The Week That Was
March 27, 2004

1. New on the Web: ENVIRONMENTAL NGOs SUPPORTED BY THE PEW FOUNDATION ARE ATTACKING THE SEAFOOD INDUSTRY IN SCARE CAMPAIGNS, CO-OPTING THE AAAS. Their strategy involving litigation will soon be extended to other resource industries.









10. And finally, RECYCLING PEANUT SHELLS IN COLORADO: A missed opportunity for federal energy legislation?

2. Denmark Lifts Tax on Recyclable Rigid PVC

According to ENDS Environment Daily, the Danish parliament has rescinded a tax on rigid PVC, saying it is no longer appropriate given available recycling methods. The tax was imposed in 2000. Welcoming this development, Denmark's PVC industry noted that most PVC products are not now subject to taxation. Hoping to remove the Danish tax on all PVC products, the industry is working to recycle softened PVC. Greenpeace's Jacob Hartmann opposed the parliament's decision saying, "A few years ago the EU was looking at Denmark for inspiration on how to deal with PVC. Now there's no inspiration left. We've given up our main tool to drive forward substitution."

3. EU to Broaden Economic Review of REACH:

The European Union (EU) plans to broaden its economic impact assessment of the legislation known as Registration, Evaluation and Authorization of Chemicals (REACH). According to Chemical Policy Alert, industry's increasing concerns over the legislation's effects on chemical companies and other industrial sectors prodded the decision. The European Commission plans to examine three impacts that industry claims were erroneously left out of a previous economic assessment, including: the cost of chemicals forced off the market by the proposal, the impact on chemical innovation, and the legislation's effect on eastern European countries that will join the EU this spring. Previous economic assessments found a total cost of approximately 2.8 - 5.2 billion euros to businesses, but industry has criticized the assessment, saying that it underestimates the potential costs of the controversial chemical testing and control legislation. The new assessment should be ready by the fall.


4. Court Finds No Basis for "Blue Vinyl" Lawsuit:

The Superior Court of Delaware granted summary judgment in late January, finding no basis for conspiracy charges brought against the American Chemistry Council (ACC) and more than 30 other industry defendants involved in vinyl plastic manufacturing. Lori Anne Sanzone brought the suit in 2000, alleging health effects caused by products containing polyvinyl chloride (PVC). She appeared in the documentary film, "Blue Vinyl," which depicted Sanzone connecting her alleged contraction of a rare liver cancer (angiosarcoma) to her 7-day employment at a Florida pipe-making plant that used PVC. The plaintiff later discovered that she did not have liver cancer but epithelioid hemangioendothelioma, a disease whose only known medical link is to birth control pills. She continued to press the lawsuit despite her own physician's refusal to testify


5. Sen. Byrd Seeks GAO Investigation into Industry's Security Efforts:

Calling into question industry's voluntary security efforts, Senator Robert Byrd (D-W.Va.) has requested that the U.S. General Accounting Office (GAO) investigate what provisions chemical companies have made to secure plants from terrorists. According to the Charleston Gazette, in correspondence sent to the GAO on March 2, Byrd stated, "When it comes to protecting the nation's infrastructure, the Bush administration tells us that 'the private sector is taking care of it.' Yet, there is no mandate on the private sector to make these security investments. There are no benchmarks in place to assess the private sector's role in critical infrastructure protection." Byrd's letter also referenced a 60 Minutes segment broadcast in November in which a correspondent and local newspaper reporter effortlessly gained access to chemical facilities. The Charlotte Gazette reports that at a budget session last week with Byrd and other lawmakers, Frank Libutti, chief of infrastructure for the Department of Homeland Security, agreed that it would be beneficial to have the information Byrd is seeking from the GAO.

GAO Seeks Federal Oversight of Chemical Plant Security: The General Accounting Office (GAO) told a Congressional panel earlier this month that the federal government needs to step in to regulate security at chemical facilities. According to Chemical Week, GAO officials say that voluntary programs such as Responsible Care® apply to only 7% of the facilities required to submit risk management plans to EPA, and no agency monitors the extent to which chemical facilities have implemented security measures. GAO recommends that EPA and the Department of Homeland Security coordinate a plan to evaluate vulnerabilities and require that facilities prove they are taking steps to improve security.


