Better Living Through Chemistry¹

[T]he chemical processes which are mediated by the biochemical system represent an exceedingly small fraction of the reactions that are possible among the chemical constituents of living cells. This principle explains the frequency with which synthetic substances that do not occur in natural biological systems … turn out to be toxic.²

Introduction

At the molecular level, it has always been a chemical world. But since the 1930's, when the chemical industry began its phenomenal 15 percent annual growth, it has become a synthetic chemical world. Some 250,000 new artificial chemical compounds are invented each year, of which over 500 are introduced into general use; about 10,000 synthetic organic chemicals are already in industrial, commercial and personal use as fuels, lubricants, plasticizers, food additives, feed additives, preservatives, packaging and construction materials, cosmetics, drugs, household convenience products, pigments, aerosol propellants, wearing apparel, and so on. Annual worldwide production of synthetic organic chemicals, which jumped from seven million tons in 1950 to 63 million tons in 1970, is expected to attain 250 million tons by 1985.³

Thus it is hardly surprising that a series of recent environmental health crises has occurred, awakening the public to some of the hazards presented by synthetics. For example, diethylstilbestrol, given to suppress miscarriages, has been found to cause cancer in the children it "saved"; hexachlorophene, widely used as a germ killer in deodorants and deodorant soaps, has been implicated in birth defects; vinyl chloride, the gas which is polymerized to form the second most widely used plastic (polyvinyl chloride) and which until recently was employed as an aerosol propellant, is now recognized as a virulent carcinogen (cancer-causing agent); DDT, an effective but highly persistent pesticide, has been shown to distrupt reproductive processes of many bird species and is suspected of causing cancer.

The most obvious form of harm associated with synthetics is probably cancer, which now strikes one out of every four Americans.⁴ There has been an enormous increase in the incidence of cancer in the last 50 years which has generally been attributed to twentieth century medicine's eradication of many other fatal diseases. Recently, however, epidemiological studies have shown that cancer mortality is heavily concentrated in urban and industrial areas. Such a distribution is more nearly consistent with the view that something in the environment is responsible for the rise than with the traditional explanation. Indeed, it is now believed that 75 to 90 percent of all cancers are caused by environmental factors, including synthetic organic chemicals.⁵

Of course, carcinogens do not, like poisons, operate immediately; there is typically about a twenty-year period between initial exposure to a substance and appearance of the disease.⁶ Indeed, in general, the harms associated with synthetics do not become manifest immediately. [5 ELR 50110] Either there is a latency period, as with genetic damage and mutations, or, even if harm is immediate, a long time is usually needed to perceive and conclusively establish the causal link between recognized damage and the responsible substance. Such a time lag between cause and real or perceived effect makes attempts at government regulation ticklish, as exemplified by the case of freon gases.

The Task Force Report

An inter-agency federal task force recently issued a report on the danger posed to the stratospheric ozone shield by release of chlorinated hydrocarbon gases, which are widely used in consumer and industrial products and processes, particularly as aerosol spray can propellants. Fluorocarbons and the Environment: Report of the Federal Task Force on Inadvertant Modification of the Stratosphere (Task Force Report) is significant beyond its immediate subject matter, for it contains a thoughtful general discussion of how the government should approach the delicate task of regulating materials which pose risks of future harm to public health and the environment but whose hazards cannot be conclusively established on the basis of present data. Since this sort of problem has recently beset both regulatory agencies and courts, it deserves scrutiny. In addition, as the Task Force recommended specific federal regulatory action, it is important to determine whether the actions it proposed, based on evidence it considered sufficient, are likely to withstand judicial review or even be undertaken by the agencies involved.

