Title: The Evolution of Toxic Regulation and the Natural Food Chain
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00001309/00001
 Material Information
Title: The Evolution of Toxic Regulation and the Natural Food Chain
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: The Evolution of Toxic Regulation and the Natural Food Chain, by Thomas Martin
General Note: Box 8, Folder 3 ( Vail Conference, 1993 - 1993 ), Item 23
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00001309
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

From: G. Thomas Bancroft at 1305-852-4889 81-01-93
To: Ty Porter From Tom Martin at 0813 228 6422
The Evolution of Toxic Regulation

^ and the Natural Food Chain
By Thomas Martin


Nothing is more powerful in the environmental policy arena than the

threat of "toxic contamination." That phrase when spoken, often seems to be

heard by the public, news media and policymakers as an immediate threat of

death, disfigurement or injured health. Toxic substances have earned that

moniker honestly that is to say they have some power to injure or change
living things. But the fixation of policymakers on this subject is guaranteed
by the image conjuring power of the phrase toxic contamination. As a former
regulator I can assure you that policymakers will continue to focus their

attention on restricting the use and production of toxic materials.

The regulation of toxic substances has long been driven by the media

(ie. air, land or water) in which the substance is found. In other words, we

have established different regulatory systems and discharges levels for air,
water and soil. But an emerging catalyst contamination of fish and wildlife

is beginning to drive these approaches in similar and, in some cases, new

directions. These new approaches adopt ecosystem and cross-media strategies

which will encourage significantly more stringent discharge limits for key

What makes this issue so important to dischargers is the practical

impact a relatively small group of substances will have on control strategies,

Because individual control strategies are often geared to controlling the most
difficult problem first, setting extremely tight new limits for this group of
substances may drive the cost and design of a discharger's entire plant
control strategy.

From: 6. Thomas Bancroft at 1305-852-1009 91-8l-93
To: Ty Porter From Tom Hartin at 1013 228 6122 8t

This presentation will focus on toxic regulation, especially as it
addresses persistent (long-lived) toxins. It will examine how the presence
and effects of toxic substances throughout the natural food chain are

beginning to drive the levels of discharge allowed in the present regulatory

regime. Because fish and wildlife are often more efficient accumulators of

toxic substances than humans and because they often show visible signs of

distress prior to humans, limits established to protect them will often be
more stringent than those set merely to protect human health.

To begin to understand how these factors may come into play it is

important to review how we have regulated the use and discharge of toxic


History of the Regulation of Toxic Substances

In the United States we have been attempting to regulate toxic

substances for well over a century. Initial efforts focused on keeping foods

or medicines from poisoning us or keeping materials from exploding, By the
dawn of the 1960's we had begun to make some effort to limit the most visible
threats to human health and the environment through a series of occupational
and public health laws, Then in the early 1960's Rachel Carson penned Silent

Spring making patent the less visible links between toxic substances and
environmental health. Later in the decade others followed confirming clear
links between substances such as DDT and the health of bird populations.

By 1970 our national leaders were ready to launch the decade of
environmental regulation. This explosion of laws dealing with toxic

substances began with the passage of the National Environmental Protection Act


From: G. Thomas Bancroft at 1305-852-4889 01-04-93
To: Ty Porter From Tom Martin at 1813 228 6422 ,

which established such basic regulatory building blocks as the Environmental
Protection Agency (EPA) and Environmental Impact Statements. This was
followed the same year with the Occupational Safety and Health Act (OSHA),

Clean Air Act (CAA) and the forerunner to the Resource Conservation and
Recovery Act (RCRA). By the end of 1972 our federal government had added the

Clean Hater Act (CHA) and the Federal Insecticide, Fungicide and Rodenticide

Act (FIFRA), In 1974 the Safe Drinking Hater Act (SDA) was enacted. In 1976

the Toxic Substances Control Act (TSCA) and RCRA were added. Then in 1977 the
CNA was overhauled to more aggressively attack pollution of our waterways

including toxic contamination. Finally in 1980 Superfund became law.

One would expect that a group of laws passed so close together would

reflect common approaches to dealing with the control of toxic substances.
Unfortunately all too often these statutes take very different approaches to
the problem. The federal government reacted viscerally to pollution problems

in specific media and the laws reflect that, The CAA was an attempt to remove
unsightly pollution from our airsheds and allow us to breathe. The CNA was
meant to make our waters look cleaner but we still needed the SDA to make sure

we could drink it, In fact until recently regulators were satisfied if you
managed to limit toxics in the media they were responsible for without

regard to where the pollution landed, For instance it was acceptable to build

a high stack on a building to disperse persistent toxics enough so they could

be breathed, despite the fact that this strategy allowed degredation in other


Additionally, since these regulatory systems focused on media and not

substances they failed to truly control releases to the environment. For

instance during one period Polychlorinated Biphenols (PCB's) were only

regulated when discharged to the air, workplace or drinking water, Yet,

1.ot> _

From: G. Thomas Bancroft at 1385-852-4889 61-04-93 0'
To: Ty Porter From Ton Martin at 1813 228 6422 685

during this period it was well documented that this suspected carcinogen was
accumulating at alarming rates in sediments and aquatic creatures, Nhile TSCA

(our attempt to fill the other statutes' toxic regulatory gaps) fixed this

particular problem by essentially banning PCB's some regulatory gaps remain.

