PCBs, Justice, and Precaution

Remarks at the PCB Congress
Fairfield University, Fairfield, Connecticut
March 26, 2003
Peter Montague peter@rachel.org Tel. 732-828-9995

Summary:

The PCB disaster offers us many lessons. I will focus on 3:

PCB Lesson 1

PCB Lesson 2:

PCB Lesson 3:

INTRODUCTION

The introduction of polychlorinated biphenyls (PCBs) into commercial products, starting in 1929, was a major public health disaster. Seventy-two years later, in 2001, the European Environment Agency (EEA) wrote, "Behavioural problems and respiratory diseases affecting children, two of today's most important problems in paediatrics, could be due, in substantial part, to intoxication with PCBs. There is urgent need to find ways of reducing current body burdens of these chemicals in people. Of course, no equivalent action is possible for other species."[1, pg. 72]

Evidently, one of the lasting effect of PCBs will be ear infections, chronic bronchitis, reduced IQs and attention deficits in our children -- an awful price to pay for a chemical adventure by one unaccountable corporation -- Monsanto. Surely we can control dangerous technologies -- and dangerous corporations -- more thoughtfully in future.

It is important to extract lessons from the PCB disaster because the technologies our government is promoting today are much more powerful and far-reaching than anything humans have tried before. I'm referring to biotechnology and nanotechnology.

The convergence of biotechnology with nanotechnology is The Next Big Thing, according to the pundits who keep track of these things.[1a] If we're not extremely careful, this particular Next Big Thing will be a much bigger disaster than PCBs. Appendix C of this paper offers some current information about converging technologies for those who want to learn about this new direction that our government is promoting with our money.

The citizens of the U.S. -- especially the activist citizens of the kind represented here today -- have learned the PCB lessons well.

But the U.S. government seems not to have learned anything at all from the PCB disaster. Our government is still fully committed to a "growth at any cost" approach to technology deployment and regulation. The government this year is spending about $850 million of taxpayer funds to promote the convergence of biotechnology and nanotechnology. By the year 2015 -- just 12 years from now -- the National Science Foundation predicts, nanotechnology will be a trillion dollar industry. And there is not one single regulation in place to constrain or guide these onrushing developments in any way.

It is our job to try to get those PCB lessons across to our government -- to assert that a precautionary approach is the only sensible and sustainable path. If government refuses to change its behavior to protect public health, then it is our responsibility to "alter or abolish" it, as the U.S. Declaration of Independence says.

Let's begin by looking at a historical timeline of PCBs. The data are taken from a book by the European Environment Agency, called Late Lessons from Early Warnings.[l, pas. 64-75] In this timeline, page numbers inside parentheses refer to this book.

Historical Timeline of PCBs

1899: Chloracne identified in workers in chlorinated organics industry. Chloracne is a "painful, disfiguring skin disease."

1929: Mass production of PCBs for commercial use begins. There are 209 possible kinds of PCBs but in reality only l 35 kinds are found in commercial products and in living things. Over the next 60 years, 1.5 million metric tons (3.3 billion pounds) of PCBs are manufactured.(pg. 64) The whereabouts of at least half of these remains unknown.

1936: More workers affected by chloracne at a Halowax Corp. manufacturing plant. Three workers die and autopsy reveals liver damage. (In 2003, The U.S. regulatory system still has no systematic way of gathering information from workers and other populations who have intimate, first-hand knowledge of the effects of dangerous technologies. Indeed, the system does not even acknowledge the importance of gathering such "non-expert" knowledge.)

1937: Chloracne and liver damage observed in experiments with rats. "By the late l 930s Monsanto, the U.S. producer of PCBs was certainly aware of adverse health effects in workers exposed to PCBs."(pg. 64) At a meeting to discuss the meaning and importance of the rat studies, Sanford Brown, president of Halowax Corp., stresses "the necessity of not creating mob hysteria on the part of workmen in the plants."(pg. 64)

The European Environment Agency (EEA) comments in 2001, "The application of the precautionary principle at that time [1930s] would have prevented the toxic legacy that now exists."

1966: Looking for DDT, Swedish scientist Soren Jensen accidentally discovers unknown molecules in Sea Eagles in Sweden. The mystery chemicals were extremely persistent, being unaffected even when boiled in concentrated sulfuric acid. Jensen was able to identify these as PCBs in 1969, and he then published studies showing that a large proportion of the animal life in the Baltic Sea was contaminated with high levels of PCBs.

Monsanto issues public statement saying "The Swedish and American scientists... imply that polychlorinated biphenyls are 'highly toxic chemicals.' this is simply not true. The source of marine life residue identified as PCB is not yet known. It will take extensive research, on a worldwide basis, to confirm or deny the initial scientific conclusions." (pg. 65) [Here we see an early example of "paralysis by analysis" -- a favorite corporate tactic: "More study is needed before action can be taken" -- the very opposite of a precautionary approach.]

Simultaneously with its public denials, Monsanto's internal "Pollution abatement plan" is saying, "The problem involves the entire United States, Canada, and sections of Europe, especially the United Kingdom and Sweden... other areas of Europe, Asia, and Latin America will surely become involved. Evidence of contamination has been shown in some of the remote parts of the world."(pg. 65)

The Monsanto pollution abatement plan says that stopping the production of PCBs is not an option because "it would cause profits to cease and liability to soar because we would be admitting guilt by our actions."(pg. 65)

In 2001 the European Environment Agency (EEA) comments, "The findings of Soren Jensen... Offered a high degree of proof that PCBs did bioaccumulate and were present in the Baltic [Sea] food chain." (pg. 71 ) The use of the precautionary principle, even at this late stage, would have reduced the size of the problem we face today, the EEA says.

