Government
Complex issues surround lead-in-air standards EPA, Idaho, and lead smelter are embroiled in claims and counterclaims about source of lead and levels of lead that harm human health In sad, sober tones the mother of six recounted her personal tragedy to Congressmen assembled to review the Environmental Protection Agency's progress in revising air quality standards for six of the seven criteria pollutants, a task EPA must complete by Dec. 31,1980. This mother's tale, part of the House Subcommittee on Health & the Environment's first day of hearings, centered on lead, a toxic metal that EPA did not begin to regulate until 1978. Her saga took the Congressmen to a neighborhood called Deadwood Gulch in the town of Smelterville, Idaho, once the closest community to the Bunker Hill Co. lead smelter. The community no longer exists. A lead scare in 1974 induced the company to buy and burn the hundred or so homes there, relocate the people, and reseed the leveled land with grass. The woman, Janice Dennis, testified after EPA officials. Her testimony was moving. In a carefully modulated voice, she infused the hearing room with the human side of the standards-setting process. Her story played counterpoint to the dry, predictable government recitation of progress to date. Her account also illustrates, says subcommittee chairman Henry A. Waxman (D.-Calif.), "the questions that arise in setting ambient standards." Who should be protected? What is an adverse health effect? What is an adequate margin of safety? Smelterville and the nearby larger city of Kellogg sit in a narrow mountain valley scarred by the miner's ax over the past hundred years. Land around the Bunker Hill smelter has yielded rich lodes of lead, zinc, and 22
C&ENDec. 10, 1979
silver. Refining these yields sends voluminous quantities of toxic metal particles into the air, which then fall to earth to be redeposited on the topsoil. Smelter workers and their families, especially their young children—the most sensitive population—then breathe and eat these toxic particles. Monthly lead emissions from the smelter have averaged as low as 8 tons and as high as 35 tons after a fire destroyed abatement equipment in the main filtration facility in 1974. Even after the company repaired the equipment, which followed close on the heels of the 1974 lead scare, EPA still recorded process lead emissions of 150 tons per year, process fugitive lead emissions (primarily from materials handling) of 120 tons per year, and fugitive lead emissions from roads and open areas around the smelter of 20 tons per year in 1977. On occasion, ambient lead levels in Kellogg have been registered at 10 times the 1978 standard of 1.5 micