NTEU CHAPTER 280 - U.S. ENVIRONMENTAL PROTECTION AGENCY,  NATIONAL HEADQUARTERS
BEN FRANKLIN STATION,  BOX 7672, WASHINGTON D.C. 20044 - PHONE 202-566-2788
INTERNET http://www.nteu280.org  E MAIL Murphy.JamesJ@epa.gov

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TESTIMONY TO SENATE GOVERNMENT OPERATIONS COMMITTEE

 

J. WILLIAM HIRZY, PRESIDENT-ELECT 

NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 2050 

HEADQUARTERS, U.S. ENVIRONMENTAL PROTECTION AGENCY

OCTOBER 1, 1992

 

 

 

    MR. CHAIRMAN, I AM TESTIFYING ON BEHALF OF THE UNION THAT REPRESENTS PROFESSIONAL EMPLOYEES AT HEADQUARTERS, U.S. ENVIRONMENTAL PROTECTION AGENCY.  MY TESTIMONY IS SUPPLEMENTED BY DOCUMENTS WHICH I HAVE SUBMITTED TO YOUR STAFF.  I WILL LIMIT MY REMARKS TO SUMMARIZING THE FIVE YEAR HISTORY OF OUR INVOLVEMENT WITH THIS ISSUE, BUT I REQUEST THAT MY ENTIRE WRITTEN TESTIMONY, INCLUDING THE SUPPLEMENTAL MATERIAL, BE ENTERED INTO THE RECORD.

 

    THE ISSUE UNDER INVESTIGATION IS WHAT ACTIONS THE FEDERAL REGULATORY ESTABLISHMENT WILL TAKE IN LIGHT OF RECENTLY GENERATED TOXICITY DATA ON CARPETING AND THE CHEMICAL 4-PHENYLCYCLOHEXENE (4-PC).  IN CONSIDERING WHAT ACTIONS ARE NEXT TO BE TAKEN IT IS IMPORTANT TO PLACE THE PRESENT SITUATION IN CONTEXT.  THAT CONTEXT INCLUDES THE FAILURE OF THE FEDERAL REGULATORY ESTABLISHMENT SINCE AT LEAST 1988 TO PROPERLY ASSESS AND CONTROL RISKS TO THE PUBLIC FROM TOXIC AGENTS IN CARPETING.  I URGE YOU, WHEN TAKING THE TESTIMONY OF, ESPECIALLY, THE ENVIRONMENTAL PROTECTION AGENCY REPRESENTATIVE(S), TO TEMPER YOUR CREDULITY WITH THE TESTIMONY I AM PRESENTING, AND TO CAREFULLY CONSIDER WHETHER PROMISES MADE BY THOSE WHO FAILED THE PUBLIC TRUST OVER THE PAST FIVE YEARS MERIT YOUR UNQUALIFIED ACCEPTANCE. 

 

    MY TESTIMONY CENTERS ON THE FAILURE OF THE ENVIRONMENTAL PROTECTION AGENCY TO DO ITS PUBLIC DUTY IN THIS MATTER OVER THE PAST FIVE YEARS.  IN A NUTSHELL THE FAILURE OF THE FEDERAL REGULATORY ESTABLISHMENT IS PRINCIPALLY A FAILURE OF WILL, COMPOUNDED WITH SOME SIMPLE INCOMPETENCE. I WILL TOUCH ON THESE POINTS BELOW. LET ME BEGIN WITH SOME CHRONOLOGY.

 

    THE UNION'S INTEREST IN THE SUBJECT OF TODAY'S HEARING GOES BACK FIVE YEARS TO OCTOBER 1987, WHEN EPA BEGAN THE INSTALLATION OF ABOUT 27,000 SQUARE YARDS OF CARPET IN THE WATERSIDE MALL (WSM) COMPLEX - THE INSTALLATION WAS COMPLETED IN APRIL 1988.  FROM OCTOBER 1987 THROUGH APRIL 1988 THE UNION AND THE AGENCY WERE APPRISED, REPEATEDLY, BY EMPLOYEES AND THEIR SUPERVISORS OF ADVERSE HEALTH EFFECTS RELATED TO INSTALLATION OF THE CARPET.

 

    IN MAY 1988, FOLLOWING A UNION REQUEST TO DO SO, THE AGENCY HALTED THE INSTALLATION, WHICH HAD BEEN SCHEDULED TO INVOLVE MANY MORE THOUSANDS OF SQUARE YARDS OF CARPET.  THE UNION REQUESTED EPA TO BEGIN AN INVESTIGATION TO SEE WHETHER REGULATION WAS WARRANTED TO PROTECT NOT ONLY OUR EMPLOYEES, BUT THE PUBLIC AT LARGE, BASED ON THE ADVERSE EFFECTS AMONG EPA WORKERS.  THE UNION, WHOSE MEMBERS INCLUDE SENIOR-LEVEL SCIENTISTS WITH MANY YEARS EXPERIENCE IN RISK ASSESSMENT AND RISK MANAGEMENT, BOTH IN GOVERNMENT AND IN THE CHEMICAL INDUSTRY, DEVELOPED A DRAFT STRATEGY FOR THE INVESTIGATION DURING THE SUMMER OF 1988, BUT AGENCY MANAGEMENT TOLD THE UNION IT WAS UNDER NO OBLIGATION TO USE IT, NOR WOULD THEY USE IT, NOR IN FACT, DID THEY EVER USE IT.

 

    IT TOOK EPA MANAGEMENT A FULL YEAR - UNTIL MID 1989 - TO HAVE EVEN A DRAFT STRATEGY OF ITS OWN AVAILABLE FOR REVIEW AND COMMENT.  WHEN I, AS SENIOR SCIENTIST OF THE BRANCH RESPONSIBLE FOR THE INVESTIGATION, REVIEWED THE STRATEGY AND COMMENTED THAT A MAJOR PROBLEM WAS ITS FAILURE TO USE DATA GATHERED ON THE EPA CASE (EXTENSIVE AIR MONITORING DONE THROUGHOUT 1988 AND CONCURRENT EMPLOYEE HEALTH EFFECT DATA) I WAS ORDERED NOT TO ATTEND ANY MORE MEETINGS OF THE STRATEGY GROUP AND TO KEEP AWAY FROM THE PROJECT IN MY OFFICIAL ROLE AS SENIOR SCIENTIST OF THE BRANCH.  WHEN I QUESTIONED THE ORDER AND NOTED THE ETHICAL PROBLEMS OF NOT USING PERFECTLY GOOD DATA TO INVESTIGATE A MATTER WITH SUBSTANTIAL PUBLIC HEALTH IMPLICATIONS, I WAS TOLD BY MANAGEMENT THAT EPA DID "NOT WANT TO GET INVOLVED IN LAWSUITS". 

 

