A Trust Betrayed

by Mike Magner

  9

  EPA VS. DOD

  It is a World Trade Center in slow motion.

  —DAVID OZONOFF, EPIDEMIOLOGIST, BOSTON UNIVERSITY

  When the industrial cleaning solvent trichloroethylene was found in Camp Lejeune’s water supply in 1980, toxicologists had a pretty good idea that TCE was a killer even if ingested at small doses. Government studies compiled that year in a handbook of toxic chemicals concluded that the widely used degreaser causes liver cancer, “attacks the heart, liver, kidneys, central nervous system and skin,” and can be especially damaging to developing fetuses and young children. The effects of TCE on children were dramatically illustrated in 1981 when the Massachusetts Department of Public Health published a report saying that in the industrial city of Woburn, where drinking water was laced with TCE in the 1960s and 1970s, “the incidence of childhood leukemia was significantly elevated,” with a dozen observed cases at that time in a community of only 35,000 people.1

  A decade later, when the Agency for Toxic Substances and Disease Registry began investigating whether people had been harmed by chemicals in Camp Lejeune’s water, even more was known about the dangers of TCE and its sister compound, the dry-cleaning solvent perchloroethylene, or PCE. Studies in New Jersey, where thousands were exposed to drinking water contaminated with the chemicals in the 1970s and 1980s, found “a statistically significant association between the concentrations of TCE and PCE and the overall leukemia rate among females from 1979 to 1984 in 27 towns,” according to a report by the state Department of Public Health. And in Woburn, by 1986—the same year that W. R. Grace and Company reached an $8 million settlement with families whose children had died of leukemia or had experienced other serious illnesses linked to TCE-tainted water—twenty-one cases of childhood leukemia had been documented.2

  With mounting evidence of TCE’s toxicity, in 1989 the Environmental Protection Agency set a federal limit for the chemical in drinking water at 5 parts per billion—the equivalent of five teaspoons of the solvent in an Olympic-size swimming pool. Almost immediately, the EPA began pursuing further research to determine if the regulation needed to be even more stringent. It took more than a decade of studies and evaluation, but in 2001 the health scientists at the agency issued a new assessment saying that there was enough evidence linking TCE to a range of illnesses to indicate that the limit for public exposure should indeed be ratcheted down. “Under EPA’s proposed (1996) cancer guidelines, TCE can be characterized as ‘highly likely to produce cancer in humans,’” the report said. “TCE has the potential to induce neurotoxicity, immunotoxicity, developmental toxicity, liver toxicity, kidney toxicity, endocrine effects, and several forms of cancer.”3

  Bluntly translated, the assessment meant that thousands of cancer cases and birth defects could very likely be attributed to TCE exposure. “It is a World Trade Center in slow motion,” said David Ozonoff, an epidemiologist at Boston University who had studied the chemical’s effects extensively.4

  The 2001 assessment, released in draft form to allow a period for public review and comment, did not suggest what the limit for drinking water should be—that would be a number for EPA scientists to determine later. But most informed observers of the process assumed the agency was headed toward a limit of just 1 part per billion for drinking water.

  The authors of the report, led by V. James Cogliano, Cheryl Siegel Scott, and Jane C. Caldwell of the EPA’s National Center for Environmental Assessment, knew the 153-page document would not be warmly received by the industrial and military sectors most responsible for TCE being the number one toxic pollutant in the United States. The Pentagon had more than 1,400 hazardous waste sites around the country, and most were contaminated with TCE. A fivefold increase in the safety standard for the chemical would significantly raise cleanup costs: the Air Force alone estimated that remediation expenses for its contaminated sites would go from $5 billion to at least $6.5 billion. Not surprisingly, an Air Force review of the EPA’s risk assessment said the document “misrepresented” studies of TCE’s effects and ignored the views of many scientists who did not believe the chemical was a serious threat to public health at the levels found in the environment.5

  The timing of the EPA’s report gave polluters good reason to believe that their concerns would be heard at the highest levels in Washington. Just six months before the assessment of TCE was released in August 2001, Republican George W. Bush had moved into the White House determined to rid the executive branch of what he and his aides considered anti-industry, antimilitary policies put in place during the prior administration of Democratic president Bill Clinton. Led by Vice President Dick Cheney, a former defense secretary with a background in oil and gas development, the Bush administration made the EPA one of its top reformation projects, installing political appointees at the agency who believed in less, not more, regulation. It also empowered other agencies, particularly the Department of Defense, to challenge the EPA’s science.

