Resisting regulation with blue ribbon panels.

AuthorMcGarity, Thomas O.
  1. INTRODUCTION

    Modern health, safety, and environmental regulations rely heavily on scientific information. Consequently, disputes over the reliability of scientific studies, the proper interpretation of scientific data, and the inferences that may appropriately be drawn from an existing body of scientific information arise with great regularity as agencies like the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA), and the Food and Drug Administration (FDA) go about their day-to-day business of implementing protective regulatory statutes. (1) These disputes typically raise issues of such mind-numbing complexity that they are virtually incomprehensible to agency decision makers who generally lack scientific training in the specific areas of scientific knowledge that those disputes invoke. Decision makers must therefore rely upon scientists who are familiar with the relevant research to assess the quality of the scientific studies, interpret the scientific data, and define the range of proper conclusions that can be drawn from the data. At the same time, however, the existing body of scientific information is rarely sufficient, by itself, to dictate a "scientifically correct" resolution of such disputes, and regulatory decisions necessarily turn on both scientific information and regulatory policy. (2) Regulatory decision makers therefore face the daunting task of resolving scientific disputes, defining where the science stops and where the policymaking begins, and determining the content of the policy that must necessarily fill the gaps left by incomplete or inadequate scientific information.

    One tried and true decision-making aid in this context is the "blue ribbon panel," which is composed of neutral experts charged with answering specific questions that have been carefully crafted to limiting the panel's input to scientific issues while leaving the policymaking to agency decision makers. (3) The relevant agency can either appoint the blue ribbon panel on its own or contract with an outside body, like the National Research Council of the National Academies of Sciences (NAS), to assemble the panel and oversee its deliberations. In fact, Congress frequently requires agencies to enter into such contracts with NAS to address especially controversial scientific issues. (4) When such panels can achieve consensus, their reports can be very useful to the agency, both for the information that they provide, and for the legitimacy that they can lend to the agency's ultimate decision. Because the "blue ribbon panel" approach is time-consuming and expensive, it is not appropriate for every regulatory action involving science, but it is ideal for especially contentious scientific disputes that otherwise tend to paralyze regulatory decision-making.

    Because science plays such a prominent role in the regulatory process, and because the science is invariably contestable, the entities that regularly participate in that process have a strong incentive to present the existing body of scientific information to the agency in a way that advances their preferred regulatory outcomes. One way for a regulated entity to accomplish this result is to assemble its own "blue ribbon panel," populate it with scientists who are likely to resolve disputes consistently with the regulated entity's preferred policies, charge the panel with questions that encompass both science and policy, and subtly attempt to influence the outcome of the panel's deliberations. (5) The panel members are paid generous honoraria or are hired as consultants, and they are flown, all expenses paid, to commodious locations for their periodic meetings. (6) The staff support that the regulated entity provides to the panel creates a built-in mechanism by which it can shape the panel's deliberations. Scientists from the regulated entities are made available to offer input and advice, but the meetings are otherwise typically private affairs. (7)

    This Article will explore the use and abuse of "blue ribbon panels" by regulated entities in regulatory decision-making involving contested scientific issues. Part II of the Article will present a case study of one company's use of such a panel to avoid more stringent regulation of the manufacture of the metal beryllium. Drawing on the beryllium case study and other examples gleaned from news reports and the literature, Part III will explore the implications of widespread use of this technique for fair and effective health, safety, and environmental decision-making. Finally, Part IV will offer some suggestions for how regulatory agencies should approach industry-sponsored blue ribbon panels.

