Sound Science and the EPA: An Insider’s Perspective

Sound Science and the EPA: An Insider’s Perspective
December 1, 1997

David L. Lewis has a Ph.D. in microbial ecology and works for the U.S. Environmental Protection Agency. He also serves on the Graduate Faculty of the University of Georgia. His university research in the early 1990s into the potential transmission of the AIDS virus by dental drills was published in leading British and American medical journals. After carrying out a highly publicized effort to educate the public, new infection control guidelines were adopted by public health officials in the U.S., Western Europe, and elsewhere.

Considered one of the EPA’s top researchers, Dr. Lewis has worked for the agency’s National Exposure Research Laboratory in Athens, Georgia for over 25 years. He recently became an outspoken critic of the way his agency handles science. In this exclusive interview with Environment News managing editor Bonner Cohen, Lewis offers a revealing look at the complicated life of a federal government whistleblower.

Cohen: I understand that Congress may soon hold hearings on a Department of Labor case you won against the EPA. What’s that all about?

Lewis: After I criticized EPA in a commentary published in Nature magazine last year, officials in the Office of Research & Development (ORD) retaliated, with the help of agency ethics officials. They accused me of everything from breaking ethics rules to criminal violations of the Hatch Act. They also fabricated a basis for rejecting Congressman Richard Pombo’s request that I be detailed to Congress to help draft legislation improving the way science is used in regulations.

Just before all this happened, ORD’s Assistant Administrator had nominated me for a national award when I publicly criticized science at the Centers for Disease Control and Prevention and succeeded in getting federal policies changed. It was a different story when I criticized how my own agency uses science.

To stop their harassment, I filed a complaint with the Department of Labor in Atlanta. The Department investigated and ruled in my favor. When its decision was appealed to an Administrative Law Judge, I retained attorney Stephen Kohn of the Washington law firm of Kohn, Kohn & Colapinto. Mr. Kohn has handled a number of high-profile whistleblower cases involving scientists at the FBI, EPA, and elsewhere. EPA has since agreed to an out-of-court settlement.

Mr. Kohn obtained documents and testimony from EPA Administrator Carol Browner’s top managers, including her Chief of Staff. That information indicated a pattern of abuse and wrongdoing, possibly even criminal violations on the part of some EPA officials. The Office of Government Ethics assisted EPA’s efforts to retaliate against me, and may have intentionally provided misleading documents for EPA to give members of Congress. Officials in the Office of Government Ethics refused to turn over evidence or answer questions in discovery. Therefore, we were not able to find out what was behind their efforts to assist EPA.

A Subcommittee of the House Committee on Government Reform and Oversight, chaired by Congressman David McIntosh, now has my case under full investigation. I think the public will be shocked at the evidence if hearings are held.

Cohen: Was Administrator Browner involved in any of this?

Lewis: We don’t know for sure. Browner also refused to be questioned or turn over documents sought under discovery.

There was one instance in which I refused to comply with a request from Browner’s Acting Assistant Administrator for ORD. He asked that I use my influence with a congressman to help defeat a bill that would affect EPA’s budget. It was up for a vote that afternoon, so I was being asked to lobby Congress from my government office on government time. I was told that the request came from Browner’s office.

I’m sure Representative McIntosh and his Subcommittee will get to the bottom of all of this. They intend to find out how widespread the abuses are, and what levels in EPA they reached.

Cohen: How would you assess the current state of science at the EPA?

Lewis: If you’re talking about the quality of the agency’s scientists and their abilities to find answers to the difficult questions we face, I’d say science is in great shape. We have some of the best environmental scientists around. We’re hamstrung to some extent by the agency’s policies when it comes to travel, technical support, and collaboration with outside scientists. But we’re trying to work through these problems with top management.

On the other hand, my answer is different if you’re asking how science gets used in EPA’s rules and regulations. Our scientists have always played catch-up with the regulatory process and the situation is getting progressively worse. One reason for this is that EPA is having to meet an increasing number of court-ordered deadlines to write or enforce rules and regulations. Environmental groups sue the EPA trying to get it to move on issues where they want immediate action. When environmentalists win these cases, judges give the EPA a deadline for having new rules or enforcement actions in place to deal with the problem.

To comply, EPA’s program offices write new rules and send them over to the ORD for scientific review. Our scientists are asked to render an opinion on whether a proposed rule is scientifically sound, or what sort of changes should be made for it to be scientifically defensible.

It’s not unusual for our scientists to see problems with a proposed rule. Maybe analytical methods have to be improved before we can accurately monitor certain chemicals to which the rule applies. Or perhaps we recognize certain faults in the scientific studies used to support the rule. Oftentimes, these scientific issues just can’t be resolved in time to meet the deadline for having the rule promulgated. So EPA ends up publishing and enforcing rules and regulations that aren’t based on good science.

