Leaking Waste Containers

"Honesty is the best policy" is such a well-known and overused cliche (like "To thine own self be true", or "Truth will always out") that we seldom take the time to consider the consequences of not being truthful or even why these cliches have come into existence. One author has said that he is not smart enough to lie because he can not remember what different lies he told to different people and then keep all the balls juggling in the air correctly. The 3rd and 4th Fundamental canons of the NSPE code of Ethics ("Issue public statements only in an objective and truthful manner" and act in professional matters for each employer or client as faithful agents or trustees") are there to provide us guidance and support as engineers to say and do the right (honest) things when faced with situations like Scott Lewis had to deal with at ABC.

Scott is a trustee of ABC's reputation, good will and long-standing position in the marketplace. If he won't stand up to do the right thing for his company (and synonymously, the public) who will? If he allows Tom Treehorn to break the law for just some short-term financial gains, is he really doing ABC a favor? If he does tell a 'white lie' and look the other way when Tom breaks the law to cart away the toxic waste, as in phase II of the case, the consequences of this action can have disastrous long-term effects as clearly shown in phase III. Now he must testify in court that he knowingly abetted Tom in breaking the law and that by not reporting Tom he committed the lie of omitting to report. At best he stands self-convicted of an error of judgement back in phase I now that he is on the witness stand in phase III. Worse still, by current federal law ("Resource Conservation and Recovery Act" - RCRA) he stands liable to be criminally indicted. Others in similar situations in real life now have a record of a convicted felony after a jury trial based on this law.

Putting aside the effects Scott Lewis personally suffered by not reporting Tom, one still needs to consider the effect his actions had on his company. True, he and Tom may have saved some money, time and trouble for ABC in the short term, but what will the long term effect on ABC's reputation be after a messy, front-page trial for toxic dumping? What effect will that have on ABC sales, stock-dividends, employment outlook and community tax-base contributions? What about the long-term effects on the professional pride and self-esteem of all the employees at ABC who, like Scott and Tom, are under obligation to "Hold paramount the safety, health and welfare of the public in the performance of their professional duties"? (The first Fundamental Canon of the NSPE Code of Ethics.)

This case is reminiscent of several other real life situations that the interested reader may wish to pursue. There is a wealth of writings on "Love Canal" and the Hooker Chemical Company that raise related issues. The recent case of the "Aberdeen 3" is very similar in some of the circumstances of this case. The hypothetical situation in the T.V. tape "Gilbane Gold" put out by the NSPE has some similar overtones of toxic waste issues. Also, the NOVA series has a number of T.V. tapes available in most college library audio-visual centers on such issues as PCB dumping and asbestos related issues that also relate to this case. The NOVA series and the NSPE tape are professionally done presentations that are effective for class-room use.

One last comment needs to be made regarding this Waste Disposal case, particularly with regard to phase I. The way the questions are posed in the phase I presentation of the case naturally brings up a number of important related considerations such as loyalty, differing professional opinions and whistle blowing. Regarding the latter, there is an excellent paper by Michael Davis, "Avoiding the Tragedy of Whistle Blowing"Davis, Michael. "Avoiding the Tragedy of Whistleblowing", Business and Professional Ethics Journal, vol. 8, no. 4, summer 1988, pp. 3-19., which makes a compelling case that once you get to a whistle blowing stage of a case, the situation is lost. Davis gives many pragmatic reasons why this is the case and offers many practical suggestions on how to avoid the tragic whistle blowing pathway. In this case, Scott would have done well to have read Davis' paper and followed some of his advice about networking with many people at ABC, and communicating with them in tactful and deft ways before the situation ever escalated to phase III.

In regard to as loyalty to his company and his fellow workers, Marcia Baron has some very relevant advice to offer Scott in her monograph "The Moral Status of Loyalty".Baron, Marcia. "The Moral Status of Loyalty", Module Series in Applied Ethics from the Center for Studies of Ethics in the Professions, Illinois Institute of Technology, 1984. The very definition of loyalty has so many dimensions and interpretations that one must be extremely careful before jumping to any conclusions about what you owe your company or your professional colleagues in situations like Scott faced in phase I.

Finally, why should we even pay attention to what our Professional Society codes of ethics tell us to do in general terms? The NSPE Fundamental Canons, as well as other codes, offer us support to do the right thing as professionals regardless of what other pressures (time, money, bureaucratic, political, etc.) come to bear. In "Thinking Like an Engineer: The Place of a code of Ethics in the Practice of a Profession", Michael DavisDavis, Michael. "Thinking Like an Engineer: The Place of a code of Ethics in the Practice of a Profession", Philosophy and Public Affairs, vol. 20, no. 2, spring 1991, pp. 150-167. points out that by relying on the codes we take the kinds of decisions that Scott has to make in phase I out of the realm of subjective personal decisions, and put them at a higher level of professional expectations that we all need to recognize.

