Environmental epidemiologists sometimes hear from people dealing with pollutants and sickness. So I wasn’t surprised when Nancy Holt contacted me about the millions of gallons of municipal sewage sludge being spread on fields near her home in Orange County, North Carolina. Sometimes, she said, the stench was so awful that she and her husband had to cover their faces when they went outside. They had trouble breathing. Sores broke out on her grandchildren’s bodies after they played in a nearby creek. She had her well tested. It was contaminated with bacteria and chemicals. Droplets of wet sludge covered her mailbox.
By the time she called me at my office at the University of North Carolina at Chapel Hill, Nancy was fed up with the runaround from local, state, and federal agencies. Government employees had tried to reassure her that sewage sludge is safe, that existing rules protect public health, and that there is no evidence sludge ever harmed anyone. When she learned that our research group had been studying the effects of industrial hog operations on neighbors’ health and quality of life, she thought we might be able to evaluate the impacts of sewage sludge.
The Business of Sludge
Sewage sludge is composed of residuals removed from wastewater that comes from homes, hospitals, and industries. Waste-water-treatment systems are designed to remove pollutants that could contaminate public waterways. Sludge—called “biosolids” by those who produce it, spread it, and regulate it—includes these pollutants as well as bacteria and wastewater-treatment chemicals. The Environmental Protection Agency (EPA) estimates that the United States produces more than eight million dry tons a year of sewage sludge, the majority of which is spread on rural lands.
Although rural residents like Nancy Holt have reported illnesses associated with land applications of sludge for many years, government agencies do not routinely investigate or maintain records of illness reports. Despite the fact that a 2002 National Academy of Sciences report called for investigations into human exposure to sludge and illnesses, the United States has no database for tracking where the nation’s sludge has been applied.
When the Water Environment Research Foundation (WERF) issued a request for proposals to develop a system for monitoring and investigating illness reports, Nancy encouraged our research group to apply. WERF is a nonprofit organization funded jointly by municipalities that produce sludge, corporations that spread it, and the EPA, which established regulations in 1993 intended to protect health and the environment from sludge. In a 2005 article in the International Journal of Occupational and Environmental Health, Caroline Snyder, professor emerita at Rochester Institute of Technology, describes an “unholy alliance” of government, industry, and academics working to promote land application of sludge, to prevent stricter regulations, and to influence research. She also describes attacks on EPA and university scientists who questioned the safety of current regulations.
Like other industry groups that rely on so-called sound science to promote their practices, WERF likes to fund university scientists to provide an aura of authority and independence. According to the University of Arizona’s Water Quality Center, which is funded by municipalities that produce sludge, corporations that spread sludge, and the National Science Foundation, “University interactions with industry provides [sic] credibility with the general public.” This is a good fit, because academics need funding and publications to advance their careers, and industry-associated groups can help.
A Divisive Process
Despite reservations about WERF, in October 2005, our research group responded to its request with a proposal to develop a protocol for surveillance and investigation of illnesses reported by people living near fields where sludge is spread. Establishing a surveillance system often is a first step in evaluating the magnitude of a problem and how it changes over time. In March 2006, WERF announced that our proposal had been selected, and in April, WERF’s research director and program officer visited our campus to negotiate a contract with UNC–Chapel Hill business officials. I participated as the proposed principal investigator.
Working in a department where tenured faculty members are expected to cover a majority of their salaries with outside funding, I am familiar with how grants and contracts work. However, this was different. First, the draft contract required that UNC–Chapel Hill assign all copyrights to WERF. WERF—which sells reports— would own the data and control release of our reports, allowing us to publish only with its permission. If WERF failed to accept our findings, it could prohibit us from publishing or presenting our final report. At the April meeting, I was pleased, indeed proud, that the UNC–Chapel Hill contract specialist for nongovernmental funding told WERF that the university does not enter into contracts that prevent investigators from releasing or publishing work.
But that was to change. WERF and UNC–Chapel Hill’s Office of Sponsored Research began negotiating contract revisions, including the publishing restrictions. Soon WERF informed us that the funding would come from the EPA. Consequently, another contract specialist was assigned to the negotiations. She informed me that the university would accept WERF’s restrictions if I wanted to proceed with the contract. I insisted upon the basic principles of open access to and free dissemination of research. I explained that our work was supposed to assist public-health agencies and that UNC–Chapel Hill had a responsibility to make our findings freely available.
An attorney from the university counsel’s office proposed alternative language that would allow us to publish. But, on June 30, WERF rejected the language, agreeing only to permit the university to use project materials for “internal and educational purposes.” Although WERF described this as its final offer, we refused to accept the restrictions. The university attorney then made another proposal.
WERF’s final offer turned out to be a bluff. On July 31, more than four months after choosing UNC–Chapel Hill for the research, WERF agreed to grant the university unrestricted rights to use our work for any purpose.
