Expecting the Unexpected

• Author: Elliott P. Laws
• Position: Former EPA Assistant Administrator and former President for Safety, Health & Environment of Texaco, is Senior Counsel at Crowell & Moring
• Pages: 14-14

Page 14 ❧ THE ENVIRONMENTAL FORUM Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, May/June 2010

e view that the school

was putting childre n

at risk turned out n ot

to be the case

By Elliott P. Laws

Expecting the

Unexpected

When dealing with environmen-

tal issues you should prepare

yourself for surprises. at this has

also been an axiom of human exis-

tence for centuries is clear when we

read the words of the pre-Socratic

Greek philosopher Heraclitus (c. 535

BC–475 BC), who wrote, “If you do

not expect the unexpected, you will

not f‌ind it.” I learned that early in my

tenure at EPA in the 1990s when re-

sults that were expected by me and my

staf‌f turned out to be quite dif‌ferent

when they came in. Two cases spring

immediately to mind.

e f‌irst involved the Brio Super-

fund Site in Harris County, Texas.

Brio was a classic example of some of

the earlier sites listed on the National

Priorities List. It was a ref‌inery that

reclaimed petrochemicals from tank

bottoms, tars, and residues from other

of‌f-site sources. Materials for reclama-

tion as well as the wastes from Brio’s

own processes were stored in open pits

at the site. When I became assistant

administrator for the Of‌f‌ice of Solid

Waste and Emergency Response, the

Record of Decision had long been

signed. e remedy called for the use

of a rotary kiln incinerator and was

about to be implemented. We were re-

ceiving community complaints about

odors emanating from the site around

the time excavation of wastes from one

of the pits began. Temporary enclo-

sures were built over the waste pits to

contain emissions during excavation.

is material was stockpiled for the

trial burn incineration of the wastes.

I had been assured by the region

that all tests had been performed to en-

sure that the surrounding community

would be safe during the incineration

process. However, we had just institut-

ed a major commitment to enhanced

public involvement and an organized

community was presenting convinc-

ing evidence that they could be at risk.

Add to this the strong objections to

onsite incineration at Superfund sites

which had been sweeping the nation,

and I felt we needed to do more.

Sending EPA’s Emergency Response

Team from Edison, New Jersey, to the

Brio site with its mobile air monitor-

ing equipment gave us our f‌irst sur-

prise: the community was right. I still

remember the exact words of the mes-

sage I received: “You can’t put a shovel

into those waste pits without setting

of‌f the neighborhood air monitors.”

is led to further characterization of

the waste material onsite, and in 1997

a capping remedy was

instituted. I had been

told to expect that

nothing would come

of the trip except con-

f‌irmation of the se-

lected remedy.

e other case in-

volved the Agriculture Street Landf‌ill

in New Orleans. Here, again, due to

public comments and environmental

justice concerns, we were looking at a

site that the community wanted placed

on the NPL. Lead in soil at residents’

homes had been documented, but

across the street from those houses was

an elementary school that had been

constructed directly on top of the old

landf‌ill. We were concerned for the

safety of children in the school and on

the playground and put in place an ex-

pedited testing regime in order to fast-

track the site for NPL consideration.

Contamination was found suf‌f‌icient

to justify a listing. However, there were

no health or environmental problems

detected at the school, which had

been built on top of three to f‌ive feet

of clean f‌ill. A series of yard and road

cleanups ensued, but the expectation

that the school was putting children at

risk turned out not to be the case.

What led me to remember these

long-ago instances is that we have

recently seen EPA embark on ef-

forts to take new or fresh looks at the

chemicals and the practices where

the weight of scientif‌ic evidence

points convincingly to a “no envi-

ronmental impact” conclusion. e

recently announced Chemical Ac-

tion Plan for Bisphenol A and EPA’s

congressionally mandated study into

the hydrofracking process for oil and

natural gas extraction (and carbon

sequestration in the future) come to

mind as examples.

Caution should be the watchword

for the advocates of regulation, de-

fenders of the status quo, and EPA,

which must ultimately decide what to

do. I urge all of these parties to take

to heart the lessons I learned: from

Brio — the predictions of the experts

sometimes turn out to be wrong; from

Agriculture Street —

the most obvious ex-

pectations sometimes

turn out not to be

realized.

It will either be the

advocates for change

or those supporting

the current condition in how BPA and

hydrofracking are addressed who will

likely experience Heraclitus’ unexpect-

ed result. I do not know where EPA

will ultimately come out on these two

issues; however, the agency is clearly

indicating that it believes a dif‌ferent

direction is warranted — and that

could be where the surprises surface.

Perhaps Oscar Wilde’s slightly more

modern version should be the agency’s

mantra in these instances: “To expect

the unexpected shows a thoroughly

modern intellect.”

Elliott P. Laws, f or m er E PA

Assistant Administrator and former President

for Safety, Health & Environment of Texaco, is

Senior Counsel at C rowell & Moring. He can

be reached at elaw s@crowell.com.

T B  E