Unheeded Science

Abstract

In the early 1970s, the idea of precaution—of heeding rather than ignoring scientific evidence of harm when there is uncertainty, and taking action that errs on the side of safety—was so appealing that the US Congress used it as the basis of the toxics provisions of the Clean Water Act of 1972, the federal Environmental Protection Agency (EPA) based its proposals for implementing those provisions on it, and the courts frequently tended toward it when resolving conflicts over the implementation of pollution control law. In other words, precaution was written into toxic water pollutant control law and was beginning to be written into policy and regulations. By 1976, the tables were completely turned. The EPA abandoned the safety-providing approach in the implementation of the law, even though the law required it, and adopted a risk-taking approach in the creation of standards for the vast majority of toxic water pollutants. The article examines how this change was brought about. It builds on recent work on undone science as an obstacle to regulation and contributes to the development of an account of the creation of the regulatory system, with both its achievements and its limitations.

Keywords

environmental practices engagement intervention justice inequality protest politics power governance

Introduction

In the early 1970s, the idea of precaution—of heeding rather than ignoring scientific evidence of harm when there is uncertainty, and taking action that errs on the side of safety—was so appealing that the US Congress used it as the basis of the toxics provisions of the Clean Water Act (CWA) of 1972, the federal Environmental Protection Agency (EPA) based its proposals for implementing those provisions on it, and the courts frequently tended toward it when resolving conflicts over the implementation of pollution control law.¹ In other words, precaution was written into toxic water pollutant control law and was beginning to be written into policy and regulations. By 1976, the tables were completely turned. The EPA abandoned the safety-providing approach in the implementation of the law, even though the law required it, and adopted a risk-taking approach in the creation of standards for the vast majority of toxic water pollutants.

In this article, I document this reversal in policy approach, which has not been discussed in the science and technology studies (STS) literature on pollution regulation. I examine the specifics of how decisions were made: the EPA’s process of implementing the law, the scientific evidence and logic the agency used for its initial precautionary proposals, and what became of that scientific evidence, logic, and the original proposals. I give an account of how the EPA, the industries to be regulated, and environmental advocates created the part of the regulatory system that addresses toxic water pollutants, with both its achievements and its limitations. This account builds on and contributes to recent work in STS on the failure of regulatory agencies to regulate.

Precaution in 1972

There is a widespread impression that the idea of taking precaution in addressing environmental hazards emerged in the 1990s. This perception may be so because in the 1990s proponents of environmental protection began to use the precautionary principle with increased frequency and visibility. For example, between the late 1980s and 2001, seven international agreements—from the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer to the 2001 Stockholm Convention on Persistent Organic Pollutants—employed the precautionary principle (Harremoës et al. 2002). Furthermore, the 1998 Wingspread Conference on the Precautionary Principle added to the visibility of the concept. The conference’s purpose—to discuss how a precautionary approach could be incorporated into environmental and public health decision making—implied that using a precautionary approach was new. In a book published on the knowledge gathered at the Wingspread Conference, which became a central source on precaution and did much to popularize the concept, the authors emphasized explanation of the concept and how it could be applied (Raffensperger and Tickner 1999). Thus, this book also gave the impression that the idea of taking precaution was new in the 1990s.

But the US Congress had incorporated the concept of precaution into pollution control law already in the early 1970s. The Clean Air Act of 1970 required the EPA to control both criteria and hazardous air pollutants to an extent that provides safety with respect to public health, and to err on the side of safety when there was uncertainty—that is, to regulate in a precautionary manner.² The same is true of the toxics provisions of the CWA of 1972. Rather than being a new concept in the 1990s, the idea of taking precaution in addressing environmental hazards was already being written into pollution control law in the early 1970s.³

