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A L E X I S de TOCQUEVILLE , N S r i T u r i O N SCIENCE, ECONOMICS, AND ENVIRONMENTAL POLICY: A CRITICAL EXAMINATION A research report conducted by the Alexis de Tocqueville Institution August 1.1, 1994 ~ ~ .~ ~ ~ ~ ~

TABLE OF CONTENTS CASE STUDY NO.1: ENVIRONMENTAL TOBACCO SMOKE .................................................................... 1 CASE STUDY NO.2: RADON .................................................................................................... ............................ 15 CASE STUDY NO.3: PES'I'ICIDES .............. .................................................................................................... ...... 33 CASE STUDY NO.4: SUPERFUND .................................................................................................... .................. 45 I

SCIENCE, ECONOMICS, AND ENVIRONMENTAL POLICY: A CRITICAL EXAMINATION A research report by the Alexis de Tocqueville Institution Academic Advisorv Board Dr. Gary Anderson Professor of Economics California State University-Northridge Dr. Nancy Bord Visiting Scholar The Hoover Institution Stanford University Dr. Michael Marlow Professor of Economics California State Polytechnic University-San Luis Obispo Dr. Thomas Gale Moore Senior Fellow The Hoover Institution Stanford University Dr. Gordon L Brady Associate Professor and Director Environmental Studies Sweet Briar College Dr. Jeffrey Clark Professor of Economics University of Tennessee-Chattanooga Dr. Michael Darby Professor of Economics and Director J.M. Olin Center for Policy University of California, Los Angeles Dr. Robert Ekelund Lowder Eminent Scholar Auburn University Dr. Michael Gough Project Director Congressional Office of Technology Assessment Dr. William Hazeltine Environmental Consultant Dr. Thotnas Hopkins Gosnell Professor of Economics Rochester Institute of Technology Dr. Dwight R. Lee Ramsey Professor of Economics University of Georgia Dr. Malcolm Ross Research Mineralogist U.S. Geological Survey Dr. S. Fred Singer Professor Emeritus of Environmental Sciences University of Virginia and President Science and Environmental Policy Project Dr. Gerhard Stohrer Director of Chemical Risk Program Science and Environmental Policy Project and former Department Head Sloan-Kettering Institute for Cancer Research Dr. Mark Thorton Professor of Economics Auburn University Dr. Robert D. Tollison Duncan Black Professor of Economics and Director Center for the Study of Public Choice George Mason University Dr. Richard Vedder Professor of Economics University of Ohio Dr. Richard Wagner Professor of Economics and Chairman Department of Economics George Mason University Note: Aff6ations are for identification purposes only. Not all members of the academic advisory agreed with every finding and recommendation in this report.

Author Kent Jeffreys Principal Reviewer Dr. S. Fred Singer Senior Staff and Contributing Associates Rachael Applegate Bruce Bartlett Merrick Carey Cesar Conda Gregory Fossedal Dave Juday Felix Rouse Aaron Stevens +.i The Alexis de Tocqueville Institution ~ 2000 15th Street North, Suite 501, Arlington, VA 22201 w Tel. 703.351.4969 Fax 703351.0090 0

ABOUT THIS STUDY... "Science, Economics, and Environmental Policy: A Critical Examination," is an evaluation of the data, statistical analyses, and underlying scientific theories that underlie the Environmental Protection Agency's (EPA) policy decisions on environmental tobacco smoke, radon, pesticides and hazardous clean-up under the Superfund law. With the total costs of environmental-vegulations estimated to be $150 billion annually - or $1,500 per U.S. household - it is extremely important that environmental decisions be based on sound scientific analyses of potential risks to public health and the environment, and that the costs of environmental regulation be weighed against the benefits. But as Dr. John Graham of the Harvard Center on Risk Analysis notes, "While it may seem obvious that EPA should use good science, students of the Agency have documented that the Agency's leadership, when preoccupied with public fears and legal pressures, has sometimes allowed good science to be neglected." Perhaps Sen. Daniel P. Moynihan (D-NY) put it best, "Truth be told, I suspect that environmental decisions have been based more on feelings than on facts " This research report provides policy-makers, the press, and the general public with the facts about the science and economics that form the basis of the EPA's risk assessments and cost/benefit analyses in four of the most current -- and controversial - environmental questions. The objective of this research is to promote more rational -- and perhaps less costly - environmental decisions through the use of scientifically vigorous risk/cost-benefit analysis. In this regard, the Congress is debating several bipartisan initiatives to expand the use of risk assessments and cost-benefit analysis, including the "Environmental Risk Reduction Act" sponsored by Sen. Moynihan, Rep. Richard Zimmer (R-NJ), and Jim Slattery (D-KS) and the EPA risk/cost-benefit regulatory analysis amendment sponsored by Sen. J. Bennett Johnston (D-LA) and Rep. John L. Mica (R-FL). "Science, Economics, and Environmental Policy" was researched and prepared by the staff of the Alexis de Tocqueville Institution (AdTI) in Arlington, Virginia. AdTT is a non-profit, non- partisan educational foundation established to conduct, publish, and publicize research on the extension and perfection of capitalism, freedom and democracy in the United States and abroad. For further information, contact Cesar V. Conda, executive director of the Alexis de Tocqueville Institution, 2000 15th Street North, S. 501, Arlington, Va. 22201, Tel: (703) 351-4969, Fax: (703) 351- 0090. Note: Nothing written here should be construed as necessarily reflecting the views of the Alexis de Tocqueville Institution or its co-chairmen and directors, or as an attempt to aid or hinder legislation before Congress.

EN V I1tUNMhN 1 AL 1 UtiAIJC.U 6MUts.G CASE STiJDY NO. 1: ENVIRONMENTAL TOBACCO SMOKE Introduction The downward trend of cigarette smoking in America has been going on for many years. By the end of World War II, almost half of all adult Americans were smokers. Today, "fewer than three out of every ten American adults smoke, and this rate is continuing to decline."i (See Figure 1-1.) This downward trend is the result of a combination of factors: greater knowledge of the health risks associated with smoking, increased federal and state taxes, and a general reduction of tolerance for smoking on the part of nonsmokers, among other things. Ironically, as smoking has declined, the federal government has increased its campaign against smoking. Undoubtedly, many view this effort as beneficial to society. However, it now appears that the federal government has gone beyond its traditional anti-smoking efforts, consisting mainly of education and health warnings, and is now moving toward a (de facto) ban on smoking. The vehicle by which this ban may take effect is an Environmental Protection Agency (EPA) study which links lung cancer in non-smokers to environmental tobacco smoke, or ETS, which is also called "second- hand smoke" and "passive smoking." If this were the case, it would be difficult to stop the government from banning smoking in the name of protecting innocent non-smokers. Unfortunately, in its zeal to abolish smoking, science has been sacrificed. The EPA's finding that second-hand smoke is harmful to human health is based on a lower threshold of risk assessment than the agency normally uses for other substances. In short, the EPA study relied on methodologies different from those which have been historically used in such analyses. Scientific standards were seriously violated in order to produce a report to ban smoking in public settings. The EPA's finding that second-hand smoke is harmful to human health is based on a lower threshold of risk assessment than the agency normally uses for other substances. Before the government takes action to ban some substance on the basis of its danger to health, it is extremely important that we know the precise degree of danger based on generally accepted scientific principles. If science is debased in an effort to "do good," society ultimately may be left worse off. There are two reasons for this. First, if we debase the scientific method in pursuit of a political agenda, we are opening a Pandora's Box. Second, the ordinary dangers everyone encounters in everyday life are so numerous that if we do not carefully delineate the government's role in regulating such dangers there is essentially no limit to how much government can ultimately control our lives. The health risk from smoking is not the focus of this paper. Instead, this paper explores the EPA's analysis of'ETS or second-hand smoke. By any name, it is a complex and highly variable mixture of substances which diffuse through the air. The Environmental Protection Agency has compiled several studies and reports which examine various aspects of the ETS issue. Two in particular are considered at length in this paper; one examined the respiratory health effects of ETS2 and the other examined the economic consequences of a proposed restric- tion on smoking.' In brie~ EPA makes certain assumptions about ETS which are then used to buttress EPA's scientific and economic conclusions.

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY Moteover, the science as presented is insuf- Crossing the Threshold ficient and the economic claims are similarly unsupportable. They will be dealt with in turn. First, we will examine EPA's use of the scientific research surrounding ETS. EPA and the Science of ETS There are certain things about smoking which sound science can demonstrate. For example, active smoking is detrimental to the health of millions of smokers. Nevertheless, EPA has no official role when it comes to regulating smoking. Yet, EPA lately has taken the leading role in publicizing the potential health risks from smoking. According to EPA Administrator Carol M. Browner, "Although EPA has no regulatory authority over tobacco products, it does have a responsibility to inform the public about dangers it finds in the environment "` In particular, EPA has gone far beyond its authority in making ETS an "environmental" issue within its regulatory jurisdiction. In the process, it has manipulated both the science and the regulatory process. EPA has gone far beyond its authority in making ETS an "environmental" issue within its negulatoty jurisdiction. Admittedly, trying to prove that second- hand smoke carries a measurable risk of lung cancer and determining precisely what that risk is are difficult tasks. It is accepted that smoking is linked to several forms of cancer, particularly of the lungs, and also to heart disease. Similar conclusions about passive smoking, or ETS, should be based upon equally strong scientific evidence. To that end, the EPA has undertaken a review of the scientific literature to determine the effects of ETS on the lungs of nonsmokers. The EPA's major finding was that "ETS is a human lung carcinogen, responsible for approximately 3000 lung cancer deaths annually in U.S. nonsmokers."5 The question addressed by this section is whether or not that statement is justified. It is well-established that "the dose makes the poison." That is, almost any chemical substance will harm a person's health if administered in sufficiently large quantities. Even substances which are necessary for life itself become deadly at high doses. Unfortunately, the EPA ignores this fact in most of its risk assessments by applying a "linear no-threshold" theory of environmental harm. In essence, the linear no-threshold theory holds that high-dose effects can be extrapolated back to a zero dose without searching for a threshold below which no health effect will be elicited.b In other words, if it were found that exposure to a given level of some chemical substance caused one death per 100,000 population, then half the exposure would therefore cause one death per 200,000 population, one fourth the exposure would cause one death per 400,000 population, etc. This flawed assumption underpins almost all of the EPA's work on environmental exposures, from the Superfund program to radon in homes to ETS. The EPA claims to discern an "apparent non-threshold nature of the dose-response relationship observed between active smoking and lung cancer.' Even if this were true for active smoking (and, as questionable as that statement is, it is beyond the scope of this paper), it is not automatically valid to reject the possibility of a threshold effect for ETS. For environmental tobacco smoke is not just a lower dose of the substances inhaled by a smoker; important, if poorly researched, chemical changes occur as tobacco smoke is diluted and cooled in the open air. Researchers recognize three principal types of tobacco smoke. "Mainstream smoke" is produced when the smoker draws air through a cigarette, thereby "fanning" the temperature : as high as 900 degrees centigrade. Most of the compounds in smoke change as they cool and as they react with the smoker's mouth, throat and lungs. "Exhaled smoke" is not the same as the smoke that was inhaled. "Sidestream smoke" is that which is produced by the smoldering cigarette between puffs. Because the temperature is significantly lower (perhaps 500 to 600 degrees centigrade), different chemical 2

ENVIRONMENTAL TOBACCO SMOKE compounds (or different amounts) are pro- duced. Together, mainstream smoke,exhaled smoke andsidestream smoke produce environ- mental tobacco smoke, with sidestream smoke accounting for 85 to 90 percent.x The EPA notes that some potentially carcinogenic compounds are present at much higher levels in sidestream smoke than in mainstream smoke. This is a function of the respective temperatures at which various compounds form. Regardless of the composi- tion of sidestream smoke when it is produced, it rapidly undergoes changes, both chemical and in terms of concentration per liter of air. EPA's report recites several distinctions between ETS and mainstream, or even sidestream smoke. The most important distinction arises from the significant dilution of the ETS. In addition, the composition and concentration of ETS is dependent on the number of smokers, their smoking styles, and the number of cigarettes smoked in a given period of time. According to the EPA, for active smoking "A clear dose-response relationship exists between lung cancer and amount of exposure, without any evidence of a threshold level."9 Of course, a strong dose-response relationship does not rule out the existence of some minimum dose below which there will be zero response. Yet the EPA almost never looks for a threshold for any potentially harmful substance. In fact, it is essentially an unofficial EPA policy to deny that thresholds exist for any potentially hazardous substance. As examples, consider EPA's stance on dioxins, radon gas, or pesticide residues in the food supply.10 What is more, the fact that tens of millions of smokers survive their habit without developing lung cancer seems to suggest that a threshold eusts for each individual, regardless of EPA's assumptions concerning aggregate data. Thus, the statement that no evidence for a threshold exists could easily confuse members of the public. As mentioned earlier, essentially every substance to which humans are exposed is potentially harmful. Many ordinary substances -- common table salt, for instance -- are fatal if ingested in sufficiently large amounts. In addition, hundreds of foods in the human diet contain enormous quantities of "natural carcinogens.n11 Because the human species has evolved the ability to self-repair the damage caused by these naturally occurring substances, we are also able to repair the similar damage caused by small amounts of other carcinogens, including the ones found in ETS. In the face of this assertion by EPA that no safe threshold exists for active smoking, it becomes important to examine how closely EPA links ETS with mainstream smoke. The EPA's Guidelrnes for Caranogen Risk A=ssment (U.S. EPA, 1986) sets out "three criteria that mlust be met before a causal associatjon can be inferred between exposure and"- cancer in humans: 1. There is no identified bias that could explain the association. 2. The possibility of confounding has been considered and ruled out as explaining the association. 3. The association is unlikely to be due to chance.n12 Under these criteria, one could conclude that mainstream smoke (MS) easily qualifies as a lung carcinogen. However, the EPA asserts that because sidestream smoke is chemically similar to MS and because sidestream smoke is the major constituent of ETS, then by inference ETS is also a Group A carcinogen under the EPA test. However, EPA is well aware that ETS is not identical to mainstream smoke, either qualitatively (chemical makeup) or quantitatively (dose). Nevertheless, EPA seems to adopt the old cliche': "Close enough for government work." In fac4 most ZI. S. studies conducted on ETS and lung cancer have found no statrstically significant indications of carcinogenicity. It should be borne in mind that even if ETS is legitimately considered a "known human carcinogen," that does not prove that, at actual environmental exposures, it can or does cause lung cancer. In fact, most U.S. studies conducted on ETS and lung cancer have found no statistically significant indications of carcinogenicity. Many observers have ques- tioned whether EPA's conclusions are justified.1z If this were limited to the question of

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY an internal EPA categorization, it would not be excessively controversial. However, much more is riding on this classification than mere bookkeeping entries. Declaring ETS to be a Group A carcinogen has set in motion a chain of policy events which must ultimately result in widespread federal bans on smoking. To quote the EPA's expressed reasoning in "full: The conclusive evidenceof the dose-related lung carcinogenicity of MS [mainstream smoke] in active smokers, coupled with information on the chemical similaritiesof MS and ETS and evidence of ETS uptake in nonsmokers, is sufficient by itself to establish ETS as a known human lung carci- nogen, or "Group P: carcinogen under U. S. EPA's carcinogen classification system." Similarly simplistic reasoning has allowed the EPA to publicly fret over almost every suggested cancer risk, from electro- magnetic radiation to artificial sweeteners.'s When its review discovered that eristing U. S. studies of lung cancer and ETS did not support its position, the EPA arbitrarily reduced the traditional standard of proof, or "confidence intervaG" Despite the EPA's conclusion that ETS is a Group A carcinogen, it is at the very least arguable that ETS would flunk each separate step of the three-prong test. And it is the EPA's effort to cross the final hurdle that has produced the harshest criticism. When its review discovered that existing U.S. studies of lung cancer and ETS did not support its position, the EPA arbitrarily reduced the traditional standard of proof; or "confidence interval " Only by this manipulation could the EPA claim that its analysis was statistically significant. Why is the concept of statistical significance so important to epidemiological studies? As valuable as these studies can be, there are well-recognized limitations. For instance, no matter how well designed, epidemiological studies can only show correlation, not causation. Only after many studies have found strong correlations covering large populations (as is the case with active smoking and lung cancer) are researchers on firmer ground in asserting direct causation. (Yet even then they may not know the precise mechanism.) Most individual studies, which are expensive and time-consuming, involve only a small number of individuals!(or sample size). This reduces the confidence that researchers place in how well the sample populakon reflects the characteristics of the general population. Epidemiologic studies can test the specific hypothesis, for example, whether ETS is a risk factor for lung cancer. While evenwell designed studies cannot prove beyond any doubt that a particular substance is the. cause of cancer, they can indicate that a particular substance is a potential risk factor. In this case, the EPA assumed - before it even began its investigation -- that ETS is a risk factor for lung cancer; the very question supposedly being asked. However, the fact that most studies of ETS and lung cancer do not support this assumption is not entirely ignored by EPA, which may suggest that the EPA adopted unique manipulations of the data. Furthermore, the EPA does not utilize the appropriate "two-tailed" analysis of whether ETS causes lung cancer. In a two-tailed test, a specific assumption is made, for example, that ETS has an effect on human health. (The two "tails" refer to the fact that the hypothesized effect may be harmful or beneficial: the evidence may point in either direction.) In addition, if ETS were found to have no measurable effect either way, that would be called the "null hypothesis." In its examination of ETS, however, the EPA utilizes a "one-tailed" test. That is, the EPA makes the assumption that ETS cannot stimulate the human immune response and thereby produce lower rates of lung cancer than would exist in the absence of exposure. However, several American studies examined by the EPA leave open this very point. Indeed, of the 30 studies considered for inclusion in the EPA report, "six found a statistically significant (but small) effect, 24 found no statistically significant effect, and six of the 24 found a passive smoking effect opposite to the expected relationship."'b Worse perhaps, the EPA goes further and rejects the possibility of any null hypothesis: 4

that ETS has no effect on health. Thus, EPA refuses to accept any result which would refute its-preeusting assumption: that ETS causes lung cancer in nonsmokers. Whatever one may think of this as a policy outcome, this is not valid science. Ordinarily, researchers utilize a standard mathematical procedure to determine the range of possibilities within which random error is extremely unlikely. By scientific convention, over decades of trial and error and careful review, studies must produce results which have no more than a 5 percent chance of being the result of the natural randomness of the studied population. This is normally referred to as a "95 percent confidence interval." In other words, a 95 percent confidence interval means that there is a 95 percent possibility that the result did not happen from chance, or a 5 percent possibility that it did. However, the EPA rejected this as the test for its survey of the literature on ETS and lung cancer. Because the purported relative risk for ETS was so close to perfectly random, the combined results of the studies examined by the EPA could not pass the 95 percent confidence interval test. In the scientific jargon, the results were not "statistically significant." It is at this point that EPA broke with the established procedure in such matters and declared that a 90 percent confidence interval would be used for this report's findings, thereby doubling the chance of being wrong. As a result, EPA could declare that its findings were "statistically significant" but only if one applies the less rigorous standard. Applying the standard test (a 95 percent confidence interval) would show that lung cancer rates for people exposed to ETS are indistinguishable from the lung cancer rates of unexposed populations. This is no mere academic debate, for there are numerous potential risk factors for lung cancer involving everything from diet to genetics to smoking tobacco. If the EPA's chosen procedures cannot distinguish among the possible risk factors, the report cannot provide useful or reliable guidance to policy makers. Perhaps the strongest criticism of this and other points in the EPA report has come from Gary L. Huber and his co-authors:" ENVIRONMENTAL TOBACCO SMOKE chemical analyses and key epidemiological data, violates time-honored statistical principles, fails to control adequately for important confounding influences (factors other than the one studied that may affect the result or a conclusion) that provide alternativeexplanationsfor its conclusions, andviolates its own guideiines for assessing and establishing risk to a potentialenviron- mental toxin.'a One of the particular points of disagreement between Huber, et al., and the EPA report arises from a major study of ETS and lung cancer in U.S. female nonsmokers by researchers at the National Cancer Institute (see Figure 1-2).14 Although the EPA did not include this study's findings in its report's calculations, it did quote from the report in an effort to demonstrate general consistency. The exact quotation selected by the EPA is that "long-term exposure to [ETS] increases the risk of lung cancer in women who have never smoked.n20 Huber, et al., quote a different, yet equally revealing passage. Stockwell and his co-authors report that 've found no statistically significant increase in risk associated with exposure to environmental tobacco smoke at work or during social activities."Zi (emphasis added) This is an important point because EPA suggests that workplace regulations are legitimized by studies of the wives of smokers. In a recent report for Congress from the Congressional Research Service, another major study is cited which is not included in the EPA report." This study, which covered a larger population sample than the Stockwell study, "found no overall increased risk of lung cancer among nonsmoking spouses of smokers."24 Furthermore, ifstandardstatistical procedures were applied to the Stockwell study, it too would fail to support EPA's final results. Bear in mind that Huber and his co- authors do not assert that ETS does not or cannot cause lung cancer in nonsmokers. They "ETS is a risk that is less than that associated with developing colon cancer by drinking chlorinated water, which is in most U.S. cities' water supplies." r EPA's risk assessment is built on the manipulation of data, ignores critical