The statutes also vary in their philosophical approach to regulation.

FIFRA requires a showing by the producer of the toxic material that it is safe
prior to registering its use. TSCA has some pre-authorization requirements
for new substances. However CAA and CMA put the burden on the regulator to

show to what degree a substance must be regulated to protect human health and

the environment. In sum significant differences exist in the approach of

these statutes in regulating toxic substances.

The Influence of the Natural Food Chain

During the past two years and in the next Congress we have seen or will

see many of these laws reauthorized. This process of reexamination has

brought the laws only somewhat closer in approach because their efforts are

defined by the statutes they are building on, disparate Congressional
committee jurisdictions and the cottage industry of interest groups that have

sprung up around each of them.

With the most recent reauthorization, the CAA, and the pending one, the

CNA, we are starting to see a focus on the effects of discharges on the
environment, Specifically there has been increased emphasis on preventing
adverse impact on the ultimate environmental sink, water, and its most
sensitive biological indicators, fish and wildlife, Hater is the ultimate
environmental sink because it takes loadings of pollutants directly from
discharge liquid, from the soil through runoff and from the air directly and

through runoff,

______t ~o ^_________

From: G. Thomas Bancroft at 8305-852-4809 01-04-93 9O
To: Ty Porter From Tom Hartin at 0813 220 6422 986

If water is the ultimate sink then fish and piscivores (fish eaters) are
the ultimate toxic sponges. As toxic substances enter the water column they
become available to even the smallest of aquatic creatures to ingest. These

organisms often have limited ability to excrete these toxins so they

accumulate. This process is often called bioaccumulation. As we move up the
food chain a second related effect is also seen. Because organisms higher on
the food chain consume organisms that have already bioaccumulated toxins the
predators' accumulation occurs at even a faster rate. This second process is
often referred to as biomagnification. So these principles dictate that those

creatures at the top of the aqautic food chain (e.g. fish, eagles, mink,
turtles) are most vulnerable to this process.

A stark example of these phenomena is presented in the 1987 Report on
Great Lakes Hater Quality, Appendix B to the International Joint Commission.
Hith a regulatory objective of 0.1 mg/kg for PCB concentrations in Lake
Ontario (Note: Lake Ontario meets water quality standards for PCB's) they
found that plankton (the bottom of the food chain) had concentrations
averaging less than 0.1 mg/kg while smelt (a small fish in the middle of the

food chain) came in at 1.5 mg/kg, a predator Lake Trout reached almost 6 mg/kg
and gulls nearer the top of the food chain had 51 mg/kg,

Another example is based on work done in the 1960's on DDT contamination
of carnivorous birds. This research showed that birds at the top of the food
chain had DDT residues approximately one million times greater than
concentrations in water,

The processes of bioaccumulation and biomagnification are exacerbated

when they are coupled with persistent toxins. Some toxins like PCB's have a
half-life of 70 years. So even though it may quickly sorb to a particle in


From: G. Thomas Bancroft at 1365-052-4889 61-04-93
To: Ty Porter From Tom Hartin at 1813 228 6422 687

the water column and sink to the bottom of a body of water, its resistance to

breaking down into a more benign form makes it remain dangerous. Bottom

dwelling creatures may eat it and become someone else's dinner or a storm may

resuspend the sediments making them bioavailable again.

In practice, the effects of bioaccumulation and biomagnification of
these persistent substances are easily seen. Nhile PCB's have been

essentially banned in the United States for about a decade they continue to

accumulate in Great Lakes fish to such an extent that all eight of the Great

Lakes states and the province of Ontario have consumption warnings on their
sport fish. Researchers have found that eating these fish poses a threat to

human health. Specifically they have documented adverse effects on infants
whose mothers ate Great Lakes fish (and thus had elevated levels of PCB's in
their bodies) and breastfed them. The effects lower on the food chain are

also easy to see. The U.S. Fish and Wildlife Service has evidence that a

specific isomer of PCB's inhibits the reproduction of Lake Trout. A host of

wildlife researchers believe that PCB's are linked to problems among Great
Lakes cormorants including cross-billed deformities, egg failure and