    AT THIS POINT THE LIGHT CAME ON FOR ME -- IT APPEARED THAT EPA WOULD NOT PARTICIPATE IN ACTIVITIES THAT WOULD PLACE THE CARPET INDUSTRY AT RISK FROM TORT ACTIONS; "REGULATORY BURDEN" WAS NOT AT ISSUE.  THAT IS, IF EPA WERE TO ACKNOWLEDGE THAT CARPET HAD INJURED ITS PEOPLE, IT WOULD IMPLY THAT OTHER CARPET WAS CAPABLE OF INJURING OTHER PEOPLE.  AND IF REGULATORY ACTION WERE TAKEN, TORT ACTIONS AGAINST CARPET MANUFACTURERS (AND POSSIBLY THEIR SUPPLIERS) WOULD BE MADE EASIER.  FOR EXAMPLE, IF EPA WERE TO SET A STANDARD FOR THE CHEMICAL NOW WIDELY ACKNOWLEDGED TO BE A MAJOR CONTRIBUTOR TO (IF NOT THE SOLE FACTOR IN) CARPET'S TOXIC EFFECTS, VIZ. 4-PC, THEN ALL A PLAINTIFF NEED DO IS SHOW THAT HIS OR HER CARPET CONTAINED MORE THAN THE STANDARD LEVEL OF 4-PC, AND A PRIMA FACIE CASE OF LIABILITY WOULD BE ESTABLISHED.  THE THEME OF TORT LIABILITY AVOIDANCE PREDOMINATES THROUGHOUT EPA'S LACK OF EFFECTIVE ACTION ON THIS POINT, AND IS EVEN MORE STRIKING IN THE MATTER OF A FORMAL REQUEST TO TAKE REGULATORY ACTION VIA A PETITION UNDER THE TOXIC SUBSTANCES CONTROL ACT (TSCA), WHICH I WILL COVER BELOW.

 

     EPA'S RELUCTANCE TO TAKE ACTION TO PROTECT THE PUBLIC NOTWITHSTANDING, AS EARLY AS AUGUST 1988 EPA ISSUED AN INTERNAL POLICY BARRING CARPET CONTAINING 4-PC FROM USE IN HEADQUARTERS FACILITIES AND THEN CAREFULLY KEPT THIS INFORMATION FROM THE PUBLIC. (EPA REFUSED A UNION REQUEST TO ROUTINELY PROVIDE THIS INFORMATION TO PEOPLE WHO INQUIRE ABOUT THE RESULTS OF THE "CARPET POLICY DIALOGUE" [SEE BELOW] , STATING THAT, "IF WE GIVE YOU A CHANCE TO HAVE YOUR VIEWS MADE KNOWN TO THE PUBLIC, WE WOULD HAVE TO DO THE SAME FOR OTHER DIALOGUE PARTICIPANTS", THUS ACKNOWLEDGING THE CARPET INDUSTRY'S VETO POWER OVER EPA'S INFORMATION DISSEMINATION ON THIS ISSUE.  AGAIN IN THIS CASE, EPA APPEARED TO NOT WANT TO LET THE PUBLIC KNOW ABOUT ITS OWN INTERNAL POLICY ON CARPET, WHICH WAS DETRIMENTAL TO THE INDUSTRY.

 

    HOW MANY CITIZENS HAVE BEEN NEEDLESSLY INJURED BY TOXIC CARPET BECAUSE OF EPA'S PROTECTIVE ATTITUDE TOWARD THE INDUSTRY MAY NEVER BE KNOWN.  I REFER YOU, MR. CHAIRMAN, TO YOUR STATE ATTORNEY GENERAL AND THE ATTORNEYS GENERAL OF 25 OTHER STATES (IDENTIFIED IN MY SUPPLEMENTAL SUBMISSION) TO TRY TO ESTABLISH THIS NUMBER. IT IS UNLIKELY THAT EPA WILL EVER SEEK THAT INFORMATION, BASED ON ITS PERFORMANCE TO DATE.

 

    IN 1989 EPA UNDERTOOK A STUDY OF ITS "INDOOR AIR QUALITY PROBLEM" BY CONDUCTING A HEALTH SURVEY AMONG EMPLOYEES AND ADDITIONAL AIR MONITORING.  OF COURSE, BY THE TIME THIS AIR MONITORING WAS DONE, NEARLY A YEAR AFTER THE LAST CARPET INSTALLATION, 4-PC LEVELS, WHICH HAD BEEN STEADILY DECLINING THROUGH 1988, WERE AT A NON-DETECTABLE LEVEL.  THUS, NOT SURPRISINGLY, NO CORRELATION COULD BE ESTABLISHED BETWEEN ANY SPECIFIC AIR CONTAMINANT AND THE HIGH LEVELS OF EMPLOYEE COMPLAINTS.  HOWEVER, BASED ON UNION COMPLAINTS ABOUT THE STUDY AND THE DEVOTED PROFESSIONALISM OF DR. LANCE WALLACE, ONE OF THE STUDY'S PRINCIPALS, THE DATA ON LOCATIONS OF CARPET AND REPORTS OF CARPET ODORS WERE COMPARED WITH HEALTH COMPLAINT LOCATIONS.  THIS TIME, A POSITIVE CORRELATION WAS FOUND LINKING CARPET TO ADVERSE EFFECTS^[1]. 

