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Volume 5, Issue 9 — September 1975

Articles

Protecting Public Health From Hazardous Substances: Federal Regulation of Environmental Contaminants

by Myra L. Karstadt

In their efforts to learn why the incidence of cancer and other fatal and serious diseases is on the rise, researchers are concentrating more and more on the health effects of products and waste products of modern industrial society. One such product, vinyl chloride, the principal ingredient of the second most widely used plastic, has recently been shown to cause cancer in humans. Gasoline combustion products have been linked to chronic respiratory difficulties. It has been estimated1 that up to 90 percent of the incidence of cancer in the general population may be caused by environmental factors (including cigarette smoke).

Protection of the public from threats to public health and safety caused by the release of harmful substances into the environment is accomplished in large part through decisions of the regulatory agencies of the federal government. The agency decisions are made within a framework of laws which express congressional intent as to the extent to and means by which agencies shall act to protect the public against air or water pollution, toxic chemicals, radiation, or other potentially harmful factors. The agency decisions, and through them, the congressionally enacted laws, are reviewed by the courts, institutions which have had and continue to have difficulties in dealing with the complex scientific and public policy issues raised by regulation in the public health area.

Regulation and Healthy: How Solid Is Our Foundation?

by Edward J. Burger Jr.

On January 28, 1975, the United States Court of Appeals for the District of Columbia ruled that the EPA regulation to reduce the level of tetraethyl lead in gasoline was arbitrary and capricious. Within only slightly more than one month, the Environmental Protection Agency itself reversed a previously held position concerning the schedule for clamping down on automotive exhaust emissions. The reversal was occasioned, it was said, because of the likelihood of sulfuric acid mist emissions from the catalytic devices necessary to meet the more restrictive standards.

Each of these decisions was inevitably seen in some quarters as a setback for the cause of preserving environmental integrity. There were other, and perhaps, more fundamental ramifications as well. These two moves—one by the judiciary and one by the executive—both reflected earlier decisions taken on the basis of exceedingly thin scientific fabric. Thus, these represented the latest (yet probably not the last) examples of bringing the scientific basis for a regulatory decision under more careful scrutiny than was exercised when the decision was originally made. In the case of tetraethyl lead, the majority opinion found that ". . . the evidence does not support the EPA's health concern and . . . the case against auto lead emissions is a speculative and inconclusive one at best."1 In the case of automotive emissions, the Administrator of EPA declared that the Agency had ". . . made a mistake . . ." earlier in its initial decision to rely on the catalytic exhaust device.2

Comment(s)

ELI Undertakes Study of Laws Protecting Marine Mammals

The Environmental Law Institute has recently been awarded a six-month research contract by the Marine Mammal Commission, which was established by Title II of the Marine Mammal Protection Act of 1972. Among the duties assigned to it by Congress, the Commission was ordered to "undertake a review and study of the activities of the United States pursuant to existing laws and international conventions relating to marine mammals, including, but not limited to, the International Convention for the Regulation of Whaling, the Whaling Convention Act of 1949, the Interim Convention on the Conservation of North Pacific Fur Seals, and the Fur Seal Act of 1966." It is this study that ELI has contracted to produce.

The Marine Mammal Commission has requested that the study analyze gaps and inconsistencies in the body of law that affects marine mammals. The study should also evaluate the performance of those federal agencies involved in the administration and enforcement of statutory and treaty provisions. Has the Secretary of Interior made designations of endangered species in conformity with the policy of the Act? Have the responsibilities of the Commerce Department under such statutes as Coastal Zone Management and Ocean Dumping, as well as the Marine Mammal Protection Act itself, been exercised with due regard to conservation of marine mammals and their habitat? What negotiating positions have been adopted by the State Department and other agencies in reviews and renegotiations of fishery, sealing, and whaling conventions? Are these consistent with the policy directives written into the Act? From the answers to such questions, the study will formulate proposals for legislative and administrative reform and reorganization designed to help achieve a uniform and coordinated national policy respecting the various species that are the object of the Marine Mammal Protection Act.The Environmental Law Institute anticipates publishing the study's analyses and conclusions in monograph form.

