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Environmental Health Letter*MyL, T9/r4v' ^
EPA to conduct a study.
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The bill also authorized the government to allocate chlorine so that public water authorities have enough
to purify drinking water.
........
The bill is expected to reach the House floor sometime in July. A possible floor fight over the question
of state vs. federal rights may emerge.
Note: No action yet on the compromise legislation authorizing continuance of comprehensive health
planning programs. A clean bill is being drafted by the House Commerce subcommittee staff for possible con
sideration sometime this month.
PLAINTIFF'S EXHIBIT
APPEALS COURT DECISION GIVES INTERESTING INSIGHT ON HEALTH PROOF:
USX-II13
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The decision of the thiwjudge U.S. Court of Appeals panel which overturned the lower court decision
ordering Reserve Mining to shut down includes some interesting pliilosophy on proof of health effects, which
will have far-reaching implications in future cases, and so we thought we'd share the court's opinion.
After reviewing the pros and cons of the medical evidence, as presented to Judge Lord in the District
Court in Duluth by Drsi Brown of Mayo and Selikoff of Mount Sinai, the appeals court said:
. "We think Doctors Brown and Selikoffshare a common medical concern, but are essentially in agreement
that the discharges here simply have hot been proven to be a demonstrable hazard.
"Interestingly enough, although Judge Lord does on occasion speak of a substantial health danger, based
on the presenceof asbestisform in the environmeht,`a careful reading of his initial and supplemental-memoranda
reveals an acknowledgement, at least in certain instances, that any ill effects are simply beyond proof. This is
indicated in the'negative' findings which Judge Lord sometimes makes. For example. Judge Lord responds to
the small number of excess deaths from rectal cancer in the Duluth area by finding:
`We cannot say that the increase seen, although small in number at this time, is not due to
ingestion by these persons of asbestos from Reserve's taconite waste.'
"Of course, neither can the opposite be said. Perhaps the most revealing statement of all is contained in Judge Lord's initial memorandum:
The state of the scientific and medical knowledge available in this area is in its early stages and
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there is insufficient knowledge upon which to base an opinion as to the magnitude of the risks asso
ciated with this exposure.'
"
"Considering all of the above, we think one conclusion is evident: although Reserve's discharges represent
a possible medical danger, they have not in this case been proven to amount to a health hazard. The discharges
may or may not result in detrimental health effects, but, for the present, that is simply unknown. The relevant
legal question is thus, what manner ofjudicial cognizance may be taken of the unknown.
"We do not think that a bare risk of the unknown can amount to proof in this case. Plaintiffs have failed
to prove that a demonstrable health hazard exists. This failure, we hasten to add, is not reflective of any weak
ness which it is within their power to cure, but rather, given the current state o.f medical and scientific knowL
' edge, plaintiffs' case is based only on medical hypothesis and is simply beyond proof.
"We believe that Judge Lord carried his analysis one step beyond the evidence. Since testimony clearly
established that an assessment of the risk was made impossible by the absence of medical knowledge. Judge -
Lord apparently took the position that all uncertainties should be resolved in favor of health safety. Since
the appropriate threshold level for safe toleration of fibers was urikno'wn, the district court tipped the balano
in favor of attempting to protect against the unknown and simply assumed that Reserve's discharge presents
a health hazard.
"In doing so, he disregarded the tissue studies of his own experts which provided direct evidence to the
contrary. If we are correct in our conclusion that evidence does not exist in the record on which to find
Reserve's discharges to be unsafe, the district court's determination to resolve all doubts in favor of health
' safety represents a legislative policy judgment, not a judicial one."
It was this language which EPA cited as constituting "an overly restrictive burden of proof for the Govern
ment." and which formed the basis of its request to the Justice Department to appeal the decision "to the Supreme-
Court. Justice, however, respectfully declined to do so pending further action by the company.
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DR. SENCER DENIES CDC IS REDUCING RAT, LEAD CONTROL PROGRAMS: -
HEW's Center for Disease Contro^^fitrary-to rumbrs, has rtfcrirerduced the^seope of thc jat.-and lead con trol programs since the demise of the Bureau of Community Environmental Managementrinsists Dr. David J. \