RSH > Documents > ANS National Meetings/Sessions > June 1999 >Theodore Rockwell

5. Forcing the Issue on Radiation Policy

                "For those of us frustrated by an inability to get a fair hearing on evidence that challenges current radiation policy, the recent case of a group of tobacco interests suing the U.S. Environmental Protection Agency (EPA) in Federal court on its policy on second-hand smoke has important implications for radiation policy. The issue was only tangentially about tobacco; its main thrust was at EPA’s arbitrary and capricious rule-making process. The EPA is at least as vulnerable to the same charges in the radiation area, particularly with respect to radon. The outcome of this important tobacco case was as follows:

                1. The Court ruled against EPA, strongly and specifically condemning its misuse of scientific data, arbitrary use of procedure, and distortion of evidence to reach a predetermined finding.

                2. The Court vacated the EPA’s technical report that was the basis for EPA’s basic finding that second-hand smoke was a Class A carcinogen.

                3. The Court also found that EPA was exercising de facto regulation despite specifically worded legislative prohibition from doing so."

                "All this resulted from the plaintiff’s carefully constructed case proving conclusively the basis for the Court’s actions. In addition to the necessary legal arguments, the technical data and rationale used were impressive. The Court made no effort to determine whether second-hand smoke was in fact harmful. This case focused on whether EPA had done an honest and competent job in proving its case, on its own stated terms. That is why the case has relevance for radiation policy. If a similar case were mounted for radiation regulation, (starting with radon), it should lead to a similar result. The implications of such a decision would be momentous.

                "The tobacco interests saw a clear interest in contesting EPA’s aggressive regulation and were willing to devote the time and talent to win it, which they did decisively. To date, there has been no one willing and able to devote the necessary resources to take on the corresponding issue for radiation policy, even though the case is at least as convincing as the tobacco case and now has the tobacco precedent to support it. Similar issues involving chemical toxins are handled by the Chemical Industry Institute of Toxicology. There is no such organization in the nuclear industry. There should be.

                "The 'Conclusion' of this 901 page 5-yr case stated:

                EPA publicly committed to a conclusion before research had begun; excluded industry by violating the Act’s procedural requirements; adjusted established procedure and scientific norms to validate the Agency’s public conclusion; and aggressively utilized the Act’s authority to establish a de facto regulatory scheme.

                The Court also noted that in conducting its risk assessment:

                EPA disregarded information and made findings on selective information; did not disseminate significant epidemiological information; deviated from its Risk Assessment Guidelines; failed to disclose important findings and reasoning; and left significant questions without answers."

                "Radiation protection is associated in many people’s minds with the U.S. Nuclear Regulatory Commission (NRC), but other agencies have also been involved. In 1959, with the questions of fallout from nuclear weapons testing in mind, the Federal Radiation Council (FRC) was established 'to advise the President with respect to radiation matters . . . including guidance to all federal agencies.' When the EPA was formed in 1970, FRC was abolished, and its function as lead federal agency on radiation was taken over by EPA. Criteria for building and operating nuclear facilities continued to rest with NRC. But, when it comes to protecting the public or the environment, EPA is quick to assert its unique authority. The 'discovery' of radon as a potential natural radiation hazard about 1980 created a whole new playground for EPA, with almost unlimited range. And, it is with radon that EPA’s practices most nearly parallel the tobacco case just struck down by a federal district court.

                "Radon, like second-hand smoke, has been tolerated for generations, and EPA has the burden of proving that it is a public hazard. The law and the unwritten rules of science are quite explicit in defining what must be done to make such a finding. In the case of radon, there is no prior basis for public concern. In fact, the public uses radium spas with radon concentrations up to one million times as high as the EPA'permissible limit.' In many countries, such spa usage is formally prescribed by physicians and paid for by national health insurance."

CONCLUSION:

                "The health effects, if any, from radon, as from second-hand smoke, are hard to quantify. But, this does not justify—in either case—the EPA’s straying from its published criteria and procedures for testing whether such health effects occur. A Federal court has now demonstrated its willingness to judge and strike down the EPA’s actions regarding second-hand smoke on their own merits, without attempting to be an arbiter of science. The result is a welcome breath of fresh air and an object lesson for those concerned about the mounting costs of treating radon as a major public health hazard."