Here, I analyze the fundamental flaws of EPA’s Superfund Program, how it was carried out and the enormous transaction costs and time it took to get to actual cleanup of a toxic waste disposal site. Also, how to fix Superfund.

  • Superfund promoted a 100% solution where the problem was only 5% understood…
  • No matter how many test wells were driven or pits excavated during the remedial investigation phase, conditions were highly likely to be substantially different from those that were predicted, and upon which a ROD was issued, consent decrees signed, etc and subsequent final designs and treatment or removal remedies were based.
  • Superfund kept lawyers, engineers, administrators, scientists, public participation, and communication specialists and others employed for years in the EPA, states, the engineering profession, and regulated community.
  • Construction contractors and consulting engineers did not speak the same language.
  • Later in my tour with Canonie Environmental Services Corp., Mike Taylor and I produced a second publication called “Sequential Risk Mitigation” that was in direct response to EPA’s second attempt to break the endless do-loop of studies that was practiced under Superfund. This policy was known as the Superfund Accelerated Cleanup Model or SACM. SACM was the king with no clothes as it was nothing but a concept that further reflected EPA frustration (and total lack of imagination) with the lack of remedial actions being taking even after years of study and repeated failed attempts at actual field remediation.
  • Superfund and its National Contingency Plan had a very prescriptive process for approaching a site on the National Priorities Lists. Similar to the planning, design and construction paradigm of the Construction Grants process. The regulations governing the implementation of CERCLA, were massive and incomprehensible like my construction grants body of regulations and guidance.
  • I reflected on my experience with EPA and its decision-making, the flawed and contentious Superfund law that pitted the regulator, the regulated, and the local community in an often contentious drawn-out affair. In these instances EPA was always blamed by the local citizenry (and the states) for broken promises and incessant delays…
  • The fundamental flaw with CERCLA is the fact that Congress did not set up a two-step process similar to that constructed under the Clean Air and Clean Water Acts; i.e., a technology-based standard based on cost effective interim steps, followed by an environmental standard. Instead, CERCLA was a one-step process that produced a remedy to meet cleanup standards that were human health-based – in other words a 100% solution based on maybe 5-10% understanding of the site.
  • The reason for this two-step approach stems from the need to balance the urgency of taking clean-up action (in the case of CERCLA, remediation) weighed against the damage to human health or the environment that may be caused by the delays which were often in years or decades and inevitable.
  • In defense of EPA’s Remedial Project Managers who were poorly trained and directed, they often had little or no technical background and were overworked. Personality style became a factor in how projects proceeded. Those who took charge often found themselves at cross-purpose with PRPs. Those, whose personality style was characterized by liking to be liked sometimes found themselves being manipulated by PRPs. Too, OSCs and RPMs often bore the brunt of media criticism for the failure to make any meaningful progress at actual remediation. This reality haunted EPA, particularly at environmental justice sites.
  • “Many [EPA] managers feel that decision making is in a different category from other activities for which they are responsible. They act as if decision making is an essentially unmanageable activity — that decisions emerge from the gut through procedures that are primarily intuitive, and thus difficult to quantify or fathom.” (Bill Cob, CH2M Hill)
  • In this case study, EPA crossed the line in one instance by invoking “retribution” in order to punish Canonie and SoilTech, Inc. for their “trial burn” performance at OMC Muskegon Harbor Superfund Project using an innovative technology called a thermal desorber…This was the first time I recall this particular behavior manifesting itself in such a stark manner, although when I was a young engineer in Region 4 in the early 1970s, payback was discussed in the context of bad actors who would not go along with our will, or who otherwise embarrassed EPA.
  • In the end, EPA Region 5 succumbed to its most basic instinct: to punish SoilTech and its owner, Canonie. It was hardly worth it.
  • Karl Hoenke (Chevron) was apoplectic, blinded by his angst towards EPA’s decision process — whatever that was. Jeff Wyatt, on the other hand, was a very cool and analytical character who kept his emotions in check. The point here is that I saw a great opportunity for a win-win scenario, but EPA and Chevron would have had to dramatically change their behavior, and we (I) would have had to find meaningful incentives for them to do so, i.e., a good risk-reward ratio for both EPA Region 4 and Chevron’s business manager.
  • After a pregnant pause, I said,“Nothing. On-scene coordinators have no decision-making authority, and yet they are often perceived at the local level as being the decision makers.
  • In the end, the partnership and high performance team approach far exceeded all our expectations. The results of the high performance team effort, as offered by Dean Williamson of CH2M Hill in a PowerPoint presentation, were:
    1. Completion in less than 4 years, versus an estimated 7-to-8 years;
    2. Two ROD amendments and three Explanation of Significant Differences (or ESDs) were implemented, without a loss of focus, time or momentum;
    3. Completion at a cost of 12 $MM, versus an estimated 18 $MM (including the internal costs of EPA and the State of Georgia);
    4. Quiet community, actual acceptance by opposition group;
    5. Property has been returned to productive use;
    6. Improved reputations of both EPA and Chevron;
    7. Strong, respectful, trusting relationships among all participants—the team had fun!
  • Phil Humphries personally went door-to-door (in Tifton, Georgia, an environmental justice community), introducing himself as Chevron’s decision-maker to local residents, some who had property abutting the Marzone site. This was unusual, to say the least! As Phil observed in our interview, “EPA had never made any attempt at talking to local residents.”
  • When you strip away the technical jargon and bureaucratic mumbo-jumbo, this is what is left and all that a local resident wanted to hear and understand. Having this message delivered by a businessman who took ownership of and responsibility to get the job done as soon as possible (after years of broken promises and confusion) was the only concern they had.
Anne McGill Gorsuch