  2. THE BERYLLIUM BLUE RIBBON PANEL

    Beryllium is an extremely light, but exceedingly strong metal that is used in a variety of consumer goods ranging from cell phones and golf clubs to dental fixtures. (8) Because the primary use for beryllium in its early years was in the nuclear weapons industry, the history of its adverse effects on human beings is clouded in secrecy. (9) For decades, the primary producer of beryllium, the Brush Wellman Corporation, and the primary user of beryllium, the federal defense agencies, attempted to belittle the health risks that beryllium posed to workers and neighbors of beryllium plants. (10) In their efforts to prevent OSHA and EPA from promulgating protective regulations limiting human exposure to beryllium, they took every opportunity to "manufacture uncertainty" about the science documenting the fact that exposure to beryllium caused lung cancer and a debilitating and usually fatal disease called chronic beryllium disease (CBD), or berylliosis. (11) The primary vehicle that Brush Wellman employed for this purpose was a blue ribbon panel called the Beryllium Industry Scientific Advisory Committee (BISAC).

    1. Beryllium Manufacture During the Cold War

      During World War II, the federal government entered into contracts with Brush's predecessor and other companies to provide beryllium to several government-run laboratories associated with the Manhattan Project. (12) As this massive effort proceeded ahead in complete secrecy, it became clear to government health officials that some small proportion of the workers who were exposed to beryllium dust in laboratories and fabrication plants were suffering from a debilitating lung disease that resulted in shortness of breath and ultimately death. (13) When the officials recommended that the government take measures to reduce workplace exposures to beryllium, the federal facilities and some of their private contractors began to supply respirators to workers, but they took little additional action in the press to develop the atomic bomb for the war effort. (14)

      Soon after the war ended, however, a secret report circulating within the newly created Atomic Energy Commission (AEC) noted that the federal government was "acutely interested in maintaining and expanding production of beryllium." (15) The report cautioned that if the incidence of berylliosis in workers became known outside the defense establishment, the outbreak "might be headlined, particularly in non-friendly papers, for weeks and months," and this might in turn "seriously embarrass the AEC and reduce public confidence in the organization." (16) Rather than risk that embarrassment and a potential reduction in beryllium supplies, the AEC and its contractors decided to keep the incidence of berylliosis under wraps. (17)

      After a 1943 outbreak of berylliosis among workers and neighbors of a beryllium plant in Lorain, Ohio threatened precisely the public relations fiasco that the AEC feared, it took steps to reduce exposures to beryllium at beryllium processing and weapons manufacturing plants throughout the country. (18) AEC scientists determined that neighbors should be exposed to no more than 0.01 micrograms per cubic meter ([micro]g/[m.sup3.]) in the ambient air, a number that became the very first federal ambient air quality standard years before the enactment of the Clean Air Act in 1970. (19) A workplace exposure standard was more difficult to promulgate, because it would have been impossible to limit exposures in some workplaces to 0.01 [micro]g/[m.sup.3] at a cost that government and industry officials were willing to pay at the time. (20) The federal workplace limit of 2.0 [micro]g/[m.sup.3], established in 1949, grew out of a taxicab conversation between an AEC scientist and a medical consultant. (21) That standard remains in place to this day. (22)

      For the next twenty-five years, the original standards were enforced not through regulations backed up by civil and criminal penalties, but through clauses in the contracts between AEC and its successor agency, the Department of Energy (DOE), and the private government contractors. (23) This posed a clear institutional conflict of interest, because the AEC and DOE were also responsible for ensuring a continuing supply of beryllium for the nuclear weapons arsenal. (24) Indeed, the very same official was in charge of purchasing beryllium for the AEC and for enforcing the safety provisions in the purchase contracts. (25) While this official faced very little pressure from uninformed workers and neighbors to ensure that the standards were not exceeded, he faced enormous pressure from the military to keep the beryllium supplies flowing. When the AEC threatened during the 1960s to cancel one contract because of safety violations, a general called the relevant agency official to ask: "What are you, out of your goddamn-picking mind? I've got submarines out there. We need missiles." (26) The official soon left the agency to become a top executive at Brush Wellman. (27)

    2. Beryllium Risks to Workers

      Although the government had established a 2.0 [micro]g/[m.sup.3] limit for worker exposure to beryllium, workers were routinely exposed to levels exceeding 100 [micro]g/[m.sup.3] during the 1950s. (28) The owner of the...

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