The Task Force, made up of representatives from a baker's dozen federal agencies,⁷ conducted a four-month review of current scientific literature bearing on the possible destructive impact of certain chlorofluorocarbon gases on the ozone layer in the stratosphere, which shields the earth from large quantities of dangerous solar ultraviolet radiation. The gases in question, CFCl[3], known as flourocarbon-11 (F-11), and CF[2]Cl[2], fluorocarbon-12 (F-12), enjoy widespread and continually growing use⁸ as aerosol propellants because they are remarkably chemically inert under nomal conditions, i.e., they do not react with other substances, including the materials which they propel from spray cans.

It is exactly this quality of inertness which, paradoxically, makes fluorocarbon gases dangerous,⁹ for it means that they do not disappear upon release (by combining chemically with something else or dissolving in water) but rather accumulate indefinitely in the atmosphere.¹⁰ It was discovery of F-11 in the troposphere over Ireland which led to the following theoretical scenario for harm, first published only a year ago.¹¹ Fluorocarbon gas will diffuse over time upward into the stratosphere; there it will encounter and be broken down by ultraviolet (UV) radiation, releasing free chlorine atoms; these will interact catalytically with the ozone in the stratosphere, causing its destruction; decreased ozone will result in increased ultraviolet radiation on the earth's surface, which will cause damage to human health (increased incidence of skin cancer, etc.) and may adversely affect plant metabolism and climate.

Atmospheric sampling and monitoring have already provided empirical confirmation of all links in this theoretical chain, except (1) actual stratospheric dissociation of F-11 and F-12 into free chlorine by UV, and (2) substantial actual destruction of stratospheric ozone. As to these processes, there is laboratory corroboration: high energy UV radiation causes chlorine to be liberated from F-11 and F-12, and such free chlorine reacts catalytically with ozone to break it down into normal oxygen, which has UV-blocking properties. In short, ozone-reduction is a persuasive scientific theory partly confirmed by empirical evidence.

After reviewing this evidence, and analyzing the economic impact that a use ban would have on fluorocarbon-related industries, the Task Force concluded that fluorocarbon releases to the environment "are a legitimate cause for concern."¹² Therefore, it suggested that all uses involving release of F-11 and F-12 into the atmosphere should be stopped unless, within [5 ELR 50111] the next two and one-half years, concrete proof is developed that contradicts some major element of the above analysis. More exactly, if a current National Academy of Sciences Study, due to report in less than a year, confirms the current assessment, the federal regulatory agencies should initiate rulemaking procedures for implementing regulations to restrict fluorocarbon uses.¹³ Thus, in effect, the Task Force proposed government action to ban the use of a substance on the basis of something less than full empirical proof of present harm.

The approach it used in coming to this conclusion is worthy of close scrutiny, for it may have wide applicability. The Task Force viewed atmospheric fluorocarbons as posing a special type of hazard, one in which harmful effects are not immediately apparent. Instead, as in the case of cancer induced by chemicals in the environment, there is a time lag "in the order of tens of years" between cause and effect.

This gap was found to call for a unique approach to regulatory decision making, for several reasons.¹⁴ First, it may mean that current public awareness and concern do not, as in the usual case (e.g., food poisoning, faulty machines or autos), accurately reflect the degree of risk. Second, a time gap may create problems of equity, for the group gaining benefit from use of a substance may not be the same as that exposed to the risk. Third, latency implies that by the time effects become measurable, a large impact may have already resulted. Finally, latency means that even if further exposure is eliminated, effects are likely to continue for several years. For these reasons, the Task Force concluded that

as soon as there is reasonable assurance that the predicted effects will indeed occur, the decisionmaker must take into account the equity factors and treat the potential future effects as if they were occurring today. If the hazard poses potentially serious effects, the decisionmaker may not be able to wait for the measurement of the effect. Great caution has to be exercised in reacting to relatively unsupported hypotheses. On the other hand, when presented with well founded scientific theory, confirmed by statistically reasonable experimental evidence, it may be necessary to act.¹⁵

