Hazardous Wastes and Toxic Substances
HAZARDOUS WASTES AND TOXIC SUBSTANCES•••
Developed nations such as the United States annually use more than 60,000 hazardous chemicals in their agricultural and manufacturing processes. Because at least 10,000 are introduced each year, often we know very little about their effects. When we began massive use of such chemicals, we did not know that by the 1970s human breast milk would become more contaminated with toxins than any allowable manufactured foods. We did not realize that measurable amounts of DDT would appear in the polar ice caps. We did not suspect that by 2000 Silicon Valley would have more Superfund sites, twenty-nine, than any other single U.S. location—all because of toxic wastes from manufacturing high-tech products such as disk drives and semiconductors. We did not realize that, because of their long lifetimes, many hazardous chemicals would be able to migrate from their present waste sites and would threaten persons living thousands of years in the future. On the whole, we have assumed that dangerous chemicals are innocent until proved guilty. Because we do very little sophisticated epidemiological testing and rarely take account of food-chain and synergistic effects, thousands of chemicals have become both important to our agricultural and manufacturing processes and ubiquitous in our environment. Hence, it is often difficult to prove that any one chemical is responsible for specific harms, even when we know that it is theoretically able to cause many statistical casualties.
Hazardous wastes, byproducts of manufacturing, scientific, medical, and agricultural processes, have at least one of four characteristics: ignitability, corrosivity, reactivity, or toxicity (Wagner). Hazardous substances become wastes only when they have outlived their economic life. They include solvents, electroplating substances, pesticides such as dioxin, and radioactive wastes. Toxic substances, a subset of hazardous substances, have the characteristic of toxicity: the ability to cause serious injury, illness, or death.
Many persons became aware of the threat of hazardous wastes and toxic substances when American scientist Rachel Carson (1907–1964) wrote Silent Spring (1962), one of the earliest warnings of the dangers of pesticides, or when Michael Brown wrote his spellbinding account of hundreds of cancers, genetic damage, and birth defects near Love Canal, New York, and other waste sites in 1980. Indeed, hazardous-waste management has become one of the most serious environmental problems facing the world. In the United States alone, more than 5 billion pounds of toxic chemicals are released each year into air, water, and land. Approximately 80 percent of hazardous waste has been dumped into thousands of landfills, ponds, and pits throughout the world, from Love Canal in New York, to Mellery in Belgium, to North-Rhine in Germany. It has polluted air, wells, surface water, and groundwater. It has destroyed species, habitats, and ecosystems. It also has caused fires, explosions, direct-contact poisoning, and numerous cases of cancer, genetic harms, neurological disorders, and birth defects.
Surprisingly, one-quarter of the mercury and nearly one-half of all dioxin released into the American environment is from the healthcare industry. The mercury comes from blood temperature gauges and batteries, for example, while the dioxin comes from burning chlorinated plastics, like the PVC tubing used in kidney dialysis. Both mercury and dioxin are emitted by hospital incineration, and each patient-day is responsible for 9 kilograms of solid waste. Much of the dioxin emitted is from biochemical waste, 60 percent of which is not handled adequately.
In part to protect workers and the public from the dangers associated with hazardous substances, the U.S. Congress passed laws such as the 1954 Atomic Energy Act; the 1975 Hazardous Materials Transportation Act; the 1976 Resource Conservation and Recovery Act (RCRA); the 1976 Toxic Substances Control Act (TSCA); the 1977 Clean Water Act; the 1977 Clean Air Act; and the 1980 Comprehensive Environmental Response, Compensation, and Liability Act known as CERCLA or Superfund (Dominguez and Bartlett). These laws include provisions that require monitoring pollutants, reporting spills, preparing manifests describing particular wastes, and special packaging for transporting specific types of hazardous materials. The Clean Air Act regulates smelter emissions, for instance, and the Clean Water Act regulates mining-caused water pollution (Young). RCRA was passed to fill a statutory void left by the Clean Air Act and the Clean Water Act, which require removal of hazardous materials from air and water but leave the question of the ultimate deposition of hazardous waste unanswered. Although RCRA addresses the handling of such waste at current and future facilities, it does not deal with closed or abandoned sites. CERCLA focuses on hazardous-waste contamination when sites or spills have been abandoned; through penalties and taxes on hazardous substances, CERCLA provides for cleaning up abandoned sites.