A persistent toxin showing wide-ranging impact is mercury, Mercury is a

proven human poison that can have severe effects on the human central nervous

system, physical and mental development and can even cause death. In its

methylated form it easily enters the food chain and accumulates in living
organisms. With just a single laboratory discharging its waste mercury from
its sewer, fish became so polluted in Lake St. Clair (between Michigan and

Ontario feeding the Detroit River) that this highly productive sport fishery
had to be closed for a number of years. Now even more widespread, although as

yet less severe, mercury contamination is causing problems in areas across
North America. Florida has found more than 8 million acres in at least 50


From: G. Thomas Bancroft at 8385-852-4889 81-64-93 89
To: Ty Porter From Tom Nartin at 1813 228 6422 ea8

bodies of water with fish and alligators so tainted that consumption
advisories have been implemented, In the north, Minnesota, Wisconsin,

Michigan and Ontario have done the same for fish in much of their

jurisdiction. All of this has occurred despite control programs in all of the
media for mercury.

In short there is ample evidence of bioaccumulation and biomagnification

throughout the food chain. Additionally the effects of these toxins on living

creatures expands beyond the usually regulated carcinogenic effects to
mutative capacities and even developmental effects on human infants.

The Regulatory Response

The phenomena of bioaccumulation and biomagnification have begun to

influence how toxic substance regulation is applied, Recently in
reauthorizing and amending the Clean Air Act the federal government began to
attack pollution across media boundaries. After hearing testimony from
regulatory agencies, interest groups and scientists Congress included in the

Act at least four important features recognizing the importance of air sources

to aquatic ecosystem health,

First, in Section ii2(c), a regulatory section, EPA is directed to

aggressively attack seven specific bioaccumulative, persistent toxics. Within

5 years after the November, 1990 enactment of the law it must list categories

and subcategories of emitters to ensure that 904 of the emissions are

identified. Within 5 years after that these sources are subject to Maximum
Achievable Control Technology (MACT) requirements the Act's most stringent.
These seven substances, alkylated lead, POM (e.g. benzo-a-pyrene),

hexachlorobenzene, mercury, PCB's, 2,3,7,8 Tetrachlorodibenzo-p-dioxin,

(2,3,7,8, TCDD) and 2,3,7,8 Tetrachlorodibenzo-furan (2,3,7,8 TCDF) were

2.1 _______

From: G. Thomas Bancroft at 1385-052-4889 61-84-93 89:
To: Ty Porter From Tom Nartin at 8813 228 6422 889 o:

chosen because data already established their effect through the food chain.

Second, because of the documented widespread effects of mercury on the

food chain it was singled out for further attention. Section ii2(h) requires
EPA to conduct and submit a report to Congress, by 1994, detailing the most

likely sources of airborne mercury, including the contributions of electric

steam utilities and municipal waste incinerators, Nithin the next year the

National Institute of Environmental Health Science must conduct and transmit

to Congress a study determining the threshold level below which adverse human
health effects are not expected to occur. This provision must include a
threshold for mercury in fish that may be consumed (including that eaten by
sensitive populations) without adverse effects to public health. Clearly this

section is laying the groundwork for tighter mercury controls based on food

chain effects.

Then Section ii2(m) sets out for the National Oceanographic and

Atmospheric Administration (NOAA) an intense regime of monitoring the

deposition of hazardous air pollutants into the Great Lakes, Chesapeake Bay,

Lake Champlain and coastal waters, This requirement specifies that NOAA must

measure the adverse effects of this deposition on human health and the

environment including through the sampling of biota, fish and wildlife. The

first reports are due next year but by 1995 EPA must promulgate further

emission standards or control measures necessary to prevent serious adverse

human health and environmental effects, including those due to bioaccumulation
and indirect pathways if the other provisions of the Act aren't stringent

Finally, Title IX of the CAA provides for joint federal studies to

assess air pollution damage on ecosystems including effects on aquatic


From: G. Thomas Bancroft at 8385-852-4889 81-4-93
To: Ty Porter From To. Hartin at 8813 228 6422 01

In sum, Congress and the Bush Administration recognized that water is a
sink for air pollutants and creatures in the aquatic food chain serve as its
sentinels. By identifying the accumulation of toxic substances in their
bodies, policymakers have used fish and wildlife to drive air pollution
emission limits lower than they would otherwise be.