  “If you go down two or three levels in EPA, you have an awful lot of people that came onboard during the Clinton administration, to be perfectly blunt about it, and have a different approach than I do at Defense,” a former Bush appointee at the Pentagon, Raymond F. DuBois, told the Los Angeles Times in 2006. “It doesn’t mean I don’t respect their opinions or judgments, but I have an obligation where our scientists question their scientists to bring it to the surface,” said DuBois, who had been deputy undersecretary for installations and environment at the Defense Department.6

  Knowing the TCE assessment would be fiercely attacked, the career staff at the EPA made sure it was sent to the agency’s independent Science Advisory Board for a full review. The SAB issued its evaluation in December 2002 and extolled the TCE draft assessment as “groundbreaking” work by the EPA for a number of reasons. It was the first time an assessment of a chemical’s toxicity focused attention on the risks to children, the board said, and it did so using “multiple kinds of evidence” and advanced research methods. “The Board advises the Agency to move ahead to revise and complete this important assessment,” the SAB’s cochairmen, public health scientists William Glaze and Henry Anderson, wrote in a cover letter to the EPA with the report. “We believe the draft assessment is a good starting point for completing the risk assessment of TCE.”7

  The SAB, acknowledging there was still “considerable uncertainty” about TCE’s effects, also made some suggestions for further work by the EPA “to strengthen the rigor of the discussion” as it moved toward a final risk assessment. The Bush administration’s new EPA research director, Paul Gilman, seized on the board’s recommendations for revisions as a reason to put the TCE assessment on hold. Anderson, the SAB cochairman, who was also a doctor with the Wisconsin Division of Public Health, was surprised by the move. “I thought by and large we supported the EPA and that its risk assessment could be modified to move forward,” Anderson said at the time.8

  But Gilman interpreted the SAB’s cautions as a “red flag” that “raised very troubling questions,” and decided to have the TCE assessment evaluated by a higher authority—the National Research Council (NRC) at the National Academies of Sciences (NAS). Actually, it wasn’t really Gilman’s idea. The Defense Department, the Energy Department, and the National Aeronautics and Space Administration (NASA)—all faced with cleaning up TCE contamination at hundreds of sites—had offered to sponsor a study by the NRC, feeling confident that an independent panel of scientists would conclude that the EPA had gone overboard in assessing the chemical’s threats to public health. The three federal agencies were backed by an industry group, the Halogenated Solvents Industry Alliance, made up of producers and users of TCE and other solvents in manufacturing. Paul Dugard, the group’s director of scientific studies, had written a number of scathing critiques of the EPA draft, calling it “an example of extreme conservatism applied at every stage in the risk assessment that leads to an unbalanced outcome.” Dugard had warned in public comments on the assessment that it would incr
ease cleanup costs for the federal government and for many corporations by hundreds of billions of dollars.9

  With equal confidence, one of the lead authors of the TCE assessment, V. James Cogliano, was sure the National Academies of Sciences, via the NRC, would put a significant stamp of approval on the EPA’s work. “I expect them to like the draft assessment as much as the Science Advisory Board, whose favorable review triggered DOD’s ‘appeal’ to the NAS,” Cogliano said in an e-mail to a reporter in 2005, not long after the NAS appointed a sixteen-member committee to evaluate the EPA assessment. The committee would be managed by the staff of the NRC and chaired by toxicologist Rogene Henderson of the University of New Mexico, with funding from the three federal agencies that proposed the study.10