I

Engineer Scott Lewis objects to Tom Treehorn's method of disposing of leaking drums. It is a violation of EPA regulations, as Tom admits. EPA may have good reason for the policy of requiring that leaking drums not be returned to the home site, but in this case, Scott may well think, the policy serves no purpose and may cost ABC company money. Since the method of disposing of the waste chosen by Tom apparently is superior to that required by the EPA, we evidently have a violation that seems more a matter of regulations than of realities.

We could look at this case as an example of the conflict between act utilitarianism and rule utilitarianism. Presumably the EPA's rule is warranted and generally produces good results. But in certain cases, as in this one, this may not be true. (Many automobile traffic regulations are like this). Is it permissible to violate the rule in the given instance? Perhaps; but in any event, we can say that the case for Scott interfering with Tom or for reporting Tom's infraction to Tom's superior is weakened. What is to be said for option 1, that Scott should inform Tom that he will report Tom's infraction to the superior, is, that Tom is violating the law and putting ABC at risk and his superior ought to know this. However reporting Tom seems a rather hostile way of proceeding, especially if Scott thinks that Tom is well intentioned and committing a technical infraction in a good cause. Scott might report Tom anyway because Tom's superiors ought to know what Tom is doing. But under the circumstances Scott might be allowed to reason that if Tom's superior wants to know how Tom disposes of waste, it is his business to ask; if he doesn't inquire, it's not Scott's job to tell him what he doesn't want to know. Scott has done what's required of him by calling in Tom to dispose of the waste; other questions are internal to the operations at ABC. The situation might be different if there were a real risk to someone from Tom's irregular procedure, but it's premised in sections I and II that there isn't. The risk is entirely secondary, a risk to ABC, Tom and Scott of prosecution, created by regulations which over-reach.

Therefore the balance falls on option 3, that Scott does not report Tom but advises him that he shouldn't do it. Whether this is the best option might depend on what is meant by 'advice.' If Scott merely goes through the motions of saying, don't do this, knowing that Tom will ignore him, this option looks less attractive. If however he makes his arguments and then lets Tom come to his own conclusions, trusting Tom to consider Scott's advice and arguments seriously, then perhaps option 3 is best.

II

Should Scott help Tom dispose of the waste illegally? It would be terribly imprudent, because he is exposing himself to legal liability. However I find no statement in the Code that engineers may not expose themselves to legal liability if they think it's justified to do so. By helping Tom, maybe Scott thinks he's protecting the environment and saving ABC money. On this last point, however, both he and Tom are apt to be mistaken, since ABC stands to get into serious legal difficulty as a result of Tom's action. So they cannot be said to have met their responsibility to ABC, even though they may have met their responsibility to the environment. The money they save now for ABC may seem like pennies later. Tom's action would be much more justified if the EPA-approved method were actually more risky to the environment than the method Tom employs, which might be true if the EPA enacted its regulations in part for its own administrative convenience, (saving the government money but costing private companies unnecessary expense). But as the case does not say this, it should not be assumed, and therefore neither Tom nor Scott are justified, even from the point of view of saving ABC money.

III

Now the premise of the case changes; it turns out that ABC has been doing harmful dumping under Tom's direction for years. Scott has been a fool to ever believe that Tom was serious about protecting the environment. Should Scott testify about the little he knows about this to the court? This question admits of only one possible answer: since Scott will be under oath he has no choice but to tell what he knows. Evidently Tom managed to deceive him about Tom's disposal methods. Too bad for Tom and ABC. But if they engaged in a pattern of environmentally harmful violations over several years, they will have to face the consequences. As for Scott, due to his naivete he may now be guilty of concealing illegal dumping, or of being a party to it, if he acted as stated in section II. The lesson from this is that one should never be ashamed to protect one's rear and minimize your own legal exposure. Never assume that illegal actions are really harmless and can be ignored; for even if they're harmless to everyone else, the fact that they're illegal and you know about them, is itself harmful to you.

Scott Lewis is an engineer aware that an ABC employee is about to violate federal regulations designed to protect the environment. If he is a chemical engineer, he may know something of the history of those regulations, especially about how many seemingly safe means for disposing of waste turned out to be unsafe, how important keeping track of waste is to making sure only safe means of disposal are used, and how many of the EPA's seemingly over-technical standards are what experience has shown necessary for EPA inspectors to identify and understand a waste disposal problem relatively quickly.

The regulation forbidding return of chemical waste to its home site may be such a standard. Waste can flow in only one direction, away from the home site toward a licensed disposal site. All involved in handling a shipment of toxic waste can tell something is wrong the moment they see the flow of waste reversing. What alerted Lewis to a potential problem was precisely that Tom Treehorn proposed to reverse the flow. The regulation did what it was supposed to do. What should Lewis do?