6. EPA to Test Business Management Plans, Replace Regulation:

The Environmental Protection Agency (EPA) plans to test the effectiveness of business management plans known as "environmental management systems" (EMS) across a number of states to determine how effectively they reduce pollution. The approach may be the first step towards changing the Agency's regulatory philosophy to one that offers industry greater flexibility and regulatory relief. Since EMSs typically lack numerical goals for pollution reduction, EPA plans to study whether these systems, if linked with performance standards, could serve as enforceable environmental requirements. According to Chemical Policy Alert, the plan will look not only at pollution reduction, but economic viability. After three years, EPA plans to conduct a formal evaluation to see which projects should be implemented on a broader scale and EPA's Innovation Action Council will review the experiments on an annual basis as well.


7. New Fuel Fees to Pay for Emission Reduction Efforts:

California lawmakers are considering legislation that would create new fees on gasoline and diesel purchases to help pay for air pollution and other environmental protection programs. The bills are expected to face strong opposition from the oil industry, anti-tax groups, and automobile associations. Fees would not only finance measures to reduce air pollution, but would pay for highway and local street construction and improvement projects. Proposed fees range from 5 to 10-cents per gallon. Since the legislation would impose a fee, rather than a tax, it would not require two-thirds approval from the legislature. Chemical Policy Alert reports that opponents have argued that the fees are taxes and should require the two-thirds vote


8. NAS To Review Dioxin Reassessment:

The Interagency Working Group charged with reviewing the latest draft of EPA's dioxin risk assessment has reached an agreement whereby the National Academy of Sciences (NAS) will conduct a one-year review of the reassessment, with particular emphasis on the scientific uncertainty surrounding dioxin. According to the charge sent to the NAS, the academy will "endeavor to make the uncertainties in such risk assessments more fully understood by decision makers," and focus on EPA's classification of dioxin as a human carcinogen, toxic equivalents, and other assumptions in the draft risk assessment. As Inside EPA reports, the reassessment has been closely watched because of its potential impact on EPA regulatory policies, food safety requirements and toxic tort litigation.
Report Suggests Long-Term Cancer Link for Dioxin Exposure: A new report from the Institute of Medicine (IOM) suggests that exposure to dioxins may increase the risk of respiratory cancer for many decades following the exposure. However, the 60-page report, Veterans and Agent Orange: Length of Presumptive Period for Association Between Exposure and Respiratory Cancer, could not determine whether there is "a period beyond which occurrence of respiratory cancer could no longer be presumed to be related to exposure to TCDD." The IOM report evolved from a conclusion the Department of Veterans Affairs made in 1994 that there is an association between exposure to Agent Orange and the subsequent development of respiratory cancers. VA policy has traditionally been that respiratory cancers are attributable to military service only if they develop within 30 years of exposure. Legislative changes in 2001 removed the 30-year limit and charged the IOM with studying the latency question.


SEPP Comment: This raises an important issue of conflict of interest. IOM is part of the NAS and supervises the National Research Council, which normally carries out the contractual studies.


9. Toxic Tort Developments: New Cases Spotlight Risks, Perceptions and Frauds

Several recent actions in high-profile lawsuits shed light on emerging issues in what has come to be known as "toxic tort" litigation. These are individual or class action lawsuits stemming from allegations of harm due to a person's exposure to toxic chemicals in their homes or workplaces.

In recent weeks, a California jury cleared IBM of charges in a lawsuit alleging that chemicals used to manufacture hard drives at a San Jose plant from the 1960s to the 1990s and led to cancer in some workers. In a second case, IBM settled out of court with the child of a former worker who charged that her birth defects were the result of her mother's exposure to chemicals used in a New York semiconductor plant. IBM settled the New York case; although it emphasized that the mother's work at IBM could not be proven to be the cause of the child's birth defects. While both these cases highlight how difficult it is to link an illness with a single specific workplace or home exposure to a chemical, they also illustrate how toxic torts are moving into areas beyond the chemical industry. As one of the oldest computer makers, IBM is among the first high-tech companies to be challenged by such suits. More than 200 similar cases have been filed against IBM nationwide. Many of these suits also name the companies that supplied the chemicals used by IBM.

