Yes, West Virginia, there is a Grinch

Freedom IndustriesAs thousands of West Virginia residents get first hand experience in what it’s like to live in a region without potable water, House Speaker John Boehner’s knee jerk reaction is, “We have enough regulations.” [HuffPo]

The extension of his remarks is instructive:

“The issue is this: We have enough regulations on the books. And what the administration ought to be doing is actually doing their jobs,” Boehner said at a press conference. “Why wasn’t this plant inspected since 1991?”

“I am entirely confident that there are ample regulations already on the books to protect the health and safety of the American people,” he added. “Somebody ought to be held accountable here. What we try to do is look at those regulations that we think are cumbersome, are over the top, and that are costing the economy jobs. That’s where our focus continues to be.”  [HuffPo]

There are three questionable assertions included in the Speaker’s remarks.  First, do we have a sufficiently robust regulatory regime in place to help prevent future chemical spills of the type created by Freedom Industries?  Secondly, if the Freedom Industries facility was not inspected was this a function of (a) inadequate implementation of existing regulations; or, (b) because the plant was not deemed to be included in those facilities which should be inspected?  Third, by what standards are regulations considered to be “cumbersome, over the top, job killers?”

Question One

First, do we have a sufficiently robust regulatory regime in place to help prevent future chemical spills of the type created by Freedom Industries?

The Environmental Protection Agency, often a target for conservatives some of whom have advocated for its abolition, publishes a brochure outlining its inspection authority (pdf).  Under the terms of the TSCA (Toxic Substance Control Act) the EPA  may “Enter and inspect any premises at which chemicals are manufactured, processed, stored or held, and enter and inspect any means used to transport chemicals, to inspect records, files, processes or controls to determine compliance with TSCA. 15 U.S.C.A.§2610(a)–(b)

The phrase “manufactured, processed, stored, or held” appears to indicate that the facility in West Virginia operated by Freedom Industries would fall in the category of those which should be regularly inspected by the EPA for compliance.   However, where there are laws there are often loopholes and the West Virginia incident appears to have been such a case:

“I think the loophole, if you will, that this facility fell into is because it was not a hazardous material, it flew under the radar,” said Secretary Randy Huffman, head of the state Department of Environmental Protection. This isn’t the only potential loophole.  The DEP never inspected the facility because the company didn’t produce any chemicals or have any legal emissions.”  [PPG]

What we may have in this instance is a chemical which was perfectly capable of contaminating drinking water, and of creating health and safety hazards, but which did not fall under the provisions of the TSCA?  And, further if we require inspections only if there is manufacturing going on, or if there are emissions which pose an issue of air or water quality standards, then the regulations didn’t extend far enough to require the inspection of a ‘storage’ facility such as the one run by Freedom Industries.  Senator Joe Manchin (D-WVA) offers his proposal:

“… West Virginia Sen. Joe Manchin (D) said he has a plan to make his colleagues pay attention: a renewed push for legislation that would require more disclosure and testing for chemicals. The current federal law, known as the Toxic Substances Control Act, or TSCA, has been in place since 1976 and requires very little public disclosure about the safety of chemicals. As a result, there are tens of thousands of chemicals like the one at the heart of the West Virginia disaster that are in use, even though there is scant data available about their hazards.”  [HuffPo]

The West Virginia Senator’s proposal encompasses two questions.  Are the provisions of the TSCA sufficiently broad to embrace the control of chemicals which while not lethally toxic are known to be hazardous?  And secondly, should more facilities (manufacturing, storage, and transport) be subject to inspection?

If Senator Manchin is referring to S. 1009, then his support could give new impetus to the efforts toward improving public information about, and regulatory inspection of, those plants which handle hazardous chemicals.

Question Two

Secondly, if the Freedom Industries facility was not inspected was this a function of (a) inadequate implementation of existing regulations; or, (b) because the plant was not deemed to be included in those facilities which should be inspected?

If the chemical involved in the West Virginia drinking water contamination did not appear on the current list of toxic substances, then regulation and enforcement would be a haphazard thing.   The plant may not have been inspected since 1991 because existing regulations permitted it to slip into a loophole in which while the chemical was hazardous it was not necessarily lethal or was not included in a listing of dangerous substances.   In short, the “existing regulations” were inadequate.

Question Three

Third, by what standards are regulations considered to be “cumbersome, over the top, job killers?”

The phrasing isn’t a specific objection to S. 1009, but a shorthand expression for Republican opposition to any restrictions of corporate operations.  The phrase has been applied to statutes requiring compliance with corporate accounting standards, compelling inspections of food manufacturing and processing, and laws demanding that banks treat their customers fairly and honestly.   In short, Republicans have been advocates of de-regulation across the board.

Thus, any proposal from any quarter which might impinge — even ever so slightly — on corporate management is declared “cumbersome,” or “burdensome,” or a “job killer.”  No particular form or quantity of substantiation is required to support the assertion.

A Fourth Question

Is the enactment of S. 1009 an improvement on the situation?  Ironically, one of the panelists called to testify before the Senate Committee on the Environment and Public Works concerning this bill last July 31, 2013* was the chief of the West Virginia emergency response division of their Department of Environmental Protections.

