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Precautionary guidance for toxic site cleanups

DRAFT 5, April 13, 2004

Peter Montague 732-828-9995; ;

Overview of this presentation:

I. Why is a precautionary approach needed?

a. The non-precautionary approach has led to considerable harm, world-wide.

b. The world is now full -- of humans and their artifacts -- so the human economy is now large enough to threaten the integrity of the ecosystems that humans depend upon. This is a recent development and we are just beginning to learn to adjust to this new reality. New conditions call for new approaches.

c. The public trust responsibility of government calls for a precautionary approach.

II. What is the Precautionary Principle?

III. Applying the precautionary principle to a toxic site.

I. WHY IS PRECAUTION NEEDED? -- Part a

I.a. Failures of the Risk-Based (Non-precautionary) Approach

The current "risk-based" regulatory system rests on three assumptions:

1) Assumption No. 1: humans can manage the biosphere by deciding how much harm the Earth (or any portion of the Earth) can safely absorb. This is sometimes known as the "assimilative capacity" approach. According to this approach, scientists can reliably determine how much harm the Earth, or any portion of the Earth (such as the Hudson River, or bald eagles, or a human population), can absorb or assimilate.

2) Assumption No. 2: Once the "assimilative capacity" for a particular chemical (or other kind of harm) has been determined, then we can -- and will -- see to it that no greater amount of damage is permitted. We will enforce limits, river by river, factory by factory, chemical by chemical so that the total, cumulative releases to not exceed the "assimilative capacity" of the Earth (or any portion of the Earth).

3) Assumption No. 3: We already know which substances and activities are harmful and which are not; or, in the case of substances or activities that we never suspected are harmful, we will be warned of their possible dangers by traumatic but sub-lethal shocks that alert us to the danger before it is too late.[1]

Obviously the system really hinges on Assumption No. 1 -- that we can determine the "assimilative capacity" of an ecosystem, or of a population of birds or polar bears or humans. For this purpose, a special technique has been developed called "risk assessment."

In the U.S., risk assessment is now a fundamentally important decision-making tool. Risk assessment now provides the basis for almost all environmental management, not merely the control of chemicals. Before cutting new roads into a national forest, someone completes a risk assessment to decide how much the roads will harm bears and other forest dwellers. Ocean fisheries are managed by risk assessment to determine the "maximum sustainable yield" of fish.[2] Risk assessment determines allowable drug residues in beef, allowable pesticide residues in food, allowable withdrawals of water from rivers and aquifers, allowable contamination of drinking water, limits on the discharge of fine particles and toxic chemicals from coal-fired power plants, auto emission limits, livestock grazing allotments on arid lands, allowable harvests of endangered species, fishing and hunting quotas, workplace exposure limits, radiation limits in medical settings, cleanup standards for contaminated sites, and on and on.[3]

Four Difficulties of Risk Assessments(Among Others)

1. The Risks of Multiple Hazards (e.g., Chemical Mixtures) Cannot Yet Be Assessed

Most people are routinely exposed to mixtures of chemicals (pharmaceuticals, food additives, pesticide residues, second-hand tobacco smoke, vehicle exhausts, disinfectants and cleaning agents, fine and ultrafine particles from combustion sources, pollutants in drinking water, and exudates from consumer products, among others) along with other stresses (ultraviolet radiation, bacteria and viruses, genetic disorders, aging, etc.). Such combinations of complex chemical exposures and stresses are rarely acknowledged, and their combined effects on health and behavior cannot be assessed with any substantial degree of confidence.[4]

2. Low-Level and High-Level Exposures Can Produce Different Effects but Low-Level Exposures Are Rarely Examined

Low-level exposure to a particular chemical can sometimes produce effects quite different from those caused by higher doses of the same chemical. These differences can include positive effects at low doses (hormesis) and harmful effects at higher doses -- as in the case of the essential mineral, chromium. Or, in the case of some chemicals that interfere with biochemical signaling systems, harm can occur at low doses but not at higher doses, exhibiting an inverted-U shaped dose-response curve.[5]

Testing of low doses of chemicals has typically been avoided because large numbers of animals are required so costs can be prohibitive.

3. Some Chemicals Are Only Active During a Brief Stage of Development

Some chemicals are only biologically active during a brief period of time (a "window of vulnerability") in the development of an organism, so toxicity must be tested during those particular times. Chemicals tested during other times will appear to be less potent or even inert.[6]

4. Basic data are often lacking, so judgments and assumptions must be relied upon

The National Academy of Sciences has said, "Risk assessment techniques are highly speculative, and almost all rely on multiple assumptions of fact -- some of which are entirely untestable."[7]

As a result, despite many advances in the science of toxicology during recent decades, conclusions about risk can still vary dramatically depending upon who is doing the risk assessment.