1968: The "Yusho" disaster. Widely-publicized poisoning of 1800 people who ingested PCB-tainted rice oil in Japan. The PCBs had leaked from a "closed system" -- a heating pipe in the rice oil factory. Affected people suffered severe headaches, "Coca-Cola-colored" fingernails, skin, and mucous membranes. Pain and swelling of the joints. Half the victims develop persistent cough and chronic bronchitis. Symptoms last 10 years.

1970s: PCBs found in 3 infertile species of seals in the Baltic Sea and their infertility is linked to PCBs. Nearly 80% of female seals were infertile.

1972: Sweden bans "open" uses of PCBs in sealants, paints and plastics.

1976: Published study reveals that Yusho children born of exposed parents have low IQs, and are apathetic and dull, showing little interest in their surroundings.

1976: U.S. Toxic Substances Control Act restricts PCBs to "totally enclosed" uses -- the kind of use that led to the Yusho disaster.

1979: The "Yucheng" disaster occurs -- 2000 people poisoned in Taiwan by polluted rice oil. Again, PCBs escaped from a "closed system." Follow-up research reveals that 25% of affected children died before age 4.

1979: U.S. PCB production ceases. PCB production continues until mid-1980s in some eastern European countries.

1980s: Evidence of PCB contamination of breast milk. Some national governments issue advisories suggesting that citizens limit fish consumption. Some governments suggest limiting breast feeding. Both recommendations are controversial because of the benefits of breast feeding and of eating fish.

1980s: First studies show PCBs associated with IQ and brain effects in children exposed in the womb by mothers' diets. Scientists learn for the first time that timing of exposure, as well as amount of exposure, is critical in creating effects in children. Thus a new paradigm of toxicology emerges.

1987: Organization for Cooperation and Development (OECD) recommends that its 30 member nations cease PCB production by 1989.

1990: Study reveals that children whose parents eat Lake Michigan fish display reduced activity. Eleven years later these children still have reduced IQs and are twice as likely to be two years behind their normal reading level.

1996: European Union issues directive to phase out all uses of PCBs by 2010

1997: PCBs are discovered contaminating the Arctic, "once considered a pristine environment," and thousands of miles from the nearest source of PCBs discharged to the environment.

1999: Chicken feed contaminated with PCBs is discovered in Belgium. Source seems to be illegal disposal of old "closed" electrical transformers.

2000: European Union adopts "precautionary principle" as the basis for all chemical regulation; U.S. mounts aggressive multi-year campaign to oppose precaution, often calling Europeans "Luddite" and "immoral" because they refuse to allow, for example, the import of hormone-treated beef and genetically-modified grains from the U.S. (See, for example, "U.S. Threatens to Act Against Europeans over Modified Foods," New York Times Jan. 10, 2003, pg. 4.)

2001: European Environment Agency says, "Behavioural problems and respiratory diseases affecting children, two of today's most important problems in paediatrics, could be due, in substantial part, to intoxication with PCBs. There is urgent need to find ways of reducing current body burdens of these chemicals in people. Of course, no equivalent action is possible for other species. "(pg. 72)

Three Important PCB Lessons

PCB Lesson 1

In the case of PCBs, the regulatory system did not "fail." On the contrary, the system worked just as it was designed to work -- and we are still using the same system today.

I call our regulatory system the "prove harm" system because it requires citizens to "prove harm" before restraint can be considered.

The "prove harm" regulatory system rests on three assumptions:

a) Assumption No. 1: humans can "manage" the environment by deciding how much of any material the Earth (or any portion of the Earth) can safely absorb without harm. Scientists call this the "assimilative capacity" approach. According to this approach, scientists can reliably determine how much of any material the Earth, or any portion of the Earth (such as the Rio Grande River, or bald eagles, or a human population), can assimilate or absorb without serious,harm.

b) Assumption No. 2: Once the Earth's "assimilative capacity" for a particular chemical (or other kind of damage) has been determined, then we can -- and will -- see to it that no greater amount of damage is permitted. We will set limits, river by river, factory by factory, chemical by chemical, everywhere on the planet, so that the total, cumulative releases to not exceed the "assimilative capacity" of the Earth (or any portion of the Earth).

c) Assumption No. 3: We already know which substances and activities are harmful and which are not; or, in the case of substances or activities that we never suspected are harmful, we will be warned of their possible dangers by traumatic but sub-lethal shocks that alert us to the danger before it is too late.[2]

Obviously the system really hinges on Assumption No. 1 -- that we can determine the 'assimilative capacity' of an ecosystem, or of a population of birds or polar bears or humans. For this purpose, a special technique has been developed called "risk assessment."

Risk assessment was invented in the 1970s by well-meaning civil servants who wanted government decisions to seem more scientific and less arbitrary. They were looking for ways to ground their decisions in a rational and reproducible process -- certainly a worthy goal.

In the case of chemicals, risk assessment evolved into a technique that has three basic parts: (a) estimate the inherent hazard of the chemical; (b) estimate how many people will be exposed and at what levels; and finally (c) estimate the numerical probability of various harms occurring among those exposed.[3] For example, a risk assessment tells the federal Centers for Disease Control (CDC) that 10 micrograms of the toxic metal lead in a tenth of a liter of a child's blood is safe.[4] And therefore 11 micrograms or more is unsafe. All seemingly very precise and rational and scientific. Unfortunately, it isn't that way at all, as we'll see.