Regarding precaution in the 1972 CWA, Congress used the concept in limiting toxic water pollutants, but not conventional water pollutants, because of the greater health and ecological hazard of the former.⁴ For conventional water pollutants, Congress used an approach that based limits on already available technologies. This “technology-based” approach may accomplish a great reduction in pollutants, but it only addresses pollutants that the particular technology removes. The approach identifies neither the toxic inputs and outputs in each industry nor the methods of eliminating them. The technology-based approach is not based on what would provide safety, does not err on the side of safety in the face of uncertainty, and thus is not precautionary. In not being precautionary, the technology-based approach may be said to be “risk-taking.” Congress explicitly avoided the technology-based approach for toxic water pollutants, because of their greater hazard. The legislators required the EPA to limit toxic water pollutants to an extent that provides “an ample margin of safety” with respect to human health and ecology—a “safety-based” approach. Congress did not require the EPA to consider technological feasibility or cost and specified that the agency could completely ban the discharge of a pollutant if protecting health and ecology required it. This approach pushed regulated industries to find methods of eliminating the toxic outputs. The safety-based approach erred on the side of safety in the face of uncertainty, and thus is precautionary.⁵

In choosing a precautionary approach, the lawmakers were also choosing a particular burden of proof: what needed to be proved is that the substance and activities in question are safe, and the burden of proof rests on the entities that want to continue the use of the substance and the activity.

An Emerging Conflict in Values in a Financially Difficult Time

The value of protecting the environment and public health from pollution has been present since the beginning of industrial pollution (Kubasek and Silverman 2010). What changed in the mid-1960s and mid-1970s was that this value became much more widely embraced, including by lawmakers, who began writing it into pollution control law. This new value was not limited to controlling water pollution, but rather extended to air pollution, contamination of land and groundwater, occupational hazards, and hazards of pesticides, lead-based paint and other consumer products. Congress created or amended laws in all of these areas in the late 1960s and early 1970s.

The industries to be regulated perceived and constructed the new value as in conflict with the older and well-established value of protecting business owners from regulation. As explained below, the industries to be regulated lobbied the EPA against the safety-based approach, arguing that it would spell financial ruin. However, safety-based regulatory programs frequently can be designed in a way that gives the industries sufficient lead time for adaptation so that financial well-being is maintained. This was the case for polychlorinated biphenyls (PCBs) and lead paint, which Congress banned in the 1976 and 1977, respectively.

The toxics provisions of the CWA reflected a significant initiative to change the structure of decision making in the previous sixty-year history of water pollution control law, in which the industries maintained a large degree of control (Miller 1987). The new features that Congress intended to intervene in this structure included the following:

A requirement of the EPA to create limits, as opposed to only making recommendations, on toxic water pollutants.

Removal of the restriction on public participation in rulemaking, which had excluded anyone who could not hire a lawyer.

Removal of the restriction on who could sue the EPA if it did not implement the law, or if it did not do so properly, which previously included only business owners and property owners whose profits and property values would be affected (Bollier 1991).

The presence of this conflict in values ensured that there would be a struggle over how the new laws would be put into practice.

The inflation and stagnation of the mid-1970s could have been used to argue against the standards that the new law required. However, the presence of financial difficulties in this period does not itself explain the policy outcome. To understand the latter, one must examine the specifics of how decisions were made at the EPA, including whether and how the decision makers took into consideration the difficult economic conditions.

The STS Literature on Pollution Control

Scholars of STS gave a wave of attention to the creation of safety-based pollution control standards as they were being created. Much of that work focused on the contestation over what is a safe amount of individual pollutants and how disputes over the sufficiency of the scientific evidence were resolved (Brickman 1984; Greenwood 1984; Rushefsky 1984; Schmandt 1984; Jasanoff 1990, 1992). As the agency developed regulations, the industries to be regulated frequently attempted to intervene in them. The businesses used a strategy of trying to shape the EPA’s determinations of the amount of the pollutant that is safe. They also disputed all of the many points that necessarily can be disputed in rulemaking on a complex issue, including challenging risk assessments (McGarity 1984; Jasanoff 1990). Additionally, the industries attempted to erode the EPA’s authority and legitimacy by claiming—frequently falsely—that the agency was scientifically incompetent (Greenwood 1984; Wagner 2003). The businesses frequently provided so much contestation over the proposed standards that the EPA had difficulty in creating regulations that could withstand efforts to destabilize them (Brickman 1984; Schmandt 1984; Greenwood 1984; Jasanoff 1990, 1992). In response, the EPA established agreements about what counts as sufficient scientific evidence in order to create regulations that could withstand efforts to destabilize them. With such protocols established, science became a very important resource in the creation of regulations (Jasanoff 1990, 1992).

