinear relationship between temperature and
dioxin and furan formation. Thus temperatures in excess
of 1800 F that are essential for the destruction of PCB s may
produce higher concentrations of metallic chloride particulate and
thereby increase dioxin and furan emissions.
The experimental component of the company's proposal
has been the source of the greatest concern. Although
municipal solid waste incinerators are relatively common,
only a few facilities that burn hazardous waste are now
operational. None of these plants has attempted to do what
Westinghouse proposes: that is, mix trash with conventional
fuels as the source of combustible materials to burn excavated
contaminants. While officials in some parts of the
country are promoting the separation and recycling of garbage
-paper, plastics. wood, and other wastes-either for
their monetary value or to reduce health risks, corporate
spokesmen are claiming that the Consent Decree and effective
operation of the burn process require high levels of
these materials be directed to the plant. The company insists
that this unusual fuel will pose no problem, but the
firm's experience in this field dates back only to 1983,
when it purchased the tiny O'Connor company as a means
of turning its current liabilities in Bloomington and other
parts of the country into a potentially profitable venture.
Even more suspicion has been raised by Westinghouse's
refusal to conduct pilot tests, the omission from its risk assessment
of data from the company's own incinerating
facilities in other cities, and the praise the firm has extended
to its other destruction technologies such as the
plasma torch and electric pyrolyzer.
Objections to the plan might be overcome if the rigorous
program for monitoring the performance of the incinerator
that the city has promised can actually be put in place. Unfortunately,
the technical devices promised by the parties
to provide monitoring on a regular basis will measure the
burn temperature and the oxygen and carbon monoxide
levels in the flue gas, not the emissions of toxic dioxins.
furans, metals, and other chemicals that are the cause for
most of the concern. Tests for these latter particles can only
be done by an expensive process during the occasional onsite
inspections when incinerator operators are likely to be
on their best behavior. Even if the industry's argument that
sufficient heat and residence time will break down any
dangerous substances, there is no guarantee against reformation
of pollutants from products of incomplete combustion
(PICs) or from other simple compounds that may
combine in the stacks nor are we sure what will occur when
the chemicals cool down as they are released into the atmosphere
(Commoner,1986). Finally, the only evaluation
of the proposed incinerator's performance under less than
optimal conditions, such as during downtime, accidents, or
as the plant ages, must be based on either existing theory
or the company's own assessment.
Perhaps the greatest flaw in the Consent Decree with
regard to the technology appropriate for waste disposal is
that the document provides no clear standards against
which the O'Connor combuster might be evaluated. The
decree does discuss "public safety" in terms of "unreasonable
risk," but it establishes no specific requirements
that the company must meet. The city could use its
authority under the Decree to set severe standards, establish
levels for reasonable risk, and demand design changes
in the project as a means of ensuring public safety, but it
has failed to do so even though local officials now claim
that the Westinghouse risk assessment has serious
deficiencies and is technically defective. Nor is there any
evidence that such specific guidance will be forthcoming
given the city's lax regulatory history. The project is
moving ahead with neither an Environmental Impact Statement
nor an evaluation of the various alternative technologies
(biodegradation, vaulting, pyrolysis, etc.)
proposed by incineration opponents because these are not
required under the agreement unless the corporation
determines that they are necessary or desirable. This absence
of clear performance criteria may prove to be a
severe liability once the facility has been constructed because
the company is likely to resist any alternatives or substantial
design changes given the "sunk costs" already
invested.
Community Costs and Risks
Proponents of the Consent Decree have focused on the
benefits that will come to the Bloomington community
from the implementation of the agreement. Advocates
argue that the most seriously contaminated sites are already
scheduled for cleanup and other sites may be added later
because the agreement provides "a framework which can
accomodate further discoveries." If there are victims of
PCB exposure, the city claims that they cannot be identified
conclusively and that, in any case, the local government
cannot sue on their behalf, nor does it have the
resources necessary for an adequate remedy to their
problems. The choice of the incinerator and waste storage
sites were determined on the basis of ease of transportation
access, the money that the city will recover by leasing
municipal property, and the proximity to public facilities
that will ease the city's efforts at oversight. By and large,
officials see the community gaining a great deal from the
jobs created by the project as well as the reduction of the
dangers to the area's water supply. Futhermore, they see
Westinghouse's heavy investment in the incinerator and its
development of a nearby industrial park as a long-term
commitment to the region's efforts at economic growth.
