Rachel's Precaution Reporter #12, November 16, 2005
THE REGULATORY BOX WE'RE IN
[Rachel's introduction: The regulatory system boxes us in to a debate about parts per million when we really want to discuss things like better health, a decent future for our children, fairness, and justice. A precautionary approach invites discussion of those larger issues.]
By Peter Montague
The New Jersey Department of Environmental Protection (DEP) is on the hotseat over thousands of tons of potent cancer-causing chromium wastes lying all over Hudson County -- the most densely populated county in the nation's most densely populated state. Will this problem disappear via "risk assessment" or will a precautionary approach be taken and a real cleanup occur?
I attended a public hearing about these wastes in Jersey City Monday night. Bradley Campbell -- commissioner of the N.J. DEP -- conducted the meeting personally, so you know the political heat has been turned up high, thanks to the Interfaith Community Organization in Jersey City, and a courageous DEP whistleblower, Zoe Kelman. Read Zoe Kelman's report here.
These highly carcinogenic chromium-VI wastes were discovered in 1985, and no real remedy has been developed during 20 years of hand-wringing. Chromium- VI is a potent carcinogen if you get it into your lungs.
The DEP's current "solution" is to employ numerical "risk assessment" to come up with a magic number that is a "safe" level of chromium in soil. Most of the meeting Monday night was spent arguing about whether 240 parts per million (ppm) was the "safe" number, or whether it should be 100 parts per million, or 30 parts per million.
DEP's role in all this is to press for leaving very large amounts of industrial poisons in the ground, then putting a "cap" over the poisons -- a plastic tarp, or a layer of asphalt, or a school building. This is the approach that DEP has approved all across New Jersey -- in Long Branch, Edison, Camden, Newark, Trenton, New Brunswick, and many other cities and towns. There are 12,000 contaminated sites in New Jersey, and if DEP has its way, most of them will be "capped" with a plastic tarp or a parking lot. These are not permanent remedies -- they are a way of evading our responsibilities, passing expensive toxic problems on to our children and grandchildren.
Attending numerous public meetings on cleanups has convinced me that DEP's goal is to save money for polluters, because real cleanup costs a lot of money.
The main assumption of the DEP's "risk-based approach" is that science can determine a safe level of industrial poisons in the ground.
There are four serious problems with this risk-based approach:
1. Because people are exposed to many chemicals simultaneously (chromium, PCBs, mercury, lead, second-hand smoke, diesel exhaust, and much more), science has no way to determine a safe level of one contaminant among many. The problem is simply too complex for science to solve. No one can say what a safe level of exposure to chromium might be, given all the other toxic exposures occurring simultaneously. DEP's solution to this problem is to simply pretend that the other exposures don't exist. This is a silly head-in-the-sand approach and not scientific.
When it comes to cancer-causing chemicals -- such as chromium, coal gas wastes, PCBs, lead, mercury, or many pesticides -- the only exposure we can say is truly safe is zero exposure.
2. Because science cannot solve this complicated problem of multiple exposures, the risk-based approach gets resolved through politics masquerading as science. The first administrator of U.S. EPA, William Ruckelshaus, 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."
So the magic number that DEP declares safe is really a number intended to achieve DEP's political goal -- to save money for the polluters, perhaps to keep the polluters happy so they will contribute heavily at election time.
3. Once DEP determines the magic number that is supposedly safe, large amounts of industrial poisons are left in the ground, based on the magic number. As time passes, those poisons leak out. Insects, worms, reptiles, and small mammals carry them away; grass grows up in the cracks and brings small amounts of poison to the surface; birds transport them; they are carried on the wind as dust; rain moves them around. There is actually a principle of physics that explains why all this is inevitable: it is called the "second law of thermodynamics." It tells us that things tend to disperse. A pot of poison left in the ground will sooner or later disperse into the local environment.
So the net effect of the risk-based approach is to assure that industrial poisons will be oozing into the environment of New Jersey far into the future, all over the state. Because poor people are disproportionately dumped on by toxic waste, DEP's policy serves to keep poor people sick, fearful, and on the defensive. On the bright side, it also keeps the cancer-treatment and pharmaceutical businesses booming. (When you drive down Route 287 approaching New Brunswick, a highway sign advertises the existence of The New Jersey Cancer Institute -- cancer is definitely big business in New Jersey.)
To really fix these problems, the wastes must be excavated and removed. They have to be detoxified or solidified and stored in large above-ground reinforced-concrete buildings where they could be monitored for the duration of the hazard -- or they have to be shipped to the western states and buried deep in places were rain is scant. (People in the western states don't favor this approach.)
These real cleanup activities would create a large number of jobs in the construction trades, and would benefit public health. When politicians say, "We can't afford to do this," they mean, "We don't think these communities are worth the investment." In New Jersey, the wealthiest state in the wealthiest nation on earth, we could definitely afford to do it if we decided it was important. In general, poor people tend not to contribute money to politicians, or even to vote, so they are not considered important. If toxic waste is discovered in Princeton or Upper Saddle River, you can be sure it does not remain there long.
4. The risk-based approach keeps us fighting on our adversaries' turf. Our adversaries designed the regulatory system to stabilize and standardize the business environment -- to control their critics (which is us), to make us predictable and therefore manageable.
The function of the whole regulatory system is to force communities to accept facilities or practices that they don't want. (This includes not only toxic waste but also McMansion housing developments, big box stores, and new highways.)
The community begins with broad concerns about quality of life, fairness, justice, and a decent future for everyone's children. Then the regulatory system funnels those broad, ethical concerns into a debate over parts per million (or other narrow technical issues).
I watched this play out Monday night in Jersey City. The community wants a healthy place to live, work, play, and raise children. The DEP immediately focused the whole discussion into a question of 240 ppm vs. 100 ppm vs. 30 ppm. The community's goals for "quality of life" were never discussed -- DEP made sure of that. In the audience, the chromium polluters, wearing silk suits, sat smiling as they watched DEP focus everyone's attention on parts per million, and not on community goals or ethical questions of right and wrong. DEP did the polluters' dirty work for them. DEP has become the polluters' proxy.
So the main lesson of the evening was this: The regulatory system regulates community activists far more than it regulates polluters because the system makes community activists predictable and therefore manageable. It restricts their response to trouble. It keeps them arguing about parts per million instead of about community goals, political power, coalition-building, and real change.
To get out of this box, we would need to take a completely different approach -- one based on the precautionary principle.
The risk-based approach asks, "How much harm can we get away with?" and it comes up with a magic number. A precautionary approach asks a completely different question: "How much harm can we avoid?" And it provokes a public discussion.
To me, the risk-based question is unethical because it is asked for the sole purpose of exposing innocent people to dangerous chemicals, like chromium.
The precautionary approach focuses on community goals and then asks how to achieve those goals. It entails rich discussions about jobs, local economic development, education, taxes, white privilege and white supremacy, inequalities, justice -- and about organizing a real political movement for change.
Are we ready to get out of that risk-based box? Or are we content to pass thousands of tons of industrial poisons on to our grandchildren?
 Gabriel Kolko, The Triumph of Conservatism; A Reinterpretation of American History, 1900-1916. NY: The Free Press, 1963.
 See Curtis C, Travis and Sheri T. Hester, "Global Chemical Contamination," Environmental Science & Technology Vol. 25, No. 5 (May, 1991), pgs. 815-819. Available here.