The MacNeil/Lehrer Report; EPA Under Siege

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Pres. RONALD REAGAN [voice-over]: I have ordered a complete investigation by the Justice Department into every charge that is made. I hope we're not getting back to a place where accusation is once again going to be taken as proof of guilt.

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ROBERT MacNEIL: Good evening. The drama surrounding the embattled Environmental Protection Agency played on today. At his press conference last night, President Reagan appeared to be saying that he would no longer insist on executive privilege if there was suspicion of wrongdoing at the agency. Executive privilege is the argument he has used in ordering the EPA not to turn over documents subpoenaed by Congress. But today the White House clarified that, saying the President is not yielding his claim of executive privilege because "in our opinion there is no evidence of wrongdoing." Yet Mr. Reagan did last night announce that he's ordered the Justice Department to investigate charges that the agency has engaged in political favors in running the Superfund program to clean up toxic wastes. While the White House and Congress continued to negotiate on access to the subpoenaed papers today, former Superfund administrator Rita Lavelle, fired by the President last week, failed to honor a subpoena to appear on Capitol Hill. Tonight, the EPA under siege. Jim?

JIM LEHRER: Robin, the winds of this war have been blowing since Anne Gorsuch was appointed to head EPA. Some environmentalists and members of Congress opposed her appointment two years ago, and have kept up heavy criticism of her ever since, most particularly of her efforts to clean up hazardous waste sites. The charge has been that she is more interested in saving money and anguish for the polluters than in cleaning up. There were many minor skirmishes over the issue, but it came to its first resounding head in December when Congress cited her in contempt for refusing to turn over documents. The House and the Reagan Justice Department tussled over that for weeks, and then last week there began an EPA event-a-day routine. Rita Lavelle was fired after she declined a Gorsuch request to resign.This triggered an array of congressional investigations into charges Lavelle made sweetheart deals with polluters and dispensed Superfund cleanup money on a political basis. Then a paper-shredder was discovered at EPA and an FBI investigation was launched to discover if it had been used to eliminate any of those documents Congress wants. Meanwhile, an EPA whistle-blower, Hugh Kaufman, took papers to Congress he said would prove criminal wrongdoing in running the Superfund. All concerned, including Rita Lavelle, have vehemently denied any wrongdoing. The most vehement denier being Anne Gorsuch. Earlier this week she told a Senate committee what she thought was really going on.

ANNE M. GORSUCH, EPA administrator: Personally I have to finally judge that a great deal of it is political harassment. And you know the old rule --

SENATOR: Political harassment?

Mrs. GORSUCH: Political harassment. The old rule of the loyal opposition is to harass, delay, destroy and finally stop. And the only thing that makes me very sad about it is that this type of harassment probably will impede our progress, which is cleaning up America. We've got 535 members of Congress, some of whom -- and certainly no one in this room -- think that the most important contribution they can make is to get into the national news media. And it seems like there's a real easy way to do it these days. All you have to do is call Anne Gorsuch and ask her to start photocopying every piece of paper in Superfund and come up for a hearing.

LEHRER: For more from EPA and its view of what's happening, Michael Brown is here. Mr. Brown is acting assistant EPA administrator for solid waste and emergency response, the job that until last week was held by Rita Lavelle. He had been enforcement counsel for the agency before replacing her. Mr. Brown, first, do you bear any late word on the fate of these documents that Congress has subpoenaed?

MICHAEL BROWN: All I can tell you is that there are negotiations going on every day, and from the executive branch side we're very encouraged and hope soon to have an agreement with the Congress.

LEHRER: An agreement that would result in the documents being given to Congress?

Mr. BROWN: The problem has never been as to access. It had actually to do with the physical possession of the document, which would then yield the executive branch's ability to determine whether it be made public or not. So it's a question now of negotiating just what kind of access Congress feels that they need and the executive branch feels it can surrender.

LEHRER: Have you seen these documents, Mr. Brown?

Mr. BROWN: Some of the documents, not all of them. Some of the original withheld documents were part of the reviewing process between EPA, Justice and the White House. I saw some of those, yes, sir.

LEHRER: Any evidence of wrongdoing in them?

Mr. BROWN: I see no evidence of wrongdoing in them.

LEHRER: Any evidence of impropriety?

Mr. TROWN: Not a wrongdoing on the part of EPA. Wrong-doing, of course, having to do with the sites is a different issue.