Of course, as mentioned in the introduction, many environmental health hazards exhibit some type of latency feature. The irreversible adverse effects of acute or chronic exposures to a broad range of carcinogenic, mutagenic and teratogenic substances fall into this category. And, as noted, materials which cause immediate but low-grade harm are functionally similar in impact, due primarily to the practical impossibility of quickly establishing the causal link between them and their harmful effects. For example, a committee of the American Association for the Advancement of Science recently made this recommendation with respect to mutagens:

Since there may be no way to identify environmental mutagenesis as the specific cause of observed abnormalities, it is crucial to identify potential mutagens before they can induce genetic damage in the population at large.¹⁶

The delayed ban proposed by the Task Force falls somewhere between what the industry wants and what some environmentalists have urged. The chemical industry, for example, immediately accused the Task Force Report of "pre-judging" the fluorocarbon-ozone issue, arguing that fluorocarhons must be presumed innocent until proven conclusively "guilty."¹⁷ The Natural Resources Defense Council, on the other hand, petitioned the Consumer Product Safety Commission (CSPC) last fall for an immediate ban on all aerosols employing fluorocarbons. The CPSC initially deferred response to this petition, citing the then-pending Task Force study, in connection with which the Justice Department was conducting a survey on CPSC and other agency regulatory authority. NRDC has since sued to compel agency action.¹⁸ Interestingly, the Justice Department survey concluded that the CPSC does have jurisdiction over all aerosols not containing pesticides or food, drugs, or cosmetics.¹⁹

Since the pending NAS study, like the Task Force's own, is a literature review without empirical component, it is difficult to see why the Task Force concluded that regulatory action should await its outcome. Indeed, such a delay is inconsistent with the above analysis of decision-maker response to latent hazards. This delay was probably the result of a compromise between those member agencies which favored immediate action and those opposed to any regulatory intervention without concrete proof of harm.

Feasibility of the Proposed Regulatory Bans: Present Standards of Judicial Review

The Task Force took the position that most current aerosol and other releases of fluorocarbons were within the reach of existing regulatory agency powers. Specifically, it concluded that the Consumer Product Safety Commission can regulate consumer aerosols; the Food and Drug Administration, pressurized food, drug and cosmetic products; and the Environmental Protection Agency, pesticide bombs.²⁰ This view of agency authority was based on the Justice Department survey alluded to earlier.

The Task Force's further conclusion that the above bodies should conditionally institute rulemaking leading [5 ELR 50112] to bans on such uses necessarily assumes that the present state of the evidence will prove sufficient to support such rules, both in the administrative context and in the crucible of eventual judicial review. The viability of the Task Force's key recommendations depends on this assumption, which seems at the very least questionable in the light of recent judicial decisions.

A number of appellate court cases decided in the last few years deal with latent hazards, i.e., with substances or processes whose potential ill effects may not become conclusively apparent until long after they begin to act. The inevitable evidentary problems raised by such hazards, which, by definition, produce few or no current ill effects, have prompted a variety of judicial responses. Some of this variety may be traced to differential items of evidence, particularly the presence or absence of such compelling facts as actual deaths ("body counts").²¹

The rhetoric of the cases suggests, however, that a variable judicial approach to the scope of judicial review may also be a factor. Specifically, courts term some regulatory decisions "quasi-legislative." In these cases, judges require less in the way of "factual" support for future-directed regulations than in others, where they hold administrators to a more nearly "judicial" standard of concrete supporting evidence. In other words, in the former situation the administrator's decision to regulate or not to regulate a substance is likely to be upheld, while in the later it is more likely to be upset.

The clearest recent expression of the "quasi-legislative" formula appears in Society of the Plastics Industry, Inc. v. OSHA,²² a case involving the propriety of the Secretary of Labor's determination, under the Occupational Safety and Health Act (OSHA) of 1970, that plastic workers should have practically no exposure to vinyl chloride monomer (VCM), a potent carcinogen. The Secretary's decision to regulate VCM was based on a reasonably compelling medical data base (including some recent worker deaths), but the industry argued that available scientific evidence did not support the Secretary's average one-part-per-million exposure standard.