Documented Sites Ignored
The glowing commendation of the agreement and its
projected advantages, however, does not stand up to careful
scrutiny. For one thing there are over 200 documented
sites that the decree ignores. Many of these sites were contaminated
by city-distributed sludge, the unwitting salvaging
of electrical capacitors, and illegal dumping by
independent haulers. When the agreement was negotiated,
the parties involved seemed to have been concerned about
only those sites for which they were directly liable. Westinghouse
has shown strong resistance to the inclusion of
any additional sites, and only the presiding federal judge
can force the extensions the mounting evidence seems to
indicate. This situation is particulary critical, since the city
has been unsuccessful in adding the Fell Iron and Metal
Company property to the cleanup even though its PCB
levels are higher than those at any of the six of ficial sites.
There are also very strong indications that the Westinghouse
plant site would more than qualify for inclusion. Officials
may have reduced their institutional difficulties by
the nature of the action taken, but it is not clear how much
of a threat to health and property values is posed by the
contaminated materials that remain at the "unofficial" sites.
The city's position with regard to injured parties is also
rather weak. Although government cannot sue a corporation
on behalf of residents, the out-of-court negotiations
and ultimate settlement might have included some form of
compensation. For example, the agreement could have
provided for some kind of funding for a local health study,
compensation to homeowners on or near contaminated
areas, and temporary relocation of those living close to the
sites being excavated. As it stands, the former Westing
house employee, exposed citizen, or innocent landowner
will have to pursue individual or class-action suits in order
to shift the legal responsibility to another responsible party .
The decree's prohibition against future litigation by the
respective parties to the agreement means that some level
of government must now initiate and bear the full cost of
any necessary remedial action, additional site search, vic
tim compensation program, or health-effects study. If
public pressures or new scientific findings indicate such
policies, the resulting burdens on public expenditures and
the taxpayer may well exceed the millions of dollars Westinghouse
payrolls provide to the local economy.
It is also apparent that this transaction contains a number
of hidden costs. In the firstplace, underthe financial arrangements
the Decree allows, the city's utility will not stand
to recover anything approaching its total legal expenses
which now exceed $3 million. Secondly, there is no con
sideration of costs to the community in the event of plant
malfunction or transportation accidents. Nor is there any
mention of the expenses for the training of local fire and
police personnel in emergency services or the wear and tear
on local roads caused by the trucking of tons of con
taminants across town over at least two decades. Thirdly,
it appears that residents of the aMuent Sherwood Oaks sub
urb must suffer the full weight of the probable losses in
their property values when the incinerator is built in such
close proximity to their homes. Lastly, the industrial park
may prove to be more of a liability than an economic gain.
Indeed, if high waste or pollution generating industries
move into this park in order to attempt to take advantage
of the nearby incinerator's unique capabilities, this may
discourage development more appropriate to a university town.
Consideration should also be given to the problems related
to the residues from incineration as well as the potential
losses represented by this method of disposal. Some experts
argue that waste reduction from the burn process is
in the range of 60%, rather than the much larger figure
claimed by industry (Connett, 1986). The reductions in
Monroe county may be even lower given the fact that most
of the contaminated materials are in excavated soil that will
not decrease in volume when burnt. If these large quantities
of fly-ash prove to be toxic, the facility's customers may
face disposal tipping fees that are increasingly expensive.
