The Case for a Truth and Reconciliation Commission on Toxic Hazards
September 1, 2010
This essay is in response to: What is the key obstacle to implementing an effective, health-protective, chemicals management system?
In the 1970s, Congress passed a host of environmental laws that sought to adopt a preventive approach to reducing disease and protecting health and environment. Since then, average body burdens of some persistent toxic materials such as lead and cadmium have fallen, but those of other newer materials, like persistent flame retardants, have risen. The major obstacle to a protective chemicals management system remains the culture of trade secrecy that allows firms to withhold information about potential health and safety dangers of their products. In my book, The Secret History of the War on Cancer, and in recent testimony to the President’s Cancer Panel on cancer prevention, I have advanced the concept of a Truth and Reconciliation Commission on Toxic Hazards.
The current regulatory system has failed to protect workers, their families and communities. Under the present adversarial system, companies can legally withhold information on the dangers of workplace hazards under the rubric of trade secrets, and they can also legally conceal information on health hazards as part of sealed settlement agreements.
With respect to trichloroethylene, a widely dispersed carcinogenic contaminant, there is some information that will never be revealed because it became part of a closed settlement. In return for undisclosed amounts of money, the family of a five year old girl with leukemia who drank well water contaminated with TCE moved and agreed not to discuss information about this case. Companies can assert that we lack information, but often the reasons why this is the case are not solely a result of scientific limits, but of social and political factors surrounding specific materials.
Often times things that are legal, like slavery or apartheid, prove to be immoral. The invocation of trade secrets with respect to health and safety information is an example of such a failed, but legal, policy that must be changed. My machinist father’s death from multiple myeloma -- following years of exposure to industrial x-rays, benzene and other degreasing agents -- should not be allowed to become somebody else’s trade secret.
To break the barriers to obtaining information on industrial carcinogens, we need a Truth and Reconciliation Commission on Toxic Hazards. This is modeled on other approaches taken in South Africa, Chile, and Argentina, where officials recognized that if they sought to punish all guilty parties, this effort would rip apart the fabric of society.
We have seen repeatedly how some people in industry, whether tobacco, asbestos, benzene, or vinyl chloride, understood risks long before the rest of us were able to learn about them. We know of many instances in which insurance companies tracked health hazards for years, as claims mounted and reports of various ailments accumulated, without letting workers know the dangers they faced. We also know that current laws discourage giving such information up. The federal Toxic Substances Control Act provides criminal penalties for anyone who has knowledge that someone endangers public health or the environment and does not report it. The result is that most companies no longer develop such knowledge or collect such information, so that they can’t be charged with breaking this law.
Clearly this is not working. The threat of punishment for misbehavior is not getting us the results we want. When epidemiologists working for Dupont developed an innovative system to track the health of their workers in 1986, the company ended the program of research, as did many other firms at the time. This may have been an excellent business decision. Under the Toxic Substances Control Act any company having knowledge of such risks would have been liable for prosecution. But, it clearly did not strengthen the capacity of public health experts to understand or policy makers to prevent future harms.
With respect to workplace and environmental hazards, the idea of prosecuting those found guilty of past harms has just not worked. The crimes are of such long standing, the victims are so many, and retribution is so pointless that perhaps the best course is to emulate the South African Truth and Reconciliation Commissions and offer amnesty in exchange for a better future. In 1994, to create a break with their deadly past, South Africa set up a stunning series of national public confessions. Nelson Mandela, the head of the African National Congress, and South African President F. W. de Klerk both understood that for the racist system of apartheid to die, it needed a proper burial. Without public acknowledgement of the brutality of the apartheid past, the country would never recover.
De Klerk’s white supremacist National Party of wanted blanket amnesty for the violence they had committed in the name of the law. The members of Mandela’s African National Congress wanted revenge. If the country was not to be torn apart, it needed to create something that had never really been done before—a national commission for truth and reconciliation.
People came forward asking questions that they could not have uttered at any other time. What happened to my son or daughter or husband or wife or brother or sister or father or mother? Where did they go? Who killed them? How had they died? These were not easy questions to ask. They were even less easy to answer. But the system was based on the premise that without answers, the country could never be brought together.