Anne McGill Gorsuch

Photo source: National Archives


Administrator Gorsuch was the fourth administrator of the EPA. During her administration, the Nuclear Waste Policy Act was signed into effect; schools began to be tested for the presence of asbestos; the Valley of the Drums disaster occurred; and dioxin contamination was discovered in Times Beach, Missouri. And there were scandals.


Book excerpts:


  • “I believe that EPA can contribute greatly by seizing the initiative in two specific areas, regulatory reform and the new federalism. In the future, EPA will contribute to the decision-making process from the banks of this local, now much cleaner, Potomac to the local courthouses and the state capitals. We will desert an adversary role, and the EPA will seek to bring state governments in as full and active partners in the achievement of our environmental efforts … As to regulatory reform, it is my hope that the EPA of the Reagan Administration be remembered for the amount of money it has saved the taxpayer because we streamlined regulations, cut down on permit-processing time and we, together, cut back on the required paperwork for EPA projects … it is also vital that we shed the image of inflexible regulators and actually find ways to ease the paperwork and the reporting burden of businesses and community.” Anne McGill Gorsuch before EPA employees on May 21, 1981.
  • Anne Gorsuch, to her credit and despite her critics’ arguments to the contrary, had very good management instincts. She believed strongly in devising a comprehensive management accountability system that used individual performance standards and state program grants to evaluate performance. The details, however, were left to others,
  • As an engineer, I immediately leaped to find a solution. She was in legal jeopardy with no apparent support to finance her own defense. Stunned that Perry was, for a second time in my presence, putting his own ambition ahead of protecting Anne and therefore EPA’s reputation, I spoke up forcefully (my voice carries well). I addressed Anne directly, “You need to go to the President, have him give you a pardon and put it in your safe.” You could have heard a pin drop — this opinion, from an engineer, not a lawyer! There were mumblings around the table. Anne whispered something to me, but the only words that came through were, “I just love that man!” I was stunned. Clearly, Anne was referring to Ronald Reagan. Her inference was that she was completely secure in her belief that her love for Ronald Reagan would be returned by his loyalty and protection.
  • Anne met with President Reagan in the White House to resolve the issue. Reagan’s top White House advisors wanted to invoke presidential executive privilege on the grounds that such a decision would compromise the case files as the inquiring committees were bound under their own rules to release the files publicly, thus compromising EPA’s legal bargaining position and proposed fines with industrial parties involved in Superfund sites. Edwin Meese, Counselor to the President (not be confused with the office of White House Counsel), was in attendance at Anne’s meeting with the President and argued forcefully that the files should not be released. Anne on the other hand argued that the files should be turned over to the committees — that it would be politically advantageous to the Administration to point the finger at those very same committees who were investigating EPA’s enforcement record and their hypocrisy by compromising the most important EPA enforcement cases being developed under Superfund. Anne lost the argument. Thus in a lame duck session of Congress on December 16, 1982, Anne McGill Gorsuch, Administrator of the U.S. Environmental Protection Agency, was found in Contempt of Congress.
  • I am convinced that Anne would have weathered the political storm, even the Contempt of Congress citation that she didn’t cause, had Rita Lavelle not been fired — or had never been appointed AA in the first place. Even the mainstream media reported that her firing opened a Pandora’s box of accusations against us for wrong doing, sweetheart deals, and outright criminality. The reporting of the shredder was just icing on the cake for Reagan’s political opponents, though this issue immediately faded from public view because there was an iron clad explanation for why EPA had shredders to begin with.
  • Press reports, particularly her hometown daily newspapers, were highly personal, callous, and downright brutal towards Anne, which I know hurt her deeply.
  • At that moment, I think I knew on a very gut level that the game was up. Anne resumed her briefing, informing us that the Beltway environmental groups had divided up EPA with each assigned to bird-dog a part of EPA; the Office of Water drew the Izaak Walton League. Ironically, I thought, the Izaak Walton League was a member of my ad hoc advisory committee of environmental organizations. Anne then relayed a warning from some of her Republican congressional friends on the key committees that a plot was in place to try to trip up each of us who appeared before them to perjure ourselves. Anne then stated the obvious, that most of the Democrat majority members were attorneys, and that none of the presidential AAs were attorneys, and that we had to be extremely careful and well-prepared when we appeared before a House Committee. Quite forcefully, she admonished, “No matter how embarrassing the answer may be, always tell the truth!”
  • Reagan’s “boys” saw the political difficulties Anne was creating for him, and their own neglect in the matter. They were determined to force her out, attempting to portray her resignation as a “graceful departure” to assuage the President while simultaneously orchestrating her forced resignation. Quite simply, Anne was gaslighted!
  • Anne is quoted as saying, “I personally feel that it is government by allegation … if there is any wrongdoing, it ought to be formally investigated and the people ought to be put in jail or turned loose, one way or the other. I think that if we have government by allegation, we do ourselves (and our democracy) a disservice.” In fact, at the end of the day, no one was prosecuted for any offense except for Rita Lavelle for committing perjury before Congress. She spent six months at a federal correctional facility in Pleasanton, California for those convicted of a white-collar crime. Lavelle claimed, “I was framed.”
William D. Ruckelshaus

William D. Ruckelshaus

Photo source:

Insights into the reign of William D. Ruckelhaus, the first Administrator of the U.S. Environmental Protection Agency (EPA) from 1970 to 1973 under President Richard Nixon, and then returned as fifth Administrator from 1983 to 1985 under President Ronald Reagan.


Book excerpts:


  • Ruckelshaus’ prominent role in ordering and announcing to the press and hence to the world these first municipal and industrial water pollution enforcement cases denoted that the implementation of EPA’s enforcement policies and subsequent roll out of additional enforcement cases would be based on “personality-driven management style,” and not system or organizational-driven management styles. I do not believe this was Ruckelshaus’ intent.
  • Ruckelshaus shied away from functionalization because he felt that structure was not as important as personnel [which was at odds with the Ash Council’s philosophy of large administrative organizations]. Having worked all his life with lawyers in a collegial environment, he had no experience managing a hierarchical agency. He did not feel that he understood the jargon used by his organizational advisors and the meaning of the charts they brought to him. He believed that the success of an organization scheme depended upon getting key people to make it work, that there was no magic in a particular structure.
  • Ruckelshaus believed more in people than organization as the vehicle for carrying out EPA’s mission. He failed to recognize the complexity of EPA’s mission and the need for standard operating procedures. I assume that for him, the use of Rules of Civil Procedure was a sufficient roadmap for enforcement. Indeed, he expected, albeit believed, that people would follow instruction much in the way lawyers in private practice would do so in a collegial environment or in the small, boutique civil enforcement division he operated just prior to assuming the role of EPA Administrator.
  • Ruckelshaus did not comprehend that regional administrators and regional enforcement directors would be inundated by written guidance and directives from headquarters. In the total absence of any meaningful means of measuring their performance, they would choose those they liked and ignore others. Regions became fiefdoms. Perhaps had Mr. Ruckelshaus not left EPA the first time so soon, he would have been more in tune with the complaints of regional enforcement staff over the need for clearer policies, procedures, and guidance — but I doubt it.
  • EPA was far more complex than when Ruckelshaus first took office in December 1970. The demands placed on the agency, and the political maelstrom surrounding the Gorsuch administration of EPA (May 1981-March 1983), were a far cry from EPA in December 1970-April 1973, when Ruckelshaus I set its initial course. The intervening years at Weyerhaeuser between Ruckelshaus I and Ruckelshaus II did not prepare him for managing the complexities of what he faced in a government agency of over 8,000 employees. Just as being an attorney in Indiana did not prepare him to put into place certain management systems at EPA’s founding that would anticipate the need for strong centralized policies and procedures — or the data management that was essential to meet the challenge of fair and firm enforcement, and that would accurately measure and report “compliance” results.
  • When Ruckelshaus returned to EPA in April 1973, he doubled down on his personality driven management style where Ruckelshaus believed that personal persuasion while relying on professionalism and loyalty of his top managers, was an effective means of span of control and implementing policies from the national level through a large and complex organization of 10 regions and 50 states. Ruckelshaus doubled down on his decentralization model of governance by rejecting Rebecca’s recommendation (to adopt my management and accountability initiative, The Office of Water Operating Guidence and Accountability System) was again in evidence at his Alexandria, VA rebuke of national enforcement staff in the winter of 1985 which is covered in detail in Part IV-12 “The Enforcement Debacle.”