Of course there's nothing wrong with trying to assess risks. We all do it every day. But there's an important difference between our own personal risk assessments and corporate/governmental risk assessments.

When we assess risk in our own lives,

• we examine risks that we ourselves are willing to take;
• we compare our options; and

• we weigh not only the risks we face but also the benefits.

For example, we might ask ourselves, "Can I just dash across this street in the middle of the block, or should I walk to the corner and cross with the light? Is saving a minute or two worth the risk of being hit by a truck?" We compare risks and benefits, we assess our alternatives, and we weigh the risks we ourselves are willing to take.

In contrast, corporate risk assessors almost always:

• assess the dangers of a single pre-determined option, and
• assess dangers that they intend to impose on others without their informed consent; and
• ignore the benefits (or lack of them) to those who will be enduring the dangers.

Basically, the main use of corporate/governmental risk assessment is to establish how much damage corporations can get away with and to label that damage "acceptable "[5]

Typical questions that corporate/governmental risk assessments answer would include, How much dioxin can aluminum smelters discharge into the Columbia River basin without thinning the Bald Eagle population to extinction? How many trout can families along Lake Michigan eat each month before their children's IQs are diminished 5 points? How much benzene can we maintain in the air of this factory without killing more than I in every 10,000 workers? Will this urban trash incinerator kill no more than one in each million citizens who breathe its fumes?

Risk assessment serves corporate purposes because it involves scads of scientific data, all of it subject to limitations and uncertainties that can be disputed forever without resolution. Where data are lacking or disputed, assumptions and judgments must be substituted for facts. The National Academy of Sciences put it politely when it said, "Risk assessment techniques are highly speculative, and almost all rely on multiple assumptions of fact -- some of which are entirely untestable."[6] In 1983 the National Academy identified at least 50 points during the course of a cancer risk assessment where choices had to be made on the basis of professional judgment, not science. [6a]

Corporate scientists-for-hire select and manipulate the data and choose particular assumptions (often silently), allowing them to reach almost any conclusion they set out to reach yet still package it as "science" even though the conclusion is based on guesswork and is not in any way reproducible. [7]

Risk assessment provides other major benefits as well. Because risks are expressed mathematically (the probability of x occurring during y years), troublesome questions of right and wrong cannot arise, and most of the public is left out of the process. Thus risk assessment gives corporate goals a patina of "sound science," prevents ethical considerations from muddying the debate, and keeps the affected citizens locked out of the discussion. What could be better?

Risk assessment now guides all environmental management, not merely the control of chemicals. Before cutting new roads into a national forest, the government completes a risk assessment to decide how much the roads will harm the bears. Ocean fisheries are managed by risk assessment to determine the "maximum sustainable yield" of fish. Risk assessment determines allowable drug residues in beef, allowable pesticide residues in food, allowable withdrawals of water from rivers and aquifers, allowable contamination of drinking water, limits on the discharge of particulates and toxic chemicals from coal-fired power plants, auto emission limits, livestock grazing allotments on arid lands, allowable harvests of endangered species, fishing and hunting quotas, workplace exposure limits, radiation limits in medical settings, cleanup standards for contaminated sites, and on and on.

Risk assessment is so fundamental to the "growth at any cost" culture that the technique is now taught at most large colleges and universities. There are several scholarly journals devoted to it. Many books have been written on the subject, including several by the National Academy of Sciences. The federal government sponsors research to elaborate and refine risk assessment techniques, and it trains risk assessors in places like Mexico and the Ukraine, intending to "harmonize" the response to corporate harms world-wide. Risk assessment research institutes at places like Harvard are generously funded by important corporate poisoners like Monsanto and Dow, and the work of these institutes is injected directly into federal "risk policy." Professional societies of risk assessors meet each year in resort locations to swap war stories and share their latest tricks. Assessing risks has become a major industry unto itself. It is no exaggeration to say that the modern industrial system with its culture of "growth at any cost" could not maintain its present course without risk assessors to run interference.

In the last decade, however, risk assessment has come under withering criticism from at least a dozen perspectives:

1) Because of genetic makeup, individuals differ markedly in their susceptibility to poisons. Some people are far more sensitive than others. For example, some people cough and wheeze when they walk down the detergent aisle at the grocery store; others don't. Furthermore, many people suffer from chronic conditions (asthma, diabetes, etc.), so risk assessments cannot reasonably assume, as they typically do, that only healthy young adults are exposed.

1a) Risk assessors try to account for human variability by applying a "safety factor" of 10 to their numerical estimate of risk. But such a number has nothing to do with science -- it is a guess. Why not a factor of 1 1 or 17 or 38 instead of 10? There is no scientific rationale for a "safety factor" of 10. Even calling it a "safety" factor is misleading because who can say it offers safety? It is a fudge factor, intended to paper over our ignorance and allow us to get on with the business of growth.

2) Risk assessments of chemicals are conducted on single chemicals, but in the real world we are all exposed to mixtures of chemicals day in and day out. Furthermore, many studies have now shown that harmless amounts of individual chemicals, in combination, can add up to a harmful dose.[8] The health effects of mixtures are far too complex for science to sort out, yet mixtures are what we encounter in our daily lives, so testing single chemicals is misleading and beside the point. Corporate scientists-for-hire like to pretend that, with sufficient testing, the problem of mixtures can be mastered. But when asked where the resources will come from to test all possible combinations of even 1000 chemicals, they grow silent. There are 41 billion possible combinations of 1000 chemicals taken in groups of 4. Even is we could test a million combinations a year, which we can't, it would take 41,000 years to complete the tests.