LEHRER: In other words, if Congress does eventually get these documents, there is no smoking gun or anything like that that's going to cause some scandal as far as --

Mr. BROWN: There's going to be some very disappointed people in terms of smoking gun. I'm sure, of course, that those documents will be examined as closely as the Rosetta stone was for some sort of clue.

LEHRER: I see. Okay. Do you agree with your boss that what's really invovled here is a lot of political harassment by the Democrats?

Mr. BROWN: I would not go so far, because I'm not a political person, to talk about political harassment. But we do have a problem in EPA, that we've had some 13 or 14 requests that have come in recently from different congressional committees, many of them redundant, asking for the same information in a different manner; yet the only hearings that we have scheduled other than around this current issue having to do with any one of the eight of 10 acts that we administer being re-authorized -- those that have expired -- has to do with the Clean Water Act sometime next month. So the sustaining statutes that run the agency aren't receiving the attention from the Congress now, but I understand it's -- when there's a big show in town everybody wants to be there and have a good seat.

LEHRER: Well, one of the reasons for the show, as you know, is the suggestion, the criticism, the charge, that the Superfund has been operated on a political basis. Is that true?

Mr. BROWN: I am personally aware of no reason to sustain that charge, but I think the best thing that's happened recently is the President's announcement, which goes along with, over the past two weeks, Mrs. Gorsuch has personally referred to the Justice Department over five items in the general recurring interest for investigation. The President has indicated there'll be an investigation. I think that's what we need to deal in because right now we're dealing in shadows and things that move that no one sees in the light. And until we deal in fact, it's going to be very easy to make assumptions and speculations.

LEHRER: In your earlier capacity or since you have taken Ms. Lavelle's place, were you aware of the situation on this California site, the one that it's been alleged that Ms. Lavelle withheld the cleanup funds from Superfund because she didn't want Jerry Brown to get credit while he was running for the United States Senate? What are the facts on that?

Mr. BROWN: The Stringfellow site's the one to which you refer, I believe. That is a regionally managed case, meaning that Region 9, based in San Francisco is in charge of the case. The problems of which of which I am aware have nothing to do with a political basis at all. The first problem that they had with the Stringfellow site is that the state, through back taxes, became the owner of the site. This raised a legal problem as to how much they would have to contribute to the cleanup. That took some resolution.

LEHRER: But in a nutshell, you are convinced or, based on your knowledge, at least, that politics was not involved in that decision?

Mr. BROWN: To my knowledge, no politics were involved.

LEHRER: Finally, let me ask you this. Ms. Lavelle wrote a memorandum in which she said that the major constituency of the Reagan administration EPA was the business community. Do you share that?

Mr. BROWN: Absolutely not. The major constituency of the Environmental Protection Agency is the public.

LEHRER: Was the paper-shredder used to destroy any of the Documents that Congress wants?

Mr. BROWN: To my knowledge and to the statements of the 50 career employees near the paper-shredder, no documents the Congress wanted, to include identical copies, were shredded.

LEHRER: Do you feel embattled, Mr. Brown?

Mr. BROWN: Yes, sir. After the Super Bowl nobody asked the football how it enjoyed the game.

LEHRER: Thank you. Robin?

MacNEIL: Currently no less than six congressional committees are investigating the EPA. One of them is headed by Democratic Congressman James Scheuer of New York. Yesterday he reintroduced legislation to take the EPA out of the executive branch and make it an independent commission. Congressman, do you think the attacks on the EPA are political harassment?

Rep. JAMES SCHEUER: Well, I don't think that any Republican committee chairmen on the Senate side thinks it's political harassment, or we would have heard from them. The fact is that we're objecting to the harassment of EPA officials for exercising their constitutional rights. We're objecting to the delay -- the harassment, delay, destruction and finally the stopping of any effective action in EPA -- exactly the phrases that Anne Gorsuch apparently applied to her congressional critics, both Democrats and Republicans, both House and Senate members. The fact is that we've seen over the last 18 months a systematic degradation and demeaning of the EPA to the point where it has become moribund. It has become dysfunctional. It is no longer capable of serving its mission of protecting the health and the environment of the American people.

MacNEIL: You, Congressman, received documents from the so-called whistle-blower, Hugh Kaufman, which he says show evidence of wrongdoing at the agency and at the White House. What do they show?

Rep. SCHEUER: We only got the documents 24 hours ago, and we haven't made our personal scrutiny and investigation of these documents, but apparently the Labor Department, in judging the case that he brought against the EPA, found that his constitutional rights of freedom of expression were demeaned and that there was a systematic attempt to harass him, intimidate him and finally to silence him.

