Right to Know

"Every American has the right to know the chemicals to which they may be exposed in their daily living. Right-to-know laws provide information about possible chemical exposures." EPA website: Protect the Environment: Learn about your right to know.

A recent NW Examiner article documenting the contradictions and discrepencies in the emissions reports from ESCO Corp. reveals a troubling picture of the current state of toxins reporting. First established by the EPA in 1986, the Emergency Planning and Community Right-to-Know Act (EPCRA) was passed in response to concerns regarding environmental and safety hazards posed by the storage and handling of toxic chemicals. These concerns were triggered by the disaster in Bhopal, India. The Bhopal disaster, or Bhopal gas tragedy, was an industrial disaster that took place at a Union Carbide pesticide plant in the Indian city of Bhopal, Madhaya Pradesh. At midnight on 3 December 1984, the plant released an estimated 42 tons of toxic methyl isocynates (MIC) gas, exposing more than 500,000 people to MIC and other chemicals. The first official death toll was 2,259. The government of Madhya Pradesh has confirmed a total of 3,787 deaths related to the gas release. Others estimate 8,000-10,000 died within 72 hours and 25,000 have since died from gas-related diseases.

The Bhopal disaster is frequently cited as the world's worst industrial disaster. To reduce the likelihood of such a disaster in the United States, Congress imposed requirements on both states and regulated facilities, a hallmark of which was the creation, in 1988, of the Toxic Release Inventory (TRI), a database which provides information to the public about releases of toxic chemicals from manufacturing facilities into the environment through the air, water and land.

But what Paul Koberstein of The Cascadia Times, the investigative reporter responsible for the September Examiner article, uncovered as he plumbed the depths of the many reports of ESCO emissions is a dizzying array of calculations and varying lists of toxins, one list reported to EPA for TRI, one to DEQ, others that come up on their testing reports, and still others reported nowhere in the previous reports that come up in the fenceline monitoring that was conducted by Cooper Environmental Services. The effect for residents of the NW neighborhood reading this article is confusing and troubling. As one neighbor asked me after reading it, "why do they (ESCO) seem to lie if there is nothing to hide?"

The intent behind TRI and emissions reporting is to inform the public. But the information is anything but clear, often inspiring fear and confusion among citizens trying to assess their own risk of living in proximity to industrial sources of pollution. That's why the study of schools and industrial air pollution, reported in the USA Today report, was so useful. It translated complex industrial emissions information into data the public could understand: health risks. Was it a smoking gun, no? But using highly sophisticated risk drivers, which balanced the proportional toxicity of each chemical, its volume, smokestack heights and prevailing wind patterns that would effect its concentrations, it certainly gave us a blueprint for where to start. Looking at the model, and understanding that this model successfully predicted the high levels of toxins in the Ohio school that was subsequently shut down, it was reasonable in the wake of the publication of this report, for communities to investigate further when the data indicated a high probability of a toxic industrial pollution hot spot.

ESCO's answer to the USA Today report, as stated by Carter Webb at the Aug. 7th House Health Committee Interim Workgroup hearing chaired by Rep. Mitch Greenlick: "We look at the DEQ and the ESCO monitoring data and we see that our operations are not creating a risk to anyone." But, in reality, and in closer scrutiny of this self-reported data, and self-funded monitoring that Mr. Webb is referring to, is not that there is any solid science backing the understanding that the ESCO emissions don't cause physical harm or long term health risks. But that instead, ESCO emissions, which include heavy metals like nickel, lead, manganese and Chromium VI - all known to perpetuate indefinitely in the environment once introduced - fall under current ambient benchmark concentrations by which the company is regulated. In other words, the company is fully compliant with the letter of their permit.

But science has not established that there is any safe levels for lead and manganese, known neurotoxins; or Chromium VI the cancer causing compound made famous in Julia Robert's portrayal of Erin Brochovich. Or the synergistic health effects of the 64+ toxic chemicals listed in the emissions reports from ESCO.

This is industry's dilemma. They are paying significant amounts in fees to be permitted to pollute (money that amounts to 70% of DEQ's budget). And I imagine that they pay equal if not greater amounts to meet their compliance requirements and generally jump through the hoops to provide the reports required of them, not to mention the lobbyists to protect them. All for what? If you are not buying public trust with this investment than really what good is it? The EPA, the Clean Air Act, Citizens Right to Know, and TRI are all efforts by our federal government to provide US citizens with peace of mind. If the state agency's process of administering the regulations is flawed, or certainly its stringency - and the agency's loyalty -suspect, then the money and energy that industry dumps into the regulatory process is a waste. My argument is that industry needs transparency and a strong regulatory process as much as neighboring residents, to bank the public trust they so desperately depend on to continue to operate their facilities, emissions from which trespass on our public airshed in annoying odors and black dust.

At this point we can neither afford to go back to unregulated, unfettered toxic industrial emissions, or stay where we are, trapped by confusion, suspicion and fear. Our city and state legislators must provide us with the leadership to forge a new path forward, one that ties regulation firmly to the objective of realizing specific public health outcomes when science exists, and precautionary health safeguards when negative health outcomes can be reasonably anticipated.