3) Some chemicals are only biologically active during a brief period of time (a "window of vulnerability") in the development of an organism, so toxicity must be tested during those exact times.[9] Chemicals tested during other times will appear to be less potent or even inert.

4) In the case of some hormone-disrupting chemicals, low doses can cause greater effects than high doses. More than 100 studies have now confirmed that this phenomenon is real.[10] This seems to happen because the hormone system is active at low doses but becomes overwhelmed and stops responding at higher doses. Traditionally, chemicals have been tested at the highest doses that laboratory animals could tolerate, but now we know that high-dose tests may miss important toxic effects that only occur at low doses. Many of the high-dose tests that have been completed to date (and upon which federal regulations are based) are worthless from a public health perspective and need to be re-done at much lower doses.

5) We now know that cells respond differently to chemicals, depending on their prior history of exposure.[11] In addition, whole organisms (mice, humans) exhibit similar behavior: response to a chemical is strongly conditioned by prior exposure. For example, a person who smokes a cigarette for the first time reacts with lightheadedness and perhaps nausea but a habituated smoker develops a craving for cigarette smoke and feels sick without it. Furthermore, after a smoker quits smoking. he or she will be "sensitized" to second-hand smoke, reacting to it much more powerfully than a person who has never smoked. Thus individual history of exposure to a chemical can dramatically affect response. This important phenomenon is not taken into account in the toxicity tests that underlie chemical risk assessments.

6) It has now been established that cells respond differently to pulsed exposures to some chemicals, compared to continuous exposures. Thus a pattern of repeated exposures interrupted by regular intervals of non-exposure elicits a different response compared to cells continuously exposed. "For example, when animals respond to gonadotropin-releasing hormone, the pulse frequency of stimulation is more important than the average level of the hormone."[12]

7) Medical understanding of the role of inflammation in disease is now changing substantially. Inflammation is a sign that the immune system has been incited, and animals (or humans) with inflammation react differently to chemical exposures than animals without inflammation.[l3]

8) We now know that many dose-response relationships are not linear. Indeed, the shape of dose- response curves is the subject of an extensive body of contentious literature, yet risk assessors continue to rely most often on the simplifying assumption of linearity. This simplifying assumption makes many risk assessments possible but it also makes them wrong.

9) Thousands of potentially important biochemical reactions are ignored during risk assessments. Current federal protocols for examining the tissues of experimental animals were developed before the advent of biochemistry and molecular biology. After animals are dosed and then killed for tissue analysis, their organs are examined visually for gross damage, but microscopic examination of the organs is not typically required -- much less the sophisticated analyses made possible by modern biochemistry and molecular biology. Animal testing is decades behind current biology, and will likely remain so for economic reasons. Thorough examination of dosed animals would be far more expensive than the simple examinations that are standard today (and which already cost in the range of $20,000 to $100,000 per test).

Even when animal tissues are examined under a microscope, not all tissues types are examined. All organs are composed of various types of cells, and each type would need to be examined to claim that a thorough investigation had been conducted, but this is not done.

Thus thousands of distinct biochemical mechanisms are not examined, because no one requires them to be (to keep costs down). Cognition, behavior, fertility, disease resistance, male reproduction, chronic neurotoxicity, immune alteration and hormone function (critical to hundreds of biochemical systems) are all ignored in typical risk assessments.[l4]

In sum, thousands of potential injuries are missed by typical gross visual (and occasional microscopic) examinations in animal toxicity tests.

10) Important routes of exposure are typically ignored -- such as inhalation and absorption through the skin.

11) The vulnerable period of development is not tested. With rare exceptions, the period of greatest vulnerability (corresponding to the human period of life from conception through age 18) are not tested in laboratory animals. Adult animals are tested. In addition, effects on second and third generations are not typically looked for.

12) The commercial forms of chemicals tested in the laboratory may bear little resemblance to chemicals of the same name found in environmental food chains. Depending on source of exposure, pathway through the food chain, and weathering effects, chemicals measured in humans or other animals can have distinctly different characteristics from "pure" commercial forms of chemicals, meaning that many risk assessments are conducted on chemical species that are not relevant to the real world.[15; l, pg. 67]

13) There is little or no exposure and disease monitoring, so risk assessments are never examined retrospectively to check their accuracy and learn from past mistakes. Old mistakes are repeated time and again.

It must be obvious that these shortcomings of risk assessment cannot be remedied because there simply aren't enough laboratories and enough money to take into account all the sources of variability listed above.

14) In truth, the most fundamental problems of a "risk-based" approach lie even deeper than I have so far described. Some cause and effect relationships between industrial contamination and disease will most likely never be established because causes and outcomes are multiple, latency periods are long, timing of exposure is sometimes critical, unexposed "control" populations do not exist, and complicating factors remain unidentified. In many instances, combinations of these factors are at work simultaneously.

