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.
East Lansing, MI
asagady at sojourn.com
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 at law.widener.edu.
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
--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.
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.