Former Justice Clark responded by ruling that OSHA gives the Secretary of Labor quasi-legislative power to act even absent full factual support:

There are areas where explicit factual findings are not possible, and the act of decision is essentially a prediction based upon pure legislative judgment, as when a Congressman decides to vote for or against a particular bill.

Policy choices of this sort are not susceptible to the same type of verification or refutation by reference to the record as are some factual questions.²³

The quoted language was taken from an earlier case, Industrial Union Department, AFL-CIO. v. Hogdson,²⁴ in that case the Labor Secretary's contrary decision — to move slowly in reducing worker exposure to airborne asbestos dust, another potent occupational carcinogen — was upheld on the same "quasi-legislative" basis.

Society of Plastics Industry and AFL-CIO are noteworthy in that they stress quasi-legislative administrative discretion despite the fact that the Act specifically mandates use of the substantial evidence test on judicial review, rather than the less demanding arbitrary and capricious test traditionally used to scrutinize informal agency rulemaking. The incongruity involved in specifying substantial evidence as the standard of review for informal agency rulemaking was noted and criticized in AFL-CIO.²⁵

Another case in which the administrator's decision survived judicial review was EDF v. EPA,²⁶ where the court approved the EPA Administrator's decision, under FIFRA, to terminate almost all uses of the pesticide DDT. Like OSHA, FIFRA specifies the substantial evidence test as the standard of judicial review. Here, without specifically resorting to "quasi-legislative" rhetoric, the D.C. Circuit upheld the Administrator's ban despite the contrary recommendation of his hearing examiner, and despite much evidence cutting against the Administrator's finding that DDT posed serious risks of harm to humans and other organisms. Said the court, with apparent relief,

[W]e as a court are confronted with a problem in administrative law, not in chemistry, biology, medicine or ecology. It is the administrative agency which has been called upon to hear and evaluate testimony in all scientific fields relevant to the ultimate question …. The EPA Administrator had an opportunity to make a careful study of the record …. It is his decision which we must review: we are not to make the same decision ourselves.²⁷

Turning to the more numerous body of cases in which administrative judgments have been upset, one finds that the typical pattern is for the court, usually a court of appeals engaging in direct review, to treat the administrator as though he were a district judge weighing evidence in a lawsuit, — as, for example, actually occurred in Reserve Mining Co. v. EPA.²⁸ In that case the court of appeals was reviewing district judge Miles Lord's decision to enjoin Reserve Mining from dumping large quantities of asbestos-bearing mining wastes into Lake Superior. The primary basis for the lower court injunction had been the substantial threat to public health it found to be posed by the asbestos in the [5 ELR 50113] discharges: this asbestos was being ingested by inhabitants of communities, such as Duluth, which draw their drinking water supplies from the Lake, and inhaled by persons living near the Reserve Mining plant at Silver Bay, Minnesota.

The court of appeals considered the evidence insufficient to support the district court's finding of "substantial threat." Indeed, in its preliminary opinion the court of appeals cited AFL-CIO, supra, in accusing Judge Lord of engaging in a legislative policy decision.²⁹ At most, it opined, record evidence of the existence of asbestos in air and drinking water

gives rise to a reasonable medical concern for the public health. The public's exposure to asbestos fibers in air and water creates some health risk.³⁰

The evidence in question was viewed as leaving "uncertainty" as to the level of Minnesotan's exposure to Reserve Mining asbestos, a level in any event far below that of asbestos industry workers, and as to that level of exposure, if any, is safe.³¹ The last point seems to imply belief in a threshold level below which exposure to carcinogens produces no cancer. This ignores the widespread agreement among scientific cancer researchers that, as stated by Dr. Frank Rauscher, Director of the National Cancer Institute, "[T]here's no practical scientific method to prove experimentally the safety of any level of exposure to a carcinogen.³²

The court of appeals purported to be employing the usual "clearly erroneous" judicial standard in evaluating the district court's findings, and it went on to take nodding account of the inevitability of uncertainty about public health matters involving future predictions:

[W]e note that many of the issues in this case do not involve "historical" facts subject to the ordinary means of judicial resolution. Indeed, a number of the disputes involve conflicting theories and experimental results, about which it would be judicially presumptuous to offer conclusive findings.³³

Still, it concluded, a "detailed" review was required to demonstrate the "delicate balance of many issues in this case."³⁴ This language flies in the face of the court's earlier commitment to the "clearly erroneous" test; if, as stated, the issues were in "delicate balance," then the court of appeals had no business tampering with the district court's findings, for they could hardly be considered "clearly erroneous."

More troubling was the court's invocation of "scientific knowledge" and excessive reliance on a scientific standard of proof.³⁵ In explaining its decision, it quoted at length from Dr. Arnold Brown, a pathologist from the Mayo Clinic, whom Judge Lord had appointed as his impartial expert witness. Dr. Brown testified that, as a scientist, he did not consider the record evidence to meet the rigorous scientific standard of statistical probability.³⁶ But when he viewed it from his medical perspective, the proof looked quite different:

Now, when I turn, however, to the medical side of things, Your Honor, … I am convinced that asbestos fibers can cause cancer ….

As a medical person, sir, I think that I have to err, if err I do, on the side of what is best for the greatest number. And having come to the conclusion that I have given you, [on] the carcinogenicity of asbestos, I can come to no conclusion, sir, other than that the fibers should not be present in the drinking water of the North Shore.³⁷

Whether Dr. Brown's scientific opinion was accurate is open to serious question. As noted above, the great weight of scientific opinion rather supports the view that there is no such thing as a threshold for exposure to carcinogens.³⁸

More generally, it is inappropriate for courts, as practical decision making bodies, to rely on scientific standards of proof. Scientific judgment is always provisional and probabilistic; no theory is ever considered conclusively proved and so always leaves some room for doubt. For example, it would be impossible in practice to prove scientifically that air pollution causes harm to health, rather than that some true factor, "X," causes both air pollution and damage to health. Nevertheless, it would be entirely appropriate for a court to accept the former proposition, for purposes, say, of issuing an injunction in a public nuisance action, on the basis of strong epidemiological correlation.

In support of its decision to proceed slowly in ordering Reserve Mining to stop its dumping, the Eighth Circuit cited the now-withdrawn opinion of the D.C. Circuit in Ethyl Corp. v. EPA,³⁹ on "a problem analogous to the one now before us."⁴⁰ Indeed, the majority opinion in Ethyl Corp. comes as close to treating an administrator, here the EPA Administrator, as a district judge as any reported case. At issue were EPA's rules requiring phased reductions in lead content of all gasoline because of the cumulative public health threat posed to certain urban groups by airborne lead.

[5 ELR 50114]

EPA had based its findings concerning these effects on several empirical studies which, taken together, established not a conclusive but a plausible case for inferring risk of future harm of an irreversible nature (lead poisoning). Nonetheless, the majority upset the rules. Not surprisingly, its approach reflected no understanding of the necessity of relaxing traditional notions of "factual findings" when scientific evidence is inconclusive and future predictions required. Rather, it said, in a passage quoted in part in Reserve Mining,

If there can be found potential harm from lead in exaust emissions, the best (and only convincing) proof of such potential harm is what has occurred in the past, from which the Administrator can logically deduce that the same factors will produce the same harm in the future. For the dissent to argue that the Administrator can dispense with proof of actual harm, is to grant the plainest license for the wildest speculation. We have always thought scientific conclusions, above all, demanded proof by events recorded and observed.⁴¹

Similarly wooden approaches can be found in a number of other cases.⁴² This sort of judicial hostility to administrative attempts to regulate on the basis of risk of future harm is not really so surprising, for courts are better equipped to handle disputes about what happened in the past than about what might occur in the future. Both at common law and under the principles of equity, it is necessary to show present damage or at least a strong risk of imminently threatened harm. Moreover, as exemplified in Reserve Mining,

there are frequently immense difficulties, particularly where the risk is of a slow, creeping, cumulative nature (like automobile exhaust fumes) in showing injury in a sufficiently adequate legal manner to warrant a favorable decision for a plaintiff. Conversely, there are frequently immense difficulties in showing a causal relationship between an existing harm and the alleged … source of the injury.⁴³

Legislative Remedies Needed?

