Toxics Law: an Effort to Comply or Obstruct?

Albert H. Meyerhoff is a senior attorney with the Natural Resources Defense Council, a national environmental organization with offices in San Francisco.

Seeking fundamental change in how they are protected from toxic chemicals, California voters last year decisively passed Proposition 65, officially known as the Safe Drinking Water and Toxics Enforcement Act. This sweeping measure prohibits the contamination of drinking water or other human exposure without warning to toxic chemicals that present a "significant risk" of cancer or such reproductive problems as birth defects, sterility or miscarriage.

A key provision of the new law places the burden of proof on industry to show that these toxins do not result in a significant risk before they can be put into our food, homes, water or environment.

Since its passage, Proposition 65 has been under concerted attack by powerful economic interests. At the request of the drug, chemical and agribusiness industries, the governor's panel of scientific "experts" determined that any toxic chemical used in accordance with existing federal or state law necessarily presents no such significant risk. This recommendation, if finally adopted by the governor, would eviscerate the statute. Using the mantle of science, and without even having yet defined what "significant risk" means, the governor's science panel usurped the right of California voters to protect themselves and their families from dangerous toxic chemicals.

In passing Proposition 65, voters rejected the view now adopted by the governor's scientists--that we can trust the government to protect our health.

A host of congressional reports, studies by the National Academy of Sciences and others have all consistently concluded that existing federal regulation of toxic chemicals in food, drugs and the home have failed to adequately protect public health. For example, the National Academy of Sciences found that the system for regulating pesticides in the food chain is a crazy quilt of conflicting regulations. As a result, so-called "safe" tolerances for pesticides in food could result in more than 1 million additional cancers in the American population. The Office of Technology Assessment also found that of the 145 chemicals that the National Toxicology Program has determined to be cancer-causing, no federal agency has regulated even 50%. For most chemicals determined to cause cancer or birth defects, no adequate assessment of their risk to human health has been performed, nor is there reliable information on human exposure. It is this system and this lack of valid scientific data that the governor's panel has now rubber-stamped. Extraordinarily, the panel went so far as to decide that government inaction --where no standard at all has been adopted and no risk assessment performed--nonetheless prevents any significant risk of cancer or birth defects.

Here are just two of many examples of how the existing federal regulatory scheme has failed to protect us from chemicals that cause cancer:

--In 1974 the National Cancer Institute determined that the pesticide ethylene dibromide, or EDB, was a powerful carcinogen in animals and a probable carcinogen in humans. Yet for 10 more years EDB was widely used on grain, citrus and a variety of other foods, notwithstanding its cancer-causing ability. In 1980 the EPA sought to ban its use on food, but that decision was delayed for more than three years through the use of political influence by the food industry on Reagan Administration officials. Finally, in 1983, the EPA banned EDB as an "imminent health hazard." Throughout, no federal standard for EDB in food had ever been set.

--In 1982 heptachlor, a potential human carcinogen linked to leukemia, was found in much of the milk supply in Hawaii. Banned in the continental United States, heptachlor had been applied to pineapples whose leaves were then fed to dairy cows. Under the federal Food and Drug Administration regulation, heptachlor was not supposed to be present in milk at all, but a level had been set based on balancing costs and benefits. Residues 10 times that amount were permitted in Hawaiian milk for several months before the government finally acted. Eventually 90% of the milk on Oahu was confiscated. Long afterward, residues were found in mothers' milk.

The implementation of Proposition 65 is now at a crossroads. The governor and affected industries can work together with the environmental community and others to accomplish its orderly implementation, or they can continue to seek to obstruct the law and thwart the will of the electorate. Initially Gov. George Deukmejian chose the latter course. At industry's urging, he decided that the proposition was intended to apply to only 29 chemicals actually known to cause cancer or birth defects in humans based on studies of the human population. This decision was contrary to settled science and public policy that we regulate chemicals known to cause cancer in animals that are "probable" human carcinogens in order to prevent the spread of this pernicious disease. Backers of the initiative sued and won a court order requiring the governor's list to be enlarged to more than 200 chemicals known to cause cancer or birth defects in humans or animals.

The listing itself, however, means little if federal regulation is assumed to protect human health and the environment. It is now time for the governor to start obeying this law by exercising leadership to ensure its proper implementation. It remains the responsibility of the people of California to send him a message that they will tolerate nothing less.

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