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY simply point out that, under well-established scientific standards, the question of ETS and lung cancer has not been answered. They further call attention to the fact that even if one uncritically accepts EPA's conclusions, the resulting increase in risk from ETS is approximately the same as the lifetime risk of being killed on a bicycle u Perhaps more compelling is this statement: "It is a risk that is less than that associated with developing colon cancer by drinking chlorinated water, which is in most U.S. cities' water supplies."' Chlorination of drinking water supplies has been one of the most important weapons in the battle against water-borne diseases, such as cholera. Were the EPA to apply a non- threshold standard to chlorination of drinking water, America might see an enormous increase in water borne diseases. Because the relative increase in the risk of contracting lung cancer found by the EPA is so slight (even after carefully tweaking the confidence interval), any number of non-ETS risk factors could be the actual cause. For example, EPA apparently failed to adjust its results for the age of the study participants.27 As people grow older, they become more likely to develop cancer, including lung cancers. Poor dietary habits can contribute to the development of cancer, and these traits may be shared by spouses to some degree. The EPA did adjust its results to reflect the likelihood that people who are counted as nonsmokers are misclassified because of the way the question was posed or simply because they lied on their questionnaire. However, the EPA did not accept the degree of smoker misclassification that has been suggested by some who have researched this particular question.' One further point: the EPA Report focuses on lung cancer and ETS in the home, since it relied upon studies of the nonsmoking spouses of smokers. Yet it is being used to draw conclusions about workplace exposure and lung cancer risks. But workplace studies of ETS do not support the EPA's conclusions. In the final analysis, therefore, the EPA report is an inadequate basis for a federal ban on workplace smoking." EPA and the Economics of ETS To its credit, the EPA admits to the appropriateness of "biological plausibility" in ETS risk analysis. That is, if no known chemical or biological reaction could explain the observed health problem, it will not be blamed automatically on ETS exposure. This is an appropriately cautious, if somewhat insufficient, filter for theories of harm from environmental exposures of all types. Unfortunately, the EPA is r5pt similarly cautious with its economic analysis. In an analysis of the Smoke-Free Environment Act of 1993, EPA produced exaggerated estimates of potential economic benefits.'0 The bill under consideration "would effectively ban or restrict smoking in most [nonresidential] indoor environments."" EPA's analysis found that this, or similar, legislation "could achieve net benefits (i.e., benefits minus costs) ranging from $39 billion to $72 billion per year."32 These figures were widely reported in the press.'3 The EPA's economic calculations are no more rigorous than its risk assessments. Indeed, the claimed economic benefits of smoking bans are perhaps the primary impetus for several current legislative proposals 3` If this study is any indication, the EPA's economic calculations are no more rigorous than its risk assessments 3$ How did EPA generate such impressive economic benefits? Most of the calculated costs and benefits were relatively minor, particularly when one considers how many establishments would be covered under the bill. However, $33 billion to $60 billion of the EPA's "net benefits" are derived from a single category: surveys of how much people would be willing to pay to avoid a premature death due to ETS exposure. This controversial technique is being used to a growing degree in many environmental fields. In this case, the EPA found that individuals were'willing to pay" an average of $4.8 million each to avoid a premature death from ETS exposure. It is economically impossible -- not just "difficult" or "unlikely" -- for many individuals to spend the $4.8 million, so it matters little how much they say they would be "willing" to spend. In addition, insurance is 6

ENVIRONMENTAL TOBACCO SMOKE available for both cancer and for other catastrophic illnesses, yet the premiums are but a fraction of the EPA's survey results. In addition, it estimated the net benefits of reduced illnesses by using another willingness-to-pay survey. The assumption this time was that individuals would be willing to pay $1.5 million per avoided illness. Therefore, the cumulative net health benefits to so8ety of a smoking ban would range, according to EPA's figures, from $35 billion to $66 billion annually. EPA administrator Carol Browner has carried these highly questionable assertions to a higher level. In her testimony on the Smoke- Free Environment Act before a U.S. House of Representatives subcommittee she stated that "If one considered the economic value that people assign to reduced risk of death, our estimate would be on the order of $157 billion to $470 billion per year."36 The EPA's use and publicizing of "willingness-to-pay" surveys in this instance violates any sound "economic plausibility" test. And it is only through the use of these flawed techniques that the EPA is able to assert tens of billions of dollars in theoretical economic benefits from a smoking ban. If the EPA were limited to'more realistic economic measure- ments, the cost-benefit analysis of public smoking bans would produce much smaller figures, thereby reducing support for federal action. If the EPA were limited to more realistic economic measurements, the cost-benefit analysis of public smoking bans would produce much smaller figures, thereby reducing support for federal action. The EPA and its private sector contractors find willingness-to-pay surveys to be of great value. For example, the Exxon Valdez oil spill in Prince William Sound, Alaska encouraged economic researchers to survey the general public at the height of outrage over the accident. One estimate of the "value" of the waterway (in pristine condition) ranged from $5 to $10 billion 37 Yet if the same survey were conducted on each mile of U.S. coastline in turn, the "values" derived would reach astronomical figures. This is because of the simple fact that, if you aren't required to actually spend the money, there is no theoretical limit to your economic behavior.' The remainder of EPA's estimated "net benefits" are derived from calculated savings from reduced maintenance and cleanup costs minus the added costs of creating smoking lounges and enforcement. It seems,almost petty to criticize these comparatively rninor points, but even here EPA can be accused of exaggeration. For example, the EPA estimated potential total savings through reduced housekeeping and maintenance costs to range from $5 billion to $10 billion per year." One indoor air expert testified before Congress in March, 1994 and stated that "savings of this magnitude in housekeeping and maintenance costs are more figments of the imagination than hard data .' EPA's cost-benefit analysis is "funda- mentally flawed." Economist Robert Tollison, former director of the Bureau of Economics at the Federal Trade Commission, has analyzed the EPA's cost-benefit analysis and found it to be "fundamentally flawed"41 According to Tollison, EPA's "cost-benefit analysis involves the kind of numbers game for which govern- ment agencies have been justly criticized."' In so doing, Tollison raises the specter that EPA has seemingly fitted economic analysis to the policy conclusions it desired. Tollison found telling weaknesses within the EPA cost-benefit analysis. For example, EPA assumes in its cost-benefit analysis that eliminating exposure to ETS in workplaces and in public places would significantly reduce the incidence of heart disease. Incredibly, savings attributable to the EPA's hypothesized decrease in the incidence of heart disease among nonsmokers account for the overwhelming majority of all dollar benefits estimated by the EPA to be associated with national smoking restrictions, according to Tollison. Yet, the EPA's well-publicized risk assessment was 7

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY primarily concerned with alleged lung and respiratory complications from ETS - not heart disease. In fact, the EPA never developed a risk assessment between E'IS and heart disease undoubtedly believing that the evidence for such risks were weak. Instead, it merely assumed that such causation exists eyen though the EPA nor any other government agency has concluded that ETS is a cause of heart disease. This paper does not take the stance that net economic benefits from a smoking ban are impossible, but simply that the EPA has exaggerated its economic estimates. The fact that it consistently does so, coupled with its careful manipulation of the science, reveals that the EPA is not providing the American public and policy makers with impartial data. Conclusions Exposure to ETS is not a uniform risk, if it is a risk at all. Even the EPA Report admits there is a strong dose-related health response for active smokers. It is logical that there would be a dose-related response for ETS, as there is with every other potential risk factor confronting humanity. In any event, indoor air problems are not limited to tobacco smoke. The best method for dealing with all potential indoor air problems simultaneously is to provide adequate ventilation. This would insure that exposure levels (to whatever substance from whatever source) were kept well below potentially harmful levels. Skeptics should consider that whenever a tobacco firm makes a statement in regard to smoking and health, it is generally discounted by its critics because of the "special interest" it holds in the issue. This is no less applicable to the "special interests" of the EPA. The bureaucracies of the federal government are strongly interested in justifying budget increases and increasing the scope and importance of their assigned responsibilities. Yet that does not excuse disregard for the scientific method or sound economic analysis. EPA personnel have a duty to conduct the best science possible and report the results fully and houestly. The EPA is attempting to prove that serious medical risks are created by even casual exposure to secondhand stnoke. In its ef j`'ort to do so, the EPA has manipulated selected portions of the existing literature until it produced the desired result. If the EPA were merely attempting to prove that secondhand smoke is an annoyance to many people, it would be on solid ground. However, the EPA is attempting to prove that serious medical risks are created by even casual exposure to secondhand smoke. In its effort to do so, the EPA has manipulated selected portions of the existing literature until it produced the desired result. However pure the motivations of EPA personnel in this matter, it is unacceptable to distort the science for the sake of a policy goal. While Congress may eventually decide to ban smoking in public buildings it cannot do so under the pretense of sound science or economics. ### 8

Figure 1-1 Percentage of Adult Cigarette Smokers 1949 1970 Year 1980 1990 Source: Gallup Poll, National Qearinghouse for Smoking and Health, National Health Interview Survey of Cancer Epidemiology anO ControL

Flgura 1-2 Odds Ratio for Lung Cancer (all types) in the 432 Nan-Smolciag Women fiom Missouri 9 Beans and pe 0 5.7 2.1 Year Source: The National Cancer Institute 1.4 1 0.5 Z 10

ENVIRONMENTAL TOBACCO SMOKE 1. W. Kip Viscusi, Smoking: Making The RiskYDecision, (New York: Oxford University Press, 1992), p.1. 2. U.S. EPA, Office of Health and Environmental Assessment, Office of Research and Development "Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders" Washington, D.C., December 1992. Hereinafter cited as "U.S. EPA, Report." 3. U.S. EPA, Indoor Air Division 6607J, Office of Radiation and Indoor Air, "The Costs and Benefits of Smoking Restrictions: An Assessment of the Smoke-Free Environment Act of 1993 (H.R. 3434), Washington, D.C., April 1994. Hereinafter cited as "U.S. EPA, Costs and Benefits." ~. 4. Carol M. Browner, Letter to the Editor, Washington Post (May 6, 1994). 5. U.S. EPA, Report, at page 1-1. 6. See, for example, Elizabeth M. Whelan, Toxic Terror: The Truth Behind the Cancer Seares, Prometheus Books, Buffalo, NY, 1993. 7. U.S. EPA, Report, at page 5-1. 8. Gary L Huber, Robert E. Brockie, and Vijay K. Mahajan, "Smoke and Mirrors: The EPA's Flawed Study of Environmental Tobacco Smoke and Lung Cancer" Regulation (No. 3, 1993), p. 46. 9. U.S. EPA, Report, at page 4-1. 10. See, for example, Michael Gough, "Reevaluating the Risks From Dioxin," Journal of Regulation and Social Costs, January, 1991, pages 5-23; Bruce N. Ames and Lois S. Gold, "Chemical Carcinogenesis: Too Many Rodent Carcinogens," Proceedings of the National Academy of Science, 87: 7772-76, 1990. 11. Lois S. Gold, et al., "Rodent Carcinogens: Setting Priorities," 258 Science 261, October 9, 1992. 12. U.S. EPA, Report, at page 4-28. 13. See, for example, Michael Fumento, "Is EPA Blowing Its Own Smoke?" Investor's Business Daily, January 28, 1993, page A-1. 14. U.S. EPA, Report, at page 1-2, 1-3. 15. For a general discussion, see Michael Fumento, Science Under Siege, (William Morrow and Company, Inc., New York: 1993) 16. Jane G. Gravelle and Dennis Zimmerman, Congressional Research Service, Library of Congress, "Cigarette Taxes to Fund Health Care Reform: An Economic Analysis" March 8, 1994, at pages CRS-46, 47. Hereinafter cited as "Gravelle " 17. See, for example, Gary L. Huber, et al., "Smoke and Mirrors" supra, note 8. 18. Ibid., at page 45. 19. H.G. Stockwell, et al., "Environmental tobacco smoke and lung cancer risk in nonsmoking women" Journal of the National Cancer Institute, September 16, 1992, Vol. 84:1417-1422. 20. U.S. EPA Report, Addendum, at page ADD-1. 21. Huber, et al., "Smoke and Mirrors," at page 51. 11

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY 22.' Gravelle, supra note 16. 23. Ross C. Brownson, et al., "Passive Smoking and Lung Cancer in Women," American Iournal of Public Health, November 1992, voL 82, pp. 1525-1529. 24. Gravelle, at page CRS-48. 25. Huber, et al., at page 53. 26. hid. 27. bid., at page 54. 28. U.S. EPA Report, at Appendix B. 29. A major component of the indictment against ETS is the impact - real and potential - on children. Yet children would be one of the least benefited classes under H.R. 3434 (legislation prohibiting smoking in most public places). Most childhood exposure to ETS occurs in the home, which remains unregulated. The scientific literature on ETS does provide some indication that ETS is a risk factor for certain respiratory problems in infants and children under 18 months of age. This is an important issue, but it is one that must be dealt with in the home and in daycare facilities. 30. U.S. EPA, "Costs and Benefits," supra, note 3. 31. Ibid., at page ES-1. 32. Iid., at page ES-2. 33. See, for example, John Schwartz, "EPA Estimates Smoking Ban Could Save Up to $72 Billion" Washington Post, Apri122, 1994. 34. See, for example, Gravelle, supra, note 16. 35. And, it would appear, the EPA is not unique in this regard. The Centers for Disease Control recently announced, at a widely covered press conference, the results of a study estimating the societal costs of smoking. However, the actual report was not distributed, making it impossible to assess the accuracy of CDC's results. 36. Carol M. Browner, Administrator of the U.S. Envirot.mental Protection Agency, in testimony before the subcommittee on Health and the Environment, Committee on Energy and Commerce, U.S. House of Representatives, February 7, 1994, at page 9. This quote is a reference to EPA's estimate of the benefits from a reduction in smoker mortality. The total estimated value from direct medical cost savings and reductions in lost wages is from $5 to $16 billion annually. 37. See: Roger Bate, "Pick A Number: A Critique of Contingent Valuation Methodology and Its Application in Public Policy," Competitive Enterprise Institute, Washington, DC, January, 1994. ALso see: Robert K. Niewijk, "Misleading Quantification: The Contingent Valuation of Environmental Quality," Regulation. Number 1, 1994, pp. 60-71. 38. Ibid. 39. U.S. EPA, Costs and Benefits, at page 16. These figures are not corrected for the fact that many U.S. businesses already impose bans or restrictions on smoking. 12

ENVIRONMENTAL TOBACCO SMOKE ! 40. Gray Robertson, President of Healthy Buildings International, Inc., in testimony before the Subcommittee on Health and the Environment, Committee on Energy and Commerce of the U.S. House of Representatives, March 17, 1994, at page 4. 41. Robert D. Tollison, Duncan Black Professor of Economics, George Mason University, in a statement submitted before the Subcommittee on Clean Air and Nuclear Regulation, Committee on Environment and Public Works, U.S. Senate, May 11, 1994. 42. Ibid. ~ zn m oa ra 13

CASE STUDY NO. 2: RADON Introduction The EPA has decided that radon is the number one environmental health risk in America: worse than pesticides, worse than hazardous waste, worse than anything. However, it is less certain why this is the case: Is radon incredibly risky or is everything else not very risky at all? At extremely high exposure levels, it appears that radon can significantly increase the risk of lung cancer to rates. Yet, like so many other potentially harmful substances, at the lower levels of exposure which are commonly encountered, researchers have a hard time finding evidence of any harm. Because radon can be harmfuta the EPA insists that it is harmful. Because radon can be harmful, the EPA insists that it is harmful. Yet the average radon risk is so small that it is difficult to measure and is largely based on assumptions rather than observations. In the end, we are left with a risk that everyone agrees is bigger than anything else the EPA attempts to regulate, yet may cause disease so rarely that we can never be certain it is causing any harm at all. The implications of this paradox go far beyond the radon issue itself. It challenges the underlying justification for most of the EPA's regulations. As with so many other environmental issues, this uncertainty has spawned a national debate, but with a twist. Because there is no one to "blame" it has been difficult to inflame the passions of the public. Radon, after all, is a naturally occurring substance, it is not a by- product of industrial or consumer activities. Instead, the debate is over the scientific basis (or lack thereof) for EPA's efforts and the cost to citizens who heed EPA's warnings. The lengths to which the anti-radon lobby will go is perhaps best represented by a list of ideas for publicizing "National Radon Action Week (October 17-23, 1993). Among the standard suggestions (enlist the support of sports stars; issue a press release) was one eye-opener. "Go on a hunger strike until 10,000 homes are tested in your area."' Is radon truly such a dire threat that individuals should threaten to kill themselves unless something is done about it?2 Why Is Radon Considered a Health Risk? Radon is a colorless, odorless gas that is naturally present in varying amounts across almost all land environments. Most important, radon is also naturally radioactive. Further- more, radon, itself the product of the radioactive decay of uranium in the earth's crust, has but a brief existence before it decays further into "daughters" or "progeny" (which are actually the source of most of the risk concerns)' Although it has existed since long before life on Earth began, radioactivity was not discovered until late in the 19th century by researchers such as Wilhelm Roentgen and Henri Becquerel. Marie Curie and her husband experimented with radium (an intermediate breakdown product of uranium) and are creditedwith several important discoveries. In her honor, a common measurement of radiation was named the "Curie " This is equivalent to the number of disintegrations released by the decay of one gram of radium. Thus, a picocurie is one-trillionth of a Curie. One picocurie "represents the amount of a substance sufficient to produce 2.2 radioactive decays per minute "` In the United States, most home measurements 15

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY of radon are expressed in terms of picocuries of radon per liter of air (or pCi/I). An atom consists of a nucleus (com- prised of protons and neutrons) surrounded by electrons. Radioactivity exists when an atom's nucleus spontaneously releases a highly energeticparticle. Some forms of radiation are sufficiently energetic that they can collide with the nudeus of other atoms, strip away electrons, or split chemical bonds. For radon and its progeny, particularly polonium 218 and polonium 214s, the most important type of emission is the alpha particle (comprised of two protons and two neutrons). On an atomic scale, alpha particles are fairly massive and therefore travel only minute distances before inevitably striking a target. Even a few pieces of paper will block alpha particles. However, if inhaled into the human lung and deposited there, radon decayproducts can release their alpha particles at point blank range, causing damage to the unprotected cells of the lungs.b Although there is no way to tell when a particular radioactive atom will decay, the average rate for larger quantities is well known. Experts define this rate in terms of the time period required for one-half of the original amount to decay. These rates of decay are expressed as the "half-life" of the element. Thus, the half-life of uranium 238 is approximately 4.5 billion years while the half- life of radon 222 is only 3.8 days.' Interestingly, the human health consequences from exposure to high levels of radon were documented even before radio- activity was understood. It was noted as far back as the 16th century that silver miners in the Erz Mountains (of what is now Germany and the Czech Republic) suffered an unusually high rate of lung disease.a By the middle of this century medical researchers began to home in on the cause of unusually high rates of lung cancer among uranium miners.4 Most mines were poorly ventilated until recent decades. This could lead to a buildup of dangerous dusts and gases, including radon. Much research has been dedicated to mine worker exposures and this remains the basis for radon risk estimates in the home. However, miners are generally exposed to much higher levels of radon (and numerous other inhaled pollutants and particles) than the average family. Therefore, researchers rely on a set of assumptions drawn from their experience with high-dose exposures in orlder to estimate the potential risk from low-dose exposures. In other words, the EPA assumes that if a big dose'will kill a high percentage of the few exposed individuals, a smaller dose must kill a few of the many who will be exposed. At the EPA, this assumption continues down to the level of a single atom.1° Since very few of us ever wijl enter, let alone work in, a uranium mine, should we be concerned about radon? Perhaps. In the 1960s, it was discovered that the use of certain construction materials (such as uranium mine tailings) could release high amounts of radon into buildings." For several years it was assumed that such construction materials were the only potential source of elevated radon levels in the home. Then the world learned of Stanley J. Watras. The Remarkable Case of Stanley J. Watras In 1984, Mr. Watras was a construction engineer at the Limerick nuclear power plant site in Pottstown, Pennsylvania." As a standard precaution, radiation detectors were installed throughout the facility. Mr. Watras constantly set off the alarms, yet had no contact with any manufactured radioactive materials. The power company investigation turned up a remarkable -- and frightening -- fact. Mr. Watras' home had extremely high levels of radon gas, producing readings as high as 2700 pci/1.13 It was now clear that radon exposures in the home could reach dangerously high levels. Officials began to investigate regions of the country that had a high probability of excessive radon, for example, parts of Colorado and the Reading Prong geologic formation which extends through parts of New Jersey, Pennsylvania and New York. Congress responded to public fears by passing an amendment to the Superfund law named the Radon Gas and Indoor Air Quality Research Act of 1986." The Environmental Protection Agency published its first Citizen's Guide to Radon in that year.ls In 1988, the Indoor Radon Abatement Act (an amendment to the Toxic Substances Control Act) imposed specific requirements for the revised Guide (issued in 1992). Section 301 specified that the long-term national goal was to achieve indoor 16