However understandable, judicial hostility to attempts to ban the use of environmental dispersion substances posing latent risks to human health does not bode well for the fluorocarbon bans which the Task Force proposed for adoption by the FDA, EPA and CPSC. There is no present, much less past, "factual" proof that fluorocarbons reduce atmospheric ozone. In fact, the Task Force explicitly pointed out that it will not be possible to accumulate convincing empirical support for the thesis for years.⁴⁴

Indeed, even if courts should prove sympathetic to the difficulties of regulating latent hazards, there is no guarantee that the agencies themselves will adopt the bans proposed. Despite the Task Force Report, the CPSC has decided that broad action against aerosol spray cans under its jurisdiction is not justified.⁴⁵

It may be possible to force agencies to consider this issue, but should one of them issue a rule refusing to ban aerosol products containing freon, the relaxed "quasi legislative" standard of judicial review will prevent an effective attack on it, just as it has insulated protective rules based on incomplete data. Two OSHA cases discussed earlier illustrate the problem nicely. In Society of the Plastics Industry, the court refused to touch a strong public health decision to ban virtually all occupational exposure to vinyl chloride gas, while in Industrial Union Department, AFL-CIO, what it upheld was a decision to delay implementation of similar rules limiting exposure to airborne asbestos.

In sum, it appears that courts are poorly equipped to handle future-oriented harm, either directly, as in Reserve Mining, or indirectly, as in reviewing predictive administrative rulings. It may therefore be necessary to resort to legislation in order to secure effective government regulation in the area of latent risks, but this has limits, too.

One theoretically promising approach to synthetic chemicals is the oft-proposed but never-enacted Toxic Substances Control Act (TSCA), which would require new chemicals to be proved "safe" before they could be marketed, thus anticipating problems rather than trying to remedy them after the fact by regulating either risks or actual harm. As this measure is to be discussed fully in the next ELR issue,⁴⁶ it will not be further explored here.

A more recent proposal would adjust the burden of proof of risk in environmental health cases. This is the Environmental Health Act of 1975, S. 841,⁴⁷ which in effect would establish a presumption of actionable harm upon a lesser showing of risk than presently required, [5 ELR 50115] throwing the burden of going forward onto the party whose conduct is challenged. Specifically, in any equitable action brought or agreed to by the EPA Administrator, once a party establishes that use of a substance raises a "possibility" of harm which is "not negligiable," the Act would impose a rebuttable presumption that

a threat to public health exists warranting the granting of such equitable relief as is deemed appropriate to protect the public against such a threat.

Although specifically addressed to the Reserve Mining case, the Environmental Health Act would change the result in cases like Ethyl Corporation as well. And, since it seems to extend to citizen suits (at least where the EPA Administrator does not object), it could go far to solve the problem of administrative inertia. Understandably, industry opposition has been intense, so intense that, like TSCA, the Act is unlikely to pass.

In principle, of course, it is probably appropriate to make policy choices respecting risks of harm to the legislative forum.⁴⁸ As the Task Force noted, however, the public's response to latent risks will almost never be adequate, while industry opposition is always strong and well-focused; as a result this approach to regulation regularly proves fruitless, and must therefore be considered a will o' the wisp. It thus appears that judges will have to shoulder greater responsibility for utilizing their existing equity powers to protect the public from hazardous chemicals, by developing and utilizing a more sophisticated approach to latent risks. For

[D]ecisions are always made with less information; the pace of human activity does not slow to allow for desired additional studies. Yet government … must be concerned and accountable for the welfare of citizens in situations where the five senses and conventional wisdom are not enough protection.⁴⁹

1. Former advertising slogan of E.I. DuPont deNemours & Co., created in the 1930's and replaced in 1970 with "There's a World of Things We're Doing Something About."