 

    CONSISTENT WITH ITS PRIOR HISTORY ON THE SUBJECT EPA, AND ESPECIALLY ITS INDOOR AIR DIVISION UNDER ROBERT AXELRAD AND EILEEN CLAUSSEN, HAS CONTINUED TO ACTIVELY PROMOTE THE FALSE IMPRESSION TO THE PUBLIC^{[2] [3]} THAT EPA HAD NO KNOWLEDGE OF ANY CONNECTION BETWEEN CARPET AND ADVERSE HEALTH EFFECTS, EVEN AFTER THE LINK WAS ESTABLISHED IN EPA'S OWN HOUSE. IN APRIL 1991 MR AXELRAD WROTE TO NEW YORK ATTORNEY GENERAL ABRAMS, TO THE EFFECT THAT HIS PETITION TO THE CONSUMER PRODUCT SAFETY COMMISSION WAS UNJUSTIFIED, AND A COPY OF THIS INTERVENTION ON BEHALF OF THE CARPET INDUSTRY WAS, OF COURSE, SENT TO CPSC BY MR. AXELRAD.  HERE AGAIN WE SEE EPA'S WILL TO TAKE AFFIRMATIVE ACTION TO PROTECT THE CARPET INDUSTRY AND TO DELUDE THE PUBLIC.  IT IS SIGNIFICANT THAT MR. AXELRAD - PRIVATELY, IN APRIL 1990 - AND MR. DAVID WEITZMAN, THEN DIRECTOR OF EPA'S HEALTH AND SAFETY DIVISION - IN A SEPTEMBER 1989 NEWSPAPER PIECE- BOTH ACKNOWLEDGED THAT "THE NEW CARPET MADE PEOPLE SICK" AT EPA HEADQUARTERS.

 

    IN JANUARY 1990, DESPAIRING OF EFFECTIVE INITIATIVES BY EPA MANAGEMENT, THE UNION FILED A PETITION UNDER SECTION 21 OF TSCA ASKING EPA TO TAKE REGULATORY ACTION.  EPA DENIED THE PETITION, TELLING THE UNION "OFF THE RECORD" THAT IT WOULD NOT GRANT THE PETITION BECAUSE IT WOULD COST THE CARPET INDUSTRY "BILLIONS OF DOLLARS".^[4] IN MAKING THE DENIAL EPA CITED A "LACK OF SCIENTIFIC CERTAINTY" ABOUT WHETHER CARPETS COULD CAUSE INJURY, DEMONSTRATING AGAIN EPA'S MOTIVATION TO PROTECT THE INDUSTRY AND NOT THE PUBLIC, FOR EPA SUCCESSFULLY FOUGHT AGAINST APPLICATION OF THE "SCIENTIFIC CERTAINTY" STANDARD IN COURT WHEN THE CHEMICAL MANUFACTURERS ASSOCIATION RAISED THE "SCIENTIFIC CERTAINTY" ARGUMENT AGAINST A PROPOSED RULEMAKING^[5]  IN MAKING ITS  "LACK OF SCIENTIFIC CERTAINTY" ARGUMENT IN THE FEDERAL REGISTER NOTICE DENYING THE PETITION, EPA ASSERTED THAT THERE WERE NO EPIDEMIOLOGY STUDIES INDICATING ANY RISKS ASSOCIATED WITH CARPETING.  BUT A LITERATURE SEARCH SUBSEQUENT TO THE DENIAL REVEALED THAT THERE WERE THREE EPIDEMIOLOGY STUDIES INDICATING EXCESS DEATH RATES AMONG CARPET PRODUCTION WORKERS^[6]

