NRDC: The Challenge of Nonionizing Radiation – A Proposal for Legislation / 1979

Once again, progress threatens to roll right over the regulators, leaving them to clean up the mess, as has been the case with air and water pollution.

In this in-depth and timely article, Karen Massey, project attorney for the Natural Resource Defense Council warned, as others had, of health and environmental hazards from microwave exposure when microwave ovens and CB radios were the primary microwave consumer products, and cellphones were still on the horizon.

From the Duke Law Journal

The Challenge of Nonionizing Radiation: A Proposal for Legislation
By Karen Massey


From the Introduction:

Nonionizing radiation is an important factor in the life of every member of an advanced technological society. This is particularly true of American society with its space program, its sophisticated weapons systems, its highly developed electronics products, and the world’s most advanced national communications system-all of which use nonionizing radiation, generally in the microwave and radio frequency ranges. Most Americans are probably unaware of either the pervasiveness of nonionizing radiation or the controversy surrounding its status as a pollutant and a health hazard. In the last decade, however, both the scientific community and the United States Congress have begun to pay more attention to this form of energy and its impact on our lives. Very recently, their concerns have begun to trickle into the general public domain, popularized by a series of articles in the New Yorker by Paul Brodeur, recently expanded and published in his book, The Zapping of America.’ Unfortunately, America’s inventors and entrepreneurs move much more swiftly than its scientists, politicians and publicists; while the latter investigate and deliberate, the American public is presented with an array of consumer products such as CB radios and microwave ovens. Once again, progress threatens to roll right over the regulators, leaving them to clean up the mess, as has been the case with air and water pollution.

The purpose of this Article is to assemble the available information on radio frequency and microwave radiation in a systematic way, and to present it accurately as both a primary agent of progress in the second half of the twentieth century and a potential threat to man’s environment. The Article attempts to assess the immediate need for a regulatory system that would control nonionizing radiation in the public interest and offers a critique of the existing system, or lack thereof, for controlling such radiation. It makes a plea for a legislative solution and offers some suggestions for dealing with what may be the most complex yet in a line of pollution problems that tax the individual talents of both the scientists and the policymakers, as well as their ability to bridge the gap between their two spheres of action.

PDF p. 59-61

…[E]ven with additional knowledge, there are problems with the practical operation of the hazards-effects distinction when dealing with a national ambient standard for an extremely varied population. Different people react differently to the same stimulus. For example, even moderate exercise can cause hazardous physiological changes in some individuals. If their doctors have informed them of this hazard, they may choose not to engage in such activity, or to ignore the medical advice, knowing the possible consequences. It is well established that more stringent standards are needed for involuntary risks such as subjecting persons to high ambient levels of nonionizing radiation whenever they sit on a terrace or walk down a street. In setting standards, the at-risk population to be protected must be identified. For example, Congress has determined that in setting ambient exposure standards under the Clean Air Act, “public health” means the health of the most sensitive members of the population.334 In the present case, this group might include persons wearing electronic cardiac pacemakers or those having metal bone pins. If these persons are included, then the general American population standard must be lower than that which protects the average healthy person, since some electronic cardiac pacemakers, at least, have been shown to be affected at very low levels of NEMR.335 Alternatively, it might be possible to redesign and better shield these pacemakers336 and to substitute other materials for bone pins, but some provision must be made for the wearers in connection with setting health standards. In addition, research may point to other population groups who, for nonmodifiable physiological reasons, are likely to suffer from exposure to levels of nonionizing radiation that would not be hazardous to the average person

p. 62

The fact that the benefits of the pollution in question are so great — national defense, essential communications, first amendment values — may even enhance the need for such a standard confining the operation of cost-benefit analysis. One commentator analyzes the situation thus:

Society’s historical empirical approach to arriving at acceptable balances of technological benefit and social cost by trial, error and subsequent corrective steps create in advanced societies today a critical situation for two reasons: 1) the difficulty in changing a technical subsystem once it has been woven into the economic, political, and cultural structures and 2) the techniques for societal diffusion of a new technology and its subsequent exploitation are now so highly developed that widespread use of a new technological development may occur before its social impact can be properly assessed and before any empirical adjustment of the benefit-versus-cost relations is obviously indicated.346

The very fact that society places a high value on defense and communications makes them likely to develop more rapidly than other technologies and to become instantly “essential.” Since traditional market mechanisms have failed to account for health costs, health protection requires special governmental attention. Other efforts may be made within the process of cost-benefit analysis to deal with this problem, but the health-based pollution standard serves as a necessary safeguard in a preventive program.

Footnote 346
Advisory Committee on the Biological Effects of Ionizing Radiation, Nat’l Acad. of Sciences, “Considerations of Health Benefit-Cost Analysis for Activities Involving Ionizing Radiation Exposure and Alternatives” (1977) [hereinafter cited as BEIR II REPORT]

346. BEIR II REPORT 23. Such thoughts have been echoed in several court opinions in recent years. See, e.g., Ethyl Corp. v. EPA, 541 F.2d 1, 6 (D.C. Cir.), cert. denied, 426 U.S. 941 (1976) (“Man’s ability to alter his environment has developed far more rapidly than his ability to foresee with certainty the effects of his alterations. It is only recently that we have begun to appreciate the danger posed by unregulated modification of the world around us, and have created watchdog agencies whose task it is to warn us and protect us, when technological ‘advances’ present dangers unappreciated-or unrevealed-by their supporters.“); Soucie v. David, 448 F.2d 1067, 1080 (D.C. Cir. 1971) (“The public’s need for information is especially great in the field of science and technology, for the growth of specialized scientific knowledge threatens to outstrip our collective ability to control its effects on our lives.”)

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