H. Michael Dorsey’s testimony (pdf) made two major points which deserve more consideration.  His first comments highlighted the fact that the TSCA was outdated and in great need of upgrading and updating.  He also commented that there were states which had inserted language into their environmental protection laws directing that the state law may be no more stringent than the federal statutes.  However,  Mr. Dorsey’s testimony also caught the other side of this issue, as noted by Daniel Rosenberg’s testimony on behalf of the NDRC. (pdf)

Rosenberg put a spotlight on one of the crucial weaknesses of S. 1009, the usurpation of state efforts to protect citizens from toxic and hazardous chemicals, the usurpation of the capacity of the states to control environmental hazards:

“The CSIA imposes limits on the ability of States to protect their citizens limits that are in critical ways worse than current law. S. 1009 blocks states from taking new action on a chemical as soon as the Environmental Protection Agency (EPA) has listed the substance as a “high priority” and scheduled an assessment. This is especially damaging because years could elapse between the time EPA schedules an assessment and the time it conducts the assessment and decides whether to regulate.”

“Numerous chemicals deemed “high priority” by EPA could be languishing on the schedule, which as noted above, would be unenforceable. The waiver provision of the bill is too narrow and onerous to mitigate the fundamental flaws in the preemption section of the bill. The bill also would preempt existing state laws on high priority chemicals, once EPA has adopted a
restriction on the substance, even if the State provision may be broader in scope and more protective of the public but not directly in conflict with the federal provision.”

Dorsey’s testimony referred to states which lack laboratory, staff and other necessities required to property test, analyze, and evaluate potentially hazardous chemicals, indicating that it would be preferable to have the Feds do it.   Rosenberg’s testimony highlights what happens when the task is transferred to the federal level leaving states in limbo as the tests and reports are completed, and contends that the result may very well be that the federal activities could result in standards less stringent than those of the states.  In other words, the bill might propel environment standards in reverse.

What Do We Want?

The obvious answer is that we want safe drinking water, and breathable air.  We’d prefer not to have contaminants in our coffee cups, washing machines, dish washers, and sinks.   This requires some differentiation, and we enter into the sticky realm of cost-benefit analysis: Are we getting the results we desire in one category at a price we are willing to pay in another?

Even within this framework there are further differentiations to make.  For example, we know that lead and mercury are toxic substances, potentially lethal, always harmful.  Are we willing to absorb the production costs of paint which does not contain lead? And, who’s “we?”  Should the manufacturers of a product absorb the costs of keeping their merchandise free of contaminants in order to keep their prices “competitive?” Or, should the consumers be required to select products free of contaminants in which the costs are passed along to them?

The essential problem with the cost-benefit format is that no matter how artfully presented in mathematical terms, both “cost” and “benefit” are subjective words.   “Cost” is informed by marketplace selections, projected revenues, and estimated expenses.  What is, or is not, acceptable is related to corporate policies which may have little to do with environmental benefits — stock prices, bond yields, compensation for management and workers.  We can objectively identify if a corporation is profitable; we cannot unilaterally announce that a corporation is profitable enough; that’s a subjective judgment.

“Benefits” may be informed by such concepts as standards for emissions or contaminants,  measurements along a scale from dangerous to safe.  Do we accrue benefits when the emissions are reduced to zero?  Or, is 50 ppb sufficient to insure safety?  How do we measure those benefits?  Do we measure only the emission or contaminants and evaluate them based on scientific  standards?  Or, do we create measurements predicated on human health reports? Fewer reports of asthma? Lead poisoning?  We are willing to put up with 10 ppb of arsenic in our water supplies, assuming some occurs naturally, but are we ready to agree to having any dangerous forms of mercury in our food sources?  Again, the benefit side of the equation is fraught with differentiations requiring human judgment.

There is a Grinch

In view of the problems associated with the manufacturing, storage, transport, and use of chemicals in our economy, and in light of the insistence of the cost-benefit format for evaluating our efforts to mitigate contamination,  we’ve created our own Grinch.  He’s not out to hold Whoville hostage, he is Whoville — he wants the cheapest price, the lowest cost, and the most competitive products, but he also wants to be as safe as possible.   He wants local control, but national standards; national standards but not ones which reduce local control.   S. 1009 is therefore not the answer.  What’s probably necessary is a better informed, less contentious, national conversation about what we want to experience in our physical and economic environments and how we should go about getting it.

{*More testimony can be located here, in PDF form}

Additional References and Resources: CRS Summary S. 1009, Congressional Research Service;  Hart Hodges, “Falling Prices: Cost of Compliance,” EPI (pdf); Brookings Institution, “Are Pollution Controls Worth Their Cost?” July 19, 2013.  EPA, Chemical Data Reporting; US Senate, Committee on Environment and Public Works, hearing on addressing toxic chemical risks, July 31, 2013.  EWG, Opposition to Senate Chemicals Bill, July 12, 2013.  Andrew Cochran, “A Chemical Bill Everyone Should Oppose,” Legal Examiner, June 6, 2013.

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