The contract-negotiation process, contorted by WERF’s attempt to maintain control over publicly funded research to be conducted at a public university, foreshadowed greater problems. WERF appointed a ten-member committee to oversee our work. In addition to officials from government agencies and two university scientists (neither an epidemiologist), the committee included a former vice president of Synagro Technologies, Inc., the nation’s largest sludge-management company, which funds WERF and the University of Arizona’s Water Quality Center. During conference calls and meetings at WERF’s headquarters in Alexandria, Virginia, committee members argued with us and each other over basic principles and minute details. The disagreements could not have slowed and undermined our work more effectively if the committee members had been chosen for that very purpose. To make matters worse, WERF insisted that we could not communicate directly with the committee members who were supposed to be advising us. All communication had to go through the WERF project manager.
Our report provided guidelines for surveillance and investigation of illnesses reported by people who, like Nancy Holt, live near sites where sewage sludge is spread. We did not conduct a health-effects study; rather, we developed an approach for tracking sludge processing and spreading in areas where neighbors of land-application sites report symptoms.
In the end, the report suffered from the divisive process. Although we resisted some pressures, we were overly influenced by constant demands from both the WERF staff and the committee members. We included too many conflicting components and accepted too much diluted language. Still, for months, WERF neither accepted nor rejected our report. Finally, and only after we posted it on a UNC–Chapel Hill Web site, did WERF officially accept the report and make it available to its members and the public.
Over the past several decades, substantial attention has been devoted to financial conflicts of interest in industry-funded academic research. Focusing solely on problems with industry funding may suggest that other funding sources do not compromise the public responsibility of academic institutions. However, that’s not the case, especially when government agencies work more closely with polluters than with communities affected by pollution.
WERF’s sponsorship of research on sludge, and its efforts to control both the creation and dissemination of scientific knowledge, is just one example of a broader problem that affects funding from organizations and government agencies aligned with corporate interests. In energy, agriculture, health, and the environment, industry trade associations maintain close ties with government agencies whose mission should be protecting the public interest. Government agencies, however, too often forget that corporations exist to advance their investors’ interests, not those of the public. Combining private and public resources, nonprofit groups and government agencies influence the direction and character of research by funding universities, professional associations, and scholarly journals. Unfortunately, few researchers have evaluated that influence.
To guard the public interest from financial conflicts, universities must look beyond the industry-funding problem to consider the nature and depth of influences from nonprofits, including foundations, as well as from government agencies closely tied to industry. Although financial pressures make it difficult, we can promote academia’s commitment to the public interest by reporting on and teaching about these conflicts of interest.
To understand how the increasingly complex mixture of pollutants from municipal and industrial wastewater affects health and the environment, the public needs research that is not unduly influenced by entities that need to dispose of waste cheaply and profitably. If universities are to help, they must identify and control conflicts of interest from government and nonprofit organizations, not simply those that come directly from industry, which understands well how to use strategic partnerships to shape knowledge about safety and health.
All over the country, waste from homes and industry constantly flows to treatment plants. Most of us never think about what happens to it. But people like Nancy Holt do. They live with it and continue to report problems with their health and quality of life. Along with many scientists, they worry about the long-term effects of the pollutants in sludge on livestock, food safety, water quality, and the health of farmland. The paucity of research on the health impacts of sewage sludge—a topic the dominant corporate-government- academic research alliance has skillfully managed— magnifies their concerns.
Steve Wing teaches epidemiology at the University of North Carolina at Chapel Hill and conducts research on occupational and environmental health. His recent work has focused on health impacts of ionizing radiation, industrial animal production, sewage sludge, and environmental injustice. His e-mail address is firstname.lastname@example.org.
Thank you for running this well thought out article. Please keep up the good work. This may hurt, but the truth needs to be said and we need to change.
This article is a good capsule case study that helps toward educating academics on how these things work. I can speak to that a bit more, as a former CEO, albeit of a small company. The primary thing to understand is the concept of fiduciary duty for corporate officers that is enshrined in law. They can be sued for failing to defend and protect the financial interests of shareholders. For large companies, there are law firms just waiting to pounce if there is cause for a class-action lawsuit. If the officers have not acted diligently, their personal fortunes can be attacked, literally resulting in loss of their home. The latter doesn't happen often, but the class action wolves are out there, baying at the moon every night, just beyond the CEO's door. And CEOs lose their jobs over such stuff.
This means that even if it isn't ethical, even if it isn't within their legal rights to demand, the officers of the corporation must do their level best to keep control to prevent any possible loss of income. That is what underlies the actions of WERF at every step in this article. The attorneys and officers on the other side of the table may even, in some cases, wish from a human viewpoint to lose a point, but like boxers in the ring, it is their obligation to do their best to win. It is perhaps more accurate to look at them as gladiators who may be beheaded by their patrons later if they are perceived as not fighting their best. The average tenure of a CEO is about 18 months, and the average number of opportunities they have to be CEO is less than two. There are people in the wings wanting to fill their boots. Professors understand this sort of environment somewhat from their pre-tenure days.
