Manufacturers' Role In Toxic Air and America's Schools

If you have a manufacturing business that operates near a populated area and you are required to file TRI reports for air emissions, there is a good chance your business has already been identified as one of several that might be responsible for 'toxics'

Citing information generated by the U.S. EPA's Risk-Screening Environmental Indicators model, the Chairman of the Senate Environment and Public Works Committee, Sen. Barbara Boxer, D-Calif., pledged to "do what I have to do" to ensure that the government monitors the air for toxic chemicals outside schools across the nation. The new EPA Administrator, Lisa Jackson, promised Sen. Boxer's Committee during confirmation hearings on January 15, 2009 that she would "send investigators and samplers out to verify the extent of the problem" and "mobilize" agency efforts within 30 days of her confirmation.

If you have a manufacturing business that operates near a populated area and you are required to file TRI reports for air emissions, there is a good chance your business has already been identified by USA Today as one of several that might be responsible for "toxics" at a given school. To find out, go to click here and type in the city or county where your business is located. The website has interactive maps that identify schools and nearby businesses that reportedly have had an impact.

USA Today published a series of articles in December of 2008 that assessed how air emissions from manufacturing and industrial sites have potentially impacted nearby schools. As part of this assessment, the newspaper took "snapshot" air samples outside 95 schools. The readings for "toxic chemicals" at seven schools reportedly were high enough to cause serious illnesses and increase the risk of cancer. USA Today noted that at 57 other schools, the concentrations of chemicals detected, while lower, could still lead to health risks and were at levels considered unacceptable by many states.

To measure industrial pollution across the country, the EPA's Risk-Screening Environmental Indicators model scores chemicals based on their potential danger. The chemicals are those that are listed in TRI reports prepared annually by manufacturers. The model divides the country into thousands of squares, each measuring one kilometer by one kilometer, and estimates the potential impact of industrial air pollution for each of those areas. Any schools within the same square will have the same ranking.

Each school is ranked against the other 127,800 schools for which USA Today developed toxicity information, and is displayed as a percentile. For example, if you see a school whose overall toxicity shows up in the second percentile, you'll know only 1% of the nation's schools had higher toxicity levels. Presumably, those schools that reportedly have the highest levels of air contamination will be the focus of the EPA's anticipated investigations.

What May Be Next, Aside from School Testing?

According to USA Today, experts have concluded that even small amounts of toxic chemicals can do irreparable harm to children. This is because children breathe more air per pound than adults do, and their bodies process chemicals differently. Such exposures "may be causing mutations in a child's cells that begin the pathway to cancer," says Philip Landrigan, who was identified by USA Today as one of the nation's foremost experts on pediatric medicine and a physician at the Mount Sinai School of Medicine in New York.

These types of sensational quotes, which fail to give an accurate picture of the alleged risks and exposures, not only sell newspapers and catch the attention of regulators, but also encourage plaintiffs to file class actions and mass tort cases that seek compensatory damages for nuisance, property damage and personal injury. It is also common for plaintiffs to request injunctive relief, asking nearby manufacturers to remediate or relocate the schools to a more suitable location. Since most of the chemicals allegedly associated with cancer are ubiquitous in the environment and are a part of background exposures -- especially in urban, commercial and industrial areas -- the sophisticated and sensitive sampling equipment used to test for these chemicals is almost sure to find them. In their zeal to protect their children, parents can fall victim to those who use exaggerations and scare tactics for their own interests and profit.

Strategies

Parents of school children need to have accurate information placed before them which explains why the risks of various air contaminants are almost certainly not as great as others would have them believe. Consider, for example, the alleged risks associated with chromium, one of several chemicals considered by USA Today to be a "known" human carcinogen. Airborne chromium can, in fact, take on two forms -- one can cause nasal cancer (Chromium 6), and the other is relatively harmless and can be found in multi-vitamins (Chromium 3). Buried within the USA Today article is an admission that they do not know what type of chromium was detected in the air that they sampled. Instead, their analysis simply assumed that it was the most toxic type.

Many times, a manufacturer can disseminate accurate information to the community before significant regulatory or litigation pressures have been initiated. Part of this process is to explain how regulatory standards are usually policy driven and are set well below levels that have been shown by science to cause any harm. An ability to demonstrate compliance with industry P2 (pollution prevention) guidelines also helps. Manufacturers may wish to consider community letters, websites, newspaper interviews, town hall meetings and other strategies to combat the misinformation spread by others. If necessary, retaining a well credentialed expert, such as a toxicologist, can be another effective way to explain in detail how certain allegations in the press may be exaggerated.

Note: The information contained in this article is intended for general information purposes only and should not be construed as legal advice or opinion on any particular facts or circumstances.

Leonard S. Kurfirst is a partner in the Environmental/Toxic Tort practice of Wildman Harrold Allen & Dixon, LLP www.wildman.com

TAGS: Regulations
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