air radon levels that were as low as ambient, outdoor levels.16 Even the EPA reportedly balked at this impossible goal, at least insofar as it might become a legal requirement rather than a goal." Nevertheless, as a result, the Environmental Protection Agency had been given a large measure of control over radon policy in the United States. Thus far we have seen that (1) radon is radioactive, (2) miners exposed to high doses suffer from an increased risk of developing lung cancer, and (3) radon can collect in our homes, sometimes reaching high levels. Still, the question remains, how great is the risk from indoor radon exposure? Epidemiology In an effort to confirm the risk estimates derived from high-exposure mine worker data, researchers generally have two alternative approaches (often used together). One is to generate statistical models that attempt to reflect the characteristics of the general population and the researcher's assumptions about the factors being studied. The other is to examine selected sub-groups of the general population and derive conclusions through comparisons of these groups. In the latter category there are also two basic forms of research; ecologic and epidemiologic studies. In an ecological study, a large population (usually based on geographic boundaries) is examined for particular characteristics, such as incidence of lung cancer. Averages are determined for various other factors, such as smoking habits, diet, age, occupation, or radon levels. In an epidemiological study, one sub- group which displays the studied characteristic (in this case, lung cancer) is compared directly to an otherwise similar sub-group which does not.'a Both types of research can be valuable in the study of disease; however, each has particular strengths and weaknesses. For example, it is nearly impossible to control for certain variables in an ecological study, such as personal smoking habits or whether a given individual lived in the studied area for any particular length of time. Because ecological studies are simply averages of the traits of larger populations, it is considered inappro- priate to draw conclusions as to any given RADON individual within the sub-group. However, ecological studies are quite useful in generating hypotheses that try to explain certain phenomena, such as why a particular region has above (or below) average lung cancer rates. In contrast, epidemiological studies are designed to account for as many differences on the individual level as possible. For example, a sound epidemiological study should determine the smoking and dietary habits, family medical history, occupation and lifestyle of each individual included in each sub-group. Obviously, epidemiological studies are time- consuming and expensive to conduct, but they can be used to test a hypothesis generated by an ecological study. Researchers continue to refine both techniques, and to debate their relative usefulness.19 Some ecological studies give strong indications that the EPA's assumptions on radon-induced lung cancer are suspect. Some ecological studies give strong indications that the EPA's assumptions on radon-induced lung cancer are suspect. For example, several indicate that areas known to have high radon levels in the soil have surprisingly low lung cancer rates among the local residents.20 Moreover, existing epidemiologic studies on radon and lung cancer are inconclusive, at best Z' Some have indicated an elevated rate of lung cancer among those who live in homes with fairly high radon levels. Most have found no statistically significant difference among populations exposed to indoor radon.' Some experts have suggested that the populations studied have been too small to enable researchers to detect the predicted impact of radon exposure. Other experts suggest that there is no effect to be measured, at least at average radon levels found in American residences and buildings." In any event, quantifying the risks from radon has not proved easy. In all cases, one must make an educated guess as to whether radon actually caused a given instance of lung cancer. Nonetheless, the EPA has made estimates of the range of probable annual lung 17

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY cancer deaths in the U.S. that are due to radon exposure. In its first Citizen's Guide to Radon published in 1986, EPA estimated annual radon- caused lung cancer deaths to range from 5000 to 20,000. At the same time as EPA's announcement the American Cancer Society was estimating an annual total of 130,000 lung cancer deaths from all causes. The Surgeon General presented an estimate that 85 percent of all lung cancers were the result of smoking. If the Surgeon General's estimate is accurate, that would leave no more than 19,500 lung cancer deaths for every other possible reason, from asbestos to air pollution, from genetic predisposition to diet. Obviously, the higher end of EPA's estimate was considered unsupportable by critics.Z` Other factors were at play as well. For example, it has been pointed out that even before smoking cigarettes became a widespread habit, lung cancer was not unknown. In fact, if one applies the estimated "background" rate of fatal lung cancers from the years before smoking became prevalent, it appears that only between 5000 and 7500 nonsmokers would develop lung cancer in the complete absence of tobacco.'s If true, then the lower bound of the EPA-estimated range becomes the upper limit for all nonsmoker cancers. Moreover, the types of cancer found in uranium miners (and attributed to radon) are rare in nonsmokers, accounting for perhaps 15 to 20 percent of nonsmoking lung cancers.2' Taken together, these facts strongly suggest that even EPA's lowest estimates are far too high, probably by a factor of ten or more. To this day, EPA primarily bases its estimates on studies of miners exposed to extremely high levels of radon. Because of the significant differences between the average home and a mine shaft, EPA must rely on mathematical models to concoct a relative risk estimate from residential exposure to radon. The EPA derives its current model from similar work developed by the Biological Effects of Ionizing Radiation Committee of the National Academy of Sciences (BEIR-IV) published in 1988 Z' However, in 1991, another National Academy of Sciences report' concluded that BEIR-IV was overly pessimistic. On the basis of this and other new information, EPA accepted a downgrading of relative risk estimates for radon in the home by about 38 percent. Remarkably, EPA's new estimates for lung cancer were higher than its 1986 range. EPA's current estimate of "the number of lung cancer deaths per year in the U.S. due to residential radon exposure is approximately 14,000, with an uncertainty range of 7,000 to 30,000."29 Why does the EPA continue to project extremely high numbers? The ans wer is that the EPA estimates for radon-induced lung cancer deaths consist mostly of -people who smoke. EPA argues, and not entirely without reason, that smokers run a greatly increased risk of developing lung cancer if they are exposed to high levels of radon. Yet the EPA carries its assumption beyond any reasonable limits. As we shall see, most of the lung cancer being blamed on radon could have been explained by other confounding factors such as diet, smoking, and other possible risk factors. EPA's Exaggerated Death Tall According to the EPA, "The most important data currently available on the interaction between radon and smoking come from the Colorado Plateau miners."30 Of course, these miners were exposed to extremely high radon levels. To make the data somewhat more relevant to residential exposure levels, the BEIR-IV Committee excluded those which were above 2000 "Working Level Months," or WLM. .One "working level," a measure of cumulative radiation exposure, is approximately equal to the alpha particle radiation emitted under typical indoor conditions by 200 pCi/l of radon- 222." One WLM is the equivalent of 170 hours of exposure to one working level of radiation. The average U.S. indoor radon level is approximately 1.3 pCi/1. Thus, "EPA has calculated the average annual U.S. cumulative exposure to radon to be 0.242 WLM."32 It should be clear, therefore, that being exposed to anything approaching the 2000 WLM range is an extremety high dose. To examine the possible links between radon and smoking, 516 Colorado uranium miners (all males) who had never smokedwere compared to a group of nonsmoking U.S. veterans. The findings were impressively worrisome: "the miners were 12.7 times more likely to die of lung cancer than were the veterans."33 In a comparison with nonsmokers in the general population, the miners were still "9.3 times more likely to have died of lung cancer."" It seemed clear that very high levels 18

RADON of radon could increase the risk of developing lung cancer.35 Unfortunately, the single most Anportant finding of this study of nonsmokers has been practically ignored by policymakers in Congress and the EPA. To quote the EPA's own admission: "No lung cancer deaths were found among non-smoking miners with less than 465 WLM of cumulative radon exposure."' Bear in mind that this is over 1900 times the average annual U.S. cumulative residential radon exposure of 0.242 WLM. Yet because of the small number of miners who were exposed to levels of radon at the lower end of the range, EPAwas unable to draw statistically significant conclusions from the data. Thus, in order to conclude that lower levels of radon exposure pose a significant risk to nonsmokers, the EPA was forced to rely upon miner studies from other countries and extrapolations from other sources. Unfortunately, all of these inadequately control for such variables as smoking habits, diet, and precise levels of cumulative exposure. For example, a study of uranium miners conducted in Ontario, Canada found possible evidence of increased lung cancer risks at exposures as low as 40 to 70 WLM, but no smoking data was available. Similar limitations apply to a Czechoslovakian miner study which found possible evidence of "an increase in the risk of lung cancer from levels of cumulative exposure as low as 50-99 WLM.n37 Once again, the average U.S. residential radon level is 0.242 WLM. Nonetheless, despite the consistent inadequacies of the miner studies (lack of certainty on exact exposure, actual smoking habits, dietary intakes, additional residential exposures, and a host of other potentially confounding variables) the EPA asserts that these results can be extrapolated down to residential exposure levels. And even if the EPA estimates were accurate, the unsettling fact is that the EPA uses the separate estimates of risk for smokers, former smokers, and nonsmokers averaged together in order to generate a single "average" risk for the total population (see Figure 2-1). This results in an extremely misleading picture, hiding the fact that smoking is the major component of these risk estimates'8 Almost all lung cancers afflict people who smoke or have smoked. In fact, using the same information relied upon by the EPA, the Department of Energy estimated that only -about 500 lung cancer deaths per year might occur among all 145 million nonsmokers in America.39 Even the EPA admits that the relative radon risk to smokers is 22 times as high as the estimated risk to nonsmokers. EPA's estimated relative risk for those who are former smokers is still over 9 times the risk to thost; who have never smoked. Thus, the relative radon risk assumptions which the EPA applies to the U.S. population are almost entirely the result of the risk to smokers and former smokers. How Much Radon is Too Much? EPA studies indicate that the vast majority of U.S. residences have naturally low levels of radon. The nationwide residential average is approximately 1.25 pCi/1.'0 EPA's recommended "action level" is 4 pCi/1 and only 6 percent of U.S. residences are estimated to exceed this level. However, as one searches for homes with higher radon levels, the percentages fall off quite rapidly. For example, the number of residences that exceed 8 pCi/1 is variously estimated to be below 2 percent or even less than one percent of all homes 4' And it is estimated that less than one-tenth of one percent of U.S. homes have average radon levels above 20 pCi/t.•2 It is estimated that less than one-tenth of one percent of LT.S. homes have average radon levels above 20 pCi11. Why does the EPA insist upon 4 pCi/1 as its recommended action level? It appears that much of the reasbn is the result of bureaucratic inertia. Once chosen, most regulatory standards become etched in political stone. The EPA announced 4 pCi/I at a time when indoor radon estimates were largely derived from construction problems, such as the use of uranium mine tailings as foundation material and when remediation technologies were still in the developmental stages. One 19

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY might expect the official action level to go up or down in response to Anproved information. However, EPA seems intent upon sticking to its original position, regardless of later developments. Ben Bolch and Harold Lyons have suggested that the EPA "stuck by its original action level in order to avoid embarrassment "' Unesr No-Threshold We have seen that the EPA assumes, correctly, that inhalation of a single atom of a radon daughter (which releases an alpha particle) could damage the nucleus of a cell in the lungs. Of course, damage is not the same as cancer.' Nevertheless, the EPA utilizes such assumptions to support its application of the so-called linear no-threshold theory. Linear no-threshold is a simplistic concept with profound practical implications. Basically, the theory holds that risks from minute exposure levels (to a substance) can be determined by working backward from extremely high exposure levels. Thus, if some of the citizens of Hiroshima developed various diseases as a result of massive radiation doses from the atomic bomb blast, then the same diseases should be expected even at extremely low rates and doses of exposure to radiation. If uranium miners developed cancer from high radon exposure levels, homeowners could be expected to suffer similar cancers at proportionately lower rates. The only question for the EPA is the slope of the line drawn to connect high-level and low-level exposure risks. It is known that many substances have harmful effects at high doses despite the fact that they are harmless or even necessary for life itself "No-threshold" refers to the fact that there is no exposure level below which EPA will assume there is no harmful effect. Of course, it is known that many substances have harmful effects at high doses despite the fact that they are harmless or even necessary for life itself at lower doses. Common table salt, among thousands of substances, falls into this category. Nevertheless, the EPA continues to assert that, until someone proves that no harm can result at low levels of exposure, it will assume that harm can and does occur. Opponents argue that the burden of proving such a connection between exposure and harm should be upon the one asserting that harm does occur. Indeed, scientific debate is premised upon this requirement since it is logically '~inipossible to "prove the negative " Dr. Bernard Cohen has been perhaps the most vocal critic of EPA's use of the linear no-threshold hypothesis for radon. Although he asserts that there are dangers from higher levels of radon exposure, he does not accept the EPA practice of applying its linear no- threshold hypothesis to radon. In numerous publications and presentations, Dr. Cohen has presented overwhelming evidence that disputes the EPA hypothesis.' However, Dr. Cohen's (and similar) findings have been dismissed by the EPA. Few observers doubt that the EPA would have embraced and publicized these studies had they only supported the EPA position. Is there a biological mechanism that can buttress the argument against EPA's position? Indeed there is, for without such a mechanism, we would all be dead. To begin to understand this process, it helps to know something about the effects of ionizing radiation on the human body. Ionizing radiation (the type emitted by radon and its progeny) is potentially dangerous because it strikes the body's cells like little bullets. The human body is composed mostly of water. In fact, about 99 percent of the individual molecules within a human cell are water molecules.' Thus, any atomic "bullet" shooting through a cell is most likely to hit a molecule ofwater. The likeliest result, in other words, of exposure to ionizing radiation is the production of °broken" water molecules. In a human cell, these and other "pieces" of molecules can form a host of highly reactive ions and compounds, including hydroxyl radicals and hydrogen peroxide. Each of these is capable of causing damage to the cell nucleus' DNA. Fortunately, human cells have evolved repair mechanisms for dealing with such damage. These repair processes would be needed 20

RADON even in the absence of any radiation because identical -- and equally damaging-- compounds constantly are being created in the body's cells due to incomplete chemical reactions during the ordinary metabolic process. According to Dr. James Lovelock, "In other words, so far as our cells are concerned, damage by nuclear radiation and damage by breathing oxygen are almost indistinguishable ."47 Yet because mistakes in the metabolizing of oxygen are far more common than the average annual dose of ionizing radiation, breathing produces many more of the damaging ions. In fact, on this scale breathing is approximately fifty times as "dangerous" as the average annual dose of radiation from all sources, including radon (see Figure 2-2)'8 Bruce Ames and Lois Gold are two of the leading cancer researchers in the United States. They continue to explore in great detail the causative mechanisms for human cancer. They have reported that "It is generally agreed that several mutations (changes in the sequence of DNA bases) are necessary to convert a normal cell to a cancer cell capable of uncon- trolled growth."' Furthermore, they acknowledge the similarities between ionizing radiation and the ordinary by-products of the metabolic process. According to Ames and Gold, Thus, in a sense, normal oxidative metabolism or inflammation is equivalent to irradiating the body, since radiation is ar oxidative mutagen. Studies in our lab- oratory have shown that normal metabolism causes chronic massive oxidative DNA damage: we estimate that the number of oxidative hits to DNA per cell per day is about ... 10,000 in humanss° If these estimates are anywhere near the mark, EPA's estimates of lung cancer from radon must be revised sharply downward. Yet EPA's policies may actually indiwe people to increase the health risks they face. the EPA has, politically speaking, painted itself into a c.orner and has established an insti- tutional bias against any such revision. The question of the accuracy of the EPA's lung cancer projections is no mere academic debate. Besides the considerable financial costs that are at stake there is the possibility that EPA's policies may actually induce people to increase the health risks they face. The Theory of Hormesis Simply stated, the hormesis theory is that small and large doses of radiation have opposite effects sl That is, small doses of radiation may, in fact, be beneficial to humans. If hormesis occurs with radon, at some point, efforts to reduce radon exposure will have a negative impact on society. That is, EPA's policy will be killing more people than it saves. Consider that the linear no-threshold theory endorsed by the EPA makes certain predictions which can be tested in the real world. Primary among these is that there should be a strongly positive trend between exposure dose to indoor radon and lung cancer deaths. In other words, more radon means more cancer. Instead of confirming this prediction, many ecological-style studies have produced results which are not merely unsupportive of the EPA hypothesis, but indicate the possibility of a strongly inverse relationship between low-to-moderate radon levels and lung cancer rates.' That is, more radon (at low-to-moderate ranges) means kss lung cancer. Nonetheless, the EPArejects hormesis on the basis of its assumptions, rather than on the basis of epidemiological studies. Indeed, in its response to criticism of a recently proposed rule on radon control policies for new residential buildings, the EPA stated: "Given the strong a priorisj understanding of the carcinogenicity of radon an inverse association of radotl with lung cancer is not biologically plausible."' Thus, the EPA asserts that it does not have to look into the hormesis argument very deeply because it knows the answer in advance. This is a particularly odd claim in that EPA has a rather weak understanding of the actual mechanisms involved in inducing lung cancer, for radon or any other substance. Indeed, there is ample evidence which suggests that full-body exposure to low-level radiation stimulates the immune system and 21

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY thereby wards off disease. Although still a contentious issue in the field of health science, a conference on the topic of hormesis was held in 1985. The proceedings were published in the peer-reviewed journal Health Physics.' However, only further research can resolve the issue of hormesis and exposure to radon. lung cancer death rate equivalent to a three percent drop in the smoking rate.-" Yet the EPA clings to its position, despite the high potential costs, low potential benefits and lack of corroborating evidence for its theories. What is more, the EPA position is almost unique among the industrialized nations. What if the EPA is Correct? Thus, the EPA rejects any possibility that radon (at low exposure levels) might be harmless or even beneficial. If we accept, for the sake of argument, this aspect of the EPA position, should we then adopt the rest of the EPA program? In a word, no. There are substantial direct costs involved in testing millions of homes for radon and mitigating those which test above 4 pCi/I. In addition, there are unseen - but nonetheless real -- opportunity costs involved in dedicating these sums for radon purposes and not for other, potential more valuable activities. In any event, it is unlikely that any nationwide testing procedure would be particularly efficacious. Short-term tests are extremely unreliable as a method to determine annual exposure. Therefore, the EPA recom- mends conducting two short-term tests before undertaking any remediation efforts. Some researchers have criticized this approach as both inadequate and misleading.' If the first test is inaccurate, why use it as a pre-screening device to establish which homes should conduct follow-up testing with the same device? Yet long-term, more accurate tests are costly, time- consuming, and generally not supported by the public. Even if the radon testing procedures were highly accurate, presently recommended remediation technologies are not perfect, are rather costly, and are unproven over the long- term as to maintenance and continued proper performance. For example, some systems rely upon electric fans to increase the air pressure inside a house (thus making it more difficult for radon to seep in). Over time, such systems are likely to suffer from mechanical problems and owner neglect.s' Clearly, the initial costs will not be the only costs. Finally, even if EPA's most ambitious policies could be fully implemented it would only result in a reduction of the current annual Radon Policies in Other Nations .; The United States is not the only nation with an official policy on radon, but it is one of the few. No developing country considers radon to rank with the host of indisputable problems confronting their citizens. Yet only Canada, our neighbor to the north, has a radon policy, but it is based on more rational assumptions than is EPA's. a handful of even the wealthiest industrial nations have any policy on radon. France, Italy and Spain, for example, have not seen the necessity of passing radon legislation.59 Canada, our neighbor to the north, has a radon policy, but it is based on more rational assumptions than is EPA's. Canada established a recommended action level of 20 pCi/1, or 5 times the level adopted by the U.S. EPA for existing homes 60 Canadian officials have access to the same information available to U.S. officials. Even more interesting, certain areas of Canada have unusually high levels of radon in outdoor air. For example, parts of Manitoba and Saskatchewan often approach 3 pCi/I in outdoor air radon measurements, about twice the average U.S. indoor ievel.sl Yet, other than studies of various groups of miners (most of whom smoked), Canadian experts have had no more success in finding excessive levels of lung cancer than has the EPA. Other nations have established higher action levels for indoor radon as well. Sweden recommends an indoor level of no more than 10 pCil1 while Finland established 20 pCi/1 for its existing homes. Of course, the fact that other nations establish less stringent standards for indoor radon does not prove anything. However, it obviously indicates that not all 22

