Healy Enviro Law Fall 2012.docx

C industrial union department v api 1980 benzene case

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c. Industrial Union Department v. API (1980, Benzene case) i. Secretary of Labor promulgates a rule defining the amount of allowable benzene in the work place. See Comparison of statutory stds. handout. ii. Trigger Standard (when the government is statutorily bound to act): 1. Section 3(8): standard setting is required when a standard is “reasonably necessary and appropriate to provide safe or healthful employment.” 2
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2. SCOTUS reads this as requiring “significant health risks” before a new standard may be imposed. a. Only look at the health risks. iii. Final (Safety) Standard 1. Section 6(b)(5): agency shall: “set the standard which most adequately assures to the extent feasible , on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity.” 2. Thus - - go with fully protect or go with feasibility. iv. H – Agency must act 3(8), which the Court reads as a finding of “significant health risks,” which ignores the statute. II. Regulatory Tools & Approaches a. Process of Risk Assessment : i. Hazard Identification – Determine, does this substance pose a hazard? 1. Epidemiological studies (which are quite limited), animal bioassay studies (rat studies), and molecular structure comparison. ii. Dose-response evaluation – How much of a hazard? 1. What level of toxins has health consequences? a. Difficult to define (problems moving from mice studies to humans) 2. Presumptive use of linear relationship (Agency gets deference from Courts) iii. Exposure Assessment – examine/determine human exposure 1. Determine the population and individual risks. iv. Risk Characterization (most important step for lawyers): summarizes the nature of the risk presented. 1. Risk = toxicity x exposure 2. This should identify the extent of the risk and include any qualification OR limits on the characterization. b. Note – with risk assessment, the high degree of scientific uncertainty means politics must show up (the data can be manipulated). But the goal should be to keep politics out. c. Non-threshold pollutant – it has health risks all the way to zero. i. Public Citizen Health Research v. Tyson (1986) 1. Industry’s A: OSHA must unequivocally prove their assumptions, in determining risk. 2. Rejected by court because: a. OSHA determined EtO to be a significant health risk b. The 1ppm standard was a feasibility standard and supported by substantial evidence. 3. Court says the feasibility standard is a significant health risk. d. Risk Management consists of: i. Public policy (what should we regulate?) 3 These define the toxicity of the substance
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ii. Legal standards (when agencies act; differences between trigger and final safety standard, etc.) e. Environmental Defense Fund v. EPA (1977) i. F – Banning of pesticides under FIFRA (See handout). EPA can only act after weight costs and benefits (resembles Coase).
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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