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Michael Pritchard Professor; Co-Director of The Ethics Center Western Michigan University
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Leaking Waste Containers

Added06/15/1992

Author(s) James Jaksa Michael Pritchard
Contributor(s) Michael Pritchard
Notes Case study originally published in “Teaching Engineering Ethics: A Case Study Approach” by Michael Pritchard. Center for the Study of Ethics in Society, Western Michigan University, 1992.
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Year 1992
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Authoring Institution Center for the Study of Ethics in Society, Western Michigan University Center for the Study of Ethics in Society, Western Michigan University
Publisher National Academy of Engineering, Online Ethics Center
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  • Posted 9 years and 6 months ago

    Michael Rabins' Commentary on "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"(1), 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".(2) 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 Davis(3) 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.



    Suggested Readings:




    1. Davis, Michael. "Avoiding the Tragedy of Whistleblowing",
      Business and Professional Ethics Journal, vol.
      8, no. 4, summer 1988, pp. 3-19.


    2. 2. 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.


    3. 3. Davis, 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.

  • Posted 9 years and 6 months ago

    Joseph Ellin's Commentary on "Leaking Waste Containers"

    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.

  • Posted 9 years and 6 months ago

    Michael Davis' Commentary on "Leaking Waste Containers"

    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.

  • Posted 9 years and 6 months ago

    Kenneth L. Carper's Commentary on "Leaking Waste Containers"

    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.

Cite this page: "Leaking Waste Containers" Online Ethics Center for Engineering 6/15/1992 National Academy of Engineering Accessed: Saturday, February 13, 2016 <www.onlineethics.org/Resources/csaindex/Containers.aspx>