RALI1vN governmental experts on radon agree with the EPA's pessimistic assumptions. EPA, Drinking Water and Schools Despite all of the foregoing doubts, the EPA continues to push its agenda on an unreceptive public. Even worse, the EPA insists on a massive expansion of it radon efforts. For example, in July of 1991 the EPA first proposed stringent regulations on permissible levels of radon in drinking water supplies. Because radon naturally is found throughout the earth's crust, it can readily enter groundwater aquifers. If a family or community relies upon groundwater sources for its drinking water, it is possible that high levels of radon will be present in the water. Yet according to the EPA's own Physicians' Guide to Radon: "Lung cancer due to inhalation of radon decay products constitutes the only known risk associated with radon."bZ Thus, because radon in water must first transfer to the atmosphere in order to be inhaled by humans, the general rule of thumb is that radon in the air is 10,000 times more risky than radon in the water. That is, a level of 10,000 pCi/A in water can be expected to contribute about 1 pCi/1 to the air in your home. Indeed, the EPA's own Consumer's Guide to Radon Reduction admits to this ratio.l Thus, water sources are estimated to provide the average home with from one- thirtieth to one one-hundredth of its total radon. For example, the Department of Energy calculated an estimate for the 30 percent of U.S. homes which rely on groundwater. The result was an estimate that "only about 2 percent of the average indoor concentration" of radon had groundwater as its source.64 Yet this tiny amount is all that the EPA could propose to regulate directly under the Safe Drinking Water Act. Indoor air proposals for homes remain purely voluntary. Yet the EPA has established a radon standard for groundwater of 300 picocuries of radon per liter of water (300 pCi/1 water), an extremely difficult level for many water supply systems to achieve. And the EPA adopted this goal despite criticism from its own science advisor, William Raub. Raub stated that there were "incon- clusive epidemiological findings as to whether radon (whether ingested or inhaled) actually presents an appreciable risk within the typical American household if none of the occupants smokes tobacco products."`"S Raub further argued that EPA should not set a standard for water that required radon to be lower than the average in outdoor air.' If the EPA accepted Raub's criticisms, the standard would be approximately 1500 to 2000 pCi/1 water. The EPA's ScienceAdvisory Board (SAB) also criticized the EPA proposed Radon standard. The EPA's Science Advisory Board (SAB) also criticized the EPA proposed standard. It reported that "there is no direct epidemiological or laboratory animal evidence of cancer being caused by ingestion of radon in drinking water.n67 Echoing the Physician's Guide, the SAB concluded that "it is not possible to exclude the possibility of zero risk from ingested radon.i6a After reviewing EPA's evidence, the SAB concluded that a standard of 3000 pCi/1 water could be justified, but not 300 pCi/1 water." The EPA's estimated cost for complying with this extremely stringent standard is $272 million annually.7Q Other estimates run as high as $20 billion. The Association of California Water Agencies estimated that the costs to its members alone could reach $4 billion. The cost to Hastings, Nebraska (population 23,00t1),was estimated at $65 million." Yet Dr. Ralph E. Lapp, former Argonne National Laboratory official and widely published radiation expert, declared "It's a silly thing that EPA is proposing because radon in water is an insignificant public health hazard."' Frightening the Families Almost from the beginning of the radon debate, the EPA fanned the flames of parental concern. Since children spend a great deal of time in classrooms, the EPA reasoned, radon levels should be examined there as well. In its initial survey, the EPA purposely selected schools in areas it anticipated would

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY register higher than average radon levels. Indeed, Richard Guimond, director of the EPA's office of radiation programs, admitted that the survey was skewed toward schools likely to exceed 4 pGi/1 in at least one classroom." In announcing the results of this deceptive sampling, then-administrator of the EPA William K. Reilly stated that the risks from radon-induced lung cancer are "dispropor- tionately higher" in children than in adults." Yet the EPA's own Physician's Guide to Radon states that: "...currently there is no conclusive evidence that radon exposure places children at any greater risk.n75 Thus radon joined the list of frightening potential risks at school, along with asbestos in the walls and Alar in the teacher's apple. Yet EPA's position is no trivial matter. Thus far, about 20 percent of all schools have spent the money to conduct a radon test.'b If all 110,000 primary and secondary schools in America tested for radon, the costs could exceed $138 million. If radon levels are found to be above 4 pCi/l, mitigation would be required. The cost for each such effort could easily exceed $10,000." EPA Radon Partners The EPA is not alone in its crusade to frighten the public over radon. Many of our self-appointed protectors have endorsed the EPA position in public statements, Congressional testimony, and various advertisements and publications. There is a double standard in the radon debate. The EPA distributes millions of dollars among these groups simply to publicize EPA's position. These groups are designated "Radon Partners" by the EPA. Often, the non-governmental Radon Partners are able to say things that the EPA knows are unsupported or even untrue. Radon Partners include many of the most prestigious organizations in the nation's caFitol; such as the American Lung Association, the National Safety Council, the National Education Association and various medical and public policy organizations. The influence of the EPA-subsidized Radon Partners are not limited to adults. For example, in Delaware, some 1500 radon color- ing books have been distributed in elementary schools, with an eventual goal of 40,000.'$ Seventh graders in Kansas were enlisted to test for radon in public buildings and homes. According to the Radon Bulletin, "The students found some concentration level."'9 places where the radon exceeded the EPA action This sort of behavior is generally considered a conflict of interest when exhibited by private industry. It matters litti<e whether these groups would support EPA in the absence of f nancial ties, but the effect is a friendly megaphone for EPA's pronouncements on radon. The constant pressure from the EPA and its Radon Partners has had an impact, even on those who do not accept FPA's questionable science. For example, "grassroots initiatives have resulted in real estate disclosure laws in 0 states."°° Such laws may require testing prior to sale or transfer of a home. The cost for even "simple" radon reme- diation efforts in a home are not insubstantial. While the individual costs can vary enormously, most estimates range from a few hundred dollars to over $3000 per home. Science magazine estimated the range to be from $1000 to $2500 for the most effective mitigation techniques a" In addition, annual operating expenses can range from $70 to $700 $Z If the EPA action level of 4 pCi/1 were uniformly enforced, the total cost to American homeowners (and landlords) would be enormous. Estimates depend upon the assumptions one makes as to the number of homes actually above that concentration. The EPA has estimated the total cumulative costs of compliance with the 4 pCiJl action level to be $44 billion (in 1991 dollars -- see Figure 2- 3).8' Obviously, this would be money unavailable for other priorities, such as education or crime prevention. If the legislated If the legislated "goal' of achieving indoor levels that match outdoor air levels of radon is to be achieved, the estimates skyrocket to perhaps one trillion dollars. "goal" of achieving indoor levels that match outdoor air levels of radon is to be achieved, 24

RADON the estimates skyrocket to perhaps one trillion dollars. Even then, there is doubt that the goal can be reached by any known technologies. Recommendations On the basis of the credible research to date, it can be said that, if you smoke, exposure to radon at moderate or high levels may increase your personal risk of developing lung cancer. Of course, if you smoke, you are already engaging in behavior that increases your risk of developing not just lung cancer, but other lung ailments and heart disease as well. Active smoking is estimated to cause the premature death of up to 500,000 Americans every year. It is putting the cart before the horse to suggest that radon is the thing you should be concerned about. If you do not smoke, there is very little to worry about. Nevertheless, if you live in an area which has been identified as having a much higher than average incidence of radon (the If you do not smoke, there is very little to worry about. Reading Prong area, for instance) you may wish to test your home. However, short-term testing is not very accurate. This should be borne in mind if you decide to test. Therefore, unless the result is well above the EPA's action level of 4 pCi/l, you have no reason to proceed any further. Assuming you decide to conduct a self- administered short-term test, if your home registers near or above 20 pCi/I (and less than one percent of U.S. homes fall into this category), you may want to consult with a radon remediation expert in your community. However, before you agree to any expenditures insist upon a more accurate long-term test. Do not be afraid to obtain competing bids for any and all work you decide to have performed. The earlyyears of the radon scare were replete with radon remediation scams. Sadly, such rip- offs were made easier by the actions of the EPA which exaggerated the risks from radon. Conclusion The EPA says that there is no perfectly safe radon exposure level. Technically, this may be true. Of course, it is also true that there is no perfectly safe way to swallow food or drive a car. Thus, public apathy is somewhat understandable. After years of being told that everything synthetic is bad for you while everything "natural" is good for you, it stands to reason that the public is confused over radon. Unlike many other cancer scares, however, there is no one to blame for the existence of radon -- it is a natural,substance. Thus, it is harder for EPA or the radon remediation lobby to accuse skeptics of being in the "pocket" of some industry. In fact, it is more likely that the reverse is the case. Nonetheless, EPA continues to assert that it is acting on the basis of sound science in this episode. Yet the EPA carefully and consistently selects data that supports its a pricNi assumption: that any amount of radon can cause cancer. This one-sidedness might be harmless but for the fact that EPA backs it up with a multi-million dollar campaign to pressure Congress, homebuilders, state regulators and the general public to spend billions of dollars on what may be completely useless remediation. Such wasteful expenditures have important negative consequences for individuals and for society as a whole. The EPA needs. to re- examine its science on radon. ###

Figure 2-1 Estimated Annual Lung Cancer Deaths 12 Attributable to Radon 10.500 Never smoked Former or current smoker Mole Never smoked Femofe Former or current smoker Source: Department of Energy: Radon Technical Report Series, Nov. 1990. 26

Figure 2-2 Total Dose Ionizing Radiation vs. Normal Human Metabolism i Radon Source: Dr. James Lovelock, The Ages of Gaia. Breathing 27 .

Figure 2-3 Costs of Radon Remediation (4pci/1 vs. -Eackqround") i Trillion 44 8illion 4 pCi/1 % Background level ' Source: Enviranmental Protection Agency. Author's estimate based on EPA figures. 28

RADON 1. Taken from Radon Bulletin, Summer 1993, Vol. 3, No. 4, at page 1. (A publication of the Conference of Radiation Control Directors, Inc. in cooperation with the U.S. Environmental Protection Agency) 2. Considering that government employees will scarcely answer the phone for a paycheck, it is ludicrous to think that they would attempt suicide for the "public good." 3. Throughout this paper, "radon" shall refer to both radon and its harmful progeny. 4. William W. Nazaroff and Kevin Teichman, "Indoor Radon: Exploring U.S. Federal Policy for Controlling Human Exposures," Environmental Science and Technology, Vol 24, 1990, at page 775. 5. Health Rirks of Radon and Other Internally Deposited Alpha-Emitters (BEIR IV), by the Committee on the Biological Effects of Ionizing Radiations, Board on Radiation Effects Research, Commission on Life Sciences, National Research Council (National Academy Press, Washington, DC 1988), at page 10. 6. Radon itself is one of the "noble gases" and is chemically inert. 7. The half-life of polonium 218 is about 3 minutes while that of polonium 214 is but a tiny fraction of a second. All radioactive elements eventually decay into a stable form. For example, radioactive uranium eventually will decay into a non-radioactive form of lead. 8. Leonard A. Cole, Element of Risk The Politics of Radon, AAAS Press, 1993, at page 9. Hereinafter cited as Cole. 9. Underground uranium miners not only inhaled radon gas but also inhaled radioactive mineral particles, some of which became lodged in the lung tissue. These miners, thus, would have a permanent or semi- permanent internal source of radon. Exposure to such mineral dusts in the non-occupational setting (homes, buildings, etc.) generally would not occur. This fact makes extrapolation from the mining to home environment even more tenuous. 10. This "linear no-threshold" assumption is discussed in more detail later in this paper. However, it should be noted here that EPA applies the same assumptions to other exposure risks, such as asbestos. 11. Cole, pages 10-12. 12. Following account is taken from Cole, page 12. 13. The average radon level in U.S. homes is estimated to be about 1.3 pCi/1. Mr. Watras' neighbors' homes did not have similarly high levels of radon. This is indicative of the fact that even in a region where background radon levels are high, there is no way to predict which home might contain elevated radon levels. 14. Cole, pages 13-14. 15. U.S.EPA, Office of Air and Radiation, and the Centers for Disease Control, A Citizen's Guide To Radon: What It Is And What To Do About It, August 1986. 16. U.S. Environmental Protection Agency, Office of Air and Radiation, Technical Support Document for the 1992 Citizen's Guide to Radon, Washington, D.C., May 1992, at page 1-2. Hereinafter cited as EPA Tech. Supp. Doc. . 17. Cole, at pages 62, 85-86. 18. These studies may be retrospective or prospective in nature. Retrospective studies first identify individuals with the desired trait and then reconstruct their lifestyle from available documentation and personal memories. Prospective studies select individuals for longterm observation and record individual characteristics prior to the onset of disease. Obviously, in prospective studies there will be a lower percentage of individuals exhibiting the studied trait or disease. 29

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY 19. For further information on the current debate on ecological versus epideniiological studies, see articles by Schwartz (pp. 819-824); Susser (pp. 825-829, 830-835); and Koopman and Longini (pp. 836-42) in the Amerfcan Journal of Public Health, Vol. 84, No. 5, May 1994. 20. See, for example, M. Mifune, et al., "Cancer Mortality Survey in a Spa Area (Misasa, Japan) With a High Radon Background," Japan Journal of Cancer Research 83:1-5, (1992); and especially, Bernard L. Cohen, "A test of the linear no-threshold theory of radiation carcinogenesis," 53 Environmental Research 2:193-220 (1990). 21. See, for example, John S. Neuberger, "Residential=Radon Exposure and Lung Cancer. An Overview of Published Studies," in Cancer Detection and Prevention, 15:435-443 (1992); E.G. Letourneau, ei[~.al., "A Case-Control Study of Residential Radon and Lung Cancer in Winnipeg, Manitoba," Health Protection Branch, Ottawa, Ontario. In press, 1993. 22. See, for example, William J. Blot, et al., "Indoor radon and Lung Cancer in China," Journal of the National Cancer Institute, Vol. 82, No. 12, (June 20, 1990), pp. 1025-30. 23. See, for example, Philip H. Abelson, "Radon Today: The Role of Flimflam in Public Policy," Regulation, Fall, 1991, pages 95-100. 24. See, for example, Rosalyn S. Yalow, "Radiation and Society," pp. 123-144 in Science, Technology, and Social Prognss, ed. Steven L. Goldman (Lehigh University Press, Bethlehem, PA 1990). Hereinafter cited as Yalow. 25. One such estimate of "no more than 2 to 3" lung cancers per 100,000 people was provided by R. S. Yalow, as above. Dr. Yalow was the 1977 Nobel laureate in Physiology/Medicine (for her development of radioimmunoassays). 26. Yalow, at pages 129-30. 27. EPA Tech. Supp. Doc., at page 2-1. 28. National Academy of Sciences, Comparative Dosimetry of Radon in Mines and Homes, 1991. 29. EPA Tech. Supp. Doc., at page 2-1. 30. EPA Tech. Supp. Doc., at page 2-29. 31. Nazaroff and Teichman, "Indoor Radon" at page 775. 32. EPA Tech. Supp. Doc., at p. 2-13. 33. EPA Tech. Supp. Doc., at page 2-7. 34. EPA Tech. Supp. Doc., at page 2-7. 35. The purpose in citing these figures from the EPA is not to endorse them specifically, or to assert a precise risk function for radon, but to show that at extremely high exposuressoma effect can be detected, even with a small sample size. 36. EPA Tech. Supp. Doc., at page 2-7. 37. EPA Tech. Supp. Doc., at page 2-5. 38. EPA Tech. Supp. Doc., at page 2-29. The EPA's lung cancer death estimates are based on its stated assumption that radon-induced lung cancers fluctuate with the baseline lung cancer death rate. In other words, the EPA assumes that radon-induced lung cancer death rates rise (or fall) when smoking-induced lung cancer death rates rise (or fall). 30

RADON 39. U.S. Department of Energy, Office of Health and Environmental Research, Indoor Radon and Decay Producu: Concentrations, Causes, and Control Strategies, Radon Technical Report Series, November 1990, from Table 8, at page 105. Hereinafter DOE, Indoor Radon. ~ 40. EPA Tech. Supp. Doc., at page 2-12. 41. DOE, Indoor Radon, at page 24. 42. Ibid. 43. Ben Bolch and Harold Lyons, "A Multibillion Dollar Radon Scare," Public Interest, 99:65, (;5pring 1990). 44. Even if it were, one might legitimately question the efficacy of a policy to safeguard us against every molecule on the planet. 45. See, for example, Bernard L. Cohen, "A Test of the Linear No-Threshold Theory of Radiation Carcinogenesis," 53 Environmental Research 2:193 (December 1990); Cohen, "Expected Indoor Radon Levels in Counties with Very High and Very Low Lung Cancer Rates," 57 Health Physics 6:905 (December 1989). 46. T.D.Luckey, Radiation Hormesis (CRC Press: Boca Raton 1991) at page 5. 47. James Lovelock, The Ages of Gaia: A Biography of Our Living Earth, (W.W. Norton & Co., New York: 1988), at page 175. 48. Ibid., at page 176. 49. Bruce N. Ames and Lois Swirsky Gold, "Environmental Pollution and Cancer: Some Misconceptions" in Phantom Risk: Scientific Inference and the Law, edited by Kenneth R. Foster, et al., (MIT Press, Cambridge, MA 1993) pages 153-181, at page 154. 50. Ibid., at page 155. 51. Luckey, Radiation Hormesis, at page 33. 52. See, for example, Cohen, op. cit., note 14. 53. "A priori" is a Latin phrase meaning "valid independently of direct observation" or "a position not based on prior study or exaaiination." 54. U.S. EPA, "Model Standards and Techniques for Control of Radon in New Residential Buildings" Notice of publication of final EPA Model Standards, March 21, 1994, 59 Federal Register 13402, at 13406. 55. "Special Issue on Radiation Hormesis," Leonard A. Sagan, editor, Health Physics: The Radiation Protection Journal, Vol. 52, No. 5, May, 1987. 56. For example, such sentiments were expressed in a letter to William K. Reilly, EPA Administrator, from Anthony V. Nero, Jr. dated November 20, 1992. Dr. Nero is a leading researcher on radon at the Lawrence Berkeley Laboratory's Indoor Environmental Program. 57. See: Cole, at page 35. 58. Warren Brookes, "S1 Trillion Radon Rip-off," Washington T"jmes June 25, 1990. 59. The nations which have adopted or proposed radon regulations are the United States, United Kingdom, Sweden, Finland, Norway, Canada, and Germany. See Cole, Chapter 9. 31

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY 60. Cole, page 66. 61. Cole, page 67. 62. U.S. EPA, Radon: A Physician's Guide (The Health Threat With a Simple Solution), Washington, DC, September 1993, at page 4. Hereinafter cited as Physician's Guide. 63. U.S. EPA, Consumer's Guide to Radon Reduction: How to reduce radon levels in your home..., August 1992 at page 15. 64. DOE, Indoor Radon, at page 50. 65. Richard Stone, "EPA Analysis of Radon in Water is Hard to Swallow," Science 261:1514-16, 17 September 1993. 66. Outdoor concentrations of radon can vary enormously, from essentially zero to over 3 pCi/1 in a few places. However, the average for the United States is generally stated to be around 0.3 pCili. The western states often have higher levels than the eastern states, due primarily to geologic factors. See: EPA Tech. Supp. Doc. at Appendix A. 67. Ibid. 68. Ibid. 69. Ibid. 70. U.S.EPA, Office of Water, Report to the United States Congress on Radon in Drinking Water: Multimedia Risk and Cost Assessment of Radon, February 1994, at page 4-14. 71. New York Tunes, March 24, 1993. 72. Ibid. 73. Michael Weisskopf, "EPA Finds Excessive Radon in Schools, Urges Nationwide Tests" Apri121, 1989, at page A-3. 74. Ibid. 75. Physician's Guide, at page 7. 76. Radon Bulletin, VoL 4, No. 2, Spring 1994, at page 1. 77. Jonathan Adler, "Radon Vapors," The Washington Tirnes, March 26, 1993. 78. Radon Bulletin, Vol. 4, No. 2, Spring 1994, at page 4. 79. Ibid. 80. Ibid. 81. Richard Kerr, "Indoor Radon: The Deadliest Potlutant," Science, Vol. 240, No. 852, 29 April 1988, at page 608. ~ N 82 U S EPA Tech Supp Doa at page 4-7 . . . . ., . -j rn 83. Ibid., at page 5-12. ~ .p tv 32

rc:J. a..tuc:J CASE STUDY NO. 3: PESTICIDES Introduction A"pesticide" is any chemical which can be used to kill a"pest" such as an insect, rodent, or weed. Thus, the generic term encompasses fungicides, rodenticides, insecticides, and herbicides.i Pesticides are generally toxic to the target species although some work less directly, by disrupting the reproductive cycle, for example. While some pesticides are pest- specific, most are at least potentially toxic to a much wider range of species. Thus, the application of any pesticide should be carefully conducted to avoid unintentional exposures. Pesticides are one of the great success stories of twentieth century agriculture. Along with mechanization, modem plant breeding and fertilizers, pesticides have been instrumental in propelling the "green revolution." Yet despite this success, some worry that modem agriculture is planting the seeds of its own collapse? In the case of pesticides, the primary concern for human health arises over possibly harmful effects from any residual traces on the food supply as well as possible contamination of groundwater supplies in farming regions. This paper will examine both issues; however, the primary focus will be on human health risks arising from pesticide residues on the food supply. Why Use Pesticides? A significant share of the world's food supply never makes it to market. Even with pesticide use, high percentages of many crops are eaten by insects or rodents or spoil before reaching hungry consumers. In a recent Department of Agriculture study, it was estimated that if herbicides were banned in the state of Indiana, over 50 percent of the corn yield would be lost 3 By limiting crop losses, modem pesticides have contributed immeasur- ably to improvements in human welfare. Pesticide "use has led to substantial improve- ments over the past 40 years in the c}uantity and variety of the U.S. diet and thus in the health of the public.e4 Pesticides also protect human health when used to control diseases transmitted by insects and related pests. Although many pesticide applications have been declining since the 1960s, the United States still applies tremendous amounts of pesticides to agricultural and suburban lands and, overall, usage has grown.s The widespread use of pesticides has contributed to our ability to preserve huge tracts of land for wildlife, forests and nature parks. Pesticide use must be placed in perspective. It is a fact that modem agricultural techniques, including judicious applications of pesticides, are far more productive per acre than older methods. Thus, land use would increase tremendously in the absence of pesticides and fertilizers. In other words, the widespread use of pesticides has contributed to our ability to preserve huge tracts of land for wildlife, forests and nature parks. If the world were still dependent on the technologies available in 1950, approatimately 10 million square miles of new farmland would have to be developed in order to produce enough to feed the world's growing population b Currently, agriculture of all types occupies about 5.8 million square miles.' In a very direct sense, pesticides help preserve wilderness, especially in developing countries. In general, modem pesticides are safer than their predecessors. Prior to the availability of modem synthetic chemicals, farmers used other highly toaiccompounds (often containing 33