The 1980s wave of science and regulation literature did not notice the significant change in policy approach from one that is safety-based to one that is not. McGarity (1984) provided a fuller picture of the issues beyond the scientific evidence that the EPA needed to consider in creating regulations. These include the response of the courts, the preference of the presidential administration, Congress’s preferences as expressed in the law, whether or not Congress would conduct oversight hearings and/or committee investigations of policy judgments, and the responses of the press and the public. These additional considerations turn out to be significant in the history of the shift from the safety-based to the technology-based approach in regulating toxic water pollutants, as is discussed in this article.

While the earlier writers focused on the details of how safe levels were determined in particular cases, more recent literature has observed the bigger picture of the failure of the EPA to regulate much of what pollution control laws intended it to regulate, and has focused on ways of constructing and engaging science in order to create obstacles to regulation. Writers in this area have identified suppression of scientific evidence as one method of blocking regulation (Markowitz and Rosner 2003; Proctor 1996; McGarity and Wagner 2008; Proctor and Schiebinger 2008). Others have identified a strategy of funding research to produce dissensus, including irrelevant or junk science, and using the results to create public relations campaigns aimed at persuading decision makers and the public that scientific results that point to regulation are not valid (Toumey 1996; Markowitz and Rosner 2003; McGarity, Shapiro, and Bollier 2004; Lahsen 2005; McGarity and Wagner 2008; Proctor and Schiebinger 2008; Oreskes and Conway 2011). Furthermore, writers on this topic have identified “undone science”—science that is needed in order to decide whether and how to regulate but that has not been done, either because the dominant actors do not choose it, or because it is systematically underfunded—as an obstacle to regulation (Hess 2007, 2010; Frickel et al. 2010).

Writers on the failure to regulate have noted the limitations of the regulatory system. However, they have not explored how this limited system was established. The present work contributes to this literature by developing account of how the EPA and its interlocutors developed the part of the system that regulates toxic water pollutants.

The EPA’s Initial Effort to Implement the Law

Congress gave the EPA the large and complex task of regulating each of hundreds of pollutants in each of dozens of industrial categories, many containing hundreds of facilities. The EPA Office of Water Programs began the work by identifying and prioritizing “the most serious hazards,” “immediate problems … (that) require abatement more rapidly” (EPA 1973a). The agency did so by identifying the toxic pollutants that both were known to be present in industrial wastewater and causing exposures and serious damage and were studied to an extent that would allow limits to be established.⁶ The agency identified nine pollutants that met these criteria.⁷ The EPA’s plan to carry out the rest of this massive undertaking was to develop a protocol for setting limits through working with these nine toxins, and later to expand the list and regulate additional toxic pollutants as required by the law, using this protocol (EPA 1973b).

The EPA carried out risk assessments for the nine prioritized pollutants, and proposed limits that were very low, including some zero limits (EPA 1973c). In using this approach, the EPA followed Congress’s directive to create limits that provide safety with respect to public health and ecology, based on the latest scientific evidence, and defined the burden of proof as one of safety, placed on the industries. Furthermore, the regulator pushed technological development within the industries, rather than only working with already available technologies—a possibility that Congress had explicitly permitted in the law.

The EPA’s Shift in Policy Approach

In 1976, after the EPA had solicited and received public comments on its proposed regulations, the agency abandoned its initial proposal and published a new, quite different proposal: setting the limits at the concentration achieved by installing specified technologies—already available technologies—in each industry (EPA 1976a).

In making this choice, the EPA adopted the technology-based approach. Congress explicitly had not chosen that approach in order to avoid taking risks with the greater health and ecological hazards of toxic water pollutants. In other words, in making this shift, the EPA turned away from the approach indicated in the law.

Why Did the EPA Make This Shift?

What was the EPA’s rationale in making this reversal? What policy options did it consider, and how? Did the industries use arguments about financial difficulties—for themselves and for the broader society—created by the proposed regulations? What evidence of these outcomes did the industries present? How did the agency evaluate this evidence? What was the thinking in the agency about abandoning the requirement to provide safety, and/or about ways to maintain this commitment?

The “Insufficient Science” Discourse

Law journal articles and legal deskbooks report that the EPA made this shift because it did not have the scientific evidence that it needed to support the standards that it had proposed. For example, Hall (1977) claimed that the initial approach was “plagued … by limited availability of data … ” Fogarty (1988) noted that the “scientific requirements” of the law requiring safety-based standards were too difficult. But these sources do not substantiate this claim or even discuss the state of the scientific evidence.

What was known about the listed pollutants was that they are extremely toxic at very low concentrations, that some bioaccumulate, that they were present in industrial wastewater, and that exposure could cause cancer, genetic mutations, and birth defects.⁸ There was no controversy over this knowledge. These were the reasons that Congress had created the special category “toxic” water pollutants and that the EPA had listed each of the pollutants under this section of the law.

What was not known was very specific: if any amount of any of the pollutants was safe. In these circumstances—certain knowledge of toxicity, presence in the environment, and active exposure, but uncertainty about whether any amount is safe—regulators have two options. They can take a safety-based approach or a technology-based approach. The choice is not based on resolving a scientific controversy; rather, it is a policy decision about whether to err on the side of safety or harm. Neither approach is prohibited in the case in which a pollutant is known to cause serious harm, but at a specific concentration that is not known. Nonetheless, one finds a pervasive discourse in the law and policy literature that says that the reason the agency abandoned the safety-based approach was that it lacked sufficient scientific evidence to follow through with it. But logic does not support this claim, and the claim is misleading.

Unheeded Science

What rationale did the EPA provide for its shift from a safety-based to a technology-based approach? The agency did not disclose its logic in its documentation of this decision in Federal Register (EPA 1976a). The entry writer emphasized the fact that the industries had asked the EPA not to use the safety basis in creating the standards, claiming that they did not have the technology needed to reach the limits, and they could not pay for existing technologies that would move them in the direction of the limits. The industries asked the EPA instead to create single regulatory packages, one for each industry, based on available pollution removal technologies (EPA 1976a). In other words, while for the first time there was scientific evidence of serious harm, and for the first time Congress required the EPA to create regulations that heed the scientific evidence of serious harm, the industries asked the EPA not to take action that heeds the evidence, and to limit the pollutants to a lesser extent than would provide safety.

Jasanoff (1995) and McGarity (1984) have described how regulated industries attempt to avoid, forestall, and weaken regulation by challenging risk assessments. The industries’ responses to the proposed toxic water pollutants standards reveal a different strategy: The firms asked the EPA not to adapt its risk assessments but rather to ignore them completely.

Where writers on the failure to regulate have emphasized the absence of scientific evidence needed to regulate—through suppression of data, and prevention of the doing of science, resulting in undone science—and obfuscation via irrelevant or junk science, neither absence nor obfuscation were the problem in the case of toxic water pollutants. Sufficient science had already been done and the results reasonably pointed toward the more cautious safety-based approach. These results were available for public consumption, and the public was actively consuming them. The industries were not trying to obfuscate the scientific evidence; rather, they were asking the EPA not to take actions that the evidence pointed to. This case reveals an additional method of blocking regulation: “unheeded science.” Unheeded science results when industries successfully persuade the regulatory agency not to heed science that already is done and points in the direction of more comprehensive regulation.

Enrolling the EPA’s Interests

The industries lobbied the EPA to shift its approach, but how was the EPA persuaded? The hearing record, the written comments, and any documentation of the EPA’s deliberation over the public feedback may show how the agency was persuaded and made its decision, but they are not available. These documents are legally required to be preserved and available to the public, but there is no log of their document numbers and they cannot be retrieved from federal storage (EPA Docket Center employee, Telephone Conversation with Author, November 13, 2002; EPA Docket Center employee, E-mail Correspondence, February 22, 2013; Phil Wood, longtime water quality engineer in the EPA, Interview by Author, November 12, 2002). Thus, the EPA made this dramatic shift in approach without explanation. The reasons for the reversal slipped entirely out of the public record and the policy discourse.

Given the importance of this decision, and standards of transparency that were being institutionalized at the time, the lack of explanation seems puzzling, or even illegal; however, there is nothing illegal about it. As McGarity (1984) explained, regulatory agencies frequently do not reveal the basis on which they make decisions. Specifically, in addition to considering the scientific evidence of harm, agencies must and do take into account political considerations, such as the preference of the president that the EPA serves, Congress’s preferences and whether or not Congress would conduct oversight hearings and/or committee investigations of policy judgments, and the anticipated responses of the press, the public, and the courts. Aware that industries frequently have new regulations reviewed by the courts, and aware that judges may reject the regulation (even if it legitimately implements the law), the agencies frequently omit information that a judge could use to reject the regulation. If no one notices or takes action to push the agency to reveal its logic, the agency manages not to make transparent parts of its process. This was the case in the shift in approach in the implementation of the toxics provisions of the CWA.

