from the Congress Action newsletter

Above The Law

by: Kim Weissman
May 6, 2001

Try as we might, the nation simply can't seem to get beyond the trash left behind by the former Clinton administration, trash far more serious than the juvenile vandalism of government offices by Clinton staffers.

When the Clinton administration turned its attention to the level of arsenic in drinking water, there was little scientific data on the matter. At the extremes, too much arsenic causes death; at somewhat lower levels, it causes various types of cancers; and at some low levels, it is actually beneficial to humans. The latter is known as the "Hormesis Effect", which says that at certain low levels, normally harmful chemicals (and perhaps also some types of low level radiation, although that hypothesis is disputed) are beneficial. The issues then become, how much do we need, and how much is too much?

Since 1942, the maximum level of arsenic permitted in drinking water in the United States has been 50 parts per billion (ppb). In 1988, the Environmental Protection Agency (EPA) studied the risk of arsenic in drinking water, and arrived at several conclusions: There is "…epidemiological evidence of an association between inorganic arsenic and internal cancers", but that "more studies are needed to determine if arsenic is a nutritional requirement in humans." And the existence of a "nutritional essentiality of trace amounts of inorganic arsenic would affect any interpretation of the health risks at low exposure levels." That is, removal of all arsenic from drinking water could actually be harmful since it appears that we do need some in our diet for good health: "…below a certain threshold, arsenic is not harmful but needed." Since that 1988 study, further evidence has come out throwing the data used in that study into doubt, and there is "…additional uncertainty to the sources used in the EPA report."

In 1996, the EPA requested that the National Research Council (NRC) review the arsenic toxicity data and evaluate the scientific validity of EPA's 1988 risk assessment. In 1999, the NRC released its study. The first recommendation of the new NRC study was that "additional… evaluations are needed to characterize the dose-response relationship for arsenic-associated cancer and noncancer end points, especially at low doses." "Human sensitivity to the toxic effects of inorganic arsenic exposure is likely to vary based on genetics, metabolism, diet, health status, sex, and other possible factors." The NRC finally concluded that the current level of 50 ppb "…does not achieve EPA's goal for public-health protection and, therefore, requires downward revision as promptly as possible." But the NRC did not quantify what level of arsenic would not be harmful, and what level is required for human health.

So, despite the vagueness of the 1999 NRC study, and despite the lack of any quantification of what level of arsenic is beneficial, and what level is harmful, in either the 1988 EPA study or the 1999 NRC study, the Clinton EPA under Carol Browner decided that 5 ppb would be just right. For some reason Bill Clinton didn't like that level, so he decided that 10 ppb would be just right. The essential point, however, is that neither Browner's 5 ppb level, nor Clinton's 10 ppb level, had any basis at all in scientific fact. The NRC suggested that the 50 ppb level should be lower, but did not say how much lower; and both studies concluded that if the level was set too low, it could cause more harm than good, for a variety of reasons. Nutritionally, we need some trace amount of arsenic. And beyond that nutritional need, a study by the AEI-Brookings Joint Center for Regulatory Studies concluded, "We find that the [Clinton 10 ppb] rule probably will result in a net loss of life" (emphasis in original), because the cost to achieve that level will divert money from other essential services, such as providing low income health care, infrastructure repair, and other public spending; in addition to requiring increased local taxes to pay for the costs of upgrading municipal water systems, with the resulting impoverishment of individual taxpayers' ability to pay for other health-related costs.

It therefore becomes essential to scientifically determine what level of arsenic in drinking water is appropriate, prior to mandating some arbitrary level that has no basis in science. Both the 1988 EPA study and the 1999 NRC study concluded that more study was needed, and by suspending Clinton's last-minute mandate, President Bush simply determined to allow that further scientific study to proceed before mandating a reduction in arsenic to the level established by Bill Clinton that could, in fact, kill people.

It is clear that neither Carol Browner (5 ppb) nor Bill Clinton (10 ppb) used any scientific basis to arrive at their respective levels of appropriate arsenic. So the question naturally arises — since Browner and Clinton did not rely on science in setting the standard, what did they rely on? That is the question to which the Landmark Legal Foundation (LLF) sought an answer, and the LLF made a Freedom of Information Act (FOIA) request to the EPA to find out.

According to documents filed in the United States District Court for the District of Columbia, as represented on the LLF website, the following sequence of events occurred during the final months of the Clinton administration:

On September 7, 2000, the LLF filed a FOIA request with the EPA for all records regarding pending rules and regulations pertaining to, among other things, reducing the level of arsenic permitted in drinking water; and seeking information regarding what people or special interest groups may have influenced the issuance of that new standard (since it is clear, as shown above, that the new standard was not based on any science — what was it based on?).

When the Clinton EPA followed the standard Clintonian tactic of stonewalling and failed to reply to the FOIA request from the LLF in a timely manner, on September 29, 2000, the LLF filed a lawsuit to compel compliance, seeking the immediate production of all information relevant to the FOIA request.

On November 21, 2000, the EPA and the LLF reached an agreement whereby the EPA agreed to provide specific relevant information sought under the FOIA request, and to do so within 30 days. By December 21, 2000, the EPA had still failed to comply with its November 21 agreement. On December 28, the LLF filed a request with the EPA that the EPA not remove or tamper with any relevant FOIA information during the presidential transition period.

On January 2, 2001, the LLF filed in the U.S. District Court for the District of Columbia a request for a preliminary injunction, prohibiting the EPA from tampering with information potentially responsive to the FOIA request. Over the opposition of the EPA, on January 19, 2001, Judge Royce Lamberth of the U.S. District Court for the District of Columbia granted the LLF the injunction it sought, and prohibited the EPA from removing, transporting, or tampering with information potentially responsive to the FOIA request of the LLF.

On March 7, 2001, the LLF specifically requested that the office of EPA Administrator Carol Browner respond to its FOIA request, as no documents from Browner's office had as yet been received by the LLF. At that time, the EPA represented to the Court that Browner's office had indeed been searched for relevant information, and that there were no records relevant to the FOIA request in Browner's office. On March 28, 2001, the EPA admitted to the Court that its previous claim was in error, and that Browner's office had not, in fact, been searched for relevant information.

On April 27, 2001, the United States Attorney's Office, representing the EPA in court, further admitted that on January 19, 2001, on the very day that U.S. District Court Judge Lamberth issued his injunction to preserve relevant information, EPA Administrator Carol Browner had the hard drives of her office computer erased. And a week later, on January 26, 2001 — after the Bush administration took office — Browner's Chief of Staff, the Deputy EPA Administrator, and the Associate Deputy EPA Administrator, also had the hard drives of their office computers erased.

During the confirmation hearings of Attorney General John Ashcroft, numerous left-wing Senators tried to portray Ashcroft as such a right-wing ideologue that he would be unable or unwilling to enforce the law if doing so conflicted with his personal beliefs. In responding to those insulting allegations, Ashcroft pledged that he would enforce the law. What those left-wing Senators had in mind, of course, was that Ashcroft enforce the various leftist agendas enacted into law, but those Senators never intended that Ashcroft should actually try to enforce the law against one of their own darlings on the left.

There is now irrefutable evidence, based of admissions by the EPA, that high officials of the Clinton EPA violated the law, violated a court order, and obstructed the administration of justice by destroying relevant evidence. Attorney General Ashcroft has a clear duty to proceed in a timely fashion to enforce the law against those arrogant Clinton administration officials. It will be of particular interest to see the reaction of those same left-wing Senators — particularly Senators Kennedy and Biden — when he does so.

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6 may 2001