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY arsenic, mercury and copper) to protect their crops from pests. Poisons were applied to crops at least as far back as the eighth century B.C.a Ironically, many of these dangerous compounds are still allowed on produce grown "organically.i9 The most modern pesticides often are not only more pest-specific than the compounds they replaced, but many are now formulated to degrade fairly rapidly in the environment rather than accumulate in soils and waters. However, it is undeniable that the amount of pesticides applied across the globe has increased dramatically in the past fifty years. It is estimated that "farmers use nearly 700 million pounds of pesticide active ingredients on U.S. food crops annually.nLO The U.S. Department of Agriculture estimates that this results in expenditures of approximately $4 billion, yet "prevents the loss of about $16 billion in food products."" Sulfur used as a fungicide makes up a large share of the 700 million pounds. In the Beginning It is not much of an exaggeration to say that pesticides created the modern environmental movement. Concern over the increased usage of pesticides and the potential for human health impacts grew right along with the application of synthetic chemicals. For example, the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA, was passed by Congress in 1947, at the dawn of the chemical revolution in agriculture.'Z Yet it was not until the 1962 publication of Rachel Carson's seminal work, Silent Spring," that the specialist's concern over pesticides became a generalized fear for the public. Carson was a renowned science writer whose previous work included science-based bestsellers. Yet Silent Spring struck a responsive chord with its poetic presentation and literary license about the potential risks from widespread use of pesticides, particularly DDT." Many within the environmental movement cite Silent Spring as the beginning of the modern era.ts Carson's most important contribution to the debate may have derived from her focus on cancer and the bio- accumulation of pesticides in the natural food chain. Her theory was that if a plant is sprayed with a pesticide, it will be slightly concentrated in the insects that feed upon the plant. In turn, the predator species that consume the insects will ingest a higher dose of the pesticide and their predators, in turn, an even higher concentration. Birds of prey, in particular, were considered to be at high risk in this process, and, indeed, serious problems were alleged in the form of reproductive failure among many species of raptor in the United States.i6 Rachel Carson caught the public's attention by pointing out that Man was atop the food chain and would eventually reap what he had sown. Even Vice President Al Gore, in his own bestselling book Earth in the Balance, relates how "My mother was one of many who read Carson's warnings and shared them with others. She emphasized to my sister and me that this book was different - and important "I' Certainly, no one before her had so successfully seized upon the human instinct for self-preservation. Pesticides, Carson asserted, were accumulating in the food chain, and in humans as well, and could eventually destroy much of the life on earth. While Carson avoided the utopian notion that all manmade chemicals must be banned, she did assert that cumulative and multiple exposures must be strictly limited and alternatives should be explored.l$ Rachel Carson's authoritative -- if pessimistic - opinion on pesticides gave a strong push to a growing movement to ban all synthetic chemicals. The possible linkage of minute quantities of manmade chemicals with disease is not a trivial matter and researchers continue to investigate all manner of human health risks. However, in recent decades, most have come to the realization that natural substances carry similar potential risks.19 Of most importance to this issue is the fact that these "natural pesticides" are present in vastly greater quantities (than are manmade pesticide residues) in our food supply.20 Despite these revelations, the potential risk of cancer from tiny doses of manmade chemicals remains a driving force for the environmental regulatory movement in America. Unfortunately, most of the public's beliefs and fear of cancer is based upon misinformation (see Figure 3-1). A common belief, even espoused by Rachel Carson herself, is that humans evolved along with the "natural" pesticides and therefore developed a high tolerance for them. She neglected to discuss general body reactions which protect animals 34

from synthetic as well as man-made chemicals. Laboratory experiments confirm that natural and manmade chemicals o can be equally carcinogenic and react with the human body in often identical ways.21 The notion of "benign nature" is a romantic anachronism (see Figure 3-2). Gradually, experts are coming to confront the implications of the existence of natural pesticides. They have been prodded in that direction by a number of determined writers on science and health issues. For example, Edith Efron took the entire cancer The notion of "benign nature" is a romantic anachronism. mythology to task in her book The Apocalyptics.' Indeed, in her listing of people she considers to have been apocalyptically inclined, the first is Rachel Carson.' Another effective critic of the notion that "everything causes cancer" is Elizabeth Whelan. Among her many books and publications on human health is Toxzc Terror.u Whelan is also critical of Carson and Silent Spring.u While conceding that pesticides can be (and often were) abused, Whelan disputed the one-sided presentation of facts by Carson. Whelan rightly worried that the critical value of synthetic chemicals to human health would be lost in an emotional overreaction. Despite these, and other, effective responses to the exaggerated attacks against pesticide residues, the American public remains highly receptive to such scare tactics. The Alar Scam In 1989 the Natural Resources Defense Council (NRDC) launched a carefully orchestrated campaign against the agricultural chemical known by its commercial name Alar.' Alar was manufactured by the Uniroyal Chemical Company for use as a growth inhibitor for certain apple crops.27 Applied to perhaps five percent of the U.S. apple crop, Alar delayed ripening of the fruit on the trees, allowing for more complete I'E.,ti I'IC:IUES harvests and, most importantly, improved storage so palatable fresh apples are available for a much longer period of time. The EPA had examined Aiar and determined that the scientific evidence was inconclusive, at best. However, the NRDC hired a public relations firm to manage its nationwide publicity blitz against Alar. CBS' The EPA had examined Alar and deter- mined that the scientific evidence was inconclusive, at best. popular news show 60 Minutes was given an "exclusive" to break the story on television. Meryl Streep, the popular actress, testified against Alar before Congress (and the cameras). Unfortunately, the story was largely concocted by NRDC and its public relations gurus. The NRDC realized that the research was not clearly supportive of its position (seeking to ban the use of Alar) so it decided to rely on emotion rather than science. The story that NRDC created, and 60 Minutes broadcast, was that Aiar's residue on fresh apples and apple products presented an unacceptable risk of cancer to children. Although the EPA, the apple industry, and even other environmentalists had examined the underlying NRDC study, they had all come to the conclusion that Alar need not be banned. However, these rational sentiments were swamped by the public fears generated by the slanted presentation provided by NRDC. The result: Alar was abandoned by apple farmers and its maker alike, even before the EPA agreed to a formal ban on Aiar to allay public fears. The costs of this event were enormous, and the benefits of the ban too small to measure, if they existed at all. For example, it was estimated at the time that the apple industry lost over $28 million on a single year's crop.'3 Total losses were estimated at $140 million." Mothers refused to allow their children to eat apple sauce or drink apple juice until they were certain that it was "safe." The only way to do that, in the wake of the NRDC campaign, was to ban Alar. America's food supply can easily survive a few incidents similar 35

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY to the Alar scam, but science itself is put at greater risk by such political manipulations. Public distortions of the facts can even influence the design of regulations intended to reflect the best science on the subject. Federal Regulations and Laws The two major federal laws dealing with pesticides are the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Food, Drug and Cosmetic Act (FDCA). The two principal agencies for regulating pesticide safety and food quality are the Food and Drug Administration (FDA) and the Environmental Protection Agency (EPA), with considerable assistance from the U.S. Department of Agriculture. As noted earlier, FIFRA was enacted in 1947. Substantial amendments were adopted in 1972 and 1988. Basically, this act requires all pesticides in use in the United States to be "registered" by the EPA. The registration process involves detailed analysis of the potential hazards from each active ingredient present in a pesticide. The standard of the statute also requires EPA to understand the benefits of a pesticide's uses, and to balance risks against benefits for each product and use. Successful registration results in EPA approval of particular uses for the chemical product so long as stringent labelling requirements are met. "FIFRA today requires pesticides to be tested for their potential to cause cancer, infertility, sterility, birth defects, nerve damage, genetic mutations or chronic diseases."30 The standard of the statute also requires EPA to understand the benefits of a pesticide's uses, and to balance risks against benefits for each product and use. If new evidence of a potential risk is found, EPA will conduct a "special review" to consider issuing a cancellation order for the pesticide's registration. This process can take several years to complete.31 In its 1988 amendments to FIFRA, Congress established a fee system for the registration process. For each active ingredient in current pesticides applied to food or animal feed, a one-time fee of $150,000 must be paid.'Z In addition, an annual "maintenance fee" of $425 is applied to each pesticide product." The other major law to regulate pesticides is the Food, Drug and Cosmetic Act (FDCA). Under the FDCA, the EPA shares oversight responsibilities with th~• Food and Drug Administration (FDA). One important function of the FDCA is the setting of "tolerances" for pesticide residues on foods. Tolerance levels are intended to provide a wide margin of safety from any potential harms due to pesticide residues. The tolerance level is established by making certain assumptions as to the pesticide's potential for toxicity or health risk to humans. Much of the information as to potential toxicity is generated by studies of laboratory animals" Of course, lab rats (or other species) do not respond to trace chemicals in exactly the same fashion as humans. Even if they did uncertainties would arise when trying to extrapolate from the rat to the human scale: Should one rely on body weight, surface area, or what? Using rats to test for the possibility of carcinogenicity in humans is an inexact science, to say the least.'$ Even under ideal circumstances, it would be almost impossible to establish a single, bright-line standard for pesticide residues. Confounding variables would include the assumptions made as to toxicity, the process selected to extrapolate from lab animals to humans, and asumptions as to actual human consumption of the product. In addition, even setting a single regulatory tolerance level for all chemicals could produce differing outcomes. For example, a "one in one million" risk standard applied to a widely used pesticide would leave millions of people exposed (admittedly, to a slight amount) while even a much larger residue of some rarely used chemical would leave almost no one eatposed. Thus, without some flexibility or discretion for the regulatory body, a single, stringently applied standard could produce widely varying outcomes (in terms of actual exposures and, theoretically, risks). Yet the FDCA makes a difficult process almost impossible by creating two separate standards for pesticide regulation.' For raw 36

PESITCID ES or unprocessed foods, the EPA must establish the tolerance level by examining the potential risks in light of the actual benefits derived from the use of the pesticide. This is governed by Section 408 of the FDCA. However, for processed foods, there is the possibility that pesticide residues may accumulate. For example, water may be squeezed out of tomatoes to produce tomato paste. If the pesticide residue concentrates in the processed food to a level exceeding the tolerance level for raw foods, it will be treated as a food additive, rather than a residue. This is governed by Section 409 of the FDCA. And Section 409 contains the infamous Delaney Clause. Treated potable water is a food, by definition of the FDCA, and water used in processing a crop could be illegal, even if the same water passes other EPA standards. The Delaney Clause The Delaney Clause prohibits even a trace amount of any food additive shown to cause cancer or induce tumors in laboratory animals or humans at any dose. The Delaney Clause was adopted at a time when the existing technologycould not detect trace contaminants below levels of several parts per million. Yet today, parts per quadrillion are routinely detected. What was effectively "zero" when Delaney was passed has changed radically.37 However, because the Delaney Clause only applies to processed foods, America is left with a doub?e standard for its food supplies. "[ I')he current regulatory system requires the same pesticide chemical to meet inconsistent requirements (zero-risk versus risk-benefit) dependingon whether the foodis processed."'8 In practice, the EPA has banned certain pesticides which did not exceed the tolerance levels established under FIFRA simply because, at some later stage in the market, the "zero-risk" threshold of the Delaney Clause was crossed. Because of the difficulty of tracking every food item in the market, the EPA may prohibit any uses of the pesticide if processing may concentrate it to detectible levels. Few observers completely ignore the defenciencies of the Delaney Clause. EPA Administrator Carol Browner pointed out that "we know a lot more about these chemicals than we did 35 years ago when the law was passed."'9 And in response, the Clinton A pesticide standard which seeks to hold risks to one in one million, even if successfic4 would produce no detectable improvement in cancer statistics. Administration has introduced legWation that would reform the Delaney Clause by substituting a standard of"reasonable certainty of no harm" for the present standard of zero theoretical risk.'0 In addition, there are several similar bills in both houses of Congress and all would "eliminate the setting of pesticide residue tolerances from the criteria set out in the Delaney Clause."a' However, few proposals to reform pesticide regulations in America truly hit the mark. Most revolve around specific limits on permissible risk levels, often calculated on the basis of the risk of a pesticide-induced cancer per million exposed individuals. Of course, the odds of developing some type of cancer are approximately one out of four. Thus, a pesticide standard which seeks to hold risks to one in one million, even if successful, would produce no detectable improvement in cancer statistics. And the Delaney Clause, which sets a standard of zero risk, is even more extreme. Yet the Delaney Clause retains the force of law. Indeed, in Les v. Reilly, the Ninth Circuit Court of Appeals held that the EPA must enforce the Delaney Clause's zero tolerance standard.`2 Following the decision in Les V. Reilly, outgoing EPA Administrator William Reilly said that "The decision of the Ninth Circuit Court is strictly a legal matter. It does not, in our view, reflect good public policy or good science policy."43 This sentiment was confirmed by Reilly's replacement as EPA Administrator, Carol Browner. According to Browner, the Delaney Clause's zero tolerance standard remained unsupported by the scientific facts. Browner declared that "the current debate is not about health risks, but about the legal interpretation of the statute."u While this case specifically dealt with only four pesticides, it has potential application to "more than 32 pesticides that are currently used on 80 to 100 food crops.'45 37

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY The entire case against pesticide residues is built upon assumptions which can be shown to be flawed to some degree'6 Unfortunately, the standard retort to these flaws, that one should "err on the side of caution" offers little real guidance to anyone with extensive knowledge of the issue. Only by assuming that, first, pesticide residues are harmful even in minute amounts and, second, that natural substances simultaneously present in foods do not cause harm can one conclude that current pesticide residue standards actually provide any net benefits to society. Because of their importance to world food supplies and the simultaneous controversy surrounding their use, pesticides have generated a number of technical studies which seek to reconcile the conflicts. None of these has recommended the complete abandonment of modem pesticides. Even when it comes to the subject of pesticide residues on food, the experts find it difficult to justify prohibitions rather than prudence. For example, the National Academy of Sciences recommends "a negligible risk standard in setting and revising tolerances for all [carcinogenic] pesticides found in food.' Others are even more blunt about the insignificant nature of health risks from pesticide residues. One expert admitted that "today's pesticides represent trivial risks to the public and to our food safety. The pesticide residue risk is so low as to be meaningless, whatever the specific numbers of the risk estimates:''a "The pesticide residue risk is so low as to be meaningless, whatever the specific numbers of the risk estimates." Protecting Groundwater Supplies Another source of concern over pesticide use is the potential for seepage into underground water acquifers. This is almost exclusively a regional or local issue, since groundwater is generally utilized locally. Property rights approaches can resolve many problems of this variety.49 Groundwater contamination by pesticides is not a problem of nationwide consequence. "In 1988, the U.S. Geological Survey reported that only two percent of our groundwater supply was contaminated by man's activities. Contamination from pesticides amounted to a very small fraction of that two prrcent."5° In addition, where pesocides are overused (thus leading to contamination of surface and near-surface water supplies) it is often the result of government subsidies to the farmer. In many cases, particularly in the United States and Western Europe, government programs encourage over-reliance on chemicals through price support and other subsidy programs. Guaranteed a high price regardless of actual market demand, farmers respond by maximizing output through heavy use of fertilizers and pesticides. There are, however, viable alternatives to this process, but first the subsidies must be cut and eventually removed entirely 51 "Price supports turn farming into a maximum-yield contest "5z Recommendations To whatever degree they may exist, cancer risks from pesticide residues do not arise in a vacuum. When it comes to registering or otherwise regulating pesticide residues (as opposed to application or production processes) we should step away from an overly simplistic approach to cancer risk. In recent years, researchers have confirmed that the consumption of fruits and vegetables has a powerful suppressing effect on cancer. "Beyond the well-known benefits of vitamins and fiber, plant foods are plush with chemicals that have no nutritional value and are not necessary for immediate survival yet may impede cancer at a variety of stages in its slow, savage evolution "s' "Increased consumption of fruits and vegetables is associated with lower cancer rates in all sorts of societies and countries."' Thus, a rational government policy would seek to determine the risk from residual pesticides as well as the benefits from consuming the fruit or vegetables which serve as a "delivery system." Only when the pesticide- engendered risk of cancer outweighed the cancer-suppressing ability of the food itself (processed or raw) should the government 38

Pl~S 11C;illEJ I revoke registration or otherwise ban the chemical. Only when the pesticide-engendered risk of cancer outweighed the cancer- suppressing abiiily of the food itself (processed or raw) should thegovernment revoke registration or otherwise ban the chemicaL As quoted in Global Food Progress, the National Research Council's Committee on Diet and Health came to precisely this conclusion: Increased consumption of vegetables and fruits can be expectedto result in increased ingestion of residues of herbicides and pesticides used in agriculture. The potential small increased risk...that might result from increased exposures... in the general population would be greatly outweighed by the potential benefits (i.e., reduced risk of cancers of the lung, stomach, colorectum and other sites and reduced risk of other chronic diseases) to be expected from greater fruit and vegetable consumption." Because offsetting benefits (in the form of reduced cancer risks) co-exist with the pesticide residues, it may be counterproductive - that is, harmful to human health - to overregulate pesticides. The issue is more than simply one of raising the cost of producing foods through regulation. Admittedly, price increases would have a depressing effect on fruit and vegetable consumption. That is an economic concern, albeit one with profound health consequences. '~ Nevertheless, it may be possible, even within the current framework of federal law, to incorporate the important findings of modern science about the existence of the natural anti- cancer effects of a diet high in vegetables and fruits. This is not a call for complete deregulation of all agricultural chemicals. It will always be wise to establish rules for their use and sale. Indeed, it may be that if the regulatory agencies looked at the complete picture of pesticide residues, they would still find cases where excessive risk exists even when one includes a conservative calculation of the cancer-preventing powers of fruits and vegetables. However, it is inappropriate to use only half of what sound science tells us. ### 39

Figure 3-1 FATALITY RISK ESTINiATES PER 1 MILLION LIFETIMES (70 yesrs) Incident Risk Car Accident 16,800 Accident at Home 7,700 Drowning 2,520 Electrocution 371 Lightening Strike 42 Insect Stings 17 Pesticide Residues (EPA estimate) 3 Pesticide Residues (FDA estimate) 0.0015 Source: "Not All Risks are Created Equal," 7he Detroit News, February 26, 1990 as reprinted in "Pesticides & Food Safety: Separating Fact From Fiction," American Legislative Exchange Council. 40

Figure 3-2 RELATIVE RISK LEVELS NATURAL VS. hL4NMADE PESTICIDFS Comparison of average exposures to natural (in bold) and synthetic pesticides Relative Risk Average Daily Human Exposure Human Dose of Rodent Carcinogen 0.1 Coffee (from 13.3 g) [3 cups] Caffeic acid, 23.9 mg 0.04 Lettuce (14.9 g) [1/67th head] Caffeic acid, 7.90 mg 0.03 Orange juice (138 ml) [415th glass] d-Limonene, 4.28 mg 0.03 Pepper, black (446 mg) d-Limonene, 3.57 mg 0.002 DDT: daily dietary avg. DDT,13r8 µ g(befnre 1972 ban) 0.0006 Mushroom (2.55 g) 1215 stalk] Gintamyl-p-hydrazinobenzoate, 107 Pg 0.0002 Apple, 1 whole (230 g) UDMH, 598 ng (from Alar, 1998) 0.00008 DDF..JDDT: daily dietary avg. DDE, 659 ng (1990) Source: Bruce N. Ames and Lois Swirsky Gold, Phantom Risks. 41