 

    SO INSTEAD OF TAKING REGULATORY ACTION, EPA CONVENED A "CARPET POLICY DIALOGUE" AND INVITED THE UNION TO PARTICIPATE.^[7]  IN SPITE OF HAVING CHARGED THE DIALOGUE TO INVESTIGATE CARPET EMISSIONS AND SEEK WAYS TO REDUCE THEM, EPA MANAGEMENT CONSISTENTLY REFUSED TO SUPPORT EFFORTS THAT WOULD HAVE REQUIRED EMISSIONS TESTING TO IDENTIFY THE COMPOUNDS EMITTED.  NEEDLESS TO SAY, CRI DID NOT WANT TO HAVE TO IDENTIFY THE EMITTED CHEMICALS, AND THE PROGRAM ULTIMATELY ACCEPTED BY THE DIALOGUE DID NOT REQUIRE IDENTIFICATION.  THAT WAS WHY THREE OF US DIALOGUE PARTICIPANTS^[8] FILED A MINORITY REPORT ON THE MATTER. 

 

    EPA'S ACTIVITIES ON BEHALF OF THE CARPET INDUSTRY IN THE DIALOGUE REACHED ITS ZENITH IN SEPTEMBER 1991 AND THE MONTHS FOLLOWING.  DURING THIS PERIOD EPA SOUGHT TO KEEP THE UNION OFF THE LIST OF THOSE WHO WOULD BE IDENTIFIED ON THE DIALOGUE'S CHIEF PUBLIC COMMUNICATION INSTRUMENT - A BROCHURE TARGETED FOR RETAIL CARPET OUTLETS - AS SOURCES FOR FURTHER INFORMATION.  THE SUPPLEMENTAL MATERIAL CONTAINS MEMORANDA AND LETTERS DEMONSTRATING EPA'S ROLE IN MAKING INFORMATION ADVERSE TO THE CARPET INDUSTRY AS HARD TO REACH BY CONSUMERS AS LEGALLY POSSIBLE.

 

    DURING THE COURSE OF THE DIALOGUE I RECALL HAVING HEARD AN EPA SPOKESMAN REFER TO THE "FIFTH CRANIAL NERVE" ASSAY.  THIS ASSAY, KNOWN TO THE TOXICOLOGICAL COMMUNITY AT LEAST SINCE 1981 WHEN YVES ALARIE PUBLISHED A COMPREHENSIVE ARTICLE ON IT IN ENVIRONMENTAL HEALTH PERSPECTIVES, IS THE ASSAY WHICH ROSALIND ANDERSON HAS PIONEERED IN CARPET TOXICITY ASSESSMENTS.  IT ASSAYS A SUBSTANCE'S CAPACITY TO CAUSE IRRITATIVE RESPONSES IN MICE AND HUMANS.  SINCE EPA WAS AWARE THAT 4-PC WAS AN IRRITANT CHEMICAL BASED ON ITS OWN PROBLEMS WITH IT, THE AGENCY SHOULD HAVE REQUIRED THIS TEST TO HAVE BEEN RUN IN ADDITION TO THE 1989 RAT STUDIES DONE BY DOW, UPON WHICH IT RELIED UNTIL THIS MONTH TO ASSERT THAT "4-PC IS AN UNREMARKABLE CHEMICAL".