Despite laws that govern dangerous substances, and despite the fact that 50,000 environmental assessments are prepared annually in the U.S., many to evaluate waste sites under the 1969 National Environmental Policy Act, hazardous wastes remain a major problem. One reason is that well-financed industrial waste polluters can dominate under-funded government regulators. Another reason is that the North American Free Trade Agreement (NAFTA) has allowed more U.S. waste to go to countries such as Mexico. The U.S.-to-Mexico waste flow doubled, for example, from 1994 to 1999, and yet Mexico has only one licensed hazardous waste facility. A third factor is that the use of toxic substances and the management of hazardous wastes raise ethical issues that have not been adequately addressed by existing regulations. These issues include siting, rights of future generations, workers's rights, free and informed consent, compensation, due process, appropriate ethical behavior under conditions of uncertainty, where to place the burden of proof regarding alleged waste harms, and workers's and the public's right to know.
Those who can afford to avoid hazardous wastes and toxic substances typically do so. Those who cannot are usually poor or otherwise disadvantaged. For this reason, public and workplace exposure to such hazards raises questions of intergenerational, geographical, and occupational equity. Intergenerational-equity problems deal with imposing risks and costs of hazardous wastes and toxic substances on future persons. Geographical-equity issues have to do with where and how to site waste dumps or facilities using toxic substances. Occupational-equity problems focus on whether to maximize the safety of the public or of the people who work with hazardous materials because we often cannot protect both groups at once. For example, effective decontamination and safety assurance at waste sites typically require more worker exposure to toxins but reduce public risk. Using mechanical or nonhuman decontamination and safety procedures, however, is safer for workers but usually increases public risk because such procedures are less effective than those controlled closely by people (see Kasperson).
Intergenerational equity requires us to ask whether we ought to mortgage the future by imposing our debts of buried (or stored) hazardous wastes on subsequent generations. Current plans for future U.S. government storage of high-level radioactive waste, for example, require the steel canisters to resist corrosion for as little as 300 years. Nevertheless, the U.S. Department of Energy admits that the waste will remain dangerous for longer than 10,000 years. Government experts agree that, at best, they can merely limit the radioactivity that reaches the environment, and that there is no doubt that the repository will leak over the course of the next 10,000 years (Shrader-Frechette, 1993). To saddle our descendants with the medical and financial debts of such waste, much of which is extremely long-lived, is questionable at best: We have received most of the benefits from the use of industrial and agricultural processes that create hazardous wastes, whereas future persons will bear most of the risks and costs. This risk/cost-benefit asymmetry suggests that, without good reasons or compensating benefits, future generations ought not be saddled with debts of their ancestors. Moreover, any alleged economies associated with storage of hazardous waste are, in large part, questionable because of the practice of discounting future costs (such as deaths) at some rate of x percent per year. For example, at a discount rate of 10 percent, effects on people's welfare twenty years from now count only for one-tenth of what effects on people's welfare count for now. Or, more graphically, with a discount rate of 5 percent, 1 billion deaths in 400 years count the same as one death next year. A number of moral philosophers, such as Derek Parfit, have argued that use of a discount rate is unethical, because the moral importance of future events, like the death of a person, does not decline at some x percent per year.
Another issue related to intergenerational equity is what sort of criteria might justify irreversible damage to the environment, such as that caused by deep-well storage of high-level nuclear waste. On the one hand, irreversible management schemes for nuclear waste, because they are premised on the nonretrievability of the waste, theoretically impose fewer management burdens on later generations, but they also preempt future choices about how to deal with the hazards. On the other hand, schemes that are reversible allow for wider choices for future generations, but they also impose greater management burdens. If we cannot do both, is it ethically desirable to maximize future freedom or to minimize future burdens? The technical problems associated with storing long-lived hazardous waste for centuries are forcing us to take a great gamble that our descendants will not breach the waste repositories through war, terrorism, or drilling for minerals; that groundwater will not leach out and transport toxins; and that subsequent ice sheets, faulting, seismic activity, and geological folding will not uncover the wastes.
Using and storing toxins also raises questions of environmental justice, that is, spatial or geographical equity in the risk distributiuon (Shrader-Frechette, 2002). One such issue is whether it is fair to impose a higher risk (of being harmed by seepage from a hazardous-waste dump, for example) on persons just because they live in a certain spot. Or, is it ethical for people in one area to receive the benefits of products created by using toxic substances, while people in another area bear the health risks associated a hazardous-waste dump? How does one site hazardous facilities equitably, and how does one transport toxic substances safely (see English)?