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY 1. One recent estimate for total pesticide usage in America indicated that herbicides accounted for 61 percent of the total, insecticides 21 percent, fungicides 10 percent and all others approximately 7 percent. Source: Shirley A. Briggs and the staff of the Rachel Carson Council, Basic Guide to Pesticides: Tluir Characteristics and HazarrLs, (Hemisphere Publishing: Washington) 1992. 2. The leader of this pessimistic band is probably Lester Brown, president of the Worldwatch Institute. For a concise rebuttal to Mr. Brown, et aL, see, Dennis T. Avery, Global Food Progress 1991 (Hudson Institute, Indianapolis), pp. 74-85. Hereinafter cited a"s Global Food Progress. 3. Global Food Progress, at page 250. 4. National Research Council, Pesticides in the Diets of Infants and Children, (National Academy Press: Washington) 1993, at page 13. Hereinafter cited as Pesticides and Children. 5. Ibid., pp. 15-16. 6. Global Food Progress, pp. 21415. 7. Ibid. 8. Pesticides and Children, at page 14. 9. Leonard Gianessi, "The Quixotic Quest for Chemical Free Farming," Issues in Science and Technology, (Fall, 1993), pp.29-36. 10. Donna U. Vogt, "Food Safety: Issues and Concerns Facing Congress," Science Policy Research Division, Congressional Research Service, Library of Congress, June 23, 1994, page CRS-2. 11. Ibid. 12. FIFRA is discussed in greater detail below. 13. Rachel Carson, Silent Spring, (Houghton Mifflin Company: Boston) 1962. 14. Dichloro-diphenyl-trichloroethane. 15. "If its origins could be linked to any one event, environmentalism might be said to have begun in 1960 [sic] with the publication of Rachel Carson's profoundly important book, Silent Spring." Robert C. Paehlke, Environmentalism and the Future of Progressive Politics (Yale University Press: New Haven) 1989, at page 21. 16. Still, there are those who dispute this matter even today. See: Jay H. Lehr, ed., Rational Readings on Environmental Concerns, (Van Nostrand Reinhold: New York) 1992, pp. 195-220; Dixy Lee Ray, Trashing the Planet, (Regnery Gateway: Washington) 1990, chapter 6. 17. Al Gore, Earth in the Balance: Ecology and the Human Spirit, (Houghton Mifflin Company: Boston) 1992, at page 3. 18. Silent Spring, pp. 178-84, (25th Anniversary Edition). 19. See: Bruce N. Ames and Lois Swirsky Gold, "Environmental Pollution and Cancer: Some Misconceptions," pages 153-182 in Kenneth R. Foster, et al., Phantom Risic Scientific Inference and the Law, (MIT Press: Cambridge, Mass.) 1993. 20. See Lois S. Gold, et al., "Rodent Carcinogens: Setting Priorities," 258 Science 261, October 9, 1992. 42

PESTICIDES 21. Ibid. 22. Edith Efron, The Apocalyptics: Cancer and the Big Lie, (Simon and Schuster: New York) 1984. 23. Ibid., at page 31. 24. Dr. Elizabeth M. Whelan, TozFc Terror: The Truth About the Cancer Scare, (Jameson Books: Ottawa, Illinois) 1985. 25. Ibid., pp. 63-85. 26. For a full description of this episode, see: Michael Fumento, Science Under Siege: Balancing Technology and the Environment, (William Morrow and Company: New York) 1993, pp. 19-44. 27. Alar, or daminozide, has the scientific name 2,2-dimethylhydrazide. After application to apples, it gradually decomposes to produce tiny amounts of UDMH, or unsymmetrical dimethylhydrazine. When large amounts of UDMH was fed to rats, some formed tumors, although there were many questions about the validity of the study in question. Science Under Siege, pp. 22-27. 28. Jo Kwong Echard, Protecting the Environment: Old Rhetoric, New Imperatives, (Capital Research Center, Washington) 1990, at page 38. 29. Global Food Progress, at page 252. 30. Environmental and Energy Study Institute, 1992 Briefing Book on Environmental and Energy Legislation, at page 51 (Washington, DC). 31. Ibid. 32. Ibid. If the active ingredient being registered is utilized by more than one company, they pay the fee collectively. In addition, small businesses pay a lower one-time fee. 33. Ibid. 34. Science Under Siege, pp. 45-55. 35. See ?he Apocalyptics. 36. For a complete analysis of this problem see: Regulating Pesticides in Food: The Delaney Paradoz, National Research Council, (National Academy Press: Washington) 1987; Donna U. Vogt, "The Delaney Clause: The Dilemma of Regulating Health Risk for Pesticide Residues," Science Policy Research Division, Congressional Research Service, Library of Congress, November 9, 1992. 37. Science Under Siege, page 54. 38. Vogt, "Food Safety," in summary. 39. Keith Schneider, "EPA Plans to Seek Loosening of a Law On Food Pesticides," The New York 'Fimes. February 1, 1993, page A-1. 40. Vogt, "Food Safety," at page CRS-4. 41. Ibid. 42. See Keith Schneider, "Court Expands Pesticide Ban to Cover Many Used in Food," New York T'unes, July 9, 1992, p. A 1. 43

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY 43. EPA Environmental News. January 19, 1993, "EFA Seeks Comments on Petition Proposing Modification of EPA Pesticide Policy," at page 1. 44. EPA Note to Correspondents, issued by the EPA Office of Communications, Education, and Public Affairs, February 2, 1993, at page 1.) 45. Vogt, "Food Safety," at page CRS-5. 46. In addition to T1u Apocalyptics and Taric Terror, see Phantom Risks (CTTE) . , 47. Regulating Pesticides in Food: the Delaney Paradox, p. 12. ' 48. Dr. Sanford Miller, former Director of the FDA's Center for Food Safety and Applied Nutrition, and Dean of the Graduate School of Biomedical Sciences at the University of Texas Health Science Center at San Antonio, cited in Global Food Progress 1991 at page 134. 49. See: Terry Anderson and Don Leal, Free Market Environmentalism (San Francisco: Pacific Research Institute for Public Policy), 1991. 50. Global Food Progress, at page 252. 51. Ibid., at page 214. 52. Ibid., at page 219. 53. Natalie Angier, "Chemists Learn Why Vegetables Are Good for You," The New York Times. April 13, 1993, page C-1.) 54. Global Food Progress, at page 136. 55. National Research Council, Committee on Diet and Health, Diet and Health: Implications for Reducing Chronic Disease Risk (National Academy Press: Washington) 1989, at page 695, cited in Global Food Progress 1991, at page 127. 44

SUYEM-U[vll CASE STUDY NO. 4: SUPERFUND I Introduction Superfund is a costly failure. Since its inception in 1980, it has been universally criticized as an expensive, largely ineffective environmental cleanup program. The head of California's environmental protection agency calls Superfund "the environmental equivalent of the Defense Department's $600 toilet seat."' Yet even if Superfund worked as intended, it would provide insignificant benefits to human health and the environment. As currently administered, it is fair to say that the program causes more fiscal harm than environmental good. To paraphrase President Bill Clinton, it is time to end Superfund as we know it. Superfund authorization is due to expire on September 30, 1994. As if to prove that even death (of a program) does not guarantee an end to taxation, the tax authority under Superfund does not expire until the end of 1995. Congress is currently working to amend and extend the Superfund program's legislative foundations. Thus far, there appears to be little interest in serious reform. This is unfortunate, for Superfund exemplifies all that is wrongwith American environmental policy: an expensive assault on minor risks resulting in an enormous waste of scarce resources. What is Superfund? The original Superfund was created as a federal response to the infamous discovery of toxic waste beneath the residential community of Love Canal, New York, and the fear that similar sites existed nationwide. Although the passage of time has demonstrated that human health was not subjected to any measurable increase in risk and that, in fact, the state was responsible for causing the chemical release, the legacy of Love Canal still haunts Superfund exempli~tes all that is wrong with American environmental policy: an expensive assault on minor risks resulting in an en.ornzous waste of scarce resources. American environmental policy? The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), passed during a lame-duck session of Congress, created the original Superfund, a five year, $1.6 billion trust fund.' The stated intent was to provide federal funding for the cleanup of chemical wastes if responsible parties could not be found or were unable or refused to pay. The original law insisted that at least four hundred "National Priority List" (NPL) sites be identified and placed under the program. This was an essentially arbitrary count apparently more dependent on the number of congressional districts than on any en- vironmental risks. Nevertheless, in 1983, the EPA issued the first NPL of 406 sites.` As befits a pork-style project, every state was guaranteed at least one site on the list, regardless of EPA's risk assessment rankings (and, therefore, every state was initially guaranteed some portion of Superfund expenditures). In 1986 the Superfund Amendments and Reauthorization Act (SARA) extended the trust fund for another five years and greatly increased taxes to provide $8.5 billion for the program. More recently, the Omnibus Budget Reconcil- iation Act of 1990 stretched Superfund to 1994 and added yet another $5.1 billion in authorized taxes. Between 1981 and 1992, the trust fund's receipts totaled approximately $12 billion (see 45

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY Figure 4-1).5 These sums exclude the additional billions that have been spent directly by the private sector at Superfund and other hazardous waste sites. The revenues for this huge environmental program are taken through a series of excise taxes, especially on crude oil and petrochemicals. In addition, certain potentially hazardous chemicals are taxed and there is a general Superfund tax on corporate profits. There is no direct relationship between the creation of waste sites and the taxing structure of Superfund. The money flows in irrespective of Superfund's needs or how it is spent. Other revenues are also available to Superfund, including loans from the Treasury's general revenues, fines and penalties, and any amounts recovered from responsible parties.b Total authorized Superfund expenditures have now reached $15.2 billion, of which approximately $8 billion was spent through the end of 1992. Yet this is only the beginning. "Under any plausible assumptions, Superfund expenditures are not even halfway complete," according to the Congressional Budget Office.' Before it is completed, the EPA estimates that Superfund expenditures will top $27 billion. Other estimates place the costs of Superfund between $75 and $300 billion.° The Office of Technology Assessment has estimated that the total number of NPL sites could reach as high Superfund monies to pay for Christmas parties, rental and care of office plants, sports tickets, even calls to "900" numbers published in pornographic magazanes.14 Cleanup at Superfund sites has proceeded at a snail-like pace. Fewer than 20 sites were cleaned during the first seven years of the program.ls After 1987 some progress was made, but by mid-1991 the EPA had still cleaned up fewer than seventy sit`ks.16 As of May 1994, the NPL consists of 1,232 sites, and an additional 54 have been proposed for listing." Only 58 sites have been deleted from the NPL because they have been cleaned.'a An additional 177 sites are listed on EPA's Construction Completion List, and are considered cleaned up by the EPA. This means that the Superfund program has cleaned up fewer than 20 percent of NPL sites since its inception. Through March 1994, construction and cleanup activity had yet to begin at almost half of the sites on the NPL.19 Placing a site on the NPL is no guarantee that cleanup will begin at any time in the immediate future. For example, the Brio site in eastern Texas was added to the National Priorities List in 1984, yet as of February 1994, the cleanup had yet to begin.20 Yet economic development on or near the site can be paralyzed from the moment it is listed on the NPL. as 10,000. Assuming EPA's recent cost estimate A Super Waste? of approximately $25 million per site (a conservative estimate), this would place Superfund expenditures in the hundreds of billions of dollars 9 If one were to include the costs of cleaning up federal facilities and other hazardous-waste clean-up programs, the total costs for hazardous-waste clean-up could total as much as $752 billion.'o Not surprisingly, the early years of the Superfund program were plagued by political scandal." Yet these illegal activities by government officials only served to distract attention from the fact that Superfund was not working as planned, and has been poorly managed, even when corruption was absent.`Z For example, the EPA has only recently begun compiling a database of the actual federal costs of cleaning up during Superfund's first 12 years.13 However, various forms of waste and corruption remain evident in Superfund's spend- ing patterns. Superfund contractors have used Superfund doesn't work as intended, but oven if it did, it would provide few significant benefits to society. Superfund accounts for about 25 percent of the Environmental Protection Agency's budget. Logically, that should make Superfund's administration one of the most crucial jobs for the agency. Yet even within the EPA, few contend that Superfund works as it was intended. More important, no one can show that Superfund is protecting human health or safety to any measurable degree, especially when compared to other risk factors which could be addressedwith a similar funding level. In other words, Superfund doesn't work as 46

intended, but even if it did, it would provide few significant benefits to society. As one environmental engineer told The New York Times, "All we're doing in most cases is throwing money at a problem without improving public health or the environment."Z' To justify the high costs, Superfund was touted as a "polluter pays" policy. That is, whenever a culpable party could be linked to the waste disposal site, compensation would be sought from these "potentially responsible parties" or PRPs. However, Superfund's liability structure goes far beyond the principle of "polluter pays " Indeed, under Superfund, polluter and non-polluter alike overvav. Superfund liability is based upon an incredibly tough combination of several common-law remedies. The original Superfund legislation imposed strict liability for handlers of hazardous chemicals. That is, past or present owners or operators of a site, the actual generators of potentially hazardous chemicals (if they became involved in arrangements for disposal) and even the transporters of the waste are potentially responsible under Superfund.' In practice, Superfund's super strict liability provisions mean that even if an individual displayed the utmost care, future events could create full or partial liability (that is, negligent behavior is not required to establish liability). A program designed to make ' polluters pay" of en imposes the greatest costs on individuals and finns only tangentially related to any conceivable environmental Iut»n. The arbitrary nature of Superfund's liability structure has generated more than its share of horror stories, many ofwhich are quite bizarre. A program designed to make "polluters pay" often imposes the greatest costs on individuals and firms only tangentially related to any conceivable environmental harm. In one reported case, an individual was required to pay $3,500 in settlement of a Superfund contribution suit because he had purchased a bag of dog food (the bag apparently was discarded in a municipal landfill which later SUYERI-UN11 became a Superfund site).' In another instance, a butcher shop was stuck with Superfund liability because of the glue used to hold together discarded boxes.u Johns Hopkins University was sued by the federal government to contribute to a $5 million cleanup because the University once owned three electrical transformers that were sold to a company whose property eventually became a Superfund site. According to Estelle Fishbein, the university's general c6unsel, there is no evidence that the transformers, sold before Superfund was passed into law, even contributed to the pollution at the site. The university is caught in the Superfund web nonetheless.'5 Because Superfund liability is retroactive, actions which were perfectly legal (perhaps even mandated by state law) when undertaken may later trigger Superfund liability.26 "Retroactive liability is constitutionally barred from criminal law," noted California Secretary for Environmental Protection James M. Strock, yet it is a central element of Superfund's liability structure.' To top off the lunacy of Superfund, courts have imposed "joint-and-several" liability. This means that a party even peripherally responsible for any portion of the material at a Superfund site can be held financially responsible for the entire cleanup.' At the Conservation Chemical Company Superfund site in Kansas City, IBM was responsible for less than 1 percent of the waste, according to the EPA. Yet IBMwas one of only four potentially responsible parties that the government opted to sue, despite a list of over 100 private contributors and several government agencies." IBM was singled out on the theory that a loss must be imposed somewhere, so the deepest pockets will be picked. What is perhaps worse, liability does not necessarily end even if a site is eventually removed from the list of national priority sites. EPA bureaucrats can decide to apply a more stringent cleanup standard in the future and seek additional payments from the same parties.30 The easily predicted result is that firms cross-sue one another, sometimes dragging hundreds of other firms, banks, insurance companies, and even municipal governments into the Superfund mess. In fact, this is a significant aspect of EPA's strategy. The EPA 47

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY itself rarely targets small contributors on its own, preferring to let the "deep pockets" bring them into the cleanup process. And, in fact, the Clinton administration has proposed amending the Superfund law to make it possible to exclude the smallest of waste contributors, the so-called "de minimis" and "de micromis" PRPs or "potentially responsible parties " It remains to be seen how effective these proposed rules would be, and it should be borne in mind that the original legislation has spawned many unintended consequences through subsequent court interpretations. In the final analysis, PRPs fight against contributing to cleanups because the costs are astronomical. Thus, although the administration addresses several of these equitable concerns, it fails to deal successfully with the force that is driving Superfund cleanup costs: the absurd risk assumptions. The average cost of a Superfund cleanup now exceeds $25 million. Superfund has never successfully answered the question, "how clean is clean?" Superfund standards are irrationally strict, similar to requiring every kitchen in America to be as sterile as a hospital operating room. The reason corporations (and municipalities) fight so hard in court is because the stakes are so high; the stakes are so high because Superfund requires unreasonably stringent cleanup standards. The average cost of a Superfund cleanup now exceeds $25 million z1 At many Superfund sites, a large percentage of any risks posed to human health could be eliminated with measures short of absolute cleanup to background levels. Containment strategies will achieve, in many instances, significant risk reduction at far less cost. One example of this is found at a former industrial site in Columbia, Mississippi, that was added to the NPL.'2 This former lumber mill and chemical plant is now the home of a $20 million cleanup project. In 1986, the EPA found designated hazardous substances in the soil at very low levels: Approximately 50 parts per million, which is the equivalent of "about two ounces of chemicals mixed in a ton of soil.n33 To clean up the site, the EPA ordered the site's former owner, Reichhold Chemical, to dig up over 12,000 tons of soil and haul it away. This amounts to approximately 450 truck loads, at $7,500 each for a total of nearly $4 million. Some experts suggested a far more cost-effective strategy -- cover the site with clean soil - at a cost of appro~imately $1 million. The containment strategy was rejected in Columbia, Mississippi, because "EPA officials said they wanted to make the site safe enough to be used for any purpose, including houses - though no one was proposing to build anything there," reported T he New York Tirnes." If the EPA is concerned with future uses, a containment strategy can be supplemented by placing an easement on the property limiting future uses. A University of Tennessee Study examined the potential cost- savings from utilizing containment and isolation strategies for wastes at Superfund sties. They estimated a potential savings of as much as $61 billion and that this approach 'vould not be expected to change significantly the ultimate impacts on human health and the environment."35 In other words, less stringent cleanup standards could achieve the same real- world risk reduction at lower cost to the parties involved. The EPA's risk assumptions increase fear rather than knowledge. One cause of Superfund's extraordinary cleanup standards is the overly-conservative risk assessment procedure utilized by the Environmental Protection Agency. The EPA's risk assumptions increase fear rather than knowledge. Although the National Contingency Plan for implementing remediation at Superfund sites asserts otherwise, in practice, EPA risk remediation standards for Superfund sites often are more stringent than EPA standards for drinking water.' 48

SUPERi•'UNll I Superfund Risks vs. Reatity There are three essential steps in the risk assessment process utilized under Superfund." Separate assessments are con- ducted for possible human exposure "pathways" and each chemical's potential toxicity, followed by a calculation involving these two estimates to produce an overall risk characterization for each site. Yet according to the Director of Environmental Protection Issues for the U.S. General Accounting Office (GAO), "for all three steps in the process, scientific uncertainties and data gaps persist in spite of the enormous quantity of data that EPA gathers about each site."' Attempts to ascertain actual human exposures are expensive and time consuming and, even when EPA conducts an on-site inspection, it may result in inadequate data. Thus, EPA often uses standardized assumptions based on national averages. Some of these are obviously wrong. For example, direct human exposure to soil for 365 days each year may be assumed for a site in Minnesota, despite the fact that snow covers the ground for several months 39 Even if one accepts EPA's characterization of potential chemical risks, EPA's own assumptions are largely based upon hypothetical fuhcre risks rather than curren4 actual expasure. Even if one accepts EPA's characterization of potential chemical risks, EPA's own assumptions are largely based upon hypothetical future risks rather than current, actual exposure. This fact has enormous implications for the Superfund program's value. In one study of 77 sites (selected to reflect the characteristics for all NPL sites), "[fjor 53 percent of the sites analyzed, future risks comprised 99.5 percent or more of the risk- weighted pathways for that site: H0 And the risk assessments, or hazard rankings, conducted by the EPA are problematic. By assuming that extremely unlikely -- sometimes physically impossible -- events will occur in the future, EPA is able to create the impression of risk where no actual harm will occur. For example, EPA consistently assumes that future site uses will include children, who will live there for 70 years, ingesting slightly less than a teaspoon of local dirt every day, and rely exclusively on contaminated local groundwater for bathing and drinking." Indeed, "at least half of the $14 billion the nation has spent on Superfund cleanups was used to comply with s~~rnilar'dirt- eating rules.'"42 Such "conser-vative" risk assessments are explicitly justified as necessary to create a healthy margin of safety. However, there is a significant difference between creating a margin of safety and developing impossible scenarios as the basis for environmental policy decisions. The risk assessments, or hazard rankings, conducted by the EPA are problematic. In many cases, EPA risk analysis has been completely arbitrary `3 At one Texas site, EPA set out to calculate potential exposure risks for a mound of tin slag from an abandoned smelter." The slag contained small amounts of arsenic. Yet because the arsenic was chemically bound up with the tailings it was almost impossible to conceive of a method for the arsenic to be released into the environment or come into contact with people -- almost impossible. The EPA simply asserted that dust would drift from the pile and carry arsenic into the environment. The U.S. Court of Appeals found that the EPA had presented no evidence that the pile of tin slag would or could produce such dust but the EPA still wanted the site to be included in the National Priorities List of Superfund sites. While this arbitrary and capricious analysis by EPA was stopped by the courts, in most other instances, subtle absurdities are accepted as justification for Superfund site designation. For example, the Independent Nail site in Beaufort County, South Carolina presents no actual risks to county residents, but only hypothetical risks based on unreasonable assumptions as to future potential uses of the 49

