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Drawing the Line
The Armco plant on the Houston Ship Channel was the site of one of EPA's first major confrontations with corporate pollution.
Ruckelshaus sensed that agency credibility was far more important than the abstractions of organization, and action established credibility. He believed that swift enforcement action against big cities and big companies would demonstrate EPA's willingness "to take on the large institutions in society which hadn't been paying attention to the environment." 2 By doing so, he would start building strong public support for the agency.
Seven days after taking the helm at EPA, Ruckelshaus delivered a speech before the annual Congress of Cities--a meeting attended by U.S. big city mayors. To a dismayed crowd of city officials, Ruckelshaus announced that EPA was at that moment serving the cities of Atlanta, Detroit, and Cleveland with formal "180 day notices" that directed them to stop violating federally sponsored state water quality standards. Notoriously polluted, these cities had fallen chronically behind on previous commitments to federal and state officials to stop spilling pollutants into neighboring waterways. Tempered by his experiences with the Indiana Board of Health, Ruckelshaus preferred to use the Department of Justice's big stick as a last resort, hoping that maneuvers such as six-month warnings for municipal violators would encourage them to act in good faith.
Ruckelshaus and his staff did not devise their enforcement strategy in a vacuum. Complex social forces defined the possible approaches the agency could take toward environmental law enforcement. In order to fight the war in Vietnam and the war on poverty at home during the 1960s, the Kennedy and Johnson administrations had adopted a centralized approach to government. By 1968, many Americans were tired of it. Building on that sentiment, the Nixon administration emphasized decentralized management. In turn, the Nixon-appointed EPA administrator hoped EPA could "work in concert--in a relationship of mutual concern and responsibility" with regard to state and local pollution control initiatives. 3 The agency would take enforcement initiative only when municipal and state governments found themselves stuck in "the logjam of inertia." 4 It would act as a "gorilla in the closet" for the cities and states to use to frighten polluters into submission. State regulators had long wished for a federal agency to play this role.
Despite this cooperative rhetoric, EPA's relationship to state and local governments started off turbulently and stayed that way. As in the cases of Atlanta, Detroit, and Cleveland, governments often found the "gorilla" threatening them for their own shortcomings. Furthermore, the agency's very existence stood as a federal reproach to perceived state inactivity or ineffectiveness in responding to public demands for cleaner air and water. Cleveland Mayor Carl Stokes's reaction to the 180 day notice typifies local suspicions of EPA motives. Stokes accused Ruckelshaus of making a politically motivated assault on Democrat-controlled cities. As Ruckelshaus predicted, EPA's moderate enforcement strategy shocked and angered the municipalities and states with the worst records of environmental pollution.
Ruckelshaus rode the crest of favorable public opinion, though. He used such support to override criticism and to dislodge intransigent polluters. From it, he drew the courage to level the agency's firepower against industrial polluters.
Many American industrialists hoped that President Nixon's call to deregulation would result in an era of loose oversight. To their surprise, industrial polluters found EPA dusting off the 1899 River and Harbors Act and threatening them with the broad federal powers provided therein even as Congress considered new and tougher legislation. As a result, in its first year, EPA referred 152 pollution cases--most of them water related--to the Department of Justice for prosecution. Despite his inclination to use the courts only as a last resort, Ruckelshaus discovered that the magnitude of the pollution problem quickly exhausted less threatening options.
During the 1960s, as public pressure to cleanse the environment increased, many large companies found themselves negotiating with state pollution control agencies. In order to comply with state and federal standards, these firms agreed to treat their effluents. Company attorneys and state officials negotiated incremental compliance schedules designed to allow plants enough time to take agreed upon actions without imposing undue financial burdens. Many companies recognized that states had neither the power nor the inclination to enforce these agreements and therefore took little or no action to meet the timetables. Ruckelshaus knew that EPA's effectiveness depended on forcing the most intransigent businesses to take responsibility for the wastes they produced.
