The Justice Department yesterday said that a six-month investigation of the Environmental Protection Agency has produced insufficient evidence to prosecute six former high-level agency officials.
In an unusual 53-page report dealing with allegations of perjury, conflict of interest and political manipulation, the department documented some of the EPA activities that were widely criticized during congressional hearings last winter.
But the report said the investigation of the six officials has been closed without indictments because of inadequate evidence, conflicting testimony and narrowly drawn federal ethics laws.
The officials identified in the report, who are among more than a dozen who resigned or were fired during the investigation, are former EPA administrator Anne M. Burford; Robert M. Perry, former general counsel; John A. Todhunter, former assistant administrator for toxic substances and pesticides; James W. Sanderson, a former consultant to Burford; Louis J. Cordia, who was the No. 2 official in the Office of Federal Activities, and John P. Horton, former assistant administrator for administration.
Four House subcommittee chairmen who initiated the Justice Department investigation and who are continuing their inquiries said they considered the report inadequate and incomplete. They said there was clear evidence of improprieties at the EPA and that the lack of indictments may suggest that the federal ethics laws are drawn too narrowly.
"The Justice Department report is a transparent political document . . . . It is poorly written, poorly documented and carries the aroma of freshly applied white paint," Rep. James H. Scheuer (D-N.Y.) said.
"The fact that some of these activities do not appear to fall within the scope of criminal statutes and technical points cited by the Justice Department speaks more directly to the weaknesses of laws regulating government ethics than to mismanagement at EPA."
Attorney General William French Smith said four other EPA matters remain under investigation, including allegations of possible perjury by a former official that law enforcement sources identified as former acting administrator John W. Hernandez Jr.
The only former EPA official to be indicted since the probe began is former hazardous waste cleanup chief Rita M. Lavelle, who was charged last week with perjury and obstructing a congressional inquiry.
According to the Justice Department, the investigation was based on over 400 FBI interviews involving more than 20 areas of alleged misconduct:
* The report said that two witnesses attending a luncheon aboard a yacht in August, 1982, recalled Burford suggesting she would delay a $6 million federal toxic waste cleanup grant to the Stringfellow Acid Pits in California to avoid aiding the Democratic Senate campaign of then-Gov. Edmund G. (Jerry) Brown Jr.
A White House memo to the Justice Department reported that Burford had said, "I'll be damned if I am going to let Brown take credit for that." Although the Stringfellow grant was delayed until after the 1982 election, which Brown lost, the report said other witnesses could not recall such comments and that there was "no competent evidence" to prove Burford manipulated the program for political purposes.
* The investigation of former general counsel Perry centered on two allegations of possible perjury. The first involved Perry's statement before a House Energy and Commerce subcommittee last Dec. 3 that he was not familiar with "green books" containing information, much of it derogatory, on his subordinates.
The report said that part of Perry's testimony was technically accurate because he did not keep the books himself. But it found a significant discrepancy in Perry's account of when he learned that his assistants were keeping such books.
Perry wrote the subcommittee last Dec. 22 that after his testimony, his subordinates told him that his immediate staff was keeping books, all with green covers, in which comments about personnel were kept.
But witnesses told Congress that as early as the previous August, Perry had instructed his secretary "to get his green book and deduct points from an employe who had displeased him."
The report called Perry's testimony "inconsistent" but concluded that Perry's statements about when he learned of the green books were not of "sufficient materiality to warrant criminal prosecution."
The other allegation centered on Perry's testimony last March 7 that he did not sign a settlement agreement between the government and Exxon Research and Engineering Co., a subsidiary of Perry's former employer.
But Energy and Commerce subcommittee Chairman John D. Dingell (D-Mich.) later obtained the original agreement and said it appeared to have been signed first by Perry, then whited out and signed over by the EPA enforcement counsel.
The report concluded that Perry has signed the agreement "by mistake" and that there was "insufficient evidence" that Perry's testimony was intentionally false.