Treehorn, head of ABC's Division of Chemical Waste, says Lewis should do nothing: "Trust me--I'm a good guy." Let's suppose that Treehorn's intentions are good. Still, he is breaking a law. He doubts the ability of those specially trained for the job, "the off-site folks," to do the job properly. He claims no authority from above. As he explains it, he alone knows what to do. He's sort of Lone Ranger of the wild wastes. The ancient Greeks had a saying, "Whom the gods would destroy, they first make mad." Treehorn is one whom the gods seem to have marked for destruction.

Lewis, though (presumably) an ABC employee and responsible for inspecting the warehouse, does not seem to be one of Treehorn's subordinates. He has a freedom of maneuver he would not have if he were under Treehorn. This makes response easier than it might otherwise be. The first thing Lewis should do is suggest that they call in Treehorn's superior and see what he thinks. If Treehorn refuses, that would settle things. Lewis would know he was dealing with a Lone Ranger in no position to pressure him. He and Lewis could get back to their job, finding a way to dispose of the wastes legally.

If, however unlikely on the facts as given, Treehorn agrees to bring in his superior, Lewis need make no decision until the whole issue has received a good discussion. Since it is hard to know what such a discussion would reveal, let us assume hereafter that Treehorn does not take Lewis' suggestion but instead withdraws his own. Should Lewis leave matters at that?

What Treehorn suggested to Lewis he may have suggested to others before. Indeed, the confident tone in which Treehorn made his suggestion suggests he has made it before with more success. Lewis should therefore consider raising the question with someone above Treehorn. But with whom? The better organizations will have some procedure, a hotline, ombudsman, or open door. Where such a procedure exists, Lewis could use it. If ABC has no such procedure, Lewis should seek the advice of his own supervisor, putting his concern in writing and making clear both how serious the problem could be and how incomplete his evidence is. He should keep a copy for himself. If custom allows, he should send a copy to everyone in the company who might be interested, including the Legal Department. (The more people who receive the memo, the harder it will be for any particular person to ignore it.)

Lewis should take care that his memo sounds like this: "I have no real proof of a problem in Chemical Waste. But we must investigate anyway. We have been put on notice of a potential problem. If we don't investigate and it later turns out there was a problem, we will look bad and the company will suffer." There are two reasons for taking this subdued but serious tone. One is, obviously, that Lewis could be wrong. Treehorn may have made his suggestion without thinking and thought better of it as soon as he saw Lewis's reaction. Lewis should not do Treehorn more harm than necessary. The other reason Lewis should take a subdued tone is to preserve his own credibility. Speaking softly, staying within the evidence, generally carries more weight than screaming, especially in the early stages of an inquiry when sides have not yet formed. Lewis ranks low. He does not have much credit. He should take care to husband it.

If Lewis does this much, then, even if the investigation turns up nothing, he will be in the clear. He will have alerted his superiors and given them the chance to do what they should. He need do no more because he has no knowledge that the public health, safety, or welfare is in fact threatened. He had only a well-grounded suspicion that Treehorn may be violating EPA regulations.

If the "worst" happens and years later Lewis receives a subpoena, he can dig out the memo and appear in court ready to tell what he knows. If ABC did a good investigation, those who did it will be able to tell what they know. They can testify to having done the best they could. Perhaps Treehorn lied to them and used methods they could not reasonably have anticipated. Treehorn will be to blame, no one else. He will have left ABC with a huge waste disposal problem, a dirtied reputation, and an almost unimaginable potential for litigation. But, to the degree others did their job, ABC's liability will be less and those involved will not be personally liable or morally blameworthy.

If, however, Lewis took what earlier seemed to be the easy way, doing nothing or even helping Treehorn load the truck, Lewis will now need a lawyer. He will have to be careful what he says. The truth may be used against him in a civil suit for damages. Lying would risk criminal prosecution for perjury. Keeping silent would be self-condemning. The "worst" seldom happens, but thinking about it can reveal fundamental weaknesses in a course of action that looks pretty good on the assumption that all goes well.

Inspection and oversight responsibilities have become critical functions of technical professionals. Modern society is increasingly vulnerable to severe effects of failures and accidents. A single structural connection failure in a long-span roof can threaten the lives of thousands of occupants. A single industrial accident, such as the methyl isocyanate gas leak experienced in Bhopal, India in December 1984, can cause tens of thousands of casualties. Hazardous wastes can cause irreparable environmental damage (Gross, et. al. 1989, Carper 1989).

