The Gospel of Risk Management: Should We Be Converted?

David Doniger

Mr. Doniger is Senior Attorney at the Natural Resources Defense Council's (NRDC's) Washington, D.C. office.

William Ruckelshaus is on a crusade to persuade the American public to fundamentally change its ideals about public health and the environment. We should, he says, "accept" risk.¹ We should lower our expectations of the Environmental Protection Agency (EPA). We should not dare to hope for more than "reasonable" protection from carcinogens and other hazards.

There are grave moral and practical consequences to what EPA Administrator Ruckelshaus advocates. Some of these consequences show up plainly in the regulation of hazardous pollutants. EPA has proposed standards for benzene, arsenic, and radionuclides, for example, which many feel fall far short of what is required. Let me highlight four of the generic issues the EPA hazardous pollutant proposals have raised.

The Ethical Basis for "Risk Management"

When the Administrator urges the American people to accept a philosophy of deliberately trading off lives and health against the economic costs of pollution controls ("risk management"), he is both disregarding the requirements of the Clean Air Act and swimming against to strong tide of public opinion. Section 112 of the Clean Air Act embodies the public's adherence to a fundamental goal that no one should be required to sacrifice his or her life or health on account of air pollution. The testimony and written comments of so many individuals living near the ASARCO smelter in Tacoma, Washington and elsewhere around the country show that when lives and health are on the line, the general public will not accept a philosophy which abandons that goal and legitimizes such trade-offs. This philosophical and moral rejection of the Administrator's policy is not going to change, for such trade-offs are deeply repugnant to most people.

The strength of public feeling on this issue is nothing new. It dates from the 1970 enactment of the Clean Air Act and before. The Administrator's argument is also nothing new. "Risk management" appears to be nothing more than a new name for cost-benefit analysis. No matter what the name it is given. the public consistently rejects it.

The force of this conviction is something that EPA must accept and respond to. EPA has to find a way to administer § 112 of the Clean Air Act in a way that respects, rather than offends, this fundamental conviction of the nation's citizens. This means the EPA must embrace, rather than abandon, the health goal of § 112.

The Increase in Danger Deemed "Acceptable"

My second point concerns the historical contrast of these proposals with earlier standards. Taking the Agency's quantitative risk assessments at face value, the benzene, arsenic, and radionuclide proposals indicate EPA's apparent willingness to leave individuals exposed to far higher risks of cancer than were tolerated in past hazardous air pollutant decisions. We are not just referring to the risk assessment for the Tacoma smelter. The quantitative risk estimates for the most exposed persons near some of the other facilities, and near numerous sources that EPA has proposed not to regulate at all, are substantially higher than those implied by hazardous air pollutant standards EPA has set before. They are within a range, I submit, that strikes most people as shocking. This public reaction is partly no more than a corollary of the public's rejection of deliberately making trade-offs between lives and economic costs. But it also reflects a public concern of a comparative nature: now EPA is prepared to supply even less protection from cancer-causing chemicals than it did just a few years ago.

Fairness for Those Trapped in "Islands of Risk"

My third point has to do with equity. The arsenic proposals do not address the fairness of leaving people trapped in what have been termed "islands of risk." for the people of Tacoma, who are clearly exposed to the highest concentrations of arsenic, the Administrator has deliberately framed the issue as a trade-off between allowing continued high risks of cancer or closing a plant — a grim either-or proposition.² The Administrator has failed even [14 ELR 10223] to ask a fundamental question of fairness: Doesn't the government, representing the rest of the American people furtunate enough to live in what we think are safer places, owe some form of relief to those who are trapped in the islands of risk? When the dioxin-contaminated town of Times Beach, Missouri was judged unsafe to inhabit, EPA used Superfund monies to purchase the residents' homes, relieving them of the awful choice between their health or their homes. While the Superfund itself is not available for use regarding air emissions from ASARCO-Tacoma, doesn't the issue of fairness still need to be addressed?

There are feasible options. Such aid could take a variety of forms: low-interest loans to ASARCO for further pollution control investments, or adjustment assistance for displaced employees and for the city, to mention just two. Rather than encourage Tacomans to choose between their health or the smelter, the Administrator could have taken a leadership role to explore such assistance. He still can.

It is no answer to say that such assistance is not provided for by the current terms of § 112; the Administrator has not been bashful in suggesting other legislative changes to that provision.

The Dubious Rationality of "Risk Assessment"

My fourth point is a technical one. The current techniques for estimating the size of cancer risks are not up to the task to which the Administrator has assigned them. They are too uncertain and fragile to be a rational basis for the "risk management" decisions the Administrator wishes to make. Neither knowledge about how chemicals cause cancer once we are exposed, nor techniques for estimating the extent of exposure, are advanced enough to be the primary basis for deciding what substances to regulate and to what degree. The Agency does not have support even for its contention that its estimates are confidently conservative; a variety of factors not taken into account can lead to significant underestimates of risk.

In the arsenic proposals, risk estimates have been put forward as justification for not requiring use of known and practical emissions control technology. In the recent benzene decisions the Administrator has made even heavier use of risk assessments to justify exempting wholecategories of sources because of allegedly "small" risks.

Under a precautionary statute that directs EPA to play it safe rather than sorry, quantitative risk assessments are sometimes useful in indicating that a proposed control plan is clearly inadequate. They may also be used to illustrate gross inequities between the protection afforded one group of people versus another, as discussed above. But EPA's use of its current techniques to justify not applying available controls cannot be supported either as a rational application of the statutory criteria or as a sensible public health policy judgment.

Risk assessments are terribly uncertain. Administrator Ruckelshaus would admit that you wouldn't try to send a man into orbit on the strength of these equations. As he wrote in these pages, "We simply do not know what shape of the dose-response curve is at low doses, in the sense that we know, let us say, what the orbit of a satellite will be when we shoot it off."³ These numbers are no more reliable for protecting public health.

So should we be converted? I think not. Will we be? As far as I can see, the public is not coming around to Mr. Ruckelshaus's point of view.

1. See Ruckelshaus, Tisk in a Free Society, 14 ELR 10190 (May 1984).

2. Some relief from this horrible trap may come from requiring the smelter to install additional technological controls. Since the proposals were issued, the EPA staff has identified significant additional emissions control opportunities. But even if all the identified controls are implemented, there will still be high levels of arsenic emissions and a continuing imperative to reduce pollution further.

3. Ruckelshaus, Risk in a Free Society, 14 ELR 10190, 10191 (May 1984) (emphasis in original).