Necessary Caution

Nicholas Kristoff wrote in a recent op-ed in the NY Times: "One of the conundrums for scientists and journalists alike is how to call prudent attention to murky and uncertain risks, without sensationalizing dangers that may not exist? Increasingly, endocrinologists are concluding that the mounting evidence is enough to raise alarms." He wrote this about phthalates, noting their ubiquitous presence in modern life.  

 A related story was published the next day in The Washington Post, titled: Kids' lower IQ scores linked to prenatal pollution.  And earlier this month, I shared a story about the latest EPA Nata report that shows people living in Oregon, Multnomah County in particular, to have an increased risk of cancer due to exposure to air pollution.

 In researching this issue of industrial air pollution as I prepare testimony for the House Health Committee Workgroup on August 7th,  I came across a guiding principle of the European Union Environmental Legislation.  It's called the "Precautionary Principle." It was adopted by the EU Environmental Agency formally in 2000.  The National Institute of Environmental Health's 1998 consensus statement characterized the precautionary principle this way: "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". The statement went on to list four central components of the principle:

1. taking preventive action in the face of uncertainty;
2. shifting the burden of proof to the proponents of an activity;
3. exploring a wide range of alternatives to possibly harmful actions;
4. and increasing public participation in decision making.

 As the European Environmental Agency said in adopting the principle: "the precautionary principle is seen principally as a way to deal with a lack of scientific certainty." In an absolutely amazing document (please pardon these banal descriptives, but, really, I think everyone should read it) entitled "Late Lessons from Early Warnings: the Precautionary Principle 1896-2000," the authors spell out how important the basic understanding of certainty, or uncertainty, is. And how that plays out in risk assessment and the regulatory and policy-making process. Twelve case studies reviewing the early warnings of such ubiquitously used, but now widely accepted known contaminants as PCBs, asbestos, benzene, and radiation, documented the at times near 100 years from the first sign of human/environmental threats to the establishment of policy to stop their use. 

 In reading this document, and its call for more weight to public participation, and a recognition of the hazards of "scientific uncertainty" being used to describe actual ignorance, I can't help but draw relevant connections between this paradigm and our neighborhood concerns at the moment.  I have been able to watch a video tape of the Town Hall Meeting we held back in May, many thanks to a concerned neighbor with a camera.  The tape demonstrates the near impossible task of our current system.  Concerned citizens gather with reasonable and specific questions about industrial pollution to address to the regulatory agency responsible for the oversight and permitting of industrial facilities.  The result is near comic, if it weren't my neighborhood, my concerns, my children.  One after another speakers ask:  Are we safe? Is there a compelling reason not to monitor? Does DEQ know what comes out of ESCO? Can we have the confidence that DEQ is protecting our health? We are looking for information. We have confirmed ESCO as the source of manganese and chromium and probably lead in the neighborhood.  Independent monitoring was able to determine that there are spikes that at times exceed benchmarks 100x the acceptable level, these spikes could be dangerous, but they would not show up on annualized averages. What is DEQ going to do?

 The answers (as quoted directly from the transcript of the Town Hall on 21 May 2009):  Compelling is an interesting word. DEQ doesn't test at the facility, ESCO contracts a third party to conduct tests.  There is hexavalent Chromium (Chrome VI-think Erin Brockovich) in the neighborhood, but we can't tell you if it is coming from ESCO or the machine shop next door. We have a lot of monitoring data calculating annualized averages of chemical toxicity-we have yet to find any concentrations to cause concern. We will have meetings. 

 This dance, which has been repeated in the neighborhood for over 10 years illustrates the imbalance in current environmental regulation and, as the authors of Late Lessons point out in their conclusion: "the urgent need for a more complete and systematic basis for thinking about the different ways in which scientific uncertainty may pervade regulatory appraisal." They go on to discuss the subjective assumptions of traditional risk assessment, and if uncertainty is allowed to mask what is truly ignorance, the effects in environmental policy can have devastating and irreversible consequences. The study provides many examples where the scope of hazard appraisal was too narrow, and the voices too few who could impact decision making.  And finally concludes: "If more account, scientifically, politically and economically, is taken of a richer body of information from more diverse sources, then society may do substantially better in the future at achieving a better balance between innovations and their hazards."

 There are many things "uncertain":  What is in the air? Where is that odor coming from? There are no safe levels for children on many of the criteria pollutants that ESCO is considered a major source of.  How much do ESCO's emissions add to our risk factor of living in the neighborhood, and the known increased risk of cancer? Of other health issues, related to neurological development, not necessarily morbidity, what are the cumulative affects of the levels of known neurotoxins such as manganese and lead on our children and ourselves?  As the conclusion of Late Lessons states: Most of the cases in the book involved costly impacts on both public health and the environment, two fields of science and policy making that have become specialized and somewhat polarized during the last 100 years.  Individuals experience their health and their environment as one, interconnected reality: science, regulatory appraisal and policy-making need to be similarly integrated.

DEQ may not in the end be the source for action we need.  But they need to quit masking ignorance as "scientific uncertainty." And they need to quit addressing reasonable public concern with arrogance and dismissive "science"- and a tactic of paralysis through analysis- that does not answer legitimate questions.