Science works by simplifying reality into manageable chunks that can be manipulated under controlled conditions. Under such circumstances, science can sometimes clarify cause and effect relationships between one chemical and one disease, but in the real world, cumulative impacts of contamination from multiple sources muddle the picture in ways that are often unknowable. In many instances, no amount of time, money, expertise, epidemiological investigation, or laboratory work can resolve this fundamental conundrum. Because of these realities, we are often faced with strong suspicion of harm combined with irreducible scientific uncertainty and ignorance. Under these circumstances, reliance on the "prove harm" system can only lead to the steady erosion of human health and the biosphere, upon which our entire economic enterprise depends.

So the "prove harm" (or "assimilative capacity") system of environmental protection, based on risk assessment of single options, stands discredited, bereft of scientific integrity or validity. The system is intellectually bankrupt and has always been so. The system was designed to fail and its design goal has been met.

Another Way: Precautionary Action

Happily, there is another way. To the disgust and dismay of U.S. corporations and their acolytes in government, the European Union (E.U.) in the year 2000 adopted a completely different approach to environmental protection, based on the "precautionary principle."[l6] The E.U. and its member nations are presently working out the details of coherent chemicals policies based on precaution. If they succeed, it will undermine the "growth at any cost" culture. For this reason, the U.S. has mounted a major campaign to block the European effort, using propaganda, name-calling, trade sanctions, lawsuits, and open threats of commercial, financial and political retribution.[l7] In fact, in the past decade in almost every venue where the precautionary principles has been raised in international discussions, the U.S. has been there to try to beat it back.

The "precautionary principle" evolved in the 1 970s from a concept that was developed to guide environmental planning in Germany, "Vorsorgeprinzip," which translates best as "forecaring" but which also carries the connotation of foresight and preparation for the future, not merely precaution. In recent years this new idea has made its way into several international covenants and treaties.[l8, pg. 356]

For example, the precautionary principle appears in Principle 15 of the 1992 Rio Declaration on Environment and Development, as follows: "Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." "Cost-effective" means "least expensive."

"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.

"In this context the proponent of an activity, rather than the public, should bear the burden of proof.

"The process of applying the Precautionary Principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action."[l8, pg. 353]

The Essence of Precaution:

In all formulations of the precautionary principle, we find three elements:

1) When we have a reasonable suspicion of harm, and 2) scientific uncertainty about cause and effect, then 3) we have a duty to take action to prevent harm.

1. Consider all reasonable alternatives and adopt the least-damaging;
2. Place the burden of proof of acceptable harm onto the person whose activities raised the suspicion -of harm in the first place;
3. In making decisions, fully involve the people who will be affected.

In sum, the precautionary principle says we should all take responsibility for our own actions. This simple prescription is anathema to the spirit and practice of the modern transnational corporation, the goal of which is, above all else, to return a profit to investors by any legal means necessary, which more often than not entails "externalizing" as many costs as possible.

Other ways of stating the precautionary principle are more familiar: a stitch in time saves nine; look before you leap; an ounce of prevention is worth a pound of cure; do unto others as you would have others do unto you; better safe than sorry. Thus the precautionary principle has immediate appeal to most people because they can understand it, and it makes sense to them.

The key difference between the "prove harm" system and the "precautionary" system is the way each responds to scientific uncertainty. Under the "prove harm" system, scientific uncertainty creates a green light -- full speed ahead until someone can line up the dead bodies. Victims must prove harm before decision-makers can act.

Under a precautionary approach, scientific uncertainty flashes a yellow light or a red light -- urging us to take preventive action, assess all available alternatives, shift the burden of proof of safety onto the proponents of a dubious activity, and move ahead slowly (if at all) until we have a better idea of what we're doing. Thus this new approach harnesses scientific uncertainty to protect the environment and human health.

Shifting the burden of proof requires the purveyors of exotic chemicals (or other novel technologies) to provide evidence that their activities will not interfere with living things; it puts the burden of proof on them to produce information, not on government or the public. Legal scholar Margaret Berger has proposed that we create a new toxic tort that would condition culpability on the failure to develop and disseminate significant data. Berger says, "In order to minimize risk in the face of uncertain knowledge, the law ought to concentrate on developing the required standard of care regarding a corporation's duty to keep itself reasonably informed about the risks of its products. If a corporation fails to exercise the appropriate level of due care, it should be held liable to those put at risk by its action."[19]

Science gets at the truth through an open process of criticism and revision; precautionary decision- making works by a similar open process, respecting the fundamental democratic principle that citizens should have a real say, at least some of the time, in the decisions that affect their lives.[20]

As the European Union works out the details of its new approach to chemicals policy, we can all keep abreast of their work at http://www.chemicalspolicy.com, a web site maintained by the Lowell Center for Sustainable Production at University of Massachusetts at Lowell, and at http.//europa.eu.int/comm/environment/endocrine/index_en.htm, a web site on hormone-disrupting chemicals and precautionary action, maintained by the European Commission.

II. PCB Lesson 2:

The perpetrators have never been brought to justice and very likely never will be. They can only be tried in the court of public opinion. Dangerous, polluting technologies violate our basic human rights and must be controlled by the principles of precautionary action. Environmental justice requires precautionary action.

In this instance, the "polluter pays principle" has proven impossible to enforce. The "toxic tort" legal system was intended to compensate victims, and to deter dangerous and careless behavior, but corporations have largely neutralized the system. (And now of course they are lobbying hard, with bipartisan support in Congress, and help from President Bush, to weaken the system even further.)