In one of the first struggles to discipline big industrial polluters, Ruckelshaus engaged Armco Steel. In mid September 1971, nine months after EPA referred its case against Armco to the Justice Department, a federal district court judge found Armco guilty of dumping over half a ton of toxic chemical--mostly cyanides and phenols--and between three and six tons of ammonia into the Houston Ship Channel daily. Over several decades this activity resulted in numerous fish kills and the close of shell fish beds in Galveston Bay. Because of the toxicity of these releases, the court ordered Armco to halt all releases into the channel. The company faced closing its Houston furnaces to comply.
This set into motion a hand of high stakes political poker between the Nixon White House, Armco Steel, EPA and the Justice Department, and Representative Henry Reuss, chairman of the Subcommittee on Conservation and Natural Resources. The stakes included EPA's autonomy in enforcing environmental regulations. William Verity, Armco's president, played the first card by sending a letter to President Nixon complaining that EPA's enforcement of the Federal Water Quality Act in the name of public health had violated a tenet of the president's pro-business policy--that "industry would not be a whipping boy in solving our environmental problems." 5 Nixon aide Peter Flanagan called in EPA enforcement chief John Quarles and strongly suggested that EPA propose a sixty-day stay of the court order to provide Armco and EPA time to negotiate an amicable solution. Armco upped the ante with the White House by asserting that 300 workers would lose their jobs immediately as a result of the order. To the White House, which was then struggling to disentangle the nation from its commitment in Indochina and avoid (unsuccessfully) the economic whirlpool that drove unemployment figures up from 4.8% in 1970 to 8.9% in 1975, this was a deeply troubling threat.
Quarles called Armco's bluff. With another White House aide listening in, Quarles telephoned regional EPA staffers who told them that Armco had planned to lay off the 300 people prior to EPA's action. The White House still pressed for a compromise settlement. Peter Flanagan evidently gave Verity the impression that EPA would agree to a stay; but EPA officials continued to oppose concessions.
Just as the affair appeared deadlocked, EPA drew a wildcard that secured its position. The Washington Star revealed that Armco had contributed significantly to the Nixon campaign effort. The Star implied that by negotiating-with Armco and considering a stay of the court order, the administration had allowed inappropriate political considerations to conflict with its duty to protect public health and safety. The Star's expose embarrassed the Nixon administration and forced the administration and Armco to negotiate a squeaky-clean settlement. This resulted in Armco agreeing to follow EPA guidelines for installing proven waste treatment technology at its Houston facility.
Nevertheless, Congress still held the last card. Many on Capitol Hill saw in the Armco affair an opportunity to further embarrass the Nixon administration. Congressman Henry Reuss called Peter Flanagan, EPA representatives, and Justice Department officials before his House Government Operations Subcommittee on Conservation and Natural Resources to explain the administration's actions. Reuss suggested that EPA should enforce congressional requirements regardless of the administration's position on the matter.
John Quarles, EPA's spokesperson, found himself caught in the long-standing struggle between presidential and congressional power. As an enforcer of the law, EPA was bound by congressional mandates. But as an instrument of the executive branch, the agency also had responsibility to the chief executive. After all, the president held broad constitutional authority to implement enforcement. The Armco incident begged a crucial question: who controlled EPA?
Although William Ruckelshaus had received assurances from the White House that he did, the reality was never so absolute. Like his successors, he would find it necessary to determine whether Congress or the president was decisive on any particular issue. Clearly during the Nixon administration's first year, the White House held the reins of power. But as the presidency was shaken first by the Vietnam War and then by the Watergate Scandal, Congress became ascendant in environmental, as in other, matters.
2. EPA History Program, "William D. Ruckelshaus," EPA Oral History Series (United States Environmental Protection Agency, November 1992), p. 9.
3. William D. Ruckelshaus, Address to the Indiana State Legislature, 8 February 1971, Ruckelshaus' speeches file, EPA Historical Collection.
4. William D. Ruckelshaus, "The City must be the Teacher' of Man; Address to the Annual Congress of Cities, Atlanta, Georgia, 10 Dec 1970.
5. William Verity to Richard Nixon, 28 Sept 1971, in John Quarles' Cleaning Up America: An Insiders' View of the Environmental Protection Agency (New York: Houghton Mifflin, 1976), pp. 63-4.