Siting of a secure landfill for toxic residues may itself become
a controversial issue and, even if it does not, careful
monitoring of the landfill or vault will be necessary or the
city will face a new crisis when the ash disposal facility
decays. This crisis might come about even sooner if the
EPA carries out its plan to exempt such ash from a hazardous
classification and if the city fails to do an adequate job
of testing. Should this happen, Westinghouse can dispose
of these materials in an ordinary landfill such as the one
operated by a private firm for the county.
Finally, it is not at all apparent that many of the projected
benefits will materialize. Most new jobs will be of the
short-term, construction variety, since incinerater operation
and maintenance positions are limited in number and
technically oriented. The industrial firms attracted to
Bloomington by the corporate park may be more numerous
and permanent; nevertheless, this potential gain must be
balanced against the small businesses, students, and
tourists that may be lost if this form of development should
alter the town's character. Although the process will
recover energy, most of it is likely to be used by the wastegenerating
industry and, in any case, more energy could be
saved through recycling. Such a program is unlikely,
however, because Westinghouse has challenged the
legality under the decree of any publicly sponsored
program aimed at source separation, waste reduction, or
recycling. The community may even become a regional
depository for garbage from the surrounding counties as
officials attempt to supply the tonnage of trash required to
maintain the incinerator's combustion efficiency.
Limits of Local Control
The key value in the Consent Decree, according to local
authorities, is that it gives the city some control over the
nature and direction of the PCB cleanup. Without it, the
mayor claims, the U.S. Environmental Protection Agency
would determine what sites should be dealt with, when the
process will begin, and what method will be used. The Consent
Decree, according to local authorities, gives the local
community a chance to be part of the decisionmaking
process every step of the way (H-T ,1987):
We can force it into a review by an independent
body. If we can really, honest to God, show that
it's not safe, we can stop it, stop any aspect of it,
any place along the line.
Although of ficials admit that the city's local control is no
an absolute veto power, the city can use the agreement's
"unreasonable risk" clause to insist on additional conditions
not mentioned in the Decree so long as the U.S. District
Judge can be convinced that these new demands are
reasonable and are based on scientific fact. Thus the city
can conceivably ask for regulations more rigorous than
those mandated by state and federal agencies, for the inclusion
of additional sites, and for the substitution of alternative
technologies.
The primary concern stressed by municipal leaders is the
adverse effects the community might suffer if the Consent
Decree were ever abandoned. The city's rush to endorse
the agreement can be attributed in large part to the fear that
without it the EPA would unilaterally proceed with a
cleanup and then bill the parties it felt were responsible for
the environmental damages at three times the actual cost.
This might mean that city government would share a substantial
portion of the expense with Westinghouse, since it
had contributed to the area's contamination problems
through its own negligence. Furthermore, the federal agency
had full authority to incinerate the PCBs and seemed intent
on moving ahead with the project. If this were to
happen, officials have argued, the EPA might use the
facility for the destruction of contaminants from outside
the county as well as those that had been locally produced.
The process would then be monitored under federal
guidelines which the city's consultants claim are inade-quate.
The city's claim that local authorities can do more to
protect public health than federal laws reguire was dubious
at the outset and now seems to have an extremely limited
success in practice. The city has not developed the severe
standards that would provide Westinghouse with specific
guidance for its design of the incinerator, nor is there any
ordinance before the city council that would do so. The city
did manage to get the corporation to modify its plan to
transport contaminants in open dump trucks and direct
them to two pole barns. Instead, these wastes are to be carried
by closed-container trucks and placed in a rigid-frame
steel storage building. On the other hand, the city was not
at all successful in getting the firm to test the contaminated
sites for any substances other than PCBs before excavating
them. This controversy delayed the cleanup for over a
year before the EPA threatened emergency action, performed
the on-site chemical identification, and allowed the
company to proceed with the excavation. Moreover, once
the cleanup had begun at Lemon Lane, neither the city, the
state, nor the EPA had inspectors at the site until local ac
tivists complained about the way in which the contracter
Westinghouse had hired was violating the decree's
provisions. The city also rejected calls for the evacuation
of nearby residents, despite dust-laden winds five times
EPA guidelines.