  The military and the industry made sure the committee was flooded with studies of TCE that reached different conclusions from the EPA. Paul Dugard of the solvents alliance sent the panel a memo in November 2005 describing “new information” showing that TCE could not be directly linked to kidney cancer. One was a study sponsored by the European Chlorinated Solvents Association, a sister organization of the US industry alliance, that concluded there was only a “weak association” between TCE exposure and kidney disease. That study and two others Dugard presented made the connection “an open question,” he wrote.11

  Research funded by the Department of Defense showed “no evidence” that TCE caused heart defects, dismissed any link between the chemical and non-Hodgkin’s lymphoma, and raised doubts there was a connection to kidney cancer, the DOD’s special assistant for emerging contaminants, Shannon Cunniff, told the committee in early 2006. Cunniff presented eight studies sponsored by the DOD, two collaborations funded by the Energy Department, and three NASA-funded studies—all casting doubts on TCE’s toxicity.12

  Jerry Ensminger, following all this debate, left no doubt about his opinion in an eloquent appearance at a public hearing held by a separate National Research Council panel that was reviewing the ATSDR’s water-modeling studies for Camp Lejeune. “Here we have the EPA that was created by the government to protect our environment and our citizens from pollution being second-guessed by the world’s largest polluter, the Department of Defense,” he told the committee. “There is something fundamentally wrong with our system of government. I say this because here we have the DoD that was created to protect our country, its citizens and our way of life that is now attempting to manipulate legislation and/or regulations. If they are successful in their manipulation, it would allow them to do irreparable damage to the people and the land they were created to protect and not be held accountable for it.”13

  In the end, the industry/military push fell short—at least at the National Research Council. The NRC’s committee issued a 379-page report in June 2006 that said not only that the EPA was correct in its assessment of TCE, but also that there was ample scientific research to show that the chemical was even more toxic than the EPA described in its draft report. “The committee found that the evidence on carcinogenic risk and other health hazards from exposure to trichloroethylene has strengthened since 2001,” the panel said. The greatest risk posed by the chemical was kidney cancer, but a host of other diseases and deformities could also be linked to TCE exposure, the committee concluded.14

  The path was now cleared for the EPA to issue a final risk assessment and presumably, based on its conclusions, stronger regulations limiting TCE levels in air and water. “We can’t afford any more delays,” Ensminger said after the NRC report was issued. Of course, when it comes to the military, where there’s a will, there’s a delay.15

  10

  THE PENTAGON TRIES FOR EXEMPTIONS

  The Defense Department is supposed to defend the nation, not to defile it.

  —REPRESENTATIVE JOHN D. DINGELL (D-MI)

  After the September 11, 2001, terrorist attacks, the Pentagon reigned supreme in the administration of President George W. Bush. Vice President Dick Cheney, who had been the secretary of defense under Bush’s father from 1989 to 1993, focused more on energy development in the early months of the younger Bush’s first term. But with the rise of al-Qaeda and escalating threats from Iraq, Iran, and others in the Middle East, national security became the preeminent concern in Washington, as it was in the nation at large. Anything that might detract from military strength became a target.

  Deputy Secretary of Defense Paul Wolfowitz wrote a memorandum on March 7, 2003, to the secretaries of the Army, Navy, and Air Force suggesting the need to invoke the national security exemptions allowed in many environmental laws. “While I believe we should be commended for our past restraint in this regard, I believe it is time for us to give greater consideration to requesting such exemptions in cases where environmental requirements threaten our continued ability to properly train and equip the men and women of the Armed Forces,” Wolfowitz wrote.1

  Wolfowitz cited sections of ten laws that allowed the president to exempt federal agencies from certain legal requirements for reasons of national security, including provisions of the Clean Water Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Endangered Species Act, and the Comprehensive Environmental Response, Compensation and Liability Act otherwise known as the Superfund law. He asked the civilian leaders of the military to develop procedures for seeking exemptions by identifying environmental regulations that threatened military readiness. Wolfowitz insisted his memo was “not intended to signal a diminished commitment to the environmental programs that ensure that the natural resources entrusted to our care will remain healthy and available for use by future generations.” Exemptions would be “a high hurdle,” he said. “However,” he added,

  we cannot lose sight of the fact that these testing, training and other military areas and resources have been entrusted to our care—first and foremost—to provide for the realistic training and testing necessary to ensure that our Armed Forces are the best-trained and best-equipped in the world. In the vast majority of cases, we have demonstrated that we are able both to comply with environmental requirements and to conduct necessary military training and testing. In those exceptional cases where we cannot and the law permits us to do so, we owe it to our young men and women to request an appropriate exemption.2