MacNEIL: Do you know so far of any evidence that the EPA has violated the law in administering the Superfund cleanup?

Rep. SCHEUER: I don't know personally of any evidence that it has violated the law, but what it has done is to implement the law in such a way as to create the perception that it is incapable of fulfilling its mission and that, in effect, we have sent the fox to guard the chicken coop. It is widely perceived as the spokesman and the extension of the corporate polluters. And that is in the administration of the law.

MacNEIL: So when you heard Mrs. Gorsuch say, just in that clip a moment ago, that all this was interfering with her desire to clean -- an effort to clean up America, you simply don't believe that that's her desire, is that correct?

Rep. SCHEUER: No, I think her desire is to implement the wishes of her boss. I think she's been a very faithful, very skillful and very loyal servant and officer of the President in doing his wishes and in performing the mission he assigned to her, namely, to destroy the effectiveness of the EPA so that the EPA could not require minimal expenditures by the corporate community to protect the environment -- the smokestack industries of our country to protect the environment as they produce their manufactured goods or the power that America needs.

MacNEIL: Can you tell us briefly, Congressman, why you want to take the EPA out of the executive branch and make it into an independent commission?

Rep. SCHEUER: Yes, because we want to avoid exactly the extreme, rapid ideological swings of policy and program that we've seen in the last 18 months that have caused consternation among environmentalists, Democratic and Republican, that have brought the EPA to its knees in terms of effectiveness, and that have even bothered businessmen who have come to us and said, "Look, they're not doing rule-making and they're not setting standards. We don't know how to invest in non-polluting devices; we're having to make decisions in a vacuum -- ad hoc decisions involving hundreds of millions of dollars." And that isn't good for corporate America.

MacNEIL: Well, thank you, Congressman. Jim?

LEHRER: A different congressional view of it now, that of Congressman Don Ritter, Republican of Pennsylvania. He's a scientist by training, and was head of research at Lehigh University before being elected to Congress. He sits on one of the committees investigating the EPA problem now, and was one of 105 members of the House who voted against citing Anne Gorsuch for contempt. Congressman, you're a Republican. Do you believe the Democrats are playing politics with this?

Rep. DON RITTER: Well, I think if there is any wrongdoing, all Democrats and all Republicans want to know about it, and we want to get to the bottom of it. But I think it'd be naive to look at six different investigating committees racing each other to get the same documents, to -- Jim Howard and John Dingle racing each other to cite Anne Gorsuch for contempt. I think there is political meat out there, and I don't think the opposition would deny that.

LEHRER: You've said if there is wrongdoing. From your perspective have you seen anything or heard anything that makes you think there is wrongdoing or has been?

Rep. RITTER: I have not. I have not, but I can tell you this. As a scientist-congressman, as someone committed and dedicated to actually getting the job done, these kinds of investigations ad infinitum -- and I have watched them. I have been on the Energy and Commerce Committee for a couple of years, and I've watched them as they were gaining their head of steam. These kind of investigations become a self-fulfilling prophecy. People say EPA is not doing the job right, but in a way, with people hanging over their shoulders all the time it's impossible to do the job.

LEHRER: Do you agree with Congressman Scheuer's assessment that there has been a systematic degrading of the EPA and it is now no longer able to do its job?

Rep. RITTER: I would say this.Again, it becomes a self-fulfilling prophecy. On our committee alone we have -- there's 113 members of the majority staff and attorneys. You get these other subcommittees and committees focusing their staff. You start making a logistical problem for the agency simply to supply documents, you're not going to get anything done.

LEHRER: So if there's been a degrading, Congress has certainly contributed to it, is that what you're saying?

Rep. RITTER: I think -- now, I'm not saying that I know some of the gory details about these various sites. I honestly do not. But I can sense that there is a massive activity going on that is taking the time of staff and of members and the people in EPA to the extent they can't do the job. I would like to point a couple of things out. You take -- talk to my good colleague from New York, Mr. Scheuer, who I have had the pleasure of working with over the years, talked about smokestack industry destroying the effectiveness of EPA. There's a basic political battle going on in this country as to how to regulate the environment. Are we going to try and achieve some kind of cooperative modus operandi with industries and with these smokestack industries, incidentally -- which I happen to represent a district that's got a lot of these -- or are we going to go for litigation? Are we going to go for confrontation? Is there going to be a cooperative, science-based effort to voluntarily do these things and to save some of the taxpayers' money, or are we going to make a political circus out of it?

