Uncertainty Human Error and the Burden of Proof

Inadequate compensation for victims of toxins, inequitable distribution of the risks associated with hazardous wastes, and the uncertainties and potential harm associated with such substances provide powerful arguments for reducing or eliminating exposure to them. To decrease exposures and to move beyond dumping, however, we must have market incentives for reducing the volume of toxic substances and hazardous wastes (Piasecki; Higgins). To reduce the volume of these threats, we must know exactly what effects they cause, and we must make risk imposers accountable for their behavior. Ensuring accountability is not easy. Adequate tests for medical responses to low-level chemical exposures require samples of thousands of persons, because so many toxic substances produce health effects synergistically, because there are many uncertainties about actual exposure to hazardous substances, because the effects of such exposure often are unknown (Ashford and Miller), and because phenotypical characteristics among individuals often vary by a factor of 200. All four variables cause extreme differences in humans's responses to toxins.

Uncertainties about exposure and about the consequences of exposure to hazardous substances are compounded by the fact that the industries that produce toxic substances and hazardous wastes—and that profit from them—usually perform the required tests to determine toxicity and health effects. Pesticide-registration decisions (about allowing use of the chemicals) in the West, for example, are tied to a risk-benefit standard that combines scientific and economic evidence. Because industry does most or all of the testing, and because environmental and health groups are forced to show that the dangers outweigh the economic benefits of a particular pesticide, there is much uncertainty about the real hazards actually faced by workers and consumers. As a consequence, virtually no groups want toxic substances or hazardous wastes used or stored near them. Hence the protest: Not in my backyard—NIMBY.

NIMBY responses also arise as a consequence of public mistrust of human institutions for controlling hazardous wastes and toxic chemicals. All dangerous technologies are unavoidably dependent upon fragile, sometimes short-lived, human institutions and human capabilities. Faulty technology, after all, did not cause the injuries and deaths at Three Mile Island, Bhopal, Love Canal, or Chernobyl. Human error did. Human error and misconduct also may be the insoluble problem with using toxic substances and managing hazardous wastes. According to risk assessors, 60 percent to 80 percent of industrial accidents are due to human mismanagement or corruption (Shrader-Frechette, 1993). For example, at the nation's largest incinerator for hazardous wastes, run by Chemical Waste Management, Inc., in Chicago, a 1992 grand jury found evidence of criminal conduct, including deliberate mislabeling of many barrels of hazardous waste. They also discovered deliberate disconnection of pollution-monitoring devices. More generally, corruption in the waste-disposal industry has been rampant in the United States ever since the 1940s, when the Mafia won control of the carting business through Local 813 of the International Brotherhood of Teamsters. In the mid-1990s, three Mafia families still dominated hazardous-waste disposal and illegal dumping: the Gambino, Lucchese, and Genovese/Tiere crime groups (see Szasz). Given the potential for human error and corruption, citizens are frequently skeptical regarding whether hazardous and toxic substances will be handled safely, with little threat to workers or to the public.

Because of scientific unknowns and uncertainties about human behavior and corruption, several moral philosophers have argued that potentially catastrophic situations—involving hazardous wastes and toxic substances—require ethically conservative behavior (Cranor; Shrader-Frechette, 1991; Ashford and Miller). Such situations often require one to choose a maximin decision rule to avoid situations with the greatest potential for harm, as John Rawls (1971) has argued. Ethical conservatism, in a situation of uncertainty, also may require society to place the burden of proof— regarding risk or harm—on the manufacturers, users, and disposers of hazardous substances, rather than on their potential victims. This, in turn, may mean that we will need to reform our laws governing so-called toxic torts (Cranor).

Given the longevity and the catastrophic potential of many toxic substances and hazardous wastes, we may need to reevaluate the human and environmental price we have paid for our economic progress. Although our society may not be able to avoid use of certain toxic substances and disposal of some hazardous waste, it is clear that we need to maximize the equity with which we distribute the risks associated with such threats. We also need to guarantee, so far as possible, that potential victims of toxins are informed about the risks they face and that they freely consent to avoidable risk impositions. Finally, we ought to ensure that those put at risk from toxic substances and hazardous wastes are compensated, so far as possible, for harm done to them. Because of numerous uncertainties about their effects, and because of the catastrophic potential and the longevity of many hazardous materials, our behavior regarding them ought to be ethically conservative.

KRISTIN SHRADER-FRECHETTE (1 995) REVISED BY AUTHOR

SEE ALSO: Environmental Ethics; Environmental Health; Environmental Policy and Law; Future Generations, Reproductive Technologies and Obligations to; Technology

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