2. B. Commoner, Foreword to Consumer Health and Product Hazards/Chemicals, Electrical Products, Radiation at vii-viii (1974) (emphasis in original).

3. Council on Environmental Quality, Toxic Substances 3 (1971).

4. In other words, some 60 million Americans now living will get cancer, and about 40 million of these will die of it.In 1969, 323,000 people died of cancer; by comparison, only 3,300 died of polio in its worst year, and 292,000 Americans died in all in World War II. National Health Education Committee, Inc. (1970).

5. Epstein, "Control of Chemical Pollutants," Nature, 228: 816 (1970); World Health Organization, Technical Report No. 276, "Prevention of Cancer," Report of WHO Expert Committee (1964). It is thus no coincidence that when the Secretary of Labor recently published a list of suspected industrial chemical carcinogens, it contained some 20,000 items and ran to over 100 pages in the Federal Register. Vol. 40 Fed. Reg. 26391-496 (June 23, 1975).

That synthetic chemical compounds should turn out to cause cancer, or birth defects (be teratogenic), or inheritable genetic damage (be mutagenic), makes sense from the biological/ecological perspective. As has been observed, living organisms gradually developed a dynamic adaptive equilibrium with naturally occurring chemicals through the long, slow process of evolution. In this process, only a tiny fraction of possible chemical reactions and compounds found a place in living things. It is likely that this radical selectivity was significant in the sense that organisms which incorporated other compounds did not prove viable. If living things are so vulnerable to all but a few naturally occurring substances, then it is not hard to understand why synthetics — wholly unique chemical compounds not found in nature — should prove to cause harm to the many forms of life, including the human, which have been exposed to them. Commoner, op. cit. supra note 2.

6. See, e.g., Reserve Mining Co. v. EPA, 514 F.2d 492, 508 (8th Cir. 1975) (en banc).

7. Departments of Agriculture, Defense, Justice, State, and Health, Education and Welfare; the Consumer Product Safety Commission (CPSB), National Science Foundation, Energy Research and Development Administration, Environmental Protection Agency (EPA), National Aeronautics and Space Administration, and the Interdepartmental Committee for Atmospheric Sciences.

8. About 13.8 billion pounds of F-11 and F-12 have been produced to date in the non-Communist world, of which 1.7 billion pounds were manufactured in 1973 alone, up 11.3 percent from 1972; the United States makes about 50 percent of this total. Production totals have doubled every seven years since the early 1950's. Task Force Report 7.

9. This danger is not strictly equivalent to the direct health threats posed by many other synthetics. Rather, it is primarily a gaseous waste disposal problem. In addition, however, fluorocarbons are suspected of causing direct harm to health in the form of cardiac arrests and respiratory diseases. Interview with Dr. Kenneth Bridbord, NIOSH, July 11, 1975. See also Crossland, 16 Environment No. 6, at p. 16 (1974).

10. In 1970-71, Dr. James Lovelock of Reading University, England, detected large amounts of F-11 and F-12 in the lower atmosphere. J. E. Lovelock, "Atmospheric Fluorine Compounds as Indicators of Air Movements," Nature, 230: 379 (1971). The quantities of these gases present in the air have since been shown to approximate the total amounts released since their invention in the mid-1930's. M. J. Molina & F. S. Rowland, "Stratospheric Sink for Chlorofluoromethanes: Chlorine Atom Catalysed Destruction of Ozone," Nature, 249: 180 (1974). See also P. H. Howard & A. Hanchett, "Chlorofluorocarbon Sources of Environmental Contamination," Science, 189: 217 (18 July 1975).

11. The first scientific paper to express concern about the possible ill effects of atmospheric fluorocarbons was published last year. M. J. Molina & F. S. Rowland, op. cit. supra note 10.