Secondary sources and interviews with individuals who were involved in the process of implementing the toxics provisions show that the industries to be regulated were able to and did apply sufficient pressure to have the EPA meet their request.⁹ Thirty-four industries and industry associations sent lawyers and other experts to participate in the hearing that the EPA held for public comment on its proposed standards in 1973 (Rodgers 1986; EPA 1976a). The industries claimed the proposed standards would ruin them financially, and “would force large segments of major American industries to shut down” (EPA 1976a). What evidence of these outcomes did the industries present? How did the EPA evaluate this evidence? The agency did not reveal this information. Nonetheless, these claims, even if they were not supported by evidence, placed pressure on the EPA.

The industries applied pressure to the EPA in other manners as well. The hearing about the initial proposal was presided over by an administrative law judge; the format allowed for cross-examination of witnesses who had given prior testimony (Ridgway Hall, Interview by Author, November 22, 2005).¹⁰ The industry lawyers approached the hearing as an opportunity not to intervene in the risk assessments of the original proposal but rather to eliminate the safety-based approach completely. A lawyer who worked for the Natural Resources Defense Council and participated in the hearing said about the event, “The industry lawyers had a field day with the EPA effort” (James Gustave Speth, E-mail Correspondence, October 19, 2005). They used strategies of attempting to wear down their opponents through disputing everything that was possible to dispute: EPA’s legitimacy in setting low limits when there was no technology that could detect the pollutants at the specified levels, administrative procedure, and the sufficiency of the available scientific evidence. The industry lawyers also used tactics of repetition of disputes and assertions, and forcefulness in their presentations (EPA 1976a; Rodgers 1986; Ridgway Hall, Interview by Author, November 22, 2005). The judge allowed the hearing to go on for two months. These tactics, in addition to the industries’ claims of financial ruin, placed a great deal of pressure on the EPA.¹¹

The industries also applied pressure by bringing an enormous number of lawsuits. The industries that were being regulated under the CWA sued the EPA over the majority of regulations that the agency finalized (Jessica Landman, Interview by Author, December 11, 2002). By the time of the public hearing, the EPA was defending itself in approximately 250 lawsuits brought by industry lawyers regarding water pollutant standards (Jackson 1975). Through these legal actions, the industries severely challenged the capacity of a new federal agency with a limited budget. The lawsuits brought under other sections of the law, and the threat of additional lawsuits once the regulations under the toxics provisions were finalized, put enormous pressure on the EPA (Rodgers 1986; Jackson 1975).

But the fact that the industries pressured the EPA does not explain how the pressure was effective, or why the EPA responded as it did. After all, Congress had directed the EPA to do what the industries were asking the agency not to do. The president signed the bill. The EPA had authority to implement the law in the way it initially proposed. Meeting the request of the industries was not the agency’s only option. Why did the EPA respond to the industries’ pressure as it did?

McGarity’s (1984) analysis provides direction here. He pointed out that administrative agencies must and do try to anticipate powerful reactions—from the president, Congress, the public, the media, and the courts—that could block their proposals. If they anticipate a powerful negative reaction, they reevaluate the proposal. In the case under discussion, the EPA was receiving a powerful reaction from the industries. In addition to directly applying pressure to the EPA, as discussed above, the industries may have exerted their power on the EPA indirectly by lobbying the president and members of Congress, who give direction to the EPA. The president and Congress had made a commitment to protecting ecology and public health in the toxics provisions of the CWA; however, this new commitment conflicted with the strong commitment in American culture and political economy not to intervene in business practices. Given this conflict and the difficult economic conditions of the mid-1970s, it is easy to imagine that the president and/or the Congress could have been persuaded to change their minds. Although the EPA did not report on it, the agency could have received the direction to abandon the safety-based approach from either of these entities.¹² The EPA managed not to reveal the precise mechanisms; however, reading between the lines, it is clear that the agency made the shift because the industries had the power to convince, to translate, and to enroll the agency administrators.