  • “The question really is whether we, as a society, not whether the company I work for, or the industry of which I am a part … is going to be adversely affected. It is really whether the country, whether the people, should spend money, which doesn’t produce very much benefit for us as a society … it is my view that unless the Congress amends the existing requirements for best available treatment standards, we will be ignoring the public interest for the sake of demonstrating technological capability, and the standard will continue to be for all to employ the best available technology, and the standard will not be what we ought to do, but what we can do.” Wm. Ruckelshaus
  • Any organizational structure can be made to work, provided planning, prioritization, and accountability circumscribe it, and nomenclature is institutionalized. Inherently conflicting functional responsibilities, like “policeman on the beat” and “partners with states,” and the confusion and conflict they invoked at EPA’s founding, can be mitigated with policies and procedures. Unfortunately, EPA’s first administrator did not reconcile these conflicting functional responsibilities when he initiated EPA’s “enforce first” policy under the Refuse Act of 1899 at EPA’s inception.
The Environmental Elite and Lobby

The Environmental Elite and Lobby

Here are a few backstories on environmental elitism and lobbying efforts in the Reagan era.


Book excerpts:


  • By the time of the Reagan Administration, the political forces around the environment had crystallized into two decidedly different philosophies. There was the “Washington-centric force” which advocated for elimination of all pollution, regardless of cost, economic impact, or our ability to finance other societal values. Correspondingly, those in the Washington-centric camp believed in the application of ever more stringent technology applications, ratcheting down pollution to zero, literally. Indeed, the 1985 goal of the 1972 FWPCA act was “zero discharge of pollutants” into the waters of the United States. They fiercely believed that every environmental problem had a federal solution. The Washington-centric force distrusted states’ resolve to regulate pollution and use predictive science to make pollution control decisions on a local basis. This is the group that dominated the passage of 1970s national environmental legislation that embedded the new federal top-down regulatory and enforcement systems involving minimum technology requirements and permits.
  • The very shrewd people who populated the echelons of the environmental lobby focused on bringing down Gorsuch by birddogging everything she did and used the print media to amplify their central allegation. At the same time, the lobby juxtaposed the obvious: polls showed that Americans wanted clean air and clean water, and as I put it, “ …an EPA, however dysfunctional, that will keep an eye on things.” Here, indeed, was Gorilla in the Closet.
  • Also, and most importantly, the Washington environmental elite did not want to actually debate the means and methods of administering environmental laws, which was the cornerstone of my, and Anne’s, regulatory and management reform initiatives. They seemed willing to sacrifice a unique opportunity to fix many of the problems EPA had set in motion, particularly in their relationships with their “so-called” state partners, based on their first 10 years of experience, and rather to aid and abet their friends on the Hill and within EPA — the holdovers, if necessary. All of these schemes materialized to bring EPA to its knees in order to score political points against Reagan.
  • Tom Jorling, who was my predecessor once removed as EPA’s Assistant Administrator for Water responsible for EPA’s destructive Presumptive Applicability Policy, made the startling observation:

“As a society, we still have not figured out how to deal with diverse local jurisdictions and to recognize that we needed a governmental management entity that somehow can bring them together. That unit is not the states, it is not regional planning commissions, and it’s something else. Section 208 was an effort to address that. It has not succeeded … and that’s one of the major political issues that this nation has to face.”

  • This view displays hubris in every way. It reflects the disregard for the ability and fundamental importance of local government, and the corresponding accountability of local elected officials in governance in our democratic society, to annually balance budgets and choose to pursue expenditures that represent a balance of competing needs for limited resources based on an assessment of costs and benefits. Basically, he is saying the program failed because we didn’t have the right institutions involved and need new ones.


Below I chronologize EPA’s first Administrator’s imprint on EPA’s command-and-control enforcement.


Book excerpts:


  • At EPA’s inception, William Ruckelshaus took steps to meet the most imperative issue “which was establishing the credibility of the agency and demonstrating the willingness of the central government, and the political process, to respond to the legitimate demands of the people.” In his 1993 interview for EPA’s Oral History, Ruckelshaus explains how some American industrialists “…Believed environmentalism was a fad, a lot of nonsense that would go away if they just hunkered down, fought, and publicly confronted us. They couldn’t have been more wrong. When they decided to confront (me) or the Agency … it was simple to take them on. We couldn’t have invented any better antagonist for the purpose of showing that this was serious business, that the agency was serious about its mission.”
  • Ruckelshaus’ prominent role in ordering and announcing to the press and hence to the world these first municipal and industrial water pollution enforcement cases denoted that the implementation of EPA’s enforcement policies and subsequent roll out of additional enforcement cases would be based on “personality-driven management style,” and not system or organizational-driven management styles. I do not believe this was Ruckelshaus’ intent.
  • Anne’s enforcement reorganization and the chaos that ensued was the smoking gun that Reagan’s natural enemies needed to press the case that the Reagan/Gorsuch EPA was backing away from enforcing environmental law. It eventually led to six Democratically-controlled congressional committees investigating EPA’s enforcement record.

  • Now having the organizational responsibility for permits and compliance, I could develop a water quality standards-to-permits strategy that would, I hoped, for decades guide the entire industry towards more cost effective and less confrontational decision-making while providing the information needed for all stakeholders to make good decisions in what could be a more collaborative manner between the regulators and the regulated.

  • Ruckelshaus’s transcribed comments to his national compliance/enforcement staff on January 24, 1984 were remarkable and should be examined by students of environmental communication and policy. They are in the Eidsness Archives of Colorado State University’s Morgan Library Water Resources section. Remarkable for several reasons, the comments provide a glimpse into Ruckelshaus’s management style in the early years (1971-73) when he first set up EPA’s organization, particularly the Office of General Counsel and Legal Enforcement.

  • The model for bringing cases was emulated by all regional enforcement directors and their staffs, which was to use the highly orchestrated and theatrical public shaming events called “Enforcement Conferences” that were authorized under the 1948 CWA. All the environmental lobby had to do was sit and wait, while continuing their drumbeat-and-disinformation campaign, and something would inevitably happen that related to the central theme of backing away from environmental protections, which would then make the allegation a self-fulfilling prophecy!