12. Task Force Report 13.

13. Id.

14. Id. at 12.

15. Id. at 12-13.

16. Committee 17, "Environmental Mutagenic Hazards," Science, 187: 503, 504 (1975).

17. COAS Response to the IMOS Task Force Report, distributed the day the Task Force Report was made public.

18. Natural Resources Defense Council, Inc. v. CPSC, Civ. A. No. 75-0712 (D.D.C. filed May 30, 1975). See Comment, 5 ELR 10011 (1975).

19. Task Force Report 103-04.

20. Task Force Report 5.

21. See, e.g., Comment, Altered Standard of Proof in Public Health Cases, 5 ELR 10007 (Jan. 1975).

22. 5 ELR 20157 (2d Cir. 1975).

23. Id. at 20158.

24. 4 ELR 20415 (D.C. Cir. 1974).

25. Id. at 20418.

26. 4 ELR 20031 (D.C. Cir. 1973).

27. Id. at 20034.

28. 514 F.2d 492 (8th Cir. 1975) (en banc), aff'g preliminary opinion on stay of injunction, 4 ELR 20598 (8th Cir. 1974), rev'g 4 ELR 20573 (D. Minn. 1974).

29. 4 ELR at 20603.

30. Id. at 520.

31. Id. at 517.

32. Epstein, Public Health Hazards from Chemicals in Consumer Products, in Consumer Health and Product Hazards, op. cit. supra note 2, at 81-82.

33. 514 F.2d at 507 n.20.

34. Id.

35. It stated:

[W]e believe that an appreciation of the risks posed by Reserve's discharge demands an understanding of the stateof scientific knowledge upon which the district court's underlying findings are based.

514 F.2d at 507 n.20.

36. Id. at 518-19.

37. Id.

38. See note 32, supra, and surrounding text.

39. 5 ELR 20096 (Jan. 28, 1975).

40. 514 F.2d at 519.

41. 5 ELR at 20099.

42. See, e.g., Florida Peach Growers Ass'n Inc. v. United States Dep't of Labor, 4 ELR 20170 (5th Cir. 1974) (court used substantial evidence test strictly in OSHA case to knock out rules setting field reentry delay periods to protect farm workers from harm from organophosphate fertilizer residues on foliage); Kennecott Copper Corp. v. EPA, 2 ELR 20016 (D.C. Cir. 1972) (court upset EPA quality standards for copper oxide emissions despite Administrator's acknowledged compliance with applicable APA standard of review); International Harvester v. Ruckelshaus, 3 ELR 20133 (court threw out EPA Administrator's decision not to extend auto emission deadlines after subjecting it to exhaustive review, finding that it "leaves a residue of uncertainty that beclouds").

43. Green, Comments on Legal Mechanisms, in Perspectives on Benefit-Risk Decision Making 70 (1972) (ed. by Comm. on Public Engineering Policy, National Academy of Engineering). See also Katz, The Function of Tort Liability in Technology Assessment, 38 U. Cinn. L. Rev. 587 (1969).

44. Task Force Report 12.

45. In mid-July, the CPSC turned down the NRDC's petition, supra note 18, to ban all aerosols containing freon. New York Times, July 17, 1975, p. 30, col. 1. The FDA, meanwhile, has initiated proceedings with respect to pressurized food, drug and cosmetic products. Id.

46. See Karstadt, Protecting Public Health from Hazardous Substances: Federal Regulation of Environmental Contamination, 5 ELR 50165 (Sept. 1975).

47. For text, See 121 Cong. Rec. S2556 (daily ed. Feb. 25, 1975).

48. Carpenter, Legislative Approaches to Balancing Risks and Benefits in the Regulation of Chemicals, in Consumer Health and Product Hazards, op. cit. supra note 2, at 4.

49. Id.

5 ELR 50109 | Environmental Law Reporter | copyright © 1975 | All rights reserved