The Struggle Over Dioxin Contamination in the Pulp and Paper Industry

University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2002 Note, Controlling Toxic Harms: The Struggle over Dioxin Contamination in the Pulp and Paper Industry William Boyd University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Administrative Law Commons, Environmental Law Commons, Law and Politics Commons, Science and Technology Law Commons, and the Torts Commons Citation Information William Boyd, Note, Controlling Toxic Harms: The Struggle over Dioxin Contamination in the Pulp and Paper Industry, 21 STAN. ENVTL. L.J. 345 (2002), available at https://scholar.law.colorado.edu/articles/546. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: 21 Stan. Envtl. L.J. 345 2002 Provided by: William A. Wise Law Library Content downloaded/printed from HeinOnline Mon May 22 15:08:15 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Controlling Toxic Harms: The Struggle Over Dioxin Contamination in the Pulp and Paper Industry William Boyd* I. INTRODUCTION ........................................ 346 II. SITUATING DIOXIN IN THE LANDSCAPE OF Toxic H ARMS ................................................ 351 III. DioxIN CONTAMINATION IN THE PULP AND PAPER INDUSTRY ............................................. 359 A. Defining the Problem ............................ 359 B. Science W ars ..................................... 374 C. Toxic Torts ....................................... 377 D. Dioxin Science and the Regulatory Process ...... 385 1. EPA's dioxin risk assessment ................. 386 2. The Cluster Rule ............................. 392 3. Environmental politics ....................... 396 IV. CONTROLLING Toxic HARMS .......................... 398 A. Tort-Based Approaches ........................... 398 B. Regulation and the Dilemmas of Risk Assessm ent ....................................... 406 C. Alternative Information-Based Approaches ....... 411 1. Mandatory disclosure ......................... 412 2. M onitoring ................................... 414 3. Testing and screening ........................ 416 V. CONCLUSION .......................................... 418 * J.D., Stanford Law School, 2002; Ph.D., Energy & Resources Group, UC-Berkeley, 2002; BA., UNG-Chapel Hill, 1989. Law Clerk for the Honorable Diana G. Motz, U.S. Court of Appeals for the Fourth Circuit, 2002-03. Special thanks to Professor Robert Rabin, John Ostergren, and Tarin Bross for helpful comments and criticisms. Thanks also to the staff of the Stanford EnvironmentalLawJournal for all of their hard work. This note grew out of a larger dissertation project on the forest products industry in the American South. In the interest of full disclosure, part of the research for that project was funded by a U.S. EPA STAR fellowship. 346 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 21:345 I. INTRODUCTION The most alarming of all man's assaults upon the environment is the contamination of air, earth, rivers, and sea with dangerous and even lethal materials. This pollution is for the most part irrecoverable; the chain of evil it initiates not only in the world that must support life but in living tissues is for the most part irreversible. In this now universal contamination of the environment, chemicals are the sinister and little-recog- nized partnersof radiationin changing the very nature of the world-the very nature of its life.1 Writing in the early 1960s, Rachel Carson concerned herself primarily with the impacts of DDT and other synthetic organic pesticides on human health and the environment. Perhaps more than any other person, she demonstrated the many interconnections between certain agro-industrial practices, such as pesticide use, and widespread environmental contamination. Silent Springwas a trans- formational book, warning of dangers that were largely invisible to most people. As such, it was both of the moment and ahead of its time. Indeed, many have suggested that Silent Spring provided much of the initial spark that ignited the modern environmental movement-a "cry in the wilderess... that changed the course of history," according to then Vice President Al Gore.2 Today, forty years later, much of what Rachel Carson wrote seems prescient, even prophetic. By forcing people to look anew at the ecology of certain industrial practices, she helped them (us) to see the new risks and vulnerabilities emerging out of the very way in which modern industrial society produced its food. Hers was a story about connections and unintended consequences. Silent Spring thus had a relevance that went far beyond the issue of pesticides and the environmental effects of chemical-intensive agriculture. By pointing to the persistent nature of various toxic substances, their movement upward through the food chain to in- habit living tissues in ever greater concentrations, and their ability to cause significant and lasting damage to human health and the environment (even at very small concentrations), Carson raised a host of issues that challenged traditional views of pollution. As Si- lent Spring made clear, microtoxicity mattered as much if not more than gross insults to the environment. The challenges for regulation were immense. During the 1963 hearings on water pollution, 1. RACHEL CARSON, SILENT SPRING 6 (1962). 2. Al Gore, Introduction to RACHEL CARSON, SILENT SPRING, at xv (Houghton Mifflin 1994) (1962). 2002] CONTROLLING TOXIC HARMS Senator Edmund Muskie, a leading proponent of stronger federal environmental laws, spoke of the difficulties posed by toxic substances: "The emerging problems involving chemical, pesticide, and radioactive wastes are filled with unknowns which need an- swers before adequate treatment methods can be developed. Every effort is needed, of course, to safeguard the public health and wel- fare through effective controls until research has found these an- swers."3 These sorts of problems were different from traditional pollution concerns such as high concentrations of organic matter in wastewater. Even minute quantities of toxic pollutants might have significant and persistent adverse effects on human health and the environment.4 Once such substances were released into the environment they would be very difficult, if not impossible, to clean up. Quantifying the precise risks they posed proved particu- larly elusive. As a result, toxic pollution raised significant new challenges for the existing regulatory regime.5 3. Water Pollution Control: HearingBefore a Special Subcomm. on Air and Water Pollution of the Senate Comm. on Pub. Works, 88th Cong. 1-2 (1963) (statement of Sen. Muskie, member Senate Comm. on Pub. Works). 4. There is no generally accepted definition of toxic pollutants or toxic substances, and individual statutes typically take a broad approach to defining such terms. The Clean Water Act, for example, defines toxic pollutants as: "those pollutants or combinations of pollutants, including disease-causing agents, which after discharge and upon exposure, ingestion, inhalation or assimilation into any organism either directly from the environment or indirectly by ingestion through food chains, will... cause death, disease, behavioral abnormalities, can- cer, genetic mutations, physiological malfunctions (including malfunctions in re- production) or physical deformations, in such organisms or their offspring." 33 U.S.C.A. § 1362(13). Such a definition could include almost any substance, given the. fact that everything is "toxic" at some level. The basic maxim of toxicology-the dose makes the poison-suggests the difficulties of making any categorical distinction between "traditional" pollutants and "toxic" pollutants. That said, there does appear to be some utility in the working distinction, embedded in both the existing regulatory system and in tort law, that distinguishes between those substances that present a risk of serious harm to human health and/or the environment at low levels of exposure and the panoply of pollutants and substances that can be toxic at high levels of exposure. Many of these highly toxic chemicals also have unique environmental characteristics such as long residence times and bioaccumalative potential that further distinguish them from more ordinary forms of pollution and add to the difficulties of controlling them. See DONALD G. CROSBY, ENVIRONMEN- TAL TOXIcOLOGY AND CHEmY (1998). 5. To date, efforts to regulate toxics (in air, water, land, and food) have followed a number of different trajectories, some of which have proceeded independently from and others of which have overlapped traditional air and water regulation. For overviews, see Michael

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