The agency abandoned the safety-based approach and, thus, the requirement in the law. Congress did not object. Neither did the president (who was Jimmy Carter—and not Ronald Reagan, to whom many attribute the beginning of deregulation). The commitment and effort to change the structure of decision making about toxic water pollutants and industrial practice was not actualized at this juncture.

Newly Admitted Actors

Actors newly admitted to the policy-making process, environmental advocates attempted to persuade the EPA to stand by and further develop its initial proposal, to carry out the requirement in the law. Few environmental organizations existed in the early and mid-1970s; however, there were several—the Environmental Defense Fund, the Natural Resources Defense Counsel, and Citizens for a Better Environment—that used their newly granted rights to bring citizen suits to challenge the EPA’s failure to finalize the proposed standards (EPA 1976a; Hall 1977; NRDC v. Train, Civ. No. 2153-73, 6 E.R.C. 1702 [D.D.C., May 23, 1974]; EDF et al. v. Train, Civ. No. 75-0172 [D.D.C.]; Citizens for a Better Environment et al. v. Train, Civ. No. 75-1698 [D.D.C.])

When the EPA attempted to shift its approach, it needed these organizations to drop their suits. The agency offered the plaintiffs the regulation of sixty-five toxic pollutants in twenty-one industrial categories, using the technology-based approach, in exchange for their agreement to drop their lawsuits (Hall 1977).

The environmental organizations accepted this deal. Recalling the reasons, the Natural Resources Defense Council lawyer who led the litigation said, “(W)e were convinced that what we could work out with (the) EPA would result in much more toxic (pollutants) removal from waterways than anything we were likely to get otherwise” (James Gustave Speth, E-mail Correspondence, October 19, 2005). In other words, the environmental advocates believed that the EPA should implement the safety-based standards, but given the pressure that the industries were exerting and how the EPA was responding to that pressure, they did not believe they would get anything more than the technology-based standards. They had gained inclusion in the policy-making process, but not sufficient power to counter the weight of the industries. Environmental advocates did not convince the EPA to retain its safety-based approach to creating toxic water pollutant standards.

The Outcome

The agreement struck between the industries, the EPA, and the environmental advocates required the agency to make standards based on best available technologies that removed some portion of a set of sixty-five toxic pollutants from each of the twenty-one major industries (Hall 1977). The commitment to err on the side of safety, the burden of proof on the industries to prove safety, and the power to use regulation to push technological and industrial innovation were gone.

The EPA accomplished a great reduction in toxic pollution by identifying and setting standards based on best available technologies, but the new standards only addressed water toxics that any particular technology could remove. The standard-making process did not involve an identification of the toxic inputs and outputs in each of the listed industrial categories, nor research and development in how to reduce them. Hence, the technology-based standards achieved reductions of a relatively small number of toxic pollutants that could be achieved by a specified technology, and ignored all other toxics that were not remedied by that technology.

For example, the EPA established effluent limitations in petroleum refineries for only two toxic water pollutants, phenol and chromium, out of at least fifty toxics found in refinery wastewater (EPA 1979, 1995). The agency chose in-plant control of ammonia and water use, and end-of-pipe separation of oil and water, biological treatments, and filtration as the best available technologies for petroleum refineries (EPA 1979, 1982). The EPA ignored the many toxic pollutants that were not remedied by these technologies. In another example, the EPA did not set a limit for dioxin, an extremely potent toxin that causes cancer and birth defects, and that persists and bioaccumulates, in pulp and paper mills, which are one of the largest dioxin sources, in its initial technology-based standards because the technologies it chose did not address dioxin (Houck 1991).

Critical assessments of the technology-based toxics limits are few and limited to a small amount of commentary rather than in-depth analysis. Reed (1983) observed that the EPA was lenient in making the technology-based standards, often choosing less than best available technology, such as equipment that had been in place since the mid-1970s for controlling conventional pollutants (i.e., not for toxic pollutants) and not pushing technological development or process innovations. Jessica Landman, a lawyer with the Natural Resources Defense Council, reported that the industries and their associations sued the EPA over every major technology-based standard, that the courts sent the decisions back to the EPA, and that the agency often responded by making less stringent standards and, later, revising the standards to be so weak that no polluter would challenge them (personal communication, December 11, 2002).¹³ The agency, then, skipped over many toxic water pollutants and avoided using technology-based standards to drive technological development toward the elimination of toxics and provision of safety.