LEHRER: I take it then that you support the way the Reagan administration has approached it, which is the more conciliatory approach rather than confrontation. Is that right?

Rep. RITTER: I'll say this. Confrontation and litigation may be a full employment act for Washington-based attorneys and all these different organizations, but it's not going to get the job done. The job's going to be done by technical people, by chemists, by chemical engineers, by technicians getting out there and working -- working in many cases with the industries that are responsible.

LEHRER: Let me ask you this question, finally. Congressman Scheuer says that Anne Gorsuch is merely carrying out the desires of the boss, meaning the President, and his desires are to destroy the effectiveness of the Environmental Protection Agency.

Rep. RITTER: Well, you know, with all due respect for my colleague from New York, I think that that's simply not true. I think many of us do care about cleaning up the environment. We're trying to seek a mode that's less than confrontational. And to pin a charge of trying to destroy the effectiveness of EPA, I think, is going overboard.

LEHRER: Thank you. Robin?

MacNEIL: One Congressman who does think the EPA has been dragging its feet on cleaning up hazardous waste is Democrat James Florio of New Jersey, a state with one of the worst hazardous waste problems in the country. Congressman Florio was one of the authors of the legislation setting up the Superfund. He joins us tonight from Philadelphia at public station WHYY. Congressman, last week you announced your own investigation into whether the EPA was playing politics with hazardous waste sites in New Jersey. What evidence have you found that it is?

Rep. JAMES FLORIO: Well, the fact is -- let me just, by way of background, say that my committee is the primary committee of jurisdiction, and we have been on top of this matter for two years trying to find out why there hasn't been implementation of the law. And I think that's the basic starting point. There isn't any dispute, I don't think, among objective people that in two years the cleaning up of four sites out of 14,000, when we have a five-year program, is not a great record of enforcement. There has been one Superfund enforcement action which has actually been filed in court. So we're not talking about disputing whether Superfund is being implemented or not. It's not. What we're talking about now is motivation. And in the last few weeks we have seem substantial evidence floating out putting into question whether there is political motivation in terms of letting monies flow or not flow, depending on who will get the benefit or not.

MacNEIL: How would you summarize that evidence -- the concrete evidence that that is the motivation?

Rep. FLORIO: Well, as you indicated earlier in the program, the evidence which is out there now and which will be made more available -- the decisions in California as to whether to let monies to start being used for cleanup, were predicated upon Mrs. Lavelle's determination as to whether it would assist Mr. Brown in his effort to become United States senator. That is clearly not an appropriate consideration. I think more significant even than that is the selective enforcement of the law when Mrs. Lavelle says that we have to go slow on enforcement so it doesn't impact adversely upon the business community. Or the conflicts -- conflicts of interest which have become just rampant. We have a situation that there is such a degree of economic incest that it's hard to tell who the regulators are and who the people are that are supposed to be regulated.

MacNEIL: Do you think the firing of Rita Lavelle clears this up?

Rep. FLORIO: No, I don't. It does not. I think Mrs. Lavelle was particularly undiplomatic and not very smart, but I don't think that she is at a different philosophic bent than the other people in EPA -- at the highest levels. I'm not in any way impugning the integrity of the career service people. And what we're talking about is the political appointees who came in with a philosophic thought that the environmental laws are in fact being enforced too vigorously --

MacNEIL: You include Mrs. Gorsuch in that?

Rep. FLORIO: Oh, certainly.

MacNEIL: And where do you think all this is going to lead?

Rep. FLORIO: Well, I suspect that if the administration wants to keep reading about this on a regular basis, nothing will be done. But I suspect that at some point all of these things that are coming out -- I mean, as you said at the outset of your program -- on a day-by-day basis, and will continue, because there's more to come; at some point Mrs. Gorsuch -- she's already starting to assume a bunker mentality -- will be regarded as expendable, and she'll leave.

MacNEIL: Well, thank you.Jim?

LEHRER: Do you agree with that, Congressman Ritter?

Rep. RITTER: Well, no, I --

LEHRER: In terms of Mrs. Gorsuch becoming expendable.

Rep. RITTER: Oh, I think the kind of controversies that Mr. Florio -- who I have the pleasure of serving with on his subcommittee -- is talking about I think go deep, and I think there's some rationale on both sides. I think to completely dismiss an idea that says let's look at the basic science, let's look at the health effects, let's look at the level of hazard -- to discount that as serving only the interests of business, I think, is oversimplifying the issue.

LEHRER: What about the Gorsuch question?Do you think she's going to become expendable and is going to go?

