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State and local governments
Q: William Ruckelshaus, in a recent oral history interview, mentioned that sometimes state and local governments saw EPA as a gorilla in the closet that helped them regulate industry within their constituencies or within their areas. But sometimes they found that EPA was a gorilla that leapt out of the closet and beat them on the head, as well, for their pollution problems - a case in point being a couple of enforcement actions that Ruckelshaus took early in 1970 against various big cities for municipal waste pollution into various rivers. What would you say your Administration did to address the legitimate concerns of state and local governments and how would you characterize that relationship, generally?
MR. REILLY: We gave a high priority to decentralizing a lot of our activity. EPA was, frankly, more decentralized than I realized it would be when I arrived at the Agency, but that is a response to the complexity of the country and the nature of environmental problems, which differ one place from another. We consulted very closely with the Governors, with the Western Governors' Association, with whom I met at least twice, with the National Governors' Association with whom I met regularly, and saw them as partners in the enterprise. I particularly valued their contribution at the beginning of the statutory consideration in the Congress, for example, of the amendments to the Safe Drinking Water Act on which the Governors had very strong views. I remember saying to the Governors, "Don't wait until we come down with onerous regulations, which are the consequences of the statute we must administer, to complain about it. Work with EPA when we're trying to head it off, in hearings. That was less successful than I would have liked. Governors, like the rest of us, look at what's on the front burner and the problems they have at hand.
I think one of the most important contributions, though, that we made to state and local relationships was to do a review of all the many requirements that affect localities and put them in a single large book, which is a very thick book. Then we recognized that the local officials, especially of small cities and towns, who must administer these requirements and who often suffer great liabilities as a consequence, who have to sign off on hazardous wastes as being properly handled and monitored, for example, are quite frequently unpaid. Sometimes they're teachers, plumbers, electricians, working part time. One has to ask, "Why should they do this?" Why should they take responsibility for leaking underground storage tanks, which are complex and technical and can open them to liability? Have we got the right way of interfacing with them? Have we made services and technical advice available to them of the sort that they need?
Municipal liability for Superfund sites threatened to bankrupt governments in New England, California and other areas. I tried to promulgate a cap, a maximum percentage of cleanup costs beyond which municipalities would not be liable. The White House blocked that initiative. I recall Senator Rudman saying to me once, and it made quite an impression, "I don't care what the law says, I used to be a Federal judge and no Federal judge is going to order Durham, New Hampshire, for example, to spend more on a Superfund site than it spends on a school system." I guess I would add to that, nor should it. I think some of these things have to be kept in perspective.
So, we did attend to the states' concerns and needs. We tried to reduce the number of standards that we were promulgating under the Safe Drinking Water Act every three years. I'm very pleased to see my successor has continued that direction. We tried to reduce the number of tests that they must conduct, particularly for things that aren't used in their states. I recall Carol Browner, then Florida Environment Secretary, saying that under the Safe Drinking Water Act 80,000 drinking water tests were required in Florida in one year. We tried to recognize that there is more on the plate of states and localities than they can possibly manage. To the extent that we put it there as duplication of an effort, we'll take it off. Our total quality management efforts were intended to relieve states of a lot of second guessing and oversight and unnecessary duplication. That effort, in my view, did not go far enough on my watch. I think it should continue and, given the very sorry plight of some of the states' fiscal situations, such as California, New York, and others, and all the other burdens they bear, there's really no excuse for doing things twice.
I remember, in thinking about state relationships, having a very difficult time with our Chicago office when they attempted to deny a permit for a golf course in Michigan that would have altered the environment of an undeveloped area that probably we all might prefer to see remain pristine. Essentially, denial of a permit to develop a small amount of wetlands, to a developer who was prepared to restore significantly more wetlands in return, was asking the wetlands program to bear a large burden. Michigan was the only state that had received delegated authority under the 404 Wetlands Program to make such decisions, and in my view that entailed authority to make such decisions free of second-guessing by EPA. EPA should not second-guess each permit decision in such a situation, but rather should annually review the state's administration of the program as a whole. The Agency wasn't doing that. It was essentially behaving towards Michigan the way it behaved towards every other state, that is, to monitor and review every single permit and overturn, overfile on those that it disagreed with. I finally withdrew wetlands regulatory authority from the region for the oversight of states that had delegated programs. I was hearing from Florida and other states that had considered applying for delegation that the Michigan case proved that you get nothing for it, so why take it, what's it gotten Michigan?
The opposite argument to that is that the threat, at least, of intervening with respect to a specific permit, will keep the game honest, will keep the state with a believable sanction in the event it gets under strong political pressure to grant a permit, will allow the state to say, "EPA will never permit it. They'll come in and disallow it." Whereas, the sanction of, "EPA will remove program administration authority from us" is less plausible, certainly more remote from an individual decision. I recognize that reality, but tend to think, given the resources we have, more deference to state decision making is appropriate. I believe that is a consequence both of the way we crafted our Federal system and also of the increasing sophistication and technical ability of states.
I think my view of that is probably not the majority one at EPA, which has a habit of second-guessing to a considerable degree. There are some statutes like the Clean Air Act that really contemplate that approach. But, where that is not the model that's in the law, I would opt for a greater degree of deference to state decision making. I think the governors understood that, some of them respected that, and our relationship was, therefore, pretty good.
My relationship with the mayors and the county officials was quite good when I made the promise to reduce their liabilities or cap them under Superfund. But, when I couldn't deliver on it, I'm not sure how I ended up with them. I did, myself, in conjunction with the Attorney General, bring lawsuits against 60-odd municipalities for failure to enforce pre-treatment requirements for water toxics under the Clean Water Act. That strained our relationship, certainly, with those cities, some of them like Detroit, which were big. It was, however, a critical area of water quality enforcement. The absence of pretreatment means the whole system breaks down because waste water treatment plants can't handle toxics. It is in the tradition of EPA's vigorous enforcement. Consistent with the enforcement record we had, which set records for criminal and civil actions - in fact, involved more of both than had characterized the previous 18-year history of the Agency, I think our relationships both with industry and with states and localities ended up pretty sound.