In some ways the Consent Decree has actually undermined
efforts at local control. When Westinghouse proceeded
with the cleanup without the permits required by the na
tional Resource Conservation and Recovery Act (RCRA),
the county prosecutor warned that these transportation and
storage plans were a violation of state law. Judge Dillin
then ruled that the Toxic Substances Control Act (TSCA)
was at issue in this case, not RCRA, and allowed the com
pany to proceed. Dillin also overruled an effort by the
county to enact a zoning ordinance that would have forced
Westinghouse to construct the incinerator further away
from State Road 37. In each instance the judge made it clear
that he would view any action outside the confines of the
Consent Decree as an attempt to interfere with the
agreement's implementation, something he would not
tolerate. In effect, these rulings allow the parties to the
Decree to bypass local laws, permitting processes, and
government officials who are not parties to the agreement
whenever it is mutually agreeable to the formal par
ticipants.
Even if the city became more aggressive in efforts at over
sight, the plans as they have evolved pose almost insur
mountable problems for regulators. Although local
of ficials claim that the Decree prohibits the incineration of
"outside wastes," it is difficult to see how this can be com
pletely prevented. If the city cannot perform source separa
tion and since the company has no plans to do so, there will
be no way of determining the contents of the trash to be
burned. Under these circumstances, there will be nothing
to prevent local businesses or individual citizens from slipping
toxic or flammable wastes into the municipal trash.
This practice may prove to be a serious prot lem if more
hazardous waste-generating companies are attracted to
Bloomington by the industrial park or the availability of
the incinerator. Westinghouse and the EPA may create ad
ditional difficulties for local omcials. The company may
decide to redirect the PCB-filled electrical capacitors it is
required to collect and retire to its own facility, rather than
pay for their destruction at incinerators owned by other
companies. The federal agency may attempt to use TSCA
to justify sending hazardous materials to the Bloomington
incinerator whenever it is the disposal facility closest to an
accident or spill.
There are also strong reasons to question the city's insistence
that outside pressures made acceptance of the Decree
imperative. In the first place, there is every indication that
from the outset of the debate city of ficials were attempting
to achieve a settlement such as the one they finally agreed
to. Negotiations characterized the city's response to the
PCB controversy from its emergence as a local issue in
1975 to the present, and there is no evidence that the city's
attorneys were ever prepared to go to trial. Nor were local
of ficials unhappy with any of the Decree's provisions until
public opposition developed. As late as a year after the announcement,
the former deputy mayor and current PCB
coordinator lohn Langley was quoted as saying, "I don't
know why Westinghouse is being as aenerous as thev are
(Andrews, 1984). " Even the city 's concerns over the potentially
costly actions threatened by the EPA may be overblown,
since local officials can cite few examples where
the agency ever successfully recovered a significant share
of the cleanup costs from either the local governments or
corporations involved.
POLICY IMPLICATIONS AND CONCLUSIONS
During an era of environmental retrenchment, spokesmen
for the corporate sector, state and local governments, and
other regulated interests have joined with economists in advocating
fundamental changes in the criteria used for deter
mining standards as well as alternatives in the methods of
securing compliance. During the 1980s, a national ad
ministration largely hostile to the premises of past environ
mental policies has insisted that the Environmental Impact
Statement and "cost-oblivious" procedures give way to risk
assessment and cost-benefit analysis. It was in this
ideologically charged atmosphere that the parties to the
Consent Decree worked out the framework and rules of the
game that are the subject of continuing open debate.
Moreover, it is under these circumstances that repre
sentatives of major institutions in communities facing pres
sures similar to those confronting Monroe County may turn
to the form of public-private cooperation that the
Bloomington Decree embodies.