  The proposal was nothing new—after a series of lawsuits by environmental groups in the 1990s charging that military training exercises were harming endangered species or destroying valuable lands, the Pentagon had sought exemptions without success during the Clinton administration. But now, with the nation at war in both Afghanistan and Iraq—and with Republicans in control of both Congress and the White House—things were different. Wolfowitz gambled that the idea might gain traction in a political environment where national security trumped all else.

  Instead, the idea of exempting military sites from environmental laws ended up calling greater attention to the toxic messes at many bases, including Camp Lejeune.

  Senator James Jeffords of Vermont, a Navy veteran who left the Republican Party in 2001 to become an independent, said at a hearing of the Environment and Public Works Committee in April 2003 that the Defense Department had many bases sitting on aquifers tainted by fuel and chemicals from military operations. “There are numerous potential toxic effects that may result from the contamination that DOD is seeking to exempt from the hazardous waste laws,” he said.3

  A few months after the hearing, in July 2003, the Agency for Toxic Substances and Disease Registry released its study showing that children conceived or born at Camp Lejeune between 1968 and 1985 were three times more likely to have cancer or birth defects than were children in the general public. Jeffords called the results “chilling” and vowed to get a full assessment of the problems at the base. “At a time when the Department of Defense is seeking exemptions from the environmental laws that govern hazardous waste, we must also consider the health of the soldiers and families that serve our nation,” he said.4

  As alarming as the ATSDR report was, showing more than
a hundred babies born with birth defects or cancer after their mothers drank tainted water at Camp Lejeune, the problems were actually much worse. Because of incorrect data provided by the Marine Corps, the ATSDR study apparently missed hundreds, if not thousands, of other pregnant women who drank contaminated water at the base. The flawed data had been uncovered by Tom Townsend in 2000 as he dug into information about the water systems at Lejeune. Townsend found that the Marines had informed the ATSDR that housing areas at Holcomb Boulevard, Berkeley Manor, Paradise Point, and Midway Park had all been provided with water from a treatment plant for the Holcomb Boulevard system, where contaminated wells were never discovered. In fact, the Holcomb Boulevard plant did not go online until 1972, and before that all those housing areas were served by contaminated water from the Hadnot Point system. Townsend pointed out the mistake in letters to the Marine Corps after he discovered it in 2000, but it was never corrected. Kelly Dreyer at Marine Corps headquarters sent an e-mail in November 2000 to Camp Lejeune’s environmental manager, Neal Paul, ordering him to provide the ATSDR with corrected information on the base water systems as soon as possible. But four months later, in March 2001, Dreyer had to write another e-mail to one of Paul’s assistants making the same request. And more than a year later, when Jerry Ensminger mentioned Townsend’s discovery of the flawed data to one of the ATSDR’s lead investigators, Frank Bove, it was the first time Bove had heard about it.

  It took another year for the ATSDR to figure out how to restore some integrity to its health studies at Camp Lejeune. Wendy Kaye, the agency’s chief of epidemiology and surveillance, announced in 2003 that the agency would conduct a full-scale modeling study to determine exactly what housing areas received contaminated water, in what years, and at what levels. When the modeling was completed, scientists would have a much clearer picture of the base residents who had been exposed to tainted water. But the study would take several years, at least, since it involved developing a computer program that would re-create the flow of groundwater, the pumping of wells, and the delivery of water at the base over several decades. There was an added difficulty in that the base systems were unlike most municipal water supply operations, Kaye said. “If you lived in a town, you have a water meter attached to your house that shows how much water you use each month,” she said at the time. “That’s not true on base. There are no water meters, because residents don’t have to pay for their water.”5