As William Ruckelshaus (first administrator of U.S. Environmental Protection Agency) said in 1984, "We should remember that risk assessment data can be like the captured spy: If you torture it long enough, it will tell you anything you want to know."[8]

Peer review of risk assessments by all stakeholders can reduce the range of disagreement; nevertheless, despite substantial effort and constant improvements in risk assessments, the goal of a rational and reproducible technique for making decisions has eluded decision-makers.

There are many excellent case studies of instances in which the risk-based approach has left us a legacy of very expensive problems that we are now struggling to solve, including: depleted fisheries; harm from x-rays and radioactivity; exposures to benzene, asbestos, and PCBs; damage to the Earth's ozone shield; exposure to the artificial hormone, diethylstilbestrol (DES); the excessive use of antimicrobials and growth promoters; lead in gasoline, and MTBE as a substitute for lead in gasoline; tributyl tin as an anti-fouling paint on ships and boats; chemical contamination of the Great Lakes; and more.[9]

I. WHY IS PRECAUTION NEEDED? –Part b

I.b. The world is now full -- of humans and their artifacts

** The human economy uses, directly or indirectly, roughly 40% of the net primary product of terrestrial photosynthesis.

This means that, with one more doubling of human population (40 to 45 years), humans will be appropriating 80% of net terrestrial primary productivity.[10]

** One result of human appropriation of the earth's terrestrial resources is soil degradation, which is widespread; worldwide, rates of soil loss exceed rates of soil formation by at least a factor of 10.[11]

** Another result of human appropriation of terrestrial resources is the rapid loss of species, which is now proceeding at a rate somewhere between 100 and 1,000 times the historical rate of extinction.[12]

** The human contribution to atmospheric carbon dioxide (a 30% global increase in 200 years) and methane (which doubled in concentration during the same period) indicates that the human economy is now capable of disrupting ecosystems at a global scale.

** The buildup of greenhouse gases in the atmosphere, and the rupture of the earth's stratospheric ozone shield by chlorofluorocarbons (CFCs), indicate that the human economy has already exceeded the assimilative and regenerative capacities of the biosphere to absorb some human wastes.

There is considerable evidence to support this general proposition. For example, persistent synthetic toxicants are now measurable from the peaks of the highest mountains to the floors of the deepest oceans and everywhere in between.

It seems evident that nature is unable to degrade certain synthetic compounds as rapidly as humans are able to produce them.

Science is changing as a result of the "full world hypothesis." For example, two new academic fields emerged in the mid-1980s -- conservation biology, and ecological economics.[13]

Ecological economists argue the "full world" hypothesis will require humans to re-organize their intellectual activities, shifting the fundamental scientific paradigm from Newtonian physics to ecology.

Newtonian physics views the world as linear, separable, reducible to its component subsystems that can be readily aggregated to model the behavior of the whole system.

In contrast, an ecosystem perspective develops a worldview adapted to complex living systems -- constantly interacting and evolving, nonlinear, and not scalable by simple aggregation.

In the ecological view, human knowledge of the evolving world is fraught with fundamental uncertainties that are large and likely to remain so, spawning a scientific approach that has less confidence in its predictions and prescriptions than was common in an earlier era.

The ecological approach has produced a generation of scientists who advocate greater humility and a more precautionary approach than was common in the past, with an orientation toward learning from nature for the purpose of working with it rather than subduing it.

Here we see that the precautionary approach is a response to scientific uncertainty. Environmental scientists are now exploring ways in which their discipline(s) can be made more helpful to those who want to act with precaution – without compromising the integrity and objectivity of science.[14]

I. WHY IS PRECAUTION NEEDED? – Part c

I.c. The Public Trust Doctrine

The Public Trust Doctrine is an ancient legal doctrine handed down to us from Roman law, through English law, into the law of the 13 original colonies and now the states.[15]

The public trust doctrine asserts that the sovereign (in our case, state government) has an inalienable duty (a duty that cannot be denied or given away) to protect the common wealth -- air, water, wildlife, public health, our genetic heritage, and more -- which we all inherit and own together and none of us owns individually.[15]

As trustee, government must protect the trust assets (nature and human health) for the trust beneficiaries (present and future generations). Government even has a duty to protect the trust assets against harmful actions by the beneficiaries themselves, and so from time to time government must limit some of the prerogatives of private property in order to protect the common wealth for present and future generations.

In carrying out its duty to protect the public trust, government has a duty to anticipate harm, to look ahead to protect the trust against impending threats.[16] If government waits until harm can be demonstrated beyond doubt, then it will be too late -- the trust property will be damaged and government will have failed in its duty as trustee.

The precautionary principle provides a way for government to fulfill its responsibility to protect the public trust, to anticipate and avoid harm, to foresee and forestall.

II. The Precautionary Principle

The precautionary principle provides the basis for a new way of making decisions about the environment and human health. Instead of asking, "How much harm will we tolerate?" or "How much harm can we get away with?" the precautionary approach asks, "How much harm can we avoid?"

The precautionary principle originated in Germany in the 1970s in response to damage by acid rain in the beloved Black Forest. The original German concept, "Vorsorgeprinzip," was developed to guide environmental planning. It translates best as "the principle of forecaring" but it also carries the connotation of foresight and preparation for the future, not merely precaution.