The debate over reauthorization of the CWA and implementation of its
existing provisions provides another insight into how these creatures are

driving regulatory policy, In accounting for the effects on the food chain of
these bioaccumulative, persistent toxins new regulatory limits may well be
established on a concept of total mass loadings. This concept, now under

debate, moves from a regulatory focus for setting control limits on the end of
a specific discharge pipe to an evaluation of the health of the receiving
ecosystem. In practice, this would set significantly more stringent limits
for many discharges,

In 1991 EPA issued draft guidance entitled "Assessment and Control of

Bioconcentratable Contaminants in Surface Hater." This guidance is intended
to be used by EPA and state agencies in setting discharge limits for this
class of contaminants. Presently when numeric discharge limits are set for
toxic chemicals (i.e. x parts per million) one of the factors considered is a

bioconcentration factor (BCF) to account for the bioaccumulative
characteristics of a substance. The higher the BCF, the more stringent the
discharge limit, To account for the effects of biomagnification in setting
permit limits EPA advocates the use of a food chain multiplier (FM) to be used
in addition to the BCF. Essentially this is a device to ensure that limits
protect humans since we are at the top of the food chain. Further many

advocate that for some families of substances like PCB's or dioxins that
congener (form) specific limits be used and that fish and wildlife (especially

2zo9 __

From: G. Thomas Bancroft at 1385-852-4089 K1-M0-93 69:
To: Ty Porter Fron Tom Iartin at 3813 228 6422 o11

those that eat fish) are included in calculating the FM. That means that
regulatory limits could set by how efficiently the most toxic form of a
substance accumulates in the most sensitive species at the top of the food
chain. In practice this could mean that for some substances discharge limits

could be lowered by orders of magnitude from their present levels.

In the context of this guidance and in the debate over the tenure of

reauthorization of the CNA regulation of these toxins presents other thorny
problems as well. First, many environmental groups are now advocating the
elimination of mixing zones and dilution now in widespread use to allow easier

attainment of permit limits for discharges. The theory for these mixing zones

was premised in large part on the ability of receiving waters to assimilate or

absorb a minimum amount of conventional pollutants, such as a nutrient,
without harm to the ecosystem. However, many now advocate that there is no
assimilative capacity for bioaccumulative, persistent toxins because they
don't break down in the environment, rather they accumulate. Therefore, the

most sensitive possible testing will be undertaken for chemicals of concern,
Using this approach limits would be set at the end of the discharge pipe and

measured there or, in some cases, in the manufacturing process itself.

A second implication of this more aggressive approach to dealing with

these toxic substances is that regulatory agencies must begin to account for

pollution that is already in place in the receiving waters, its sediments and

living creatures. Presently regulators tend to test only the water column to
see if a discharge meets regulatory muster. However, it can be argued that
the agencies should also test sediments that may become bioavailable to

aquatic dependent organisms, In addition, it follows that the tissue of those
creatures to should be evaluated to see how much of the substance of concern

they already have accumulated. Discharge limits would then be set to ensure
that the added loading to the system would not push the burden in any species

S1o _

From: G. Thomas Bancroft at U385-852-4889 81-81-93
To: Ty Porter From Ton Martin at 1813 228 6422 0

above levels of concern,

In practice this approach would mean that historic pollution of an

ecosystem would be accounted for in making discharge limit decisions. So, for

example, if a discharger had been legally discharging to a water body and
meeting increasingly stringent limits, but has elevated the level of a

substance of concern in nearby fish or sediment they face a new, more

stringent, limit to account for pollution already in place. In addition this
examination would account for loadings of these substances from other even
very remote sources. For a substance like mercury where long range transport

into aquatic bodies has already been established, a discharge limit would have

to account for these loadings as well as the present and historic discharges
from point sources into the water body,

The CHA debate is likely to include intense debate over two other

subjects where these food chain effects are likely to come into play, First,

noting our present regulatory system attacks pollution on a substance by
substance basis, some advocate that limits for carcinogens in particular

should incorporate the possible additive or synergistic effects of the whole

family of these substances. In short, they believe that even lower limits
should be set as a safety factor to protect against the possibility that the

combined value of two individually safe limits may present an unacceptable

danger to human or animal health. Second, the effects on fish and wildlife

are certain to be cited when discussions are held about the strength of anti-
degradation or anti-backsliding provisions of the CAA, Generally these
provisions prohibit a discharger from increasing their discharge of a
substance from present control levels. This group of persistent,
bioaccumulative toxic substances and their ecosystem effects will be cited to

advocate for a continued and strengthened one-way regulatory rachet.

2. 11

From: G. Thoas Bancroft at L305-852-109 01-04-93
To: Ty Porter Fron Tom Irtin at 1813 228 6422 81:


By adapting a ecosystem style approach to setting regulatory limits

agencies will begin to look for effects on fish and wildlife as measures of
the present health of a system. Then, regulators will measure the total
loadings to a system and the level of existing pollution. Norking backwards
they will set limits on those discharges they can most easily control, air
stacks and water pipes. These limits will be much more stringent for
persistent, bioaccumulative toxic substances, than those that would be
established under a traditional approach. Control of the target pollutants
will increase the sophistication and cost of a plant's overall control
strategy. -



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