The conclusion that must be drawn from the preceeding
discussion of the Bloomington Model is that provisions of
the Consent Decree will not stand up to close scrutiny
whether the evaluator utilizes the traditional or the newer
methods of analysis. The policy fails to achieve an ade
quate standard of welfare, even if our criteria for the
viability of the agreement is limited to calculating costs and
benefits in terms of the dollar amounts that the respective
organizations stand to gain or lose. The expenditures by the
various levels of government will continue to accumulate
despite the Decree, while Westinghouse will recover its ex
penses and stands to profit from its newly acquired Waste
Technology Services Division. If we add, as we should, the
less calculable social costs as well as the losses by those
individuals, groups, and institutions that are not party to
this "solution," the disparities are even more marked.
Worse yet, the Decree provides incentives to Westing
house, the big gainer in this formula, and encourages the
corporation to continue to generate waste based upon the
potential return from its investment in pollution abatement
and resource recovery.
For the city, the political deficits produced by the Decree
seem to be mounting. Despite the flexibility officials insisted
was built into the agreement, most of its major terms
now seem to be written in stone. Not only has Westinghouse
resisted any attempt at alteration, but Judge Dillin
has made it clear that the court would "take a dim view" of
attempts to change the Decree for political reasons. He
went on to say (H-T, 1987):
Anything that was known or reasonably should
have been known to the parties to this consent
decree at the time I signed it is not going to be
considered by this court as any basis for now
going back and rethinking the whole thing. This
thing has been in the process of being thought
about and rethought about since 1981, and that
should be long enough.
Thus the city seems to be "locked in" to the incinerator
technology by court order. If a new, better, and safer
method of disposal clearly emerges from the many competing
altematives, the operational technology will not be
easy to change. The same conditions apply to each of the
other aspects of the Decree.
It seems obvious that public of ficials could have done better
in the negotiations process. For example, they might
have asked for a written evaluation of the strengths and
weaknesses of the alternative technologies that would be
made public prior to the settlement. Cleanup of all the PCB
sites, funding for medical testing and research, and some
fomm of compensation for health and property damages
might have been included. If incineration was chosen as
the appropriate disposal technology, a local independent
monitoring agency could be created to review the facility's
performance and provide its records to the public. Greater
assurance might also have been provided if Westinghouse
had posted a large cash perfommance bond and would
automatically pay liquidated damages sufficient to cover
an altemative form of disposal if the company's chosen
technology should fail. Finally, the legitimacy of the agreement
might have been enhanced if it had been subject to
public referendum or, at least, if the public hearings had
not been so obviously manipulated so as to produce a
predetermined outcome.
City attomeys did not attempt to ask for these provisions
because they claimed that they were negotiating from a
position of relative weakness. Without the profit incentives,
limited liability, and the assurance of managable
costs, they argued, Westinghouse would have continued to
stall as the local environment deteriorated. The local
government, however, was not in as vulnerable a position
as its attomeys implied. The city could have attempted to
fomm a coalition with other communities that the corporation
had contaminated. It could have shared infommation,
resources, and strategies with fommer employees and other
victims. The local prosecuter might have been encouraged
to be more aggressive in his pursuit of various criminal
charges against the company and its employees. A public
relations effort might have been developed to discourage
cities that were considering or were already involved in the
construction of Westinghouse's new incineration plants.
The company might have been faced with the loss of mil
lions from multiple personal damage suits, forfeit of tax
exempt status on development bonds, cut-off of propertytax
abatements, and other local govemment subsidies. The
threat of losses of this magnitude would surely have made
the firm a bit more pliable.
Even if these efforts utimately failed and the city were
forced to go to court in a losing effort, it could not have
done much worse than the provisions its attomeys accomplished
through negotiation. Such an effort might have
even had positive national implications if other cities followed
Bloomington's lead and companies like Westinghouse
came to the determination that more equitable
settlements might prove ultimately to be less expensive
than continual litigation and constant confrontations with
local governments. Furthermore, efforts of this kind might
evolve into programs that encourage public decision
makers to assess the available technologies, develop con
tingency plans in the event of environmental crises, weigh
the social costs of their various policy options, and estimate
their ability to manage and monitor subsequent events.
Finally, attention might then be focused upon methods of
waste reduction or strategies that could profitably make use
of resources that are currently thrown away or bumed.
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