Questions about the equity of risk distribution are central to the issue of managing toxic substances because thousands of persons—such as the 1984 victims of the Union Carbide toxic leak in Bhopal, India—have already died as a consequence of exposure to hazardous substances. Current trade agreements also allow much hazardous waste of developed nations to be shipped to developing ones. Economic comparisons of alternative chemical technologies and different waste sites typically ignore the externalities (or social costs) such as the inequitable distribution of health hazards benefits associated with them. Geographical and intergenerational inequities are typically external to the benefit-cost schemes used as the basis for public policy. Consequently, decision makers almost always ignore them (Shrader-Frechette, 2002).
The most serious problems of geographical equity in the distribution of risks associated with dangerous substances arise because developed nations often ship their toxic chemicals and hazardous wastes to developing countries. One-third of U.S. pesticide exports, for example, are products that are banned for use in the United States. These exports are annually responsible for 40,000 pesticide-related deaths, mainly in developing nations (Shrader-Frechette, 1991). Likewise, the United Nations estimates that as much as 20 percent of the hazardous waste produced in developed nations is sent to other countries where health and safety standards are virtually nonexistent. The Organization of African Unity has pleaded with member states to stop such traffic, but corruption and crime have kept the waste transport going (Moyers). Indeed, exporting toxic substances and hazardous wastes may be the current version of the infant-formula problem. During the last three decades of the twentieth century, U.S. and multinational corporations have profited by exporting infant formula to developing nations and by encouraging young mothers not to nurse their children. They have been able to do so only by extremely coercive sales tactics and by misleading persons in developing countries about the relative merits and dangers of the exports.
Some of the greatest risks associated with toxic substances and hazardous wastes, whether in developed or developing nations, are borne by workers. One of the main questions of occupational equity is whether it is just to impose higher health burdens on workers in exchange for wages. Is it fair to allow persons to trade their health and safety for money? This question is particularly troublesome in the United States, because many other countries—such as the Scandinavian nations, Germany, and the former Soviet Union—have standards for occupational exposure to risks from toxins that are just as stringent as standards for public exposure. The United States, however, follows the alleged compensating wage differential (CWD) of Scot economist Adam Smith (1723–1790), presupposing that wages compensate workers for increased occupational exposures to toxic substances. As a consequence, U.S. regulators argue that, in exchange for facing higher risks than the public faces from toxic substances, workers receive higher wages that compensate them for their burden. Other countries do not accept the economic theory underlying the CWD and argue for equal health standards, for making public and worker exposure norms the same (Shrader-Frechette, 1991).
Consent and Right to Know
One reason critics question the theory underlying the CWD is its presupposition that, by virtue of accepting certain jobs, workers exposed to serious hazards give free, informed consent to the risks. Yet, from an ethical point of view, those most able to give free, informed consent—those who are well educated and who have many job opportunities—are usually unwilling to do so. Those least able to give genuine consent to a risky workplace or neighborhood—because of their lack of education or information and their financial constraints—are often willing to give allegedly informed consent.
The 1986 U.S. Right-to-Know Act requires owners or operators of sites using hazardous materials to notify the Emergency Response Commission in their state that toxins are present at a facility. However, at least three factors suggest that this law may fail to ensure full conditions for the free, informed consent of persons likely to be harmed by some hazardous substance. First, owners or operators (rather than a neutral third party) provide the information about the hazard. Often those responsible for toxic substances and hazardous wastes do not inform workers and the public of the risks they face, even after company physicians have documented serious health problems. Employers in the chemical industry, for example, frequently spend money on genetic screening to exclude susceptible persons from the workplace rather than to monitor their health on the job (Draper). Second, the existence, location, and operational procedures of dangerous facilities are likely things to which citizens and workers have not given free, informed consent in the first place. Third, mining is not included among the industries required to report their toxic emissions to state and federal regulators. For example, Utah's Bingham Canyon Copper Mine, owned by Kennecott Copper, ranks fourth in the nation in total toxic releases, yet it and other mining companies do not report their releases (Young).
Sociological data reveal that, as education and income rise, people are less willing to accept either work in hazardous facilities or risky jobs; those who do so tend to be poorly educated or financially strapped. The data also show that the alleged CWD does not operate for poor, unskilled, minority, or nonunionized workers. Yet these are precisely the people most likely to have risky jobs, such as handling nuclear wastes. In other words, the very persons least able to give free, informed consent to occupational risks are precisely those who most often work in risky jobs (Shrader-Frechette, 1993).