Society has recognized the need for increased protection. Legislation has been introduced to protect the environment and to enhance public safety. These laws exist because some controls must be mandated and enforced. Unless they are enforced diligently and equitably, the profit motive will control to the detriment of the environment and the public welfare. The competitive market will unfairly penalize those corporations that adopt costly environmental protection or public safety policies.

Inspection by a competent, licensed professional is critical to the effectiveness of enforcement (Carper 1984). Insofar as possible, the inspecting engineer should be autonomous, working under an administrative arrangement that permits the inspector to act independently.

Scott Lewis, however, finds himself in a much less desirable situation. He has been assigned the task of inspecting his employer's operation. Placing an employee in such an oversight position is fraught with conflicts. The employee is under the constant threat of potential pressure from superiors within the organization, and is often overly conscious of the economic implications of the negative reports that may be required by strict interpretation of regulations. The inspector's own job is on the line. Indeed, employees have been fired for subordination when they were conscientiously performing their inspection assignments (Martin and Schinzinger 1989, pp. 6-7, 216-217).

The situation of self-inspection places those assigned the task in a very awkward position. Similar ethical challenges are encountered by the Accountant who must audit the records of a corporation. The Accountant who submits a report that is truthful may incur the wrath of the client corporation that has retained the Accountant. To a certain extent, there is constant implied pressure to perform a service that pleases the client. This conflict has been addressed in the accounting profession through strict adherence to a professional code of ethics and through diligent enforcement of legal requirements.

Laws are involved in Scott Lewis' case as well. There are public safety and environmental impact issues at stake. Scott should discuss his concerns with Tom Treehorn, including the potential consequences of breaking the law. He should vigorously object to Tom's intentions, appealing to the Code of Ethics for support, if necessary. Reference to the Code of Ethics can be very useful when an engineer is confronted by such pressure from an employer or client (Evans 1988).

If such appeals are ignored, Scott should definitely threaten Tom with a report to Tom's superior. If Tom receives support from the management above him, Scott should be prepared to go outside the organization. Whistleblowing is justified when laws are being violated. In fact, Scott is obligated by his Code of Ethics to go to the proper authorities when his employer is in deliberate violation of regulations, especially when the public welfare is threatened (Elliston et al 1985, Pletta 1987). For example, the American Society of Civil Engineers has a policy statement that requires its members to report unsafe conditions discovered in the course of their work, even if the client for whom they are performing services objects.

An important principle in this case is the principle of universalizability (Martin and Schinzinger 1989, pp. 37-38). Scott should confront Tom with the implications of everyone acting as he proposes to do. What if every chemical corporation were to ignore regulations regarding disposal? What if each supervisor were allowed to do it his or her own way? Even if each were thoughtful and conscientious, and even if each felt they knew best how to safely dispose of the waste, wouldn't the resulting chaos be unmanageable?

Scott should especially be concerned when Tom refers to the economic benefit of following his plans. Tom's true motive is revealed here; it is the profit motive.

Later, when problems do arise, a class-action suit is brought against the corporation. In the court proceedings, Scott must be truthful. This will include giving an account of the part he played in the inspection and in helping Tom violate the law. This will be complicated by his new position with a competing corporation.

It should be noted that if Scott were a Professional Engineer at the time of the violation, he may now be subject to personal litigation, and to prosecution by the state in which he is licensed. He may also be subject to disciplinary action by his professional engineering society.

Suggested Readings:

1. Carper, Kenneth L. 1984. "Limited Field Inspection Vs. Public Safety," Civil Engineering, American Society of Civil Engineers, New York, NY, Vol. 54, No. 5, May, pp. 52-55.
2. Carper, Kenneth L., ed. 1989. Forensic Engineering, Elsevier Science Publishers, New York, NY, pp. 26-28.
3. Evans, R. J. 1988. "Commentary on the Code of Ethics," Journal of Professional Issues in Engineering, American Society of Civil Engineers, New York, NY, Vol. 114, No. 2, April, pp. 148-156.
4. Elliston, Frederick, J. Keenan, P. Lockhart and J. Van Schaick 1985. Whistleblowing Research: Methodological and Moral Issues, Praeger Publishers, New York, NY.
5. Gross, John L., J. Smith, and R. Wright 1989. "Ashland Tank: Collapse Investigation," Journal of Performance of Constructed Facilities, American Society of Civil Engineers, New York, NY, Vol. 3, No. 3, August, pp. 144-162.
6. Martin, Mike W. and R. Schinzinger 1989. Ethics in Engineering (2nd edition), McGraw-Hill, Inc., New York, NY, pp. 6-7, 37-38, 216-217.
7. Pletta, Dan H. 1987. "'Uninvolved' Professionals and Technical Disasters," Journal of Professional Issues in Engineering, American Society of Civil Engineers, New York, NY, Vol. 113, No. 1, January, pp. 23-31.