The Principal Investigator for the research is Sanford Gaines. A 1974 graduate of Harvard Law School, Mr. Gaines just completed a year of research on marine and water pollution problems at Negoya University, Japan. Inquiries, suggestions, references, or information are all welcome and should be addressed to Mr. Gaines at the Environmental Law Institute.

Corps Issues Interim Rules for Discharges of Dredged and Fill Materials

On July 25, 1975,1 the Army Corps of Engineers promulgated interim final regulations governing the granting of permits for activities in United States inland and ocean waters, including, inter alia, the discharge of dredged and fill materials. The Corps' action came in response to a court order2 invalidating the agency's previous rules that restricted its regulatory jurisdiction over the latter category of activities to "navigable waters" as traditionally defined. The order directed the Corps to shoulder its full regulatory responsibility under §§404 and 502(7)3 of the Federal Water Pollution Control Act Amendments of 1972 which expanded such jurisdiction to all "waters of the United States."

The interim final rules differ significantly from any of the four alternative regulatory schemes proposed by the agency in May of this year,4 which result is at least partially attributable to the public furor generated by the Corps' misleading characterization of the proposals and the consequent deluge of public comments. EPA also worked closely with the Corps in developing the interim rules, and had a hand in shaping their ultimate form. The Corps' earlier recalcitrance toward full implementation of §404 was apparently turned around by the intercession of Assistant Secretary of the Army Victor V. Veysey, who stated in testimony before the House Public Works Subcommittee on Water Resources on July 15 that "[w]e must dispel fallacies that the Corps is proposing to regulate a farmer plowing his field or that the Corps is indifferent to destruction of our productive wetlands."

Test Case on Ocean Dumping: Must Philadelphia Move Toward On-Land Disposal of Sewage Sludge?

Man has been dumping his wastes into the oceans since time immemorial, but the quantity and toxicity of these discharges has increased steadily as our industrial society has become more complex. Though scientists have just begun to study the environmental impact of these personal and industrial wastes and though tracking the paths of discharged metals and bacteria through shifting ocean currents is a frustrating and difficult task, the results thus far obtained from such investigation are not encouraging. Common sense alone suggests that the ocean's ability to absorb poisonous wastes is not infinite.

In response to this problem, Congress passed the Marine Protection, Research, and Sanctuaries Act of 1972.1 The Act declares that the policy of the United States shall be to "regulate the dumping of all types of materials into ocean waters and to prevent or strictly limit the dumping into ocean waters of any material which would adversely affect human health, welfare or amenities, or the marine environment, ecological systems or economic potentialities." Under the final regulations and criteria promulgated by the Environmntal Protection Agency in 19732 pursuant to the statute, the Administrator has the discretion to issue one year "interim permits" for dumping toxic wastes in the ocean, provided that the dumper either designs and implements land-based waste disposal projects that will phase out all ocean dumping, or ultimately reduces the toxic components of its wastes so as to qualify for a "special permit," which must prescribe stricter numerical standards for allowable discharges. After several years of lax performance, the EPA has recently taken a vigorous stand on such an implementation procedure in the case of "Philadelphia sludge." Because other major seacoast cities, including Boston and New York, would prefer to go to sea with sewage sludge, whatever the environmental costs, the Philadelphia story is an important test case.

Coyote Control: Ford Heeds Rancher's Howls

"Only Nixon loves a coyote" seems to be the message of recent political developments in Washington sanctioning increased use of sodium cyanide devices to kill these and other predators. To be specific, President Ford recently relaxed stringent limits imposed by his predecessor in a 1972 Executive Order1 on the field use of toxic chemicals in federal programs against coyotes and other predators on federal lands, which form a large part of the habitat of the coyote in five southwestern states. Ford's new Executive Order2 demotes the prior order's goal of sharply restricting the use of chemical toxicants for the purpose of killing predatory animals by balancing it against a new policy of managing "the public lands to protect all animal resources thereon in the manner most consistent with the public trust in which such lands are held."

Like its predecessor, the new order completely prohibits the field use of chemical toxicants to kill predatory mammals and birds, on federal lands and in federal programs, but cuts back on this broad ban by authorizing "emergency use" following consultation with the Interior and Agriculture Departments, and EPA.