At the international level, a similar situation occurs. The persons and nations least able to give free informed consent to the location of facilities for using or storing toxic substances are typically those who most often bear such risks. Hazardous wastes shipped abroad, for example, are usually sent to countries that will take them at the cheapest rate, and these tend to be developing nations that are often ill informed about the risks involved. In 1989, the United Nations passed a resolution requiring any country receiving hazardous waste to give consent before it is sent. Because socioeconomic conditions and corruption often militate against the exercise of free informed consent, however, it is questionable whether the U.N. resolution will have much effect (Shrader-Frechette, 1991).
Industrial offers of financial benefits—for storing hazardous waste in a developing nation or in an economically depressed community—create a coercive context in which requirements for free informed consent are unlikely to be met. Likewise, high wages for desperate workers who agree to take risky jobs may jeopardize their legitimate consent. In such contexts, we must admit either that our classical ethical theory of free informed consent is wrong or that our laws and regulations fail to provide an ethical framework in which those most affected by hazardous substances can give free informed consent to the risk.
Given the many consent-related problems relevant to risk from hazardous substances, a crucial issue is: Who should give consent? Liberty and grass-roots self-determination require local control of whether a hazardous facility is sited in a particular area. Yet, equality of consideration for people in all regions and minimizing overall risk often require federal control. Should a particular community be able to veto the location of a hazardous facility, even though that site may be the best in the country and may provide the most equal protection of all people? Or should the national government have the right to impose such risks on a local community, even against the wishes of that group?
On the one hand, federal jurisdiction is more likely to protect the environment, to avoid the tragedy of the commons, to gain national economies of scale, and to avoid regional favoritism. Federal jurisdiction is also more likely to provide compensation for victims of spillovers from another locale and to facilitate the politics of sacrifice by imposing equal burdens on all. On the other hand, local jurisdiction is more likely to promote diversity, to offer a more flexible vehicle for experimenting with waste regulations, and to enhance citizen autonomy and liberty. Local jurisdiction also is likely to encourage cooperation through participation in decision making, to discourage some kinds of inequitable federal policies, and to help avoid many violations of rights.
Current U.S. laws do not typically provide for full exercise of due-process rights by those who may have been harmed by toxins or hazardous wastes. Many of the companies that handle dangerous substances do not have either full insurance for their pollution risk or adequate funds to cover their liability themselves. RCRA and CERCLA, however, require such companies both to show that they are capable of paying at least some of the damages resulting from their activities and to clean up their sites. Because enforcement of liability and coverage provisions of these laws is difficult, many hazardous-waste industries often operate outside the law. Furthermore, most insurers have withdrawn from the pollution market, claiming that providing such coverage carries the risk of payments for claims that would bankrupt them.
Just as insurers fear potentially large liability claims in cases involving hazardous-waste substances, so do members of the public. For example, in 1987 when the U.S. Congress chose Yucca Mountain, Nevada, as the likely site for the world's first permanent facility for high-level nuclear waste, local residents and the state asked for unlimited, strict-liability coverage for any nuclear-waste accident or incident. The U.S. Department of Energy's response to the citizens, based on the 1957 Price-Anderson Act, was that the government would allow the waste facility to bear only limited liability. Consequently, the U.S. nuclear program, including radioactive-waste management, has operated under a government-imposed limit for liability coverage. This limit, designed to protect the nuclear-waste industry from bankruptcy caused by accidents, is less than 3 percent of the government-calculated costs of the April 1986 Chernobyl nuclear catastrophe, and Chernobyl was not a worst-case accident (see Shrader-Frechette, 1993).
Limits on government or industry liability for hazardous-waste and toxic-substance incidents are problematic for several reasons. First, liability is a well-known incentive for appropriate, safe behavior. Second, refusal to accept full and strict liability suggests that hazardous-and radioactive-waste sites are not as safe as the government maintains they are. Third, if government officials may legally limit due-process right then, in the case of an accident at a hazardous-waste facility, the main financial burdens will be borne inequitably by accident victims rather than by the perpetrators of the hazard. Fourth, because much less is known about the dangers from hazardous wastes and toxic substances than about more ordinary risks, full liability seems a reasonable requirement. And finally, the safety record of hazardous facilities, in the past, has not been good. Every state and every nation in the world have extensive, long-term pollution from toxins. Even in the United States, the government has been one of the worst offenders. A congressional report has argued that cleaning up the hazardous and radioactive wastes at government weapons facilities would cost more than $300 billion (U.S. Congress; Shrader-Frechette, 1993). Such problems argue for citizens's rights to full liability.