The only public trial the perpetrators of these crimes will ever get is in the court of public opinion. The members of the PCB Congress thus provide an essential service to society. Public involvement, to reveal problems, identify those responsible, and keep them in the public eye, is essential to the maintenance of public health and safety. Your work is critically important because government today -- captive to corporations, as it is -- cannot identify and remedy these problems without an active and alert citizenry willing to roll up their sleeves, pitch in, and apply pressure.

You will be told you are troublemakers -- or worse -- meddling in business that should properly be left to the experts. But it was the "experts" who created these problems in the first place. The "experts" cannot be trusted, on their own, to make good, common-sense decisions to protect public health and safety. Particularly because new technologies are becoming more and more powerful and far-reaching, public scrutiny of, and participation in, technological decisions is essential to avoid future disasters.

Your work in fighting for justice is extremely important -- so important in fact that the United Nations Commission on Human Rights (UNCHR) has now established that a clean environment is a basic human right.

In 2001 the UNCHR formally concluded that everyone has a right to live in a world free from toxic pollution and environmental degradation. (See Appendix A and Appendix B.)

Mr. Klaus Toepfer, Executive Director of the United Nations Environment Program, welcomed the historic move saying: "Many of the fundamental rights enshrined in the Universal Declaration of Human Rights have significant environmental dimensions". (The Universal Declaration of Human Rights, which the United States signed in 1948, is attached as Appendix B.)

"Environmental conditions clearly help to determine the extent to which people enjoy their basic rights to life, health, adequate food and housing, and traditional livelihood and culture. It is time to recognize that those who pollute or destroy the natural environment are not just committing a crime against nature, but are violating human rights as well", he said.

"Human rights cannot be secured in a degraded or polluted environment", said Mr. Toepfer. "The fundamental right to life is threatened by soil degradation and deforestation and by exposures to toxic chemicals, hazardous wastes and contaminated drinking water."

There is another human rights aspect to the kinds of pollution exemplified by PCBs.

For the past 75 years, the general population -- and especially minorities, low-income populations, and children -- have been subjected to chemical exposures without their informed consent. These populations have later been studied to discover the effects of the chemical exposures, revealing that these exposures have resulted in increased risk of cancer in children and adults, central nervous system disorders, immune dysfunction, birth defects, attention deficits, overly-aggressive behavior, and other serious medical and social problems.[21]

Given what we know now about many toxic chemicals, continued exposure of citizens constitutes a medical experiment on unsuspecting, or unwilling, subjects. Such experimentation is explicitly prohibited by the United Nations Covenant on Civil and Political Rights (http://www.unhchr.ch/html/menu31b/a_ccpr.htm). The underlying right is very clear: We all have the right to give (or withhold) our informed consent before allowing ourselves to be subjected to a toxic exposure.

Informed consent requires two things: (a) the best available information about the nature of the hazard (including what is known, what is suspected, what is not known, and acknowledgement of what may never be known), and (b) a way for citizens to control the decisions that can protect their lives, their property, and their safety.

Rights Entail Responsibilities

We are all responsible for the consequences of our own actions.

This means looking before we leap.

It means an ounce of prevention is worth a pound of cure.

It means it's better to be safe than sorry.

It means we should do unto others as we would have others do unto us, which means we should not impose risks on others that we would not impose on ourselves.

It means that people (including individuals making corporate decisions) who impose hazards on others that they would not impose on themselves are not taking responsibility for their actions and are therefore forfeiting their moral right to participate in the relevant decisions.

It means that those who will live with the consequences of a dangerous activity have the right to choose whether they will participate in the activity or not. They can give or withhold their informed consent. This is only fair.

In sum, we all have a responsibility to take preventive action to avoid harm whenever there is reasonable suspicion of a problem, even if all cause-and-effect relationships have not been scientifically established.

Twelve Kinds of Precautionary Action We Can Take

a) We can set human health and environmental goals

The community has the right to establish the level of protection that it desires.[22, pg. 3]

Possible examples:

• For example, we could set community health goals for 10 years in the future, taking into consideration cumulative impacts. (For example, the people of Sweden have set a goal of eliminating industrial chemicals from breast milk before 2020. They did not set such a goal because they know with l 00% certainty that industrial chemicals harm infant children -- they acted on suspicion of harm and they acted because they want to create a particular future. Science informed their decision, but common sense and community goals were at least as important as science in the decision.)
• For example, we could set the goal of eliminating disproportionate impacts on minorities and the poor, taking into consideration cumulative impacts.
• For example, we could set the goal of reducing children's exposure to arsenic within 5 years. (Arsenic is often found in wooden playground equipment and is known to cause cancer

(Naturally, the goals and deadlines I've listed above are merely examples. Communities and their public servants in government could develop their own goals in partnership.)

b) With goals in mind, we can design the steps to get there

Starting with a goal, work backward to steps that could be taken now, and next week, next month, next year, to achieve the goal.

In developing "next steps," involve the public fully in setting goals, examine all available alternatives, and put the burden of proof of safety on the polluters.

c) We can look for, and act upon, early warnings of trouble.

Examples:

(1) Increases in asthma, diabetes, obesity, attention deficit disorder, or poor school performance, for example, signal that something is amiss.