ELI Concludes Water Act Enforcement Study

The Environmental Law Institute recently concluded an eight-month study of enforcement under the Federal Water Pollution Control Act Amendments of 1972 for the National Commission on Water Quality. The Institute's report was part of the Commission's effort under §315 of the Act to review issues related to the Act's implementation;1 a draft Commission report to Congress is expected this fall.

Institute staff visited eight states selected by the Commission and their respective Environmental Protection Agency regional offices in order to analyze the Act's progress. Project staff interviewed numerous representatives of state and federal water quality agencies and enforcement offices, public and private-sector dischargers, and citizen groups in each of the eight states, as well as the Department of Justice, Environmental Protection Agency, and Office of Management and Budget in Washington.

The summary of the Institute's findings and recommendations that follows is based on the Executive Summary to the report. Requests for copies of the full report should be directed to the National Commission on Water Quality, 1111 18th St. N.W., Washington, D.C. 20036.

Solar Energy to Be Subject of Study by ELI

The Environmental Law Institute has recently initiated a year-long National Science Foundation-funded project to investigate impediments to and incentives for solar energy development.

Unlike earlier solar power research that has tended to concentrate on technological developments or on pure economic incentives, the Institute's study will focus on land use problems associated with the introduction of solar energy on a widespread basis, emphasizing the legal and institutional impediments and incentives to private-sector development. The project will investigate the relationship between the specialized needs of solar technology and land use controls. In addition, the study will explore other issues that do not fall within traditional definitions of "land use practices," including such potential impediments as the attitudes of land use officials toward innovative technologies.

The Back Bay Wildlife Refuge "Sand Freeway" Case: A Legal Victory in Danger of Political Emasculation

As urban populations in ever increasing numbers flee the smog and heat of city summers, they bring with them to formerly rural and wild areas the urban problems of crowding and environmental degradation. A case in point is the once remote Back Bay National Wildlife Refuge bordering the Atlantic Ocean in extreme southeastern Virginia, which today is sandwiched between burgeoning "second home" beach developments. Vacationers' use of the beach as a "sand freeway" to their vacation spots to the south spawned so many visitor safety, beach erosion, and wildlife protection problems that the Interior Department moved to severely restrict access to the refuge, declaring the 150-vehicle-per-hour weekend rate inimical to the wildlife protective purposes of the refuge. The resultant furor raised by landowners thus denied convenient motorized access to their property culminated in a recent decision by the Court of Appeals for the Fourth Circuit1 upholding Interior's authority to take radical steps to protect the environmental integrity of lands under its jurisdiction.

The Court of Appeals affirmed the right of the Bureau of Sport Fisheries and Wildlife (recently renamed the U.S. Fish and Wildlife Service) to ban driving on the refuge beach to all but a handful of year-round beach residents who traverse the beach on their way to nearby Virginia Beach. The two-page decision affirmed an outspoken district court opinion that found specious plaintiffs' arguments that the United States does not own the foreshore2 of the refuge, that the foreshore is held in public trust for the common use of citizens, and that the Bureau's final environmental impact statement on the proposal to close the refuge to vehicular traffic was inadequate.

American Law Institute Endorses Land Banking

For decades, local governments have guided land development in the United States with antiquated techniques like zoning and a general lack of expertise. Growing public concern over this situation prompted the American Law Institute (ALI) to investigate the possibility of model legislation aimed at providing comprehensive land use planning at the state as well as municipal level. This spring, after more than a decade of research and drafting, ALI adopted its Model Land Development Code.1 Viewed by some observers as a major breakthrough, criticized by others for its failure to eliminate the dominance of local government in land use decisions, the Code has already succeeded in spurring discussion of various innovative techniques for the regulation of land development. One such technique, embodied in the Code, is land banking, the practice of public acquisition of developable land. Perhaps, the most radical of the Code's suggested planning methods, land banking raises a host of unresolved legal, economic, political, and environmental issues.

As a concept, land banking is relatively simple. Large-scale public purchase of the fee or less than fee interest in lands on the urban fringe replaces the traditional system of attempting to impose development controls on privately owned land. This "bank" of land is then gradually released to private parties.