 |
||||
|
SRA
Risk Science & Law Specialty Group |
|||
| 1999-2000
Online Casebook (Second Edition)
United States v. Broderick Investment Co. Will federal regulators be found arbitrary and capricious where an agency decrees a hazardous waste site cleanup must reach a low risk level of 1 expected cancer in a population much greater than that actually exposed? Should an agency decree a cleanup standard based on future land use that is highly improbable and contrary to historical trend? The U.S. District Court reviewed the federal government's request for reimbursement of its costs in cleaning up the Broderick Wood Products site in Colorado [955 F.Supp. 1268 (D.Colo. 1997)]. Under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the U.S. is entitled to recover all costs incurred in responding to the release or threatened release of a hazardous substance. At issue was the U.S. EPA's choice of a cleanup remedy for groundwater contamination. In determining the appropriate remedy for a site, CERCLA provides that, for known or suspected carcinogens, acceptable exposure levels generally are contaminant concentrations that represent an upper-bound, lifetime cancer risk between 10-4 and 10-6. For this site, EPA chose a cleanup risk level of 10-5, or the odds that one case of cancer would result for every 100,000 persons continuously exposed to site contaminants over a 70-year lifetime. Defendants argued that EPA should have selected the less protective standard of 10-4. Among reasons found by the court for holding EPA's decision was arbitrary and capricious was a determination that a 10-5 risk level is appropriate only for an exposed population of 100,000 or greater. The court framed its argument as follows: If fewer than 100,000 are exposed, the one additional incident of cancer prevented by using a 10-5 risk factor will never be realized, and a 10-4 factor is appropriate. Because of the improbability that 100,000 persons might live or work in close proximity to the site, the Court is satisfied that it was arbitrary and capricious for EPA to utilize a risk factor of 10-5. However, regardless of whether the exposed future population at the Broderick site turns out to be 10 or 10 million, the probability of one exposed person developing cancer would still be the same. Following the court's logic, EPA would have to accept an individual cancer risk of 1 in 100 in a community of 100, yet could protect to a risk level of 1 in 100,000 in a community of 100,000. The result would be that persons living in more sparsely populated communities would receive less environmental protection and be exposed to greater risks than those living in more populated areas. Another issue in Broderick led to a further finding against EPA: [T]he Court is satisfied that it was arbitrary and capricious for EPA to mandate clean-up activities on the basis of possible, but highly improbable, land-use scenarios. EPA's assumption of a possible but highly improbable future residential development of a rail yard surrounded by industry where residential population was in decline would have imposed substantial additional cleanup costs on parties responsible for site contamination. [Contributed by Robert Kuehn/Edited by Wayne Roth-Nelson] |
|
|||
Copyright © 2000 |
||||