(2) Pay close attention to inequalities. Economic inequalities give rise to disproportionate impacts of deprivation and very negative public health consequences can be expected to follow -- disproportionate increases in heart disease, cancer, diabetes, nervous system disorders, etc. Therefore, tracking inequalities will reveal important public health problems and will indicate preventive actions we could take. [There is a substantial body of scientific and medical literature supporting the point that inequalities give rise to disease.[23]

(3) When early warnings come to light, take the time to examine the history that led to the present problem. Ask, How could we have identified and intervened in this problem earlier, to prevent harm sooner? Ask, are similar situations developing right now? For example, when we find a toxic dump, or a toxic air emission, we could immediately ask if similar toxic discharges are occurring elsewhere now and take steps to curb them.

d) We can examine all reasonable alternatives and select the least-damaging (or explain in detail why the least-damaging was rejected)

e) We can ask, "How will this choice affect the most vulnerable among us?"

i) We can ask, "Will this choice increase or decrease inequalities (of many kinds)?"

g) We can ask, "Will this choice increase or decrease cumulative impacts on the affected communities?"

h) We can ask, "Will this decision violate basic human rights?" See Appendix A and Appendix B.

i) In any evaluation of costs and benefits, we can make sure that the protection of health takes precedence over economic considerations. The Commission of the European Communities, expresses the point this way: "Examining costs and benefits entails comparing the overall cost to the Community of action and lack of action, in both the short and long term. This is not simply an economic cost-benefit analysis: its scope is much broader, and includes non-economic considerations, such as the efficacy of possible options and their acceptability to the public. In the conduct of such an examination, account should be taken of the general principle and the case law of the Court that the protection of health takes precedence over economic considerations." [22, pg. 5]

j) We can take direction from the affected people as we search for solutions. We can acknowledge that affected people are the experts in finding solutions for their communities" problems, and governments can devise practical and effective methods for learning from these experts. (Techniques for improving community participation have been described at http://www.rachel.org/library/admin/uploadedFiles/showFile.cfm? filename=Democracy_and_the_Precautionary_Principle_Draf.doc .)

k) We can place the burden of proof on the owner/advocate of whatever it was that initially raised suspicion of harm. He or she has the responsibility to produce thorough information to show that the initial suspicions are not justified, or that mitigating steps can and will be taken to eliminate the suspected harms.

l) We can monitor results and revisit decisions every few years. How are we doing? Have things changed so that we could now do better by making different choices?

III. PCB lesson No. 3:

The very last page attached to this handout is the Platform statement of the BE SAFE campaign. If you agree with the Platform, you can endorse it at www.besafenet.com. One aim of the BE SAFE is to gather a million endorsements for the precautionary Platform, and then inject precaution into the 2004 election debates. I urge you all to take a look and consider working with CHEJ on this campaign.

Thank you for your work, your committment, and your wisdom. The world needs you. Please keep doing what you are doing.

NOTES AND REFERENCES

[1] Poul Harremoes and others, Late lessons from early warnings: the precautionary principle 1896- 2000 [Environmental Issue Report No. 22] (Copenhagen, Denmark: European Environment Agency, 2001). This report is available free at http://reports.eea.eu.int/environmental_issue_report_ 2001 _22/en .

[1 a] Mihail C. Roco and William Sims Bainbridge, editors, Converging Technologies for Improving Human Performance; Nanotechnology, Biotechnology, Information Technology and Cognitive Science (Arlington, Va.: World Technology Evaluation Center, 2002). Available free at http://www.wtec.org/ConvergingTechnologies/ .

[2] Theodore Taylor and Charles Humpstone, Restoration of the Earth New York: Harper and Row, 1973).

[3] National Research Council, Risk Assessment in the Federal Government: Managing the Process (Washington, D.C.: National Academy Press, 1983). The Council laid out a four-step process: (a) assess the toxic potency of a chemical; (2) ascertain the dose-response relationship -- as the dose rises, how rapidly do the harms increase? (3) Assess exposure; (4) determine the risk. Often, in practice, simple assumptions are substituted for step 2 and risk assessment becomes a 3-step process.

[4] National Research Council, Measuring Lead Exposure in Infants, Children and Other Sensitive Populations (Washington, D.C.: National Academy Press, 1993).

[5] Mary O'Brien, Making Better Environmental Decisions; An Alternative to Risk Assessment (Cambridge, Mass.: MIT Press, 2000; ISBN 0-262-65053-3).

[6] Quoted in Anthony B. Miller and others, Environmental Epidemiology, Volume 1: Public Health and Hazardous Wastes (Washington, DC: National Academy of Sciences, 1991), pg. 45.

[6a] United States General Accounting Office, Chemical Risk Assessment; Selected Federal Agencies' Procedures, Assumptions, and Policies [GAO-01-810] (Washington, D.C.: United States General Accounting Of rice, August, 2001), pg. 31.

[7] A major study of risk assessment was conducted by 11 European governments during the period 1988- 1990, and published by the Commission of the European Communities under the title Benchtnark Exercise in Major Hazard Analysis in 1991. The 11 governments (Netherlands; Greece; Great Britain; Denmark; Italy; Germany; France; Belgium; Spain; Finland; and Luxembourg) established teams of their best scientists and engineers and set them to work on a single problem: analyzing the accident hazards of a small ammonia storage plant. Private companies like Rohm & Haas, Solvay, Battelle, and Fiat contributed experts as well. The results were stunning: the 11 teams varied in their assessment of the hazards by a factor of 25,000. Analyzing the hazards of a single, small plant handling only one chemical, these world-class "risk experts" reached wildly different conclusions. For example, the individual risk at the "refrigerated storage site" was calculated by one group of experts to be one-in-400, but by another group of experts to be one-in- 10-million. (Figure 3.5, pg. 58 of the Benchmark study.) See Commission of the European Communities, Benchmark Exercise on Major Hazard Analysis. 3 Volumes. (Luxembourg, Luxembourg: Commission of the European Communities, 1991). To get the 3-volume Benchmark study, send a fax to Mr. Caudio Carnivali in Ispra, Italy at telephone 011-39-332-789007; the price is $300.00 U.S. dollars.