* The report examined conflict-of-interest allegations against former agency consultant Sanderson, a Denver attorney who worked part-time for the EPA while continuing to represent a number of legal clients with an interest in EPA matters. Sanderson later withdrew from consideration as a candidate for the agency's No. 3 job.
The report said one of Sanderson's clients, Chemical Waste Management Inc., was able to dispose of hundreds of barrels of liquid wastes in various landfills after Burford temporarily lifted a ban on such disposal.
But the report said one of Sanderson's law partners represented the company on the issue and that "No evidence was disclosed that Mr. Sanderson was involved or participated in the negotiating sessions" at EPA.
On another issue of interest to some Sanderson clients--EPA's drafting of land disposal of waste regulations--the report said: "There is evidence that Mr. Sanderson attended two meetings in which the EPA administrator was briefed on the subject . . . . One witness stated that Mr. Sanderson actively participated in the meetings by rendering opinions . . . ."
But the majority of witnesses said they had "no recollection" of Sanderson's participation and there was insufficient evidence that Sanderson played a substantial role in the decision, the report said.
Sanderson, while an EPA consultant, also represented a client before the Army Corps of Engineers at the same time that the EPA was involved in litigation against the client, the Denver Water Department.
But the report found that "less restrictive rules apply" because Sanderson served two separate terms as a temporary consultant and did not have enough continuous service to be subject to regular conflict-of-interest rules.
After Sanderson left the EPA, the report said, he talked to Burford and another top official about permits for Chemical Waste Management to burn hazardous wastes at sea. The agency later speeded approval for the company's incinerator ship, Vulcanus I.
The report concluded that there was no legal problem because Sanderson had not "participated personally and substantially" in the ocean burning of waste issue while he was at EPA.
* The report said that Todhunter's former employer, Andrulis Research Corp., had received a noncompetitive contract from his EPA office on toxic substances and pesticides. But it said Todhunter's assistant handled the award and that "no evidence was developed that substantiated any involvement of Dr. Todhunter in the firm's selection as a contractor . . . ."
The report confirmed that Todhunter initially did not declare all his income from Andrulis on his financial disclosure form, but said his "explanation for the discrepancies was that he misread the instructions for filling out the form . . . ." There was no evidence that the firm paid Todhunter for services performed after he joined the EPA or that Todhunter tried to stop the cancellation of another federal contract with Andrulis, the report said.
Todhunter destroyed some of his appointment calendars and his secretary erased some entries on other calendars, the report said. But it found that this occurred before a House subcommittee asked for the calendars to determine the extent of Todhunter's meetings with representatives of industry.
* A secretary to former director of administration Horton "spent approximately two to four hours per week on Mr. Horton's personal business," the report said. But it said she worked overtime to compensate for the government time she spent on Horton's business and that there was "no evidence" that this "interfered with her performance of her official duties at EPA."
Horton used EPA telephones to make numerous private business calls and his business records were stored in his EPA safe, the report said. But it said Horton had repaid the agency for some of the personal calls and that the maximum loss to the government was $528.
* An analyst in the EPA's Office of Federal Activities said Cordia, the No. 2 official there, had directed her "to delete records from the computer files" that had been requested under the Freedom of Information Act, the report said.
But Cordia "stated that he did not tell the analyst to delete or destroy computer records" and that he later "clarified that his instructions were to transfer responsibility for the files, not to delete information from them." The report concluded that "the analyst misunderstood Mr. Cordia's instructions."
On another widely publicized allegation, the report said there was no evidence that EPA documents shredded last winter included material subpoenaed by Congress. Investigators are still looking into allegations that Horton directed the destruction of a file requested by Congress.
Dingell called the Justice Department probe "inadequate and incomplete . . . . While Justice may have concluded that certain conduct did not reach the level of criminal behavior, it is clear that former EPA officials violated their public trust by mismanagement, conflict of interest and the misuse of health and safety programs for political purposes."
Another subcommittee chairman, Elliott H. Levitas (D-Ga.), said "the Justice Department of any administration is probably not capable of objectively investigating the actions of high officials in that administration. Rita Lavelle was a different story. She's on the outs and they found someone they could heap all this on."