Uncertainty, Human Error, and the Burden of Proof
Inadequate compensation for victims of toxins, inequitable distribution of the risks associated with hazardous wastes, and the uncertainties and potential harm associated with such substances provide powerful arguments for reducing or eliminating exposure to them. To decrease exposures and to move beyond dumping, however, we must have market incentives for reducing the volume of toxic substances and hazardous wastes (Piasecki; Higgins). To reduce the volume of these threats, we must know exactly what effects they cause, and we must make risk imposers accountable for their behavior. Ensuring accountability is not easy. Adequate tests for medical responses to low-level chemical exposures require samples of thousands of persons, because so many toxic substances produce health effects synergistically, because there are many uncertainties about actual exposure to hazardous substances, because the effects of such exposure often are unknown (Ashford and Miller), and because phenotypical characteristics among individuals often vary by a factor of 200. All four variables cause extreme differences in humans's responses to toxins.
Uncertainties about exposure and about the consequences of exposure to hazardous substances are compounded by the fact that the industries that produce toxic substances and hazardous wastes—and that profit from them—usually perform the required tests to determine toxicity and health effects. Pesticide-registration decisions (about allowing use of the chemicals) in the West, for example, are tied to a risk-benefit standard that combines scientific and economic evidence. Because industry does most or all of the testing, and because environmental and health groups are forced to show that the dangers outweigh the economic benefits of a particular pesticide, there is much uncertainty about the real hazards actually faced by workers and consumers. As a consequence, virtually no groups want toxic substances or hazardous wastes used or stored near them. Hence the protest: Not in my backyard—NIMBY.
NIMBY responses also arise as a consequence of public mistrust of human institutions for controlling hazardous wastes and toxic chemicals. All dangerous technologies are unavoidably dependent upon fragile, sometimes short-lived, human institutions and human capabilities. Faulty technology, after all, did not cause the injuries and deaths at Three Mile Island, Bhopal, Love Canal, or Chernobyl. Human error did. Human error and misconduct also may be the insoluble problem with using toxic substances and managing hazardous wastes. According to risk assessors, 60 percent to 80 percent of industrial accidents are due to human mismanagement or corruption (Shrader-Frechette, 1993). For example, at the nation's largest incinerator for hazardous wastes, run by Chemical Waste Management, Inc., in Chicago, a 1992 grand jury found evidence of criminal conduct, including deliberate mislabeling of many barrels of hazardous waste. They also discovered deliberate disconnection of pollution-monitoring devices. More generally, corruption in the waste-disposal industry has been rampant in the United States ever since the 1940s, when the Mafia won control of the carting business through Local 813 of the International Brotherhood of Teamsters. In the mid-1990s, three Mafia families still dominated hazardous-waste disposal and illegal dumping: the Gambino, Lucchese, and Genovese/Tiere crime groups (see Szasz). Given the potential for human error and corruption, citizens are frequently skeptical regarding whether hazardous and toxic substances will be handled safely, with little threat to workers or to the public.
Because of scientific unknowns and uncertainties about human behavior and corruption, several moral philosophers have argued that potentially catastrophic situations—involving hazardous wastes and toxic substances—require ethically conservative behavior (Cranor; Shrader-Frechette, 1991; Ashford and Miller). Such situations often require one to choose a maximin decision rule to avoid situations with the greatest potential for harm, as John Rawls (1971) has argued. Ethical conservatism, in a situation of uncertainty, also may require society to place the burden of proof—regarding risk or harm—on the manufacturers, users, and disposers of hazardous substances, rather than on their potential victims. This, in turn, may mean that we will need to reform our laws governing so-called toxic torts (Cranor).
Given the longevity and the catastrophic potential of many toxic substances and hazardous wastes, we may need to reevaluate the human and environmental price we have paid for our economic progress. Although our society may not be able to avoid use of certain toxic substances and disposal of some hazardous waste, it is clear that we need to maximize the equity with which we distribute the risks associated with such threats. We also need to guarantee, so far as possible, that potential victims of toxins are informed about the risks they face and that they freely consent to avoidable risk impositions. Finally, we ought to ensure that those put at risk from toxic substances and hazardous wastes are compensated, so far as possible, for harm done to them. Because of numerous uncertainties about their effects, and because of the catastrophic potential and the longevity of many hazardous materials, our behavior regarding them ought to be ethically conservative.
kristin shrader-frechette (1995)
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