[8] David O. Carpenter and others, "Understanding the Human Health Effects of Chemical Mixtures," Environmental Health Perspectives Vol. 110 Supplement I (February, 2002) pas. 25-42.

[9] For example, see Beverly S. Rubin and others, "Perinatal Exposure to Low Doses of Bisphenol A Affects Body Weight, Patterns of Estrous Cyclicity, and Plasma LH Levels," Environmental Health Perspectives Vol. 109, No. 7 (July 2001), pas. 675-680. See also K.S. Landreth, "Critical windows in development of the rodent immune system," Human and Experimental Toxicology Vol. 21, Nos. 9-10 (Sep-Oct, 2002), pgs.493-498; and M.C. Garofolo and others, "Developmental toxicity of terbutaline: Critical periods for sex-selective effects on macromolecules and DNA synthesis in rat brain, heart, and liver," Brain Research Bulletin Vol. 59, No. 4 (Jan. 15, 2003), pas. 319-329; and T.A. Lindsley and L.J. Rising, "Morphologic and neurotoxic effects of ethanol vary with timing of exposure in vitro," Alcohol Vol. 28, No. 3 (Nov., 2002), pas. 197-203; M.R. van den Heuvel and R.J. Ellis, "Timing of exposure to a pulp and paper effluent influences the manifestation of reproductive effects in rainbow trout," Environmental Toxicology and Chemistry Vol. 21, No. 11 (Nov., 2002), pas. 2338-2347.

[10] See Erik Baatrup and Mette Junge, "Antiandrogenic Pesticides Disrupt Sexual Characteristics in the Adult Male Guppy (Poecilia reticulate)," Environmental Health Perspectives Volume 109, Number 10 (October 2001), pas. 1063-1070.

[11] Nicholas T. Ingolia and Andrew W. Murray, "History Matters," Science Vol. 297 (Aug. 9, 2002), pas. 948-949, discussing Upinder S. Bhalla and others, "MAP Kinase Phosphatase As a Locus of Flexibility in a Mitogen-Activated Protein Kinase Signaling Network," Science Vol. 297 (Aug. 9, 2002), pas. 1018-1023.

[12] On pulsed exposures, see, for example, M.S. Berrill, and others, "Comparative sensitivity of amphibian tadpoles to single and pulsed exposures of the forest-use insecticide fenitrothion," Environmental Toxicology and Chemistry, Vol. 14, No. 6 (1995), pas. 1011-1018; and R.B. Naddy and others, "Response of DapUnia magna to pulsed exposures of chlorpyrifos," Environmental Toxicology and Chemistry Vol. 19 (2000), pas. 423-431.

[13] See, for example, P.E. Ganey and R.A. Roth, "Concurrent inflammation as a determinant of susceptibility to toxicity from xenobiotic agents," Toxicology Vol. 169, No. 3 (Dee 28, 2001), pas. 195-208.

[14] U.S. Environmental Protection Agency, Health Effects Test Guidelines; OPPTS 870.4100 Chronic Toxicity [EPA 712-C-98-210] (Washington, D.C.: U.S. Environmental Protection Agency, 1998.)

[15] See, for example, S.L. Schantz and others, "Effects of PCB Exposure on Neuropsychological Function in Children," Environmental Health Perspectives Vol. 111, No. 3 (March 2003), pas. 357- 376. And see [1, pg. 67].

[16] Commission of the European Communities, Communication from the Commission on the Precautionary Principle (Brussels, Commission of the European Community, Feb. 2, 2000). Available at: http://europa.eu.int/comm/dgs/health_consumer/library/pub/pubO7 _en.pdf.

[17] As he is preparing lawsuits and seeking trade sanctions against the Europe Union for refusing to embrace genetically altered foods, U.S. Trade Representative Robert Zoellick engages in childish name-calling ("Luddite" and "immoral" seem to be his favorites). See, for example, "U.S. Threatens to Act Against Europeans over Modified Foods," New York Times Jan. 10, 2003.

[18] Carolyn Raffensperger and Joel Tickner, editors, Protecting Public Health and the Environment; Implementing the Precautionary Principle (Washington, D.C.: Island Press, 1999; ISBN 1-55963-688-2).

[19] Margaret Berger, "Eliminating General Causation: Notes Towards a New Theory of Justice and Toxic Torts," Columbia Law Review Vol. 97 (1997), pg. 2117 and following pages.

[20] See, for example, http://www.rachel.org/library/admin/uploadedFiles/showFile.cfm? filename=Democracy_and the_Precautionary_Principle Draf.doc.

[21] Michael McCally, editor, Life Support: The Environment and Human Health (Cambridge, Mass.: MIT Press, 1002; ISBN 0262632578).

[22] Commission of the European Communities, Communication from the Commission on the Precautionary Principle (Brussels, Commission of the European Community, Feb. 2, 2000). Available at: http://europa.eu.int/comm/dgs/health_consumer/library/pub/pubO7 _en.pdf .

[23] See, for example, Richard G. Wilkinson, Unhealthy Societies; the Afflictions of Inequality (New York: Routledge, 1996; ISBN 0-415-09235-3).]