 

    IN SUMMARY, EPA FAILED FROM THE BEGINNING OF ITS INVOLVEMENT IN THIS MATTER TO DO ITS DUTY TO THE PUBLIC.  INSTEAD OF SERVING THE PUBLIC INTEREST IT CHOSE TO AFFIRMATIVELY SERVE THE INTEREST OF CARPET MANUFACTURERS AND THEIR SUPPLIERS.  BUT, AS RICHARD FEYNMANN NOTED IN HIS ROLE AS AN INVESTIGATOR OF THE CHALLENGER DISASTER, "NATURE CANNOT BE FOOLED", AND THE CHICKENS OF EPA'S COMPOUND FAILURES HAVE COME HOME TO ROOST IN ROSALIND ANDERSON'S RESEARCH (AND THE GROWING CHORUS OF RAGE FROM INJURED CITIZENS).  CARPET, AIR FROM CARPET INSTALLATION ROOMS, AND 4-PC ITSELF HAVE NOW ALL BEEN SHOWN TO BE HIGHLY TOXIC, INDEED LETHAL, TO MICE.

 

    I CANNOT CLOSE WITHOUT POINTING OUT THAT THE PROFESSIONALS' UNION AT EPA, LOCAL 2050 OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, MAINTAINED UNRELENTING PRESSURE ON THIS ISSUE SINCE APRIL 1988.  WITHOUT THE UNION'S ACTIVE EFFORTS TO CONSTANTLY CONFRONT EPA WITH THE IMPLICATIONS OF ITS BEHAVIOR - AND THE RESULTANT PUBLIC AWARENESS OF THE ISSUE VIA THE TSCA PETITION AND OTHER WORK - THIS PROBLEM WOULD PROBABLY HAVE SIMPLY FADED FROM VIEW.  THE CIVIL SERVICE PROFESSIONAL TAKES PRIDE IN HIS OR HER WORK, AND BURNS WITH DESIRE TO SEE IT TRANSLATED TO THE PUBLIC GOOD.  WE HAVE HAD TO DO THIS IN THE CARPET MATTER AS UNION OFFICIALS RATHER THAN AS EPA EMPLOYEES, AS WE WOULD HAVE PREFERRED.

 

    AS I STATED AT THE OUTSET, EPA DOES NOT SEEM, BASED ON ITS RECORD, WORTHY OF UNQUALIFIED PUBLIC CONFIDENCE AS FAR AS CONTROLLING RISKS FROM CARPETS IS CONCERNED.  AS ONE METHOD OF KEEPING TABS ON EPA'S CARPET-RELATED WORK IN THE COMING MONTHS WE SUGGEST THAT YOU REQUIRE QUARTERLY REPORTS OF PROGRESS FROM EPA ON THIS SUBJECT.  FURTHER, AS THE UNION SERVED AS ONE SET OF EYES AND EARS AND ONE VOICE OF THE PUBLIC CONSCIENCE ON THE CARPET POLICY DIALOGUE, WE WOULD BE HAPPY TO DO SO AGAIN BY PARTICIPATING IN THE PLANNING AND EXECUTION OF RESEARCH AND RISK ASSESSMENT AND RISK MANAGEMENT ACTIVITIES ON CARPET IN THE COMING MONTHS^[9].  WE ASK YOUR SUPPORT IN SEEING THAT THIS TAKES PLACE.

 

    FINALLY, MR. CHAIRMAN, WHAT WILL THE CONGRESS OF THE UNITED STATES DO TO HOLD ACCOUNTABLE THOSE MANAGEMENT OFFICIALS AT EPA WHO ARE RESPONSIBLE FOR NEEDLESS INJURIES TO CITIZENS?  AND WHAT WILL THE CONGRESS OF THE UNITED STATES DO TO SEE THAT THOSE NOW SUFFERING ARE COMPENSATED? 

 

    THE UNION IS, AS IT WAS IN 1988, AND IN SPITE OF THE HARSH OPINIONS STATED HERE, PREPARED TO WORK WITH CONGRESS, EPA MANAGEMENT AND RESPONSIBLE INDUSTRIAL INTERESTS TO SEE THAT JUSTICE IS DONE.    THANK YOU.