A Backup Plan?

A backup plan was written into the consent decree that settled the lawsuits. It consists of examining scientific evidence of harm to ecology and health and setting a water quality standard stricter than the technology-based standard as necessary. But this plan also allowed the EPA to ignore the scientific evidence of harm and to limit the extent of the regulations it makes.

For example, in setting a water quality standard for dioxin in 1984, the EPA reviewed the scientific literature on the health risks of dioxin, and carried out additional studies—laboratory animal feeding experiments, epidemiological investigations of exposed workers, and human exposure and risk assessments (EPA 1987). The agency determined that dioxin is a known animal carcinogen at very low levels of exposure and a probable human carcinogen (EPA 1987). By the EPA’s protocol, there is no safe level of a probable human carcinogen. The agency recommended that the dioxin limit be zero. But in the same paragraph, the EPA (1984) dismissed the zero limit, stating that “attaining a zero concentration level may be infeasible in some cases.”

The backup plan has been implemented in such a way that even when the EPA acknowledges that any amount above zero is too much, when the best available technology does not remove the pollutant, the agency recommends higher—unsafe—limits. Policy governing toxic water pollutants has continued down this same path ever since.

Conclusion

For the first time in the late 1960s and early 1970s, there was enough scientific evidence of the toxicity of the listed toxic water pollutants that it was not a foregone conclusion that the industries to be regulated would win the battle over what is a safe level of each. Congress took heed of the new evidence of toxicity, making a law that mandated the creation of safety-based standards rather than technology-based standards. The EPA followed Congress’s direction, proposing very low limits, which would have impinged on the industries and forced them to innovate. But then the EPA reversed itself, eliminating the safety-based approach and replacing it with the technology-based approach. The EPA did not explain its reversal in its public documentation of its process. What explanation there may have been in the record of the public comments and the EPA’s responses to them are no longer accessible.

Secondary sources and interviews and correspondence with people who were centrally involved in the process show that the reason for the reversal was not the one that was invoked in the EPA documentation and uncritically repeated in the law literature—a lack of scientific evidence. Neither was the reason undone science, nor obfuscation via irrelevant or junk science. Rather, the EPA reversed its policy approach because the industries to be regulated asked the regulator not to heed the scientific evidence that led to the initially proposed low limits, and would have led to finalizing them.

The industries not only asked the regulator not to use the safety-based approach, they also applied pressure of various forms. Neither the EPA nor any other actor in the network that produced this regulatory program has made visible to the public how this pressure was experienced and how it affected decisions. Whatever the precise mechanisms, the EPA made the policy choice to use a technology-based approach. The other policy choice—a safety-based program—would also have been a reasonable choice. The EPA could have taken that path but did not at that juncture.

The possibility of creating a safety-based program still exists through the water quality-based standards in the backup plan. Nothing in the law prohibits this. In fact, the intention of the backup plan is to provide safety. But to date the EPA has not pursued the goal of providing safety, but instead has only created technology-based standards. Although the three environmental organizations that brought lawsuits against the EPA for abandoning its proposed safety-based program were persuaded to drop their challenges in 1976, these groups have never lost their interest in creating a regulatory program that provides safety. Many other environmental organizations share this interest.¹⁴ What would be needed in order to seriously pursue a safety-based program is not more clarification of what is precautionary or advocacy for precaution, but rather an examination of where and how those who have favored and worked for this approach—in the EPA as well as in environmental organizations, in the 1970s and in more recent pollution prevention campaigns—experienced the pressure the industries applied, why they yielded to the pressure, and what support they would have needed not to yield, and then to work toward creating that support.¹⁵

Footnotes

Acknowledgements

The author would like to thank Donna Haraway, Chris Hodgkinson, and the participants in the Environmental Politics Colloquium at the University of California, Berkeley for their comments on drafts of the article.

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The research that led to this article was supported by an S.V. Ciriacy-Wantrup Postdoctoral Fellowship in Natural Resource Economics and Political Economy, 2005-2007; and a Small Grant from the Center for Social Research at the University of Puerto Rico, Río Piedras, 2009-2010.

Notes

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