In West Virginia, a class action brought by residents of a plant community over exposure to chemicals in the water supply showcases how "body burden" arguments - allegations that the mere presence of a chemical in the body creates a condition of harm - are finding their way into courtrooms. The judge in that case dismissed a motion in December that would have forced DuPont to pay for blood tests of as many as 50,000 area residents to determine possible chemical exposures.
And finally, a case dubbed the "Blue Vinyl Lawsuit" highlights the potential for fraud in toxic-tort cases. The Delaware case involved a woman who worked for just seven days in a PVC plant in 1978 and claimed she contracted angiosarcoma as a result. Her battle with cancer was featured in the "Blue Vinyl" documentary, which was screened at the Sundance Film Festival and aired on HBO in 2002. The woman sued ACC and 30 other industry defendants who allegedly "participated in a supposedly enormous and far-reaching conspiracy." However, it was later proved that the woman did not actually have angiosarcoma, but rather a disease linked to birth control pills. Although the woman continued to press her suit, her own doctors refused to testify on her behalf, and the case was eventually dismissed for lack of evidence.


Adapted from articles appearing in Chemical & Engineering News (March 8, 2004), the Charleston Gazette (December 6, 2003) and an ACC press release (March 1, 2004).


10. News Flash: La-La Farcely Promotes Renewable Paper Bill

Letter to the Editor, The Pueblo Chieftain. March 25, 2004

In an effort to save the nation's trees, [Colorado state] Representative La-La Farcely has introduced a measure to use recycled peanut shells in the manufacture of paper, including newsprint. Calling peanut shells, often found lying all over the ground after sports events, an untapped resource, Ms. Farcely has noted that they are an ideal material for making paper. Her bill would mandate that all paper must have a 5 percent peanut shell content by 2004, rising to 30 percent by 2010. Her bill is patterned after Lola Spradley's "energy bill" (HB1273) that would require utilities to buy power from wind farms.

Since our current technology is not geared up for collecting, cleaning, and processing used peanut shells, Farcely has proposed subsidies to get the technology off the ground. The bill, if enacted, would give a much-needed shot in the arm to economically depressed areas around sports stadiums, just as Spradley's HB1273 is designed to feed tax money to major corporations operating in economically depressed farm country.

Not surprisingly, publishing corporations are trying to suppress the bill, because they would be faced with higher costs in spite of the subsidies to the peanut shell processors. Paper manufacturers, on the other hand, are willing to adopt the new technology so long as the subsidies are high enough. They really don't mind producing low-quality paper so long as they can make money in the deal. It's the same story with the utilities. They don't mind accepting low-quality power from wind farms so long as the subsidies are high enough.

Backers of Farcely's proposal have an advertising ploy so that everybody can remember the bill. They call it The Shell Game.

Unfortunately, Spradley's HB1273 has no such catchy name. You can help. Please send your entry to The Pueblo Chieftain.

(Prof.) Howard C. Hayden

SEPP associate, well-known windpower opponent Glenn Schleede, comments:

This development in Colorado raises the obvious question of why peanut-shell interests were not "at the table" when the Senators Domenici & Grassley and Congressman Tauzin were writing the "energy" bills pending in the US Congress. Those bills seem to include some sort of tax credit or other subsidy for virtually every other "energy" interest group, trade association, and political action committee.

Clearly, it's time to consider a change in leadership in Washington for the Peanut Shell Association (PSA). There must be dozens of influential staff members now assisting influential members of Congress who would like the job. Secretary Abraham may also want to consider replacing the Manager of Peanut Shells in DOE's Office of Energy Efficiency and Renewable Energy (DOE-EERE) and the head of Peanut Shell Analysis at the National Renewable Energy "Laboratory" (NREL).

Opportunities to subsidize anything that can be labeled "energy" and expand the DOE bureaucracy should not be missed at a time of high oil, gasoline, and natural gas prices and growing dependence on imported oil! After all, what's a "crisis" for?


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