This open approach went far beyond any of the efforts to mete out justice that arose after the end of World War II. National law, whatever it may have said or allowed, was replaced by an almost biblical view of what was required to restore a nation.
Those who witnessed the creation of South Africa’s TRC call it a miracle. They note that what took place in postwar Germany and Japan, and in Central and Latin America after the fall of right-wing dictatorships—made it clear that direct and full persecution, if carried out, would rip a country apart. Where a majority is guilty, punishment becomes unending. Where only a few are prosecuted, as was the case in Germany and Japan, this creates the delusion that the rest of the country bears no responsibility for the past. Because these nations had embraced violence against their own citizens as a matter of national policy and law, turning to the law to provide redress against this violence made no sense.
What does all this have to do with chemical policies today? If persons in charge of major firms today learn that chemicals their workers are using will shorten their lives, and they then fail to act on this knowledge, are these actions no less morally wrong than any other murder? Creating a harmful workplace and concealing that harm is surely a more subtle crime than those aired through South Africa’s Truth and Reconciliation Commission. But if we were to count the deaths caused, or if we could somehow reckon up the totals in human suffering, would we find ourselves in similar territory?
I have learned from others, whom I can’t name at this point, that the files of many large multinational businesses could easily tell us about many more health risks associated with workplace exposures of the past. These companies are largely self-insured and pay for their workers’ health care. They have complex information systems at hand to control the manufacture of chemicals, the ordering of materials, and the processing of health claims. Can you really imagine that such an organization does not know whether or not its workforce in Indonesia or Silicon Valley has greater risks of breast cancer and leukemia? Can you believe that, for example, Pratt & Whitney—one of the largest and most profitable makers of airplane engines in the world—does not know whether or not its workers have higher rates of brain cancer than the general population?
I am not smart enough to know what kind of system will best identify and address the preventable causes of cancer in our environment. I just know that what we have been doing doesn’t work. For every lawsuit that is won on behalf of persons harmed by cancerous activities, many more are never even filed. Lawsuits brought on behalf of those who believe their injuries were caused by their employers’ bad actions succeed less and less often. In large part this is because recent court decisions have changed the rules of the game and the presumptions of evidence.
It may shock you to learn that of the one hundred thousand chemicals that are commonly used in commerce, most are not well studied as to their ability to affect our health. In 1983 and again in 1998, the National Academy of Sciences confirmed that we have no public record of the toxicity of three out of every four of the top three thousand chemicals in use today. Despite declarations by industry of their intent to close this gap, the reality is it would take dozens of years and billions of dollars to do so. It can take three weeks to approve a new chemical for use and thirty years to remove an old one.
The loggerhead at which science and law now abut may become a tipping point. Science works to establish the truth. Law aims to mete out justice. Because scientists know that certainty is never absolute, scientific knowledge is always hedged. There’s always room for more. Law requires enough faith in precision to mete out justice. The courts today are allowing the absence of proof of human harm to be construed as evidence that there is no such harm. A Truth and Reconciliation Commission might provide the sort of instantaneous revelations that we all feel have to be at hand, but realize remain out of our each.
If one asks who should pay for this system, we may draw a lesson from World War II. During and after that war, an excess profits fee was placed on those industries that benefited from the conflict. There is no doubt that tobacco, alcohol, chemical, telecommunications and pharmaceutical manufacturing are industries that create risks and benefits, often to quite different groups of people. A fee can be levied on all those industries as a way to fund a truly independent and neutral forum where information can be safely exchanged on environmental health hazards.
Some will argue that creating a TRC-like institution to accept information on environmental health hazards would only allow people to get away with past activities that have injured or killed people. The tort system exists to redress wrongs and to exact financial penalties from those who have harmed others. Such people cannot be absolved by a new institution.
There is a certain moral satisfaction to this argument, but it ignores a fundamental reality. The harder we try to exact vengeance against those who have caused harm, the more incentive they have to conceal information, and the more harm will be done in the future. But new approaches to generate information on the risks of work and the environment can reduce the chances that current harms will result in future damages. If we create a place where industry can deposit information on health hazards of work and the environment, with the privacy of individuals appropriately shielded, the world will be a better off for our having tried to do so.
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