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6 March 1997 Edition

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The burning issue

The Environmental Protection Agency's will grant Syntex/Roche a licence to incinerate their toxic waste, and there are plans to burn domestic refuse in incinerators in Belfast and Dublin. Why not fight them in the courts? Robert Allen reports

Toxic pollution is a major health threat to animals and humans. Scientists, ecologists, environmentalists, and doctors all agree on this. So why are we looking for other scapegoats to explain animal and human health problems?

Not enough is known about the toxicity of most environmental chemicals, yet our legal systems appear impervious to this reality, instead focusing on antiquated scientific values to explain away what is known. If it cannot be argued or proven scientifically that pollution is the cause of ill-health, it is not a fact.

The frequently heard boast, as writer Mary Midgley has put it, that scientists can provide a theory for everything dominates modern thinking. To rely solely on science as a basis for evidence of pollution negates the anecdotal testimonies of workers and communities exposed to toxic substances. Anecdotal evidence and local knowledge, because they have no scientific basis, are regarded as unscientific and are disregarded.

Evidence of pollution allows industry to argue that their processes are not to blame for illnesses among industrialised communities.

Yet it is now becoming obvious that acute exposures to the chemical mix in our air and food can trigger diverse reactions in chemically sensitive individuals and occasionally lead to sensitivity in otherwise healthy people - long before cancer and other illnesses set in.

Martyn Day, environmental law specialist at the London firm of Leigh, Day and Co, has argued for many years that the law is biased in favour of industrial and state science.

Proof that a particular pollutant is responsible for a particular illness or sickness, is virtually impossible to establish in British toxic tort (civil wrong) legislation, as Scottish farmer Andrew Graham discovered when he tried to sue the hazardous waste disposal company ReChem, alleging they had destroyed his herd with toxic emissions from their Bonnybridge high-temperature incinerator.

In its defence, Rechem - which closed its Bonnybridge incinerator in 1984 but still operates incinerators in Pontypool, south Wales, and Southampton, Hampshire - argued that Graham's problems were not caused by emissions from their incinerator. They alleged it was bad husbandry by Graham.

The Graham case is a classic example of the imbalance in current environmental law in both Britain and Ireland because the onus was on his legal team to prove that ReChem's incinerator emissions were to blame for the death of his cattle. Unfortunately for the Graham's their solicitors were unable to show ``causation'' by ReChem and the judge, Justice Forbes ruled against them. Desmond Browne, barrister for ReChem, contended that harm or damage cases must be forseen for liability to be proved. Therefore strict liability only applies if damage can be reasonably forseen. Browne stated that the emissions ``were not forseeable consequences of the operation of the incinerator''.

The Grahams had failed to demonstrate to the court that ReChem and not some other cause had killed their herd - which is proving to be the anvil, Martyn Day has argued, on which modern environmental law is forged. ``For those injured by environmental pollution there are two key hurdles. The first is the enormous difficulty in proving causation. They must show that any particular complex cancer has been caused by the environmental pollutant rather than by any of the other possible causes. The second is showing the fault of the defendant. These two hurdles, in most cases, are almost impossible to overcome.''

But not entirely impossible, as the Hanrahan family in South Tipperary discovered when they successfully sued US chemical transnational Merck Sharp and Dohme in the Irish courts for the alleged deaths of 224 animals and ill-health on their farm. The Hanrahan's, however, won against the odds. In the Irish case it was proven that MSD's incinerator was faulty and did not burn the waste at the required temperature - thus releasing highly toxic pollutants into the air. It was the Supreme Court's ruling that only Merck's incinerator emissions could have caused the Hanrahan's problems - after the High Court had found against the family, which surprised even the legal profession. But according to one lawyer the court did not go far enough.

In making the Hanrahan ruling the Supreme Court had, said Dr Conor Gearty, of King's College, London, a chance to restructure the law in a way that would have favoured individuals against transnational polluters but failed to do so.

The fact that the Supreme Court ruled in the Hanrahans' favour was, according to Dr Gearty, a signal from the highest court in Ireland that it is prepared, in the right situation, to interpret the law in a way favourable to the plaintiffs in order to achieve a result that accords with justice and fairness.

Though justice and fairness, as Martyn Day has pointed out, are not words associated with modern environmental law. ``Those companies that are involved in polluting our environment do so in the pursuit of profit. Where in years to come it is possible to show that a child's cancer has been caused by a particular process, it ill behoves a company to say, `ah, but we were not clear that the pollution we were pushing out could cause that particular harm and it would be unfair to make us pay'. The child is a totally innocent victim and it should be the polluter, as the party who has profited from the polluting activity, who must take the risk, not the individual.''

In the meantime potentially polluting industry is determined it should not be liable and is prepared to devote its enormous resources towards defeating any claim against it. And, as in both the Hanrahan and Graham cases, industry can turn, as Day put it, ``to scientists and lawyers by the score'' to make its case that its specific processes are not the cause of illness, despite the accepted scientific fact that certain chemicals are the cause of countless cancers, reproductive and developmental problems and abnormalities in new born children.

EC and national legislation is going a little way towards protecting communities from toxic pollution from incineration but the problem remains - that incineration as a disposal method does not destroy waste, it simply changes its molecular structure while reducing its volume en route to the food chain via air, land, rivers and sea. The EC has accepted new standards for dioxin emissions which were thought by the chemical and hazardous waste disposal industries to be technically impossible and financially crippling. ``We now have a limit - a regulatory 0.1 nanogram per cubic metre - and I say that is absolutely agreeable,'' said Bayer's Gerhard Stolpa. ``In my personal opinion the risk of dangers from dioxins are heavily over estimated.''

Whether incineration is given the ultimate green light in Europe will depend on how communities react to the erection of these facilities in their midst. Virtually all EC member states and many local authorities favour incineration but want strict environmental controls, monitoring and enforcement. And that's the problem. Adequate monitoring and enforcement has proved impossible and because industry knows it can now win in court it has only to be seen to be responsible. Zero emissions - which would eliminate the problem - are nothing but a pipe dream.

This is an edited version of a longer paper on incineration and the law, available from Robert Allen, c/o An Phoblacht.

An Phoblacht
44 Parnell Sq.
Dublin 1

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