Cohen: Can you cite specific examples where regulatory decisions have been driven by poor science?

Lewis: Just to give one example my laboratory was directly involved in, I’d say the 503 Sludge Rule passed in 1993. Essentially, this rule shifted the disposal of municipal wastes, mostly human sewage, from ocean dumping to land disposal. Now half of the total volume of municipal wastes generated in the U.S. is dumped on our farmlands.

EPA scientists had a lot of concerns about turning America’s farmlands into waste sites contaminated with toxic metals and human pathogens. The science used to support the regulation was so bad it was officially referred to within EPA as “sludge magic.” But administrators and senior managers in Washington completely overruled the agency’s scientists. I’ll never forget reading an e-mail note one EPA scientist sent to Washington after seeing that the administration included language in the final rule stating it would protect the environment. It read: “I thought we all agreed that we don’t know if this rule will protect the environment!”

To me it’s pretty scary when a handful of non-elected government officials at EPA can decide to protect whales from potential risks and put America’s food supply and the national economy clearly at risk--turning a deaf ear to protests from their own expert scientists.

As unbelievable as it sounds, EPA set no limits to prevent the accumulation of toxic metals and other hazardous wastes from reaching levels at which the land is no longer safe for agricultural use. Europe, by contrast, has much stricter standards when it comes to land application of municipal wastes.

Cohen: This sounds like a major problem brewing, and the public isn’t even aware of it.

Lewis: Potentially, the impact could be enormous. Can you imagine what will happen the first time an outbreak of virulent E. coli from one of our agricultural products gets tracked to the application of municipal wastes on our farmland? Just like international bans on accepting beef possibly infected with mad cow disease, imports of a wide range of American agricultural products will be banned worldwide. How’s EPA going to explain why it didn’t want whales exposed to any level of toxic metals and human pathogens in municipal wastes and decided instead to put it in direct contact with our food supply?

Cohen: What can be done to stop bad-science regulations?

Lewis: In my opinion, environmental statutes such as the Clean Water Act and the Clean Air Act should include language stating that no rules or regulations can be promulgated or enforced unless they are scientifically sound. To make this work in practice, other legislation is needed to set up a system for determining whether proposed rules and regulations are based on good science. Perhaps it could be patterned after the way the scientific community decides if research papers represent sound science before they’re published. This could even help in cases where EPA has to meet court-ordered deadlines. Judges would have to make sure their orders accommodate good science.

If we don’t do something like this, the whole regulatory process will become self-defeating. Enforcement actions based on bad science don’t help the environment. Sometimes they do more harm than good. Plus, they divert our energies and resources away from doing things that would protect the environment.

Cohen: Carol Browner carried out major reforms in ORD, the agency’s science organization. Has this improved science at EPA?

Lewis: There have been improvements, but the root problems still remain. The time scientists spend doing research and other science-related tasks was being overcome by administrative red tape. This is a longstanding problem, but things suddenly got much worse when Carol Browner took office.

In my opinion, she overreacted to hearings on Capitol Hill where investigations into some of the agency’s contracts were turning up problems. There was a lot of media hype at the time and Browner vowed to correct what she called a cesspool of mismanagement. She began pouring resources into EPA’s Office of Inspector General, which was investigating management practices in ORD. Investigators were under a lot of pressure to produce evidence for the congressional hearings and the whole thing turned into a witch hunt. A number of innocent managers and scientists were prosecuted.

Inspector General agents used brutal tactics against EPA scientists all across the country. They showed up at their homes late at night threatening them with prosecution if they didn’t wear hidden microphones to entrap laboratory managers. As a result, a number of scientists and managers were prosecuted on completely false charges. It was one gigantic nightmare.

All of ORD’s people who were prosecuted were later proven innocent after taking their cases through the court system. Federal judges chided the Office of Inspector General for carrying out investigations in bad faith. The scientists were vindicated, but still they were financially and emotionally devastated.

Bureaucratic red tape continues to cripple ORD five years after Browner announced her emphasis on instituting and following management controls over achieving EPA’s mission. We operate in an environment where accomplishing our mission is the lowest priority and following myriad internal management rules and policies is the highest priority.

As if the situation weren’t bad enough already, Browner had acquisitions managers hired for all the laboratories and divisions to make sure every bureaucratic rule is followed to the letter. They micromanage every aspect of our lives. Sometimes they go way overboard in my opinion. An acquisitions manager overseeing my activities, for example, has protested my legitimate outside political activities and even objected to me working with a contract employee at church. We feel like we have the KGB breathing down our necks.

Cohen: Do you believe Carol Browner appreciates the extent of the EPA’s science problems?

Lewis: No, I don’t. For example, I learned during discovery for my Department of Labor case that she approached the head of ORD last year after reading an article in the Washington Post where I said red tape is crippling EPA science. “Old stuff, isn’t it?” she said. “We’ve already fixed that.” “Yeah”, the Assistant Administrator replied. End of conversation.

