Document DDyXd4mx1Vk9d2x6a6p6va8no

NEW YORK TIMES Wednesday, June 29, 1987 * By PHILIP SHABECOFF * Sproal * Hew York Times Judge Bork writes a decision holding Defense Council. He said the decision Doniger of the natural resources would require the agency to change the group, said they were happy with the ' WASHINGTON, July 28 -- In a deci way it has been setting standards, court decision. that `safe' air levels must be based onsion written by Judge Robert H. Bork, a Federal appellate court here ruled to day that the Environmental Protection health considerations.Agency could consider only health, and not cost or technological feasibility, .when determining what are safe levels 'oLexposure to toxic air pollutants. ;*ut the court also ruled that once that safe level was set, the agency ' could consider costs and other factors In determining how far the polluter must go in reduce the offending emis-r sions. ' - ^The unanimous decision by the 11- member United States Court of Ap peals for the District of Columbia or dered the E.RA. to review its standard `for emissions of vinyl chloride, a gas .emitted in the manufacture of some <*p)asifcs, because the standard was * based on cost and technological feasi- "bUiiy. The gas has been shown to cause * liver cancer In humans. * The decision emphasized that the en vironmental agency's determination of 'a^safe level of air pollution that can ,cause cancer ''must be based solely on * the risk to health.'* its decision that it would not issue new standards that would place more strin gent restrictions on emissions of vinyl chloride. On this Issue Judge Bork's decision was a reversal of the way he voted last year when the case was con sidered by a three-judge panel of the court. But the decision would presumably apply to all toxic air pollution the agency is responsible for regulating under the Clean Air Act and would therefore put some limitations on its applying cost and benefit tests when deciding on anti-pollution regulations. The decision today is based on a sec tion of the Clean Air Act that requires the agency to protect the public from hazardous air pollutants, which are de fined as those that may cause "an in crease in mortality or an increase in serious irreversible or incapacitating which these adverse health effects may take place and is then required to set an "ample margin of safety'* below that level The agency has adopted the policy that the standards required by this sec tion of the law can be met through the use of the "best available technology** that would reduce emissions to a point beyond which the costs would be "grossly disproportionate" to the bene fits of lowering the risk to health. Considerations of Health Today the appeals court found that the Congressional mandate requires the Administrator of the E.P.A. to make an initial determination of what is "safe.1* It said this determination must be based exclusively "on the risk to health.** "Under this opinion, the E.P.A, has to particularly under the Reagan Admin istration. However, the court also ruled that, once the environmental agency has determined on health grounds alone what constitutes a safe level of expo sure to a pollutant, it may use consider ations of cost and technological feasi bility to determine what is an "ample margin of safety" to establish beyond the safety level required by the law. The court rejected the contention by the Natural Resources Defense Council that the environmental agency is re quired to bar any emissions of a canccr-causing chemical when there is scientific uncertainty about what con stitutes a safe level of exposure. The decision stated that the court was requiring a review of the vinyl chloride standard because the E.P.A. had not determined the health risks in volved. But it added that the agency did not have to find that "safe** means "risk free." It also said that Lhc finding of the court was "limited** in that it was not intended to bind the agency "to any specific method of determining The decision reverses, in part, a 2-to- 1 decision reached by a three-member panel of the appeals court last Novem ber, which rejected the petition to have the environmental agency review its decision not to issue a more stringent standard on vinyl chloride. Judge Bork was one of the two judges to rule against the petition at the time. Judge Bork's role in this case pro vides some support for two themes that he and his supporters in the looming confirmation battle over his nomina tion to the Supreme Court have stressed in seeking to rebut charges that he is a rigid conservative ideo logue far from the mainstream of legal thought. The fact that he changed his position in the case after it was reheard by the entire 11-man court supports the view that he does not invariably prejudge issues on the basis of his overall philos ophy and can keep an open mind. The fact that his opinion on an ideo logically charged issue of great com plexity and some importance was signed by all JO other members of a I The court granted a petition by the reversible illiness." The environmen be able to look people in the eye and tell what is safe** or whal const itues an court that is deeply divided between Natural Resources Defense Council, a tal agency is required to adopt a stand them they are safe from a cancer-caus "ample margin." liberals and conservatives supports the ' private environmental group, asking ard that first determines the maxi ing air pollutant," said David D. Donig- Lawyers for the E.P.A. and for the view that he is capable of consensus that the E.P.A. be required to review mum amount of a pollutant beyond er, a lawyer for the Natural Resources vinyl chloride institute, as well as Mr. building, at least when he wants to be. +e r. ,, i r.. If-'l- : TH in.'1 * * -I i.'hr'to -4 m+T-' i ! irt -hl-Hf H? 1 -i- 1 ? H |u- .r*m 0001172416