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY In many cases, EPA risk analysis has been completely arbitrary. site. EPA assumed that a residential community would be built atop the site and that future residents would ingest contaminated soil for 250 days a year for 70 years. This assumption greatly increased the cost of clean up. Had the EPA assumed that the cite would be used for a new industrial facility or as a waste disposal site, the necessary clean-up measures would have been significantly less. The estimated costs for the cleanup at the Independent Nail site exceeded $2 million, a bargain by Superfund standards. Yet according to a 1992 report by the Strom Thurmond Institute at Clemson University, Beaufort County recently cut over $2 million worth of county services for education and health services because of budgetary shortfalls.4S Many community leaders would prefer to divert resources away from questionable Superfund activities toward more pressing and directly beneficial expenditures -- expenditures that will save many more lives in a less hypothetical manner. The $2 million spent at the Independent Nail site for example, could save approximately 10 lives if spent on breast cancer screening.' As presently written, Superfund does not permit communities to make the choice. In other cases, communities would like nothing more than to be left off the National Priorities List. The EPA nominated Triumph, Idaho for inclusion on the NPL and infuriated local residents. As the Wall Street Journal reported, "Residents insist that Triumph's lead and arsenic are much less poisonous to them than the prospect of backhoes and bureaucrats taking over their town."{' Local attitudes were justified, as subsequent tests failed to find abnormal levels of lead and arsenic in the blood or urine of residents. Nonetheless, Triumph residents reportedly found it much more difficult to receive bank loans or sell their homes once the Triumph's listing was proposed.'8 Lack of accurate and complete information has not prevented EPA from making certain assumptions about potential risks at Superfund sites. For example, assumptions about toxicity are often based upon extrapolations from experiments involving laboratory animals. Experience consistently has demonstrated that the assumptions adopted by the EPA in this regard are unwarranted.'9 Incredibly high doses of chemicals are given to lab animals, yet humans are exposed to extremely low doses (if any) at Sup4rfund sites. Furthermore, the chemical and metabolic processes of many laboratory animals are markedly dissimilar to those of humans.SO Even among the various species of experimental animals themselves, there can be enormous differences in responses. Mice, rats, guinea pigs, and all other lab animals have distinct responses (or lack of responses) to different levels of exposure to different chemicals; many chemicals that test positive for carcinogenicity in rats test negative in mice and vice-versa.51 Yet Superfund is applied as if all humans responded in the same fashion as the most sensitive animal. Beyond the excessively pessimistic assumptions built into each toxicity or exposure estimate, EPA applies a mathematical formula which compounds the conservatism even further by focusing on upper-bound estimates of risk.S= This can result in the EPA methodology producing a risk estimate several orders of magnitude above a more reasonable estimate of the risk.S' Consider the findings of a recent study by W. Kip Viscusi and James T. Hamilton.' In this study, the authors accepted all of the EPA's assumptions on human health risks. Their purpose was to determine the actual sources of risk according to the EPA at Superfund sites. Viscusi and Hamilton selected 77 sites that reflected the overall characteristics of the NPL total. The findings were instructive. First, Viscusi and Hamilton determined that EPA's estimates of exposure to Superfund site wastes were primarily due to predictions of future exposure (see Figure 4-2). That is, over 72 percent of the total exposure risk (according to the EPA's own calculations) will only occur if predicted land-use changes actually take place.s$ Bear in mind that these risk calculations are the driving force behind support for the Superfund program as well as its enormous expense. Yet well over half of all 50

SU YEltt-UNll predicted risks could be avoided simply by restricting access to or future use of the site. Indeed, when the authors "weighted" the exposure risks according to the EPA's assumptions of relative toxicity (specifically the risk of causing cancer) they found that over 90 percent of all cancer risks were dependent upon future behavior and land-use changes.' Other revealing findings of this study include the percentage of all site-risk that was found to derive from the presence of a class of chemicals known as polychlorinated biphenyls, or PCBs s' By examining the weighted risks for various chemicals present at the sites, it was found that a single type of PCB (known commercially as Aroclor 1260) was accountable for 31 percent of the EPA's total cancer risk estimates at all sites combined.' Although Viscusi and Hamilton did not challenge any of the EPA's risk assumptions, at least in the case of PCBs, such challenge is in order. PCBs were first synthesized in the 19th century, and commercial production by the Monsanto company began in the 1920s.59 Because of their chemical stability, insulating properties, and lubricating ability PCBs became enormously important replacements for combustible electrical system insulating materials. Since commercial introduction, about 1.4 billion pounds of PCBs have been produced in America.60 PCBs are chemically related to furans and dioxins, which are considered to be more toxic than most PCBs. Even within the class of PCBs themselves, those varieties with fewer chlorine atoms are generally less toxic, even at high doses.°1 A couple of infamous cooking- oil poisonings (in Japan and Taiwan) thought to be the result of PCB contamination led to the banning of PCB production in 1976.62 It has since been shown that the health problems were caused by other chemical contaminants, yet the ban on PCBs remains.' Although PCBs have been shown to cause harm to certain laboratory animals and aquatic species, for humans "...claims of association, based on epidemiologic studies, of chronic health effects such as cancer and trace exposure to environmental levels of PCBs are unjustified.i6t Nonetheless, some experts who challenge the belief that PCBs are highly toxic to humans accept the ban because PCBs can be highly toxic to other species.' EPA's Superfund risk calculations, of course, are based on the flawed assumptions about human health risks. EPtt's Superfund risk calculations, of course, are based on the flawed assumptions about human health risks. Erring On the Side of More Government Yet what if EPA is actually correct? That is, what if the EPA risk assessment accurately predicted the increased risks confronting humans who live near a Superfund site? According to Richard Hembra of the General Accounting Office, EPA will generally take cleanup action if the estimated risk of developing cancer from exposure to the site's contaminants is greater than one in 10,000 or, for noncarcinogenic contaminants, if an individual could be exposed to a potentially harmful dose.' Many citizens would probably consider the above-mentioned cancer risk -- one in 10,000 -- to be unacceptably high.67 Some would be likely to agree that EPA should act even if the increased risk is as small as one in one million -- another goal often mentioned in regulations and legislation.' However, when viewed in light of the normal (or "background") rate of total cancer incidence for Americans -- approximately one in four -- expending tremendous resources to reduce cancer risks by less than one-hundredth of one percent seems absurd. The fact is that 25 percent of Americans can be expected to develop some form of cancer during their lives. 500,000 people die of cancer annually in America, accounting for just over 20 percent of the approximately 2 million Americans who die each year.69 This is not because Americans are being poisoned by modern industrial society, just the opposite.?0 Because the industrial revolution has radically lengthened the human lifespan in the past century, cancer has more time to appear. 51

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY (Improved detection techniques also inflate modern statistics.) Most cancers are slow to develop and are generally diseases of old age." Superfund sites are a negligible source of environmental pollution. Although the exact numbers can never be known, the best estimates of causative factors for cancer leave no doubt that Superfund sites make a negligible contribution, if any. Indeed, the best estimates are that all forms of pollution, combined, cause less than 5 percent of all cancer deaths n The findings of perhaps the most respected analyses of cancer causes, conducted by Richard Doll and Richard Peto, demonstrate that personal habits, including smoking, drinking, and an unhealthy diet, are far greater causes of preventable cancers than environmental pollution. And Superfund sites are a negligible source of environmental pollution. If Superfund is not addressing serious risks to human health and the environment, what good is it doing? The answer is: not much. The growing awareness of this fact has led to the Clinton Administration's proposed Superfund Reform Act of 1994, the first serious effort to overhaul Superfund since Superfund was amended in 1986.1 The Clinton Proposal To the casual observer, this package, the Superfund Reform Act of 1994, gives the impression ofsignificant reform; "fundamental changes" in the words of EPA Administrator Carol Browner." Yet "reform" is in the eye of the beholder. As introduced, the administra- tion's amendments fail to tackle the key flaws of Superfund and actually add several new projects that appear designed more to buy off special interests than to address Superfund's major failings. Congressional wrangling is making the whole process even less certain of true reform. Obviously, when dealing with a program as large and complex as Superfund, there will be many bureaucratic flaws which can be resolved with a few lines of technical language. Yet Superfund is in need of a complete overhaul of its purpose and goals. In other words, the federal government's failure has demonstrated what many knew all along: local hazardous waste sites are local problems. Federal efforts to create a centralized response to old waste sites has, predictably, resulted in mismanagement, excessive cleanug costs, and tremendous litigation e~tpenses.75 ' In a few areas, the administration's recommendations do make sense, but as a whole, they are a disappointment. The Clinton proposal includes a host of complicated adjustments which attempt to respond to the confusion arising from Superfund litigation and settlement procedures. For example, the administration proposal would address such issues as statute-of- limitation conflicts, federal liability under state law, and the appropriate application of many provisions of the current Superfund law. Yet the most important - and unfortunate - aspects of Superfundwill remain essentially unchanged. Billions will be spent in the coming decades in a worthless effort to purify soil and groundwater at hundreds of sites across the country. Human health will not be measurably improved or protected by this process. The administration plan is essentially designed to resuscitate a hopelessly infirm p: ogram. The last rounds of negotiations among administration officials, environmental group lobbyists, and corporate representatives continued through May 1994. At this time, it is impossible to state with certainty exactly where the political tug-of-war over Superfund will end up. Yet despite months of behind-the- scenes discussions, much of the proposal remains controversial. Perhaps the biggest change proposed by the Clinton administration would arise from the new Title VIII, the "Environmental Insurance Resolution and Equity Act of 1994." Insuring Controversy Insurance companies have asserted for years that their written policies expressly excluded the sort of pollution liability associated with Superfund sites, but courts have not always accepted this defense.'6 The resulting uncertainty has hurt both insurers and the 52

insured, as neither can accurately predict the occurrence and extent of financial responsibility. The Clinton proposal wades into this mire with its proposed Title VIII. This Title creates the Environmental Insurance Resolution Fund and has become one of the more controversial aspects of the Clinton reform proposal. Title VIII creates a fund to pay for most of the highly litigious disputes between PRPs and their insurance companies. The fund would be managed by a Board of Trustees comprised of the administrator of the EPA, the U.S. attorney general, the U.S. Treasury secretary (ex officio) and five members appointed by the president. The Fund itself would consist of $500 million in annual tax revenues from a new tax on property and casualty insurers. It is estimated that the Fund would grow to $8 billion over 10 years." The Board would try to settle disputes over insurance policies arising out of waste disposal that occurred at national priority list sites before January 1, 1986 (the effective date of the last round of extensive Superfund amendments). Eligible parties would have 60 days to irrevocably accept or reject Board settlement offers. The most striking provision of those proposals is that judicial review of this process is expressly prohibited. Settlements among the parties would be paid for out of the newly created Fund, but would not exceed $15 million for any party. This is to cover a particular percentage of total eligible costs dependent upon the state in which the waste site is located. This differential is proposed because some state courts have favored insurance companies and others have favored the insured. The breakdown would be as follows: Eligible parties could receive 20 percent of eligible costs in the ten states considered least favorable to the insured, 60 percent in the ten states most favorable to the insured, and 40 percent in all other states. These provisions remain the most controversial of the proposed Clinton amendments, particularly within the insurance industry, which is split on the proposal.'a Superfund and Environmental Justice Even before the administration introduced its Superfund reform proposal, efforts were underway to examine Superfund sites for environmental "justice" problems or, SUPERFUNll in other words, disparate racial, ethnic, or class impact under the program." The EPA has begun an analysis of over 200 Superfund sites to link minority status with site variables. Regional offices are being directed to develop "demonstration" sites with detailed strategies for dealing with concerns over environmental justice. Yet this is only part of the administration's response to a perceived lack of "environmental justice." The administration's propdsal utilizes an administrative backdoor to approach the "environmental justice" issue. The bill broadly states that, "if a distinct pattern of adverse health effects is identified in the surrounding community, the Administrator shall consider the provision of additional health benefits to the affected community, in an effort to improve community health and welfare." There is no requirement to find a possible causal link. Obviously, many poorcommunities suffer from inadequate health care - often resulting in higher mortality rates for certain diseases than would wealthier areas -- and some may also have Superfund sites. In most instances, however, these two factors are unlikely to be related. Actual evidence of health consequences from Superfund sites remain elusive. Having failed to establish any health benefit to the host community from massive cleanup efforts, the government will now directly provide health services under the guise of environmental remediation. This will transform the Environmental Protection Agency into yet another public health agency within the federal government.30 One might argue over whether it is appropriate to subsidize health services in rural or poor communities, but it is disingenuous to disguise them as environmental responses. The simple fact is that if the federal government truly desired to help people in these communities, it would abandon the pretense and stop wasting money on the cleanup projects. There is ample evidence that the poor communities have far more pressing public health concerns than Superfund remediation.81 An important component of the administration's approach to human health is the notion of multiple sources of risk. After more than a decade of trying, EPA has failed to establish any reasonable correlation between Superfund site pollution and specific diseases 53 i

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY in surrounding communities. Cleverly shifting public attention, EPA argues that "multiple EPA has failed to establish any reasonable correlation between Superfund site pollution and specific diseases in surrounding communities. sources of risk" must be examined. The theory is quite defensible: no single pollutant may be sufficient to cause harm but the possibility of synergistic combinations cannot be denied. That is precisely the point: no evidence can be presented to prove that "multiple risk factors" are not causing some specific harm. Logically, if you add up a sufficient number of factors, you will eventually find a combination of unrelated things which hold an apparent relationship - or correlation --with some harmful effect. This can be true even when causation is absent EZ Careful epidemiological research is required to determine which factor or factors are actually related to the observed effect and which are merely present by chance. Nevertheless, EPA now intends to amend the Hazard Ranking System (already deficient) to add points for multiple sources of "risk." Yet some will, no doubt, disagree with this analysis and argue in favor of "erring on the side of caution." Without conclusive evidence, the debate over risks from pollution can continue indefinitely. Yet evidence does exist. Perhaps the best laboratory for testing the multiple-sources-of-risk theory is that stretch of the Mississippi River between Baton Rouge and New Orleans, Louisiana.' There is a heavy concentration of petrochemical and other industrial facilities along this water highway. As a result, the levels of exposure to pollution through the air and water are significantly higher than those found at any Superfund site in the country. (Most Superfund site exposures remain minimal or hypothetical, in any case.) In this region of Louisiana, there is no debate over the existence of the pollution or whether people are exposed to it. Under the guiding theory of Superfund, where there is pollution, there is cancer. And in fact, southern Louisiana has, for many cancers, a higher death rate than the national average.a` For many observers this was conclusive evidence of tht validity of the theory underpinning Superfund.'s region of Louisiana was even nicknamed "Cancer Alley.45 However, unlike most Superfund sites, communities in southern Louisiana have been studied extensively by medical personnel in order to ferret out the root cause of this elevated death rate. The results"have been somewhat surprising. While some cancer death rates were higher, it turned out that the incidence of cancer was normal, occasionally even below the national average ~l There was no cancer epidemic. There was, instead, a lack of medical care. Thus, although residents did not develop cancer at higher-than-average rates, they died of cancer at higher-than-average rates because they received inadequate or tardy medical attention. Similar conclusions were drawn from studies of miscarriage rates in "Cancer Alley."87 Thus, unlike the rest of the Superfund reforms proposed by Clinton, the direct provision of medical care is likely to provide real benefits to people. Yet there is no justification for basing this community welfare program on Superfund. This scheme actually serves to highlight the bankruptcy of Superfund: Since it cannot stand on its own merits, it will be treated as a legislative Christmas tree and decorated with attractive goodies for politically- preferred constituencies. The administration proposal mandates a minimum often "demonstration projects" (to be implemented over a five year period) to protect communities exposed to multiple sources of risk. Preference is granted to those demonstration projects that would coincide with "empowerment zones" as designated by the Omnibus Reconciliation Act of 1994. As with much of the proposal, this will represent the provision of unrelated subsidies to political interests as a means of garnering public support for the continuation of the Superfund program.' The risk assessments for individual chemical pollutants are almost entirely guesswork. Multiplying a wild guess by a hunch does not produce a stronger confidence interval. These methods are based on the assumption that every chemical poses an additional risk. Thus, proponents claim they are being "precautionary." This is also the source of much 54

SUPERFUND of the expense behind Superfund, yet there is no evidence that any human health benefits have been provided by this approach. The risk assessments for individual chemical pollutants are almost entirely guesswork Redefining the Role of the States Superfund imposes federal control on what are essentially state and local problems. The primary justification for this is the argument that pollution does not respect state boundaries. This is true enough, however in the case of Superfund it is of little relevance. The primary health concern at Superfund sites is groundwater contamination. Theoretically, this contamination could cross state lines and justify federal involvement. Yet a 1984 General Accounting Office survey of 15 states failed to find any "interstate aquifer problems."" Even the worst Superfund sites do not have national environmental impacts. "The major problem with Superfund is not remedy selection," according to J. Winston Porter, "but the fact that the federal government is ill-equipped to make local, one-of-a-kind site cleanup decisions."90 Porter headed the Superfund program at the EPA from 1985 to 1989. Some states have taken the lead in deaning up potential Superfund sites. However, the current Superfund program encourages states to act irresponsibly. For example, some states demand excessive cleanup levels in an effort to reduce the likelihood of future outlays from the state Treasury for operation and maintenance, according to the GAO °1 This results from the fact that States must shoulder 100 percent of the future costs for operation and maintenance of facilities at a site. However, thus far, very few sites have reached this final stage so there is little experience for estimating operating and maintenance costs (see Figure 4-3). Due to these concerns, a major section of the Superfund Reform Act of 1994 is dedicated to redefining the role of the states. The current Superfund formula requires states to pay 10 percent of the cost of remedial actions. Clinton would increase this to 15 percent, a small step in the right direction'2 Since the original passage of Superfund in 1980, most states have developed expertise comparable to the federal level. Forty state Superfund programs are already in place'" Thus, many states are capable of managing hazardous waste sites without further federal involvement. Most waste sites arq exclusively intrastate, so it is reasonable to mAke both the costs and the benefits a state-level concern. The states have traditionally been chargedwith protection of human health. The federal Superfund program is but one example of the major effort to centralize such matters through Washington. Yet in addition to raising concerns over inefficiency and ineffectiveness, Superfund's failures may even produce a negative impact on human health. Superfund's Deadly Overreguiation Although the administration proposal would certainly amend many aspects of Superfund, the basic structure of the program would emerge largely intact, and would even be expanded in certain regards. What is needed is not tinkering around the edges, but radical reform. For in addition to the lack of any nationwide health risks -- or even local risks -- there is another reason to push for reform: Superfund is creating health risks where none existed before. Superfund is creating health risks where none existed before. Superfund often creates a risk of construction accidents or exposures to unearthed materials that are larger than preexisting risks from the sites under remediation. Moreover the unnecessary stress inflicted on nearby residents can actually be significant. Consider the predicament of former mining towns throughout the western United States that have been targeted by Superfund. One of these is Smuggler Mountain, an old 55

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY silver mine located in Aspen, Colorado. Smuggler was listed in 1986. EPA's proposed cleanup included plans to physically remove 150 houses and dig up 4 feet of dirt to be hauled away.9` The EPA was concerned that about high lead levels in the soil from the past mining operations. Yet the average blood lead levels in the local residents was far below the levels the federal government considers risky, and even below the national average °S As with Triumph, Idaho, the residents of Aspen quickly turned against the EPA's plans for fear that the lead dust from the excavation and the thousands of truck trips that would be required to implement the cleanup would create a greater risk than posed by mine tailings. In fact, medical staff at the Aspen Valley Hospital worried that the "equilibrium of the lead now present in the mine tailings could be radically altered should a cleanup be undertaken which converts lead in tailings to lead in dust and to small particles that could be more easily inhaled.' One local doctor presented the EPA with another option, stating "If you want to save lives in this valley, build us a new road. Our road is what kills people here."ff' And that road would certainly be made less safe by the additional traffic caused by the cleanup, including trucks hauling soil away. In other words, in some cases it may be riskier to clean up sites to EPA's standards than to leave the substances in place." economic dead weight loss as small as $2 million to $8 million can result in one additional premature death.1°0 Other studies suggest the number might be higher. In any case, given the paucity of evidence that Superfund has ever saved a single life, the Superfund program is almost certainly an example of a government program that "kills" more people than it "saves." If the federal government truly sought to reduce the health risks near Supe`rfund sites, it might do best to consider outright repeal of the program. Of the over 1,200 NPL sites, only a few dozen can be shown to have any realistic potential for harming human health. The EPA's own internal review, confirmed by its Science Advisory Board, is that hazardous waste sites are a "medium-to-low" health risk.'ol "When you look for deaths from hazardous wastes, you just don't find them," noted one environmental analyst.1Q2 Yet Superfund activities create widespread anxiety about potential health risks and divert attention away from far more real threats to human health and the environment. EPA's own internal review, confirmed by its Science Advisory Board, is that hazardous waste sites are a "medium-to- low" health risk If Superfund is wasting billions of dollars on legal fees and unnecessarily stringent cleanups, that money is not available to mitigate more significant risks elsewhere in society. There is a greater, hidden cost to Superfund. In recent years, it has been recognized that lowering the income of individuals negatively impacts their health." In other words, "wealthier is healthier." Clearly, if Superfund is wasting billions of dollars on legal fees and unnecessarily stringent cleanups, that money is not available to mitigate more significant risks elsewhere in society. Some studies have indicated that imposing an Beyond the negative impact on human health caused by Superfund's wasteful design and fearful overreaction, the federal program also imposes major problems on the local economy of many communities. Consider that Superfund site designation often dries up business loans in already depressed rural and urban neighborhoods and discourages redevelopment of abandoned industrial sites because "any party that buys such a property would be caught in Superfund's liability web."" As Doug Sarno of the non-profit organization Clean Sites has noted, "Ihe easiest thing to do is to walk away from a brownfield and find some nice green field where you can avoid the whole predicament n1°` Even a former co-sponsor of the original Superfund bill admits the program is having negative impacts. After becoming Governor 56