In one form or another, the language of precaution has now been adopted in many international treaties and conventions, such as the North Sea Declaration (1987), The Ozone Layer Protocol (1987), the Ministerial Declaration of the 2nd World Climate Conference (1990), the Maastricht Treaty that created the European Union (1994), The United Nations Law of the Sea (2001), and the Cartagena Protocol on Biosafety (2000), among others.

The United States adopted the precautionary principle when it signed the Rio Declaration on Environment and Development in 1992; principle 15 of that agreement says,

"In order to protect the environment, the precautionary approach shall be widely applied by States [nations] according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."[17] Cost-effective means lowest-cost.

Unfortunately, the U.S. federal government has never acted upon this commitment and indeed is sometimes openly hostile to a precautionary approach. (For example, see )

Another formulation of the PP appeared in a consensus statement in 1998:

"When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically."[18]

All formulations of the precautionary principle contain three basic elements:

a) Where there is reasonable suspicion of harm occurring or about to occur...

b) and there is scientific uncertainty as to cause and effect...

c) then we all have a duty to take action to prevent harm.

Notice that the precautionary principle puts ethics first -- we all have a duty to prevent harm.

But also notice that the precautionary principle does not tell us what kind of action to take. It does not tell us to ban or regulate. It simply tells us to prevent harm.

Some formulations of the precautionary principle suggest the kinds of actions we should take:

** establish goals;

** examine all reasonable alternatives for achieving those goals with the expectation that the least-harmful approach will be preferred;

** shift the burden of proof to the proponents of new approaches -- they bear the burden of producing information about the consequences of their proposed activities, monitoring and reporting as time passes, paying for any harm that ensues and taking steps to remediate as needed;

** those who will be affected by the decision should participate in making the decision

Corollaries of this last point include:

*** science is not the only valid way of knowing; other kinds of knowledge can be useful to decision-makers: historical knowledge, spiritual knowledge, local knowledge, community preferences, cultural values, artistic perceptions, etc.

*** democratic decision-making means involving the public in the earliest stages of a project, when the first questions are being asked and goals are being set.

Ultimately, the goal of a precautionary approach is to make decisions today that we will not regret in 50 years.

III. Precautionary guidance for toxic site cleanups

Initial thoughts:

1) All reasonable alternatives should be considered. This approach is written into the Superfund law, as well as the National Environmental Policy Act of 1969.

2) Affected parties should be represented in making the decision. This is fundamental to decision-making in a democracy. Of course we want to be informed by the best science available, but when it comes to making public policy, scientists are on a par with other citizens. As the European Union said in 2000, "Science should be on tap, not on top."

3) Intergenerational equity should be considered. By saving money today, are we diminishing the future for our children, reducing their options, saddling them with economic, environmental or health burdens that we rightfully should bear?

4) When we choose a "containment" strategy -- whether a cap or a landfill or some other containment structure -- we can ask, "What is the estimated duration of the hazard" and "What is the estimated duration of the containment structure?"

One way to approach this is to estimate the duration of the containment by asking those who supply the materials for the structure how long they will warranty the materials. This is particularly easy to do in the case of geotextiles and other polymeric barriers -- how long will the manufacturers warrant that such materials will retain their integrity? Even the suppliers of clay barriers might be asked this question.

What should we do if we cannot estimate the duration of the hazard? What assumptions should we make?

5) We also might ask ourselves, who will fund the long-term future of this containment, processing or monitoring? The U.S., as a member of the Organization for Economic Cooperation and Development (OECD) in 1974 agreed to the principle that, "The polluter shall pay." What happens if the polluter for some reason defaults? Who will continue the funding? Is insurance available in such situations? If not, why not?

6) If our chosen option requires containment, processing (such as pumping groundwater), and/or monitoring for 50 years or more into the future to safeguard the environment and human health, we can ask, "What experience do humans have maintaining vigilance over managing local hazards on this time-scale?" What evidence can we offer to show that human institutions can reliably maintain funding, focus, personnel and commitment to processing, or monitoring problems of toxic wastes for two generations (50 years) or longer?

7) We can ask, about any decision, if it eventually becomes clear that things are going badly, will we be able to take corrective action, or reverse course? (For example, what happens if a landfill's liners are breached? As a practical matter, can the waste be removed so that the liner can be repaired or replaced?)

8) We can try to learn from a Superfund cleanup.

What can we learn from a Superfund cleanup?

a) We can learn that many Superfund sites were created by firms that now say they cannot afford to clean up their toxic wastes. To deter such firms, ecological economist Robert Costanza has proposed a "precautionary principle polluter pays" (4P) assurance bond.[13, pgs. 209-215.] Using the "4P" approach, before a new technology, process or chemical could be introduced, the worst-case harm would be estimated in dollar terms. Then the proponent of the new activity would be required to post a bond for the full amount before startup.