Not long after she first took office, I sent Administrator Browner two letters extensively outlining science problems in the agency and offering suggestions. I sent them by private mail, faxed them directly to her office, and sent them through ORD channels. No one even acknowledged them. I later requested that she meet with me and a group of leading scientists from both inside and outside the agency. Washington ORD officials told me her schedule was just too full to work it in. I finally decided my only option was to talk with my congressman and write articles about problems at EPA.

When we deposed Browner’s Chief of Staff, he said he concentrates on handling what’s most important to the Administrator. Then he remarked that he spends less time interacting with ORD than most any other office in EPA. It looks like Browner is pretty far removed and out of touch with science at EPA.

Cohen: How do EPA scientists in general feel about Carol Browner?

Lewis: I can’t speak for all our scientists. I can tell you how I feel, and I do hear these opinions echoed by scientists across the agency. I don’t think there’s much room for argument that EPA science was severely damaged when Browner drove the mission versus management pendulum completely to the management side. We haven’t recovered from this, and can’t recover from it until Browner herself readdresses these issues.

We also can’t just forget that our scientists and frontline managers were brutalized without mercy by EPA’s Office of Inspector General. I wasn’t the only scientist who sent word to Browner that innocent employees were being victimized. She wouldn’t even acknowledge our concerns. Federal Administrative Law Judges have since ruled that the employees were innocent and investigations were carried out in bad faith, but still no comment from Browner.

Washington EPA officials have violated federal laws in order to take actions against employees for purely political reasons. In one case, an Inspector General investigator even admitted shredding government documents that would have vindicated a scientist. It was reported in the Washington Post, yet Browner had no comment. Nothing has been done to punish any offenders.

It’s just not a good picture. Browner publicly attacks agency employees based on Inspector General allegations, then says nothing when the employees are found to be innocent. She takes strong action to prevent scientists from doing anything that may even appear to break the most trivial rule or policy. But she takes no action when government officials in Washington violate federal laws. This has generated an incredible amount of mistrust toward our managers and administrators in Washington.

Cohen: Carol Browner is considered to be an environmental activist. Is that a good trait for an administrator?

Lewis: Poor-science regulations, which is what you get when activism overwhelms science, don’t protect the environment. Activists are going to make a lot of mistakes that good science could straighten out. Not that activism is bad--not at all. It plays a very important role in raising public awareness of the need to protect the environment.

It depends a lot on the overall situation. Activism has already moved ahead of science by driving EPA’s regulatory process from the courts as I mentioned earlier. On top of this, the influence of environmental activists on Congress is particularly strong right now. Add to this an Administrator who tends to let activism get ahead of science inside the agency and you have all three branches of government involved. Our whole check-and-balance system becomes compromised, and it gets nearly impossible to keep science from being overrun by activism.

It will prove to be very unhealthy if things stay this way for very long. This is something our children and grandchildren are going to pay for, not just economically but in terms of a much less healthy environment.

Cohen: What do you think should be done to fix science at EPA?

Lewis: First, ORD’s internal bureaucracy needs to be dealt with effectively. This year’s ORD Organizational Climate Survey showed that three out of four employees feel that science is not well integrated into EPA’s regulatory process. This is the second of five annual surveys ORD has planned. Employees identified lots of things that need fixing and made some good suggestions on how to do it.

Unfortunately, the survey showed that employees don’t believe ORD administrators will take their suggestions seriously or provide the leadership necessary to solve problems. That’s because employees brought up the same problems this year as they did last year. ORD administrators tried but failed to make substantive progress after the first survey.

Personally, I’d like to see these survey results released to Congress and the news media with a tell-it-like-it-is summary. News reporters told me they are denied copies of the survey results when they request them from ORD. Members of Congress have also said that they were unaware that these surveys exist and would like to receive copies. If Congress and the public were more aware of our problems, I think the EPA administration would have more incentive to work with employees to solve them.

Beyond ORD, we’ve got to have real leadership from the top down if we are ever going to put science ahead of politics. I don’t think this is something that can be just delegated by appointing a scientist to run ORD. Good science has got to start at the highest level with an Administrator who truly understands science and makes scientific integrity of environmental regulations one of the agency’s highest priorities.

We also need help from Congress to pass legislation that will move science ahead of politics. I’ve been using my own personal time helping Congressman Richard Pombo draft legislation I believe will accomplish this. The bill will probably be introduced early in the new year. Even though Mr. Pombo is a favorite target of environmentalists, I don’t think there’s any other member of Congress more committed to good science. And he’s got some very good ideas in my opinion on how to get science better integrated in federal regulations.

Dr. Lewis’s responses represent his personal views, not those of the U.S. Environmental Protection Agency.