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On Knowing and Not Knowing
I had a number of cases over the course of my brief regulatory career that involved environmental atrocities. A metal finishing facility, for instance, that had once discharged its acidic waste stream directly into the river, and dumped its toxic metal sludge into unlined lagoons along the bank. Or the uranium milling operation that directed its radioactive tailings into two unlined ponds —each the size of an entire city block— where contaminants from the slurry seeped through thirsty desert sands and into the ground water that sustained the workers living in the houses down the road. Or even the dry cleaner in that cute New England town, where its home delivery service apparently also included a generous dose of solvents in your well.
In most of those cases, when I had inherited the files and reviewed the history of the site, I reserved a sliver of compassion, an acknowledgement that for many of these sites, the atrocities I was seeing were a result of the history — of regular people mishandling materials for which the long-term environmental consequences were not yet known. They were unintended outcomes, began as honest industrial mistakes, where the long-term damage may have been mostly unforeseen.
“There was a different standard of care back then,” I remember telling some of the people whose drinking water wells I sampled. They’d pause and think, and eventually convey their understanding by sharing some anecdote about how when they were kids, they used to get x-rays of their feet at the department store, to make sure their back-to-school shoes really fit. Or how they’d played with mercury from a broken thermometer in science class, rolling the liquid ball around in their palms. We’d shake our heads and sigh about all the things we used to do that are no longer considered safe, at all the things we didn’t know.
In environmental law, there has always been an element of forgiveness for these matters, an acknowledgment of the things previously legal and unknown. Compliance with new rules to address newly discovered hazards borne from old industrial practices is usually dosed over time, the regulated community enjoying the benefit of things “grandfathered,” of phased regulation, of clemency for past mistakes. But rule-making is still a slow, contentious process, and there is always a lot of fighting along the way.
Last week, finally, the EPA issued drinking water health advisories for PFOA and PFOS at 70 parts per trillion (ppt) — this number based upon peer-reviewed scientific studies of the compounds’ toxicologic properties. The decision was no doubt triggered by the discovery of PFOA in several public drinking water systems, perhaps most notably in the communities of Hoosick Falls, NY, Merrimack, NH, and North Bennington, VT.
Indeed, this is movement in a positive direction, but what’s upsetting to me is the timing of it all. Over 10 years ago, EPA settled its PFOA case against DuPont, assessing a record $10.25 million in penalties for violations of the Toxic Substances Control Act and Resource Conservation and Recovery Act. According to the EPA’s press release, “The violations resolved in this settlement consist of multiple failures to report information to EPA about substantial risk of injury to human health or the environment that DuPont obtained about PFOA from as early as 1981 and as recently as 2004.” In other words, they knew. They knew a lot for a long time, but pretended not to know.
And now we’re halfway through 2016. DuPont knew about the health hazards of exposure to PFOA since at least 1981, perhaps even earlier, and more than a decade has passed since the EPA’s administrative response to that crime. Meanwhile, companies like Saint-Gobain continued to manufacture Teflon products with PFOA, and the people of Hoosick Falls, of Merrimack, of North Bennington filled their baby bottles and bathtubs, water pitchers and coffee mugs with PFOA-tainted water. And nobody knew a thing.
Except that’s not exactly true, because the EPA knew something, and they should have known enough to look. Or at least required others to look.
Here’s the thing we all remember about environmental atrocities, about places like Love Canal: It wasn’t just that the drums were buried and covered up, and that the houses and school were built on top — the thing we remember most, the most damning detail of all was that the land was sold by Hooker Chemical to the Niagara Falls School Board for $1, with a liability limitation clause.
The crime was in the knowing. The crime was in the knowing and doing nothing. The crime was in the suppressing of the knowing as an excuse for doing nothing.
Photo credit: Times Union
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