The other parties to these things are the attorneys. Attorneys learn as part of their education to split their own interests, feelings and ideas from those of their clients. It may help to think of the attorneys negotiating on both sides of a contractual matter like this as defense attorneys for serial killers. Even if they know the guy is guilty, it's their obligation to do everything to get him off. It's an excellent metaphor because it is pretty close to the reality. Thus, the negotiation in these instances is generally adversarial. You must expect that you will be lied to, conned, have your words unfairly represented, etcetera. It's nice if it doesn't happen, but don't expect it. Since the attorneys for the other side in these matters are highly motivated, highly paid corporate firms most of the time you can also expect them to do a better job. For them, every twist and turn means more money in the bank for their firm. Sometimes, that can be used to exhaust the budget of the other side - it's happened. In that respect, you have the advantage, because you can tie them up with hugely greater costs than you incur.
Conversely, the attorneys for the university are usually staff counsels with a lot on their plate. They have limited time, aren't particularly motivated, and their technical skills may not be as good. They may or may not give a damn about your contract. If the case is overly difficult and time consuming, the staff counsel may even start negotiating for the other side just to get the darn thing off his/her desk unless layoffs are looming. It has also happened that a staff counsel has been "influenced" by some enticement or other. After all, nobody is going to sue the staff counsel if the contract isn't good for his side. That means that it is incumbent on the primaries in the negotiation to carry the ball. Professors who understand this will do better and know that it is all in their lap to force the issues. If you get a good, sharp staff counsel, great. But don't expect it, and be wary of staff attorneys bearing blandishments.
This article is a short case-study of how to negotiate with corporate counsels in an adversarial situation that went pretty well. Simply put, never cave. Stand and force the issues. Be very careful to review the language and don't accept a single word you don't like. I can only assume that the oversight committee was the fallback strategy of the firm that put together the contract. A more sophisticated university counsel would have pointed out that clause and what it meant. But don't expect good advice from your side, expect to have to wade through it yourself. I could tell you stories about bad contracts drawn up by firms with clauses that were direct violations of law.
There are certain basic practicalities of such negotiations that make things easier for you. First, insist that all documents be exchanged in soft-copy form using a standard word processing format and that you get a final edit on them. This allows you to rip through their contract, get rid of huge parts of it, insert your own language where you want it, and do it quickly. For this reason, they won't want it. They will want everything to be on paper. They may scream, wail and throw a believable fit, telling you that lawyers don't do that, they use paper and other such cartoon rubbish. But insist. It isn't reasonable for them to do it any other way and they know it darn well. They all do it that way among themselves. Attorneys are luddites, but only when it helps them. Second, use document comparison utilities to show you changes from version to version. Assume the worst, always. Watch for things that were removed to pop back in, "Oops! How did that happen?" Thinking of the other side as sharp undergrads trying to con you and cheating will put you in the right ballpark.
When negotiating, understand that they will have layers of positions. They will have their primary position that they know is objectionable to you. They will, if they know what they are doing, put something highly objectionable right up front. Understand that they want you to focus on that. They want it to distract you so that you take your eye off of something else. Take care to find that "something else". Maybe there isn't any, but maybe there is something like this procedural committee matter. Also, feel free to load such committees and games with your own friends, not just theirs. When in doubt, tilt the table to win. That's their attitude.
If there is a clause that violates established law, get a written opinion about whether that clause can be enforced. If the answer is, "Absolutely not." consider maybe complaining about it, but leaving it in. Doing so will make them think you're a rube they can con. Sometimes that's a good thing, sometimes not, it's a judgment call. But make sure your staff counsel writes you a letter and that you get agreement from your side to back you up when you ignore it later.
When you find yourself confronted with outrageous "moon and sky" demands, feel free to throw up your own outrageous demands that they can't possibly accept. Since they will think of you as a patsy of sorts, they will not be on their guard. You just might succeed at slipping something through on them by diverting their attention to that. It's happened more than once.
Last, once you have the money, don't worry overmuch about ignoring them or jumping through the hoops they set up. Possession is 9/10ths of the law and they aren't likely to sue you, just rant, rail and fume. Two can play the game of, "Oops! I'm so sorry. Did I forget?" As Steve Wing found, the court of public opinion is a powerful court that corporations aren't interested in tangling with. In addition, there only three reasons a corporation will file a lawsuit: A. They think they have a strong case and will make money. B. They think the other side are bunny rabbits who will chew each other up in fear and cough up cash. C. To hurt the other party so that others who come after them will be afraid - i.e. the prosecutor's motive. But when the court of public opinion is against them, it's pretty rare for any suit to get taken to trial or filed. In any case, academics have their academic freedom and basic vows to hew to the truth. Any such case is a can of worms for a corporation to open up when something is published.
My advice is to go with the Nike slogan, "Just do it!"