Rep. RITTER: I don't know how this whole thing is going to work out because I haven't had this kind of intimate knowledge of some of these documents. But I can say this.I think, from what I do know I would say no.

LEHRER: What's the word at EPA, Mr. Brown? Is the boss going to hang in there?

Mr. BROWN: The boss has got a very great tenacious personality, and anybody that's ever worked with her has no doubt about her ability to stay on her course and to do her job.

LEHRER: All right. The substantial point that Congressman Florio just made, Mr. Brown, is he said there is not even any argument about whether or not you all are enforcing the Superfund law. Four out of 14,000 sites have been cleaned up.There has only been one lawsuit filed in two years. How do you -- he says that is not a very great record.

Mr. BROWN: Well, I beg to differ with the Congressman on several issues. First, he's talking total cleanup of sites. Second, he knows that in the priority list there are 418 sites, not 14,000, and he's talking about things throughout the entire nation that are not on the Superfund list. Also, he overlooks totally the fact that we're talking about sites that are now not totally cleaned up but for which there has been money and a work already begun.

LEHRER: Of the 418 what figures would you use in terms of either it's been cleaned up, work is under way or money has been allocated?

Mr. BROWN: All right, we're talking -- we're talking about allocating money, starting things. We're talking about 122 sites that we're talking about in different stages of starting.

LEHRER: Congressman Florio? That's a different record, isn't it?

Rep. FLORIO: Well, no, it's not because you have to learn what the bureaucratic jargon is. Allocating, earmarking, setting aside are all terms that arenon-terms. They mean nothing. And they in fact have no legal obligation, and that in fact in Crisis Pit, which is an Atlantic City site, EPA has allocated -- which means that they have made a note somewhere that they want to put a million dollars aside for carbon filtration systems to clean up polluted water if it's fact discovered. What I'm suggesting is that the operative terms are spending -- and minimal amounts have been spent; and cleanup -- and virtually nothing has been cleaned up.

LEHRER: Mr. Brown, how do you respond to that?

Mr. BROWN: Once again, the Congressman is very well aware of the government appropriation and expenditure process. When you write your check at a service station or supermarket, your money has not been taken from your account yet, but you have committed it, and the government has put the check in. It has not been expended until such time as someone has completed their work and comes to the Treasury for their money.

Rep. FLORIO: If I could just add there's $50 million that's being turned back this year, notwithstanding the fact we have cleaned up four sites out of 14,000, and it's $50 million excess from the authorization/appropriation for this year. I'm not sure how you justify that.

LEHRER: Congressman Scheuer, I wanted to ask you -- I wanted to bring to you the point that Congressman Ritter made, which is that you are exercising -- you and your colleagues are exercising -- are in an exercise that is going to turn out to be a self-fulfilling prophecy; by harassing EPA, demanding all these documents, etc., etc., etc., you're turning it into an ineffective agency yourselves. You have nobody to blame but yourselves.

Rep. SCHEUER: Well, we haven't done that; they've done that. They're now withholding 100 pieces of paper. That's something that a Xerox machine could turn out in 15 minutes, and if you want six sets for six subcommittees, you set that little dial at six, and it'll turn out six copies of 100 pages in 15 minutes. The fact is they have produced this confrontation by failing to enforce the law. Rita Lavelle got into a bitter criticism of her general counsel, criticizing him in a memo for insisting on prosecuting instead of settling, instead of giving these corporate polluters from the Fortune 500, who can well afford to pay for the cost of cleaning up the sites that they have degraded with these awful toxic substances, for giving them a tap on the wrist and a nominal, token fine. The general counsel wanted to prosecute them under the law and require them to pay for the cost of cleaning up those sites rather than saddling the taxpayer with them. And she criticized him for alienating the very corporate community that was the chief element in President Reagan's support. Now, all the counsel was doing was saying to a corporate polluter, "If you're not willing to settle on the basis of paying the legitimate costs of the wrong that you have wrought on our environment, of the harm that you have done by this reckless, shameful pollution, if you're not willing to pay for that, we're going to sue you and force you to pay under the law." And she criticized him for trying to get a decent break for the taxpayers.

LEHRER: All right, we have to leave it there. Robin?

MacNEIL: Yes, Mr. Brown, Congressman Scheuer, Congressman Ritter in Washington; Congressman Florio in Philadelphia, thank you for joining us. Good night, Jim.

LEHRER: Good night, Robin.

MacNEIL: That's all for tonight. We will be back tomorrow night. I'm Robert MacNeil. Good night.