Chemical pollution regulatory gaps and cross-media transfers

[asagady@sojourn.com]

  A colleague and friend, John Dernbach
  from Pennsylvania, asked me to post this 
  item to a number of Internet groups and lists seen
  by folks in the environmental health community.
  
  Professor Dernbach would like to stimulate 
  discussion in the environmental community 
  on the matter of gaps in regulation posed
  by the different lists of chemicals in different
  environmental media programs.
  
  I'd suggest that citizens fighting particular,
  site-specific pollution battles may be able
  to use the analytical techniques posed in 
  the article to show that companies may 
  be taking advantage of these regulatory
  gaps to foster cross-media pollution
  transfers that create community environmental
  problems instead of cleanups.
  
  Alex Sagady
  Environmental Consultant
  East Lansing, MI
  (517) 332-6971
  asagady@sojourn.com
  
  ==========================
  
  
  EXECUTIVE SUMMARY
  of article published at 
  21 HARVARD ENVIRONMENTAL LAW REVIEW 1 (1997)
  
  
  THE UNFOCUSED REGULATION 
  OF TOXIC AND HAZARDOUS POLLUTANTS
  
  John C. Dernbach, Associate Professor 
  Widener University Law School 
  3800 Vartan Way 
  Harrisburg, Pennsylvania  17106-9382
  Phone: (717) 541-1933. Fax: (717) 541-3966
  EMail: john.c.dernbach@law.widener.edu.
  
  
  I. PROBLEM
  
  A. The Clean Air Act, Clean Water Act, Resource Conservation 
  and Recovery Act, Emergency Planning and Community 
  Right-to-Know Act (§ 313), and Occupational Safety and 
  Health Act each regulate a set of pollutants as toxic or 
  hazardous.  Each set of pollutants is significantly different from the others.
  
  --1,134 pollutants or classes of pollutants are regulated 
  under at least one of these five statutes.  Only 49 are 
  regulated under all five.  Almost 800 are regulated under only one.
  
  --A total of 579 pollutants are regulated under at least one of 
  three statutes--the Clean Air Act, Clean Water Act, and 
  Resource Conservation and Recovery Act.  Only 63 are regulated 
  under all three.
  
  
  B. There is no coherent risk-based explanation for these differences.  
  The list development processes for each statute were conducted 
  independently, used different risk criteria, and in some cases 
  excluded chemicals presenting significant risks to keep the 
  regulatory program manageable or reduce costs to industry.  
  
  
  II. CONSEQUENCES
  
  A. Inconsistent listing encourages companies to release pollutants 
  in environmental media (air, water, waste) where they are not 
  regulated.  Companies regulated under the Clean Water Act 
  have reduced direct discharges of regulated pollutants to 
  waterways but increased releases of the same pollutants to 
  the air, according to national data.
  
  B. Pollution prevention appears more likely where there is 
  little or no opportunity to release a pollutant into an unregulated 
  medium.   Pollution prevention involves changes in the manufacturing 
  process that prevent pollutants from coming into existence.  
  The great majority of the 50 chemicals identified by EPA as 
  the top chemicals for pollution prevention in 1994 were 
  regulated under at least four of these programs.  
  
  C. Inconsistent listing indicates that the regulatory programs 
  adopted under these statutes are insufficiently protective and 
  impose unnecessary costs.  They are insufficiently protective 
  because they regulate virtually all pollutants in some media but 
  not others, and because pollutants move from medium to medium 
  after they are released (for example, from air to water).  Inconsistent 
  listing also means the costs of medium-specific pollution control 
  devices are not necessarily justified by the results achieved. 
  
  D. In addition, inconsistent listing means that the people 
  who live near or work in facilities cannot obtain a complete 
  understanding of the various chemicals released from or within 
  those facilities, or the risks they present.  The Toxics Release 
  Inventory, which is the best source of multi-media release 
  information, doesn't solve that problem.  Because it is based 
  on § 313 of the Emergency Planning Act, its list is different 
  from the others.
  
  
  III. A FRAMEWORK FOR CHANGE
  
  A. The data in the article provide considerable support for 
  pollution prevention as an alternative to controlling the release 
  of pollutants into individual media after they have been created. 
  
  B. To focus on the worst toxics and provide an opportunity for 
  learning how to conduct serious pollution prevention, Congress 
  should adopt a list of chemicals that are toxic in multiple media, 
  set substantial pollution prevention goals for those pollutants, 
  and provide incentives to industry for doing so.  Over time, the 
  multi-media list should be expanded to other pollutants.  
  
  C. Public reporting under § 313 of the Emergency Planning Act 
  should be expanded to include most chemicals released from 
  facilities in amounts that exceed the current reporting threshold. 
  
  D. The proposal should reduce compliance costs as well as 
  increase protection for human health and the environment.    
  
  
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  Alex J. Sagady & Associates        Email:  asagady@sojourn.com
  Environmental Consulting and Database Systems
  PO Box 39  East Lansing, MI  48826-0039  
  (517) 332-6971 (voice); (517) 332-8987 (fax)