SUPERFUND of New Jersey, James Florio complained that "It doesn't make sense to clean up a rail yard in downtown Newark so it can be a drinking water reservoir."10S Superfund's unreasonable cleanup standards force responsible companies to look elsewhere for development opportunities. In effect, Superfund works like an environmental version of the infamous "redlining" practices of many mortgage companies (whereby particular areas were deemed off-limits for lending), simply because of the potential impact of Superfund liability. "You can have an appraisal in front of you that shows a property is worth $1 million, but if it has some sort of environmental contamination, it could be worth nothing," according to Malcolm Griggs, First Union Corporation's Vice President of Environmental Policy.106 A bank would be irresponsible to make a loan under such conditions, and as a result, investment dries up in areas potentially impacted by Superfund. And remember: Reducing the income of a community can have a direct - and negative - impact on human health. Conciusion Superfund was justified as an equitable response to ecological misdeeds. The polluters must pay, everyone agreed. Unfortunately, the definition of "polluter" and "pollution" have become nonsensical. The Clinton administra- tion has introduced "reform" legislation to Congress, which continues to squabble over the details. Yet the only likely outcome is essentially cosmetic surgery to make Superfund politically more attractive. Governor James Florio complained that "It doesn't make sense to clean up a raii yard in downtown Newark so it can be a drinking water reservoir." It is difficult to conceive of a federal program that better exemplifies the purposeful perpetuation of failure than does Superfund. Although the intent behind the program is to eliminate the risks to human health and the environment which may be posed by potentially hazardous wastes, most Superfund sites do not pose any real (i.e., measurable) risk in the first place. The trouble does not arise from the waste itself, which in most instances, could be successfully isolated from human,6posure at very low cost for the foreseeable future. Some have argued that Superfund -- because of its draconian penalties - has forced many private firms into cleaning up their act, mainly out of fear of being sanctioned under Superfund. This indirect benefit is admitted even by many private sector companies. Yet this marginal benefit hardly justifies the severity of the Superfund program and the EPA's mismanagement of it. EPA has only recently begun to experiment with alternatives to older technologies and generally resists any modifications in its original cleanup plan. Few would dispute the fact that the process would move more rapidly and more smoothly if EPA were not in the driver's seat. As things stand now, Superfund is simply another welfare entitlement, and it works about as well as most of the other programs of that type. As an innovative alternative, Clinton should seek to establish a revolving state loan fund to replace the existing Superfund.to' Expensive cleanups should be replaced by land use and deed restrictions along with selection of the most cost-effective containment measures. By permitting the local community to determine how to spend funds in the vicinity of Superfund (or other comparable) sites, better results will be produced for the community. After all, helping these communities is the express purpose of the program. It is time to reinvent Superfund. ### 57

4 Figure 4-1 FEDERAL SUPERFUND OUTLAYS AND OBLIGATIONS FISCAL YEARS 1981-1992 (in thousands of 1993 dollars) , Outlays Obligations 1981 8,039 40,283 1982 79,576 180,114 1983 150,214 227,199 1984 285,471 453,818 1985 363,023 455,485 1986 442,352 359,927 1987 544,890 1,039,451 1988 832,870 1,456,350 1989 964,978 1,522,681 1990 1,160,459 1,484,947 1991 1,431,608 1,589,557 1992 1,466,507 1,737,340 Total 7,729,507 10,547,152 Appradmate Total in 1992 Dollars 8,610,000 11,875,000 Source: Congressional Budget Office based on data from the President's budget, various years. 58

F'ignre 4-2 Risks From Future Possibilities vs. Current Site Risks 8.8 Current Risk Assessment Category 91.2 Future Sonroe: W. Kip V'wusi and Jaanes'f. Hamilton, "Superfund and Real Risgs," Me American Soectstor. , 59

Flgur+e 4.3 Superfund Cleanup Progress April 1994 Removed from NPL (4.0%) Source: EPA. 60

JUYE"UNU 1. James M. Strock, "Wizards of Ooze: Lawyers Shouldn't Be the Only Ones Cleaning Up Under Superfund," Policy Review (Winter 1994), p. 42. 2. For an overview of the history of Love Canal, see "Love CanaL• The Truth Seeps Out" by Eric Zuesse, Reason (February 1981), pp. 16-33. For a discussion of the health risks at the site, see Robin Herman, "Cancer at Love Canal Found Near Rates for Rest of State," New York Times (June 12, 1981); "A Second Look at Love Canal" (editorial), New York Times (June 20, 1981); and S. Wolff, "Love Canal Revisited," Journal of the American Medical Association 251 (1984). 3. The Superfund bill did not receive much opposition in Congress, and even the incoming Rqtgan administration did not actively oppose its passage. See Fred L Smith, Jr., "What Environmental Policy?" in D. Boaz, ed. Assessing the Reagan Years (Washington, D.C.: Cato Institute, 1988), pp. 333-349. 4. 59 Federal Register 27990. 5. See generally: Congressional Budget Office, The Total Costs of Cleanine Up Nonfederal Superfund Sites (Washington, D.C.: Congress of the United States, January, 1994) [hereafter CBO); and U.S. General Accounting Office, Sunerfund Program Management GAO/HR-93-10 (December 1992). 6. CBO provides revenue figures for 1981-1992 at p. 5. 7. CBO, p. xi. 8. Various cost estimates are presented in "Sticker Shock: Recognizing the Full Cost of Superfund Cleanups" (Washington, D.C.: Hazardous Waste Cleanup Project, June 1993), p. 6. 9. Iid., p. 4. 10. Milton Russell, et aL, Hazardous Waste Remediation: The Task Ahead (Knoxville, TN: University of Tennessee, Waste Management and Research Institute, December 1991), p. 16. 11. See: Harold C. Barnett, Tazic Debrs: And the Superfund Dilemma, (University of North Carolina Press, 1994) Chapter 4. 12. See, for example, Fred L Smith, Jr., "Superfund: A Hazardous Waste of Taxpayer Money," u. n Events (August 2, 1986). 13. Sandra L. Goodman, "Risk Assessment Within the Comprehensive Environmental Response, Compensation and Liability Act (Superfund)" (Bozeman, MT: Political Economy Research Center, September 3, 1992), p. 32. 14. Michael Fumento, 'The Remediation of Superfund: Program Needs Way to Balance Costs, Benefits," Investor's Business Daily (October 23, 1991); and, Richard L Stroup and Bradley Townsend, "EPA's New Superfund Rule: Making the Problem Worse," Regulation No. 3 (1993), pp. 74-5. 1S. James Bovard, "The Real Superfund Scandal," Policy Ana is No. 89 (Washington, D.C.: Cato Institute, August 14, 1987), p. 1. 16. Cited in Robert W. McGee, "Superfund: It's T'une for Repeal After a Decade of Failure," UCLA Journal of Environmental Law and Policy, Vol. 12, No. 1 (1993), p. 168. 17. 59 Federal Reeister 27989. 18. 59 Federal Register 27990. 19. U.S. EPA, Superfund Historical Performance, 2nd guarter, FY 1994 (draft). 61

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY 20. Ttmothy Aeppel, "Superfund Site Spawns a Spate of Litigation, Though Not a Cleanup," The Wa Street Journal (February 9, 1994), Al. 21. Dr. Richard Goodwin, quoted in Keith Schneider, "New View Calls Environmental Policy Misguided," New York Times (March 21, 1993). It should be noted that not all Superfund expenditures are camnlete~y useless. Many of its emergency removal actions have been worthwhile. Yet only about 3 percent of EPA's projected costs for Superfund NPL sites involve removal actions of any kind. Even in this regard, it is not clear why the federal government should pay for local responses to local problems. 22. See, for cxample, James Lis and Melinda Warren, Refortnine Sugerfund. Policy Study Number 118 (St. Louis, MO: Center for the Study of American Business, February 1994), pp. 11-12. 23. Jack Anderson and Michael Binstein, "How Superfund Hurts the Innocent," Washineton Post (March 7, 1994), p. Gii. 24. James Bovard, "Supererogatory Superfund," The Washin¢ton Titnes (February 13, 1994), p. BI. 25. Estelle Fishbein, "Superfiop," Washington Post (Apri122, 1994), p. A25. 26. See Fishbein, for example. 27. Strock, p. 43. 28. The EPA rarely initiates action against "de minimis" PRP but rather waits for larger firms to sue the smaller parties and drag them into the process. The Clinton administration proposal seeks to limit this phenomenon. 29. Story recounted in Bovard, "fhe Real Superfund Scandal," p. 10. 30. 40 CFR 300.425 (e)(3). 31. Jan Paul Acton and Lloyd S. Dixon, Superfund and Transaction Costs (Santa Monica, CA: Rand Institute for Civil Justice, 1992), p. 11 [Rand hereafter]. 32. This site is detailed in Schneider. 33. B2id. 34. bl' . 35. Russell, et al., cited in "Sticker Shock," p. 10. 36. Laura A. Mahoney, "Deriving Groundwater Cleanup Levels at Superfund Sites: Assessment of Current Federal Approach with Case Study," Proceedings of the Water Environment Federation 1992 Specialty Conference on Developing Cleanup Standards for Contaminated Soil, Sediment, and Groundwater - How Clean is Clean?, (Alexandria, VA: 1992), p. 61. 37. For a general overview and case study see Goodman. 38. Richard L. Hembra, "Superfund: Risk Assessment Process and Issues," testimony before the U.S. Senate Committee on Environment and Public Works, Subcommittee on Superfund,, GAO/T-RCED-93-7d (September 30, 1993), p. 1. 39. Hembra, p. 5. 40. W. Kip Viscusi and James Hamilton, "Superfund and Real Risks" The American Enterprise (March/April 1994), pp. 36-45. 62

SUPERFUND 41. Ibid. 42.. Schneider. 43. A more cynical view might hold that the Hazard Ranking System was purposely designed not to provide the worst case health-risk scenario but to provide the highest profit to cleanup contractors and lawyers. 44. Tes Tin Corp. v. U.S. Environmental Protection Agency, 915 F. 2d 1321 (D.C. Cir. 1991). 45. Brett A. Dalton and Bruce Yandle, The South Carolina Superfund F*erience: Assessing the Effects of the Statute on Local Communities (Strom Thurmond Institute, May, 1992), p. 43. 46. See John Shanahan and Adam Thierer, "Can we Save More Lives? Understanding the 'Opportunity Costs' of Regulation," F.Y.I. #11/94 (Washington, D.C.: The Heritage Foundation, February 28, 1994). 47. Tony Horwitz, 'For These Residents, EPA Cleanup Ruling Means Paradise Lost," The Wall Street Journal (September 21, 1993). 48 Ii ,'d. 49. See, for eiample, Elizabeth M. Whelan, Tatic Terror: Tfu Truth Behind the Cancer Scares (Buffalo: Prometheus Books, 1993); and Lois S. Gold, et al. "Rodent Carcinogens: Setting Priorities," 258 Science 261 (9 October 1992). 50. A general discussion of this issue is provided in Michael Fumento, Science Under Siege: Balancing Technolgey and the Environment (New York: William Morrow, 1993), Chapter 2. 51. Lois S. Gold, et al., "Target Organs in Chronic Bioassays of 533 Chemical Carcinogens," Environmental Health PerSpectives. Vol. 93 (1991), pp. 243-4. 52. See, for example, "Exaggerating Risk: How EPA's Risk Assessments Distort the Facts at Superfund Sites Throughout the United States" (Washington, D.C.: Hazardous Waste Cleanup Project, June 1993). 53. "Exaggerating Risk," p. 16. 54. W. Kip Viscusi and James T. Hamilton, "Superfund and Real Risks," ?Tu American Enterprise, March/April 1994, pp. 36-45. 55. Th'd., at page 40. 56. Ibid, at page 42. 57. PCBs are a class of manmade chemicols which consist of two benzene rings with two or more chlorine atoms attached. Theoretically, 209 different types of PCBs are possible. In addition, PCBs are never "pure," they will always include more than one variety along with trace impurities. See: PCBs: Is the Cure Worth the Cast?, A Report by the American Council on Science and Health (New York, New York: Sixth Printing, Apri11989). 58. Ibid., at page 44. 59. Linda-Jo Schierow, "PCBs: Background and Update," CRS Report for Congrrss, Congressional Research Service, 92-193 ENR, February 18, 1992, at page CRS-2. 60. Renate D. Kimbrough, "Human Health Effects of Polychlorinated Biphenyls (PCBs) and Polybrominated Biphenyls (PBBs)," Ann. Rev. Pharmacol. ToucoL (1987) 27:87-111, at page 88. 63

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY 61. See: Navy Environmental Health Center, Bureau of Medicine and Surgery, Polychiorinated Biphenyls (PCBs), Pol}chlorinated Dibenzofurans (PCDFs), and Polychlorixated Diaxins (PCDDs), Technical Manual NEHC-TM90-2, May 1990. 62. See: Richard Stone, "Swimming Against the PCB Tide," Science, VaL 255, 14 February 1992, pp. 798- 99. 63. See: Renate D. Kimbrough, "The Human Health Effects of Polychlorinated Biphenyls," Chapter 9 in Phantom Rislc Scientifrc Inference and the Law, ed. Kenneth R. Foster, et aL, (MPT Press: 1993), at page 213. 64. bid., at page 224. 65. Uid. 66. Hembra testimony, p. 3. 67. Yet consider that the risk of dying in an automobile accident is about one in 5000. 68. A one in one million risk of cancer equates to smoking about one and one-half cigarettes or having a single chest X-ray. See: John C. Goodman, Ed., ProgrGSsive Environrruntalism, National Center for Policy Analysis, (Dallas, TX April, 1991), at page 53. 69. Cited in Stephen Breyer, Breaking the Vicious Cir~- Toward Effective Risk Regulation (Cambridge: Harvard University Press, 1993), p. 6. 70. See, for example, Whelan, pp. 441-463. 71. See, for example, Bruce N. Ames, "Does Current Cancer Risk Assessment Harm Health?" Washington Roundtable on Science & Public Policy (Washington, D.C.: George C. Marshall Institute, October 20, 1993). 72. Richard Doll and Richard Peto, "The Causes of Cancer: Quantitative Estimates of Avoidable Risks of Cancer in the United States Today," Journal of the National Cancer Institute No. 66 (1981), pp. 1193- 1308; see also, generally, Michael Gough, "Risk assessment and the Misplaced Focus on Environmental Canceis," Journal of Regulation and Social Costs (January 1991), pp. 59-79. 73. It should be noted, however, that the debate over the 1986 amendments was relatively narrow, and there was little discussion of dramatic reforms to the Superfund law. See Smith, "Superfund, A Hazardous Waste." 74. Statement of Carol M. Browner, Administrator, US. Environmental Protection Agency (March 16, 1994). 75. See: Daniel Mazmanian and David Morell, Beyond Super failun: America's Tozics Policy for the 1990s, (Westview Press: Boulder, CO) 1992. 76. See, for example, James D. Lawlor, "Two More Looks at 'Sudden and Accidental' Exception," Hazardous Waste News (July 20, 1993); and Daniel W. Pugh, "Insnrer Liability for Environmental Clean- Up: Do Contract Principles Excuse Performance?" Business hawy„er (August 1993). 77. Mike Mills, "Revision of 'Superfund' Wins Panel's Quick Approval," Congnssional Quarterly, May 21, 1994, at page 1291. 78. Mike Mills, "Subcommittee Approves Plan to Revise'Superfund'" Congressional Quarterly, May 14, 1994, at pages 1206-7. 64

SUPERFUND 79. An overview of the environmental justice agenda is provided by Robert Bullard, "Overcoming Racism in Environmental Decisionmaking," Environment (May 1994), pp. 10-20+. 80. Some have suggested that the EPA has always attempted to use the Superfund program to portray itself as a public health agency. See Smith, "Conclusion," p. 184. 81. See, for example, Brett Dalton, "The South Carolina Superfund Experience," in a' the e Environment Seriously, pp. 132-4. 82. Consider that half of all communities will have a "higher than average" rate for any disease, just as half of all communities will have a "lower than average" rate. It is inevitable that a significant percentage of these communities are near something that can be blamed for the vagaries of chance. 83. An overview is provided in Louisiana Advisory Committee to the U.S. Commission on Civil Rights, The Battte for Environmental Justice in Louisiana.. .... Government. Industry and the People (Washington, D.C.: U.S. Commission on Civil Rights, September 1993). 84. This evidence is surveyed in Louisiana Advisory Committee, p. 36. 85. See, for example, Conger Beasley, "Of Poverty and Pollution: Keeping Watch in Cancer Alley," Buzzworrn (JutyWugust 1990), pp. 39-45. 86. Louisiana Advisory Committee, p. 38. These general findings were also supported by the Louisiana division of the American Cancer Society. ibid. 87. Louisiana Advisory Committee, p. 39. 88. It should be noted, however, that the empowerment zone concept is itself flawed as it subsidizes specified communities at the expense of others that may be equally in need though do not qualify for the special tax and regulatory benefits that empowerment zones provide. It should be recognized that if lower taxes and reduced regulatory burdens are good for one community, they should be good for all communities. 89. GAO, Federal and State Efforts to Protect Groundwater cited in Bovard,'The Real Superfund Scandal," p. 9. 90. J. Winston Porter, "Let the States Supersede Superfund" (letter), ILe Washinaton Post (May 9, 1994). 91. Hembra testimony, p. 4. 92. However, without a mechanism for funding this share, Superfund becomes yet another "unfunded federal mandate." 93. Porter. 94. The case of Smuggler Mountain was profiled on the ABC News Special "Are We Scaring Ourselves to Death? with John Stosser (Apri121, 1994). 95. Average blood lead levels in Aspen were 2.77 micrograms per deciliter (ug(dl), while the national average is from 4 to 6 ug/dl and the action level recommended by the U.S. Centers for Disease Control and Prevention is 10 ug/dl. See Mike McGrath, "Aspen Knows Best," Westworld (July 31-August 6, 1991), p. 20. 96. Quoted in McGrath, p. 22. The EPA dismissed these concerns. 97. Dr. Robert Hunter of Aspen Valley Hospital, quoted on "Are We Scaring Ourselves to Death?"

SCIENCE, ECONOMICS & ENVIRONMENTAL POLICY 98. This would be analogous to asbestos removal, which by disturbing in-place asbestos can increase the presence of asbestos fibers in the air, and therefore increase the risks to human health. 99. See, generally, Daniel K. Mitchell, "Fhe Deadly Impact of Federal Regulations," Journal of Regulation and Social Costs (June 1992); Randall Lutter and John Morrall, "Health-Health Analysis: A New Way to Evaluate Health and Safety Regulation," working paper (Washington, D.C.: U.S. Office of Management and Budget, October 1, 1992); and Aaron Wildavsky, Searchine for Safety (New Brunswick, NJ.: Transaction Books, 1988). 100. Mitchell. 101. U.S. EPA, -UJnfinished Business: A Com4Parative Assessment of Envirottmental Problems and U.S. EPA Science Advisory Board, Reducin¢ Risk: Setting Priorities and Stratemies for Environmental tectiono cited in Stephen Breyer, Breaking the Vicious Circle: Toward Effective Risk Retulaation (Cambridge, MA: Harvard University Press, 1993), pp. 20-1. 102. Bill Ralston of SRI International, cited in Passell. Elizabeth Whelan of the American Council for Science and Health goes one step further by proclaiming'The best estimate for the number of people who die each year from exposure to chemicals in Superfund sites is zero." Quoted in William Tucker, "Superfund Sparks Industrial Flight," Insi t(November 29, 1993), p. 10. 103. Bernard Reilly, p. 63. 104. Quoted in Tucker, p. 9. 105. Gary G. Benanav, "At Last, Congress May Finally Clean Up Superfund," Wall Sde'ct Journal (May 3, 1994). 106. Quoted in Lis and Warren, p. 31. 107. This would be similar to the recent restructuring of the Sewage Wastewater Treatment Facility Construction Grant program. For further discussion of this point, see: Kent Jeffreys, "Reinventing Superfund," (Washington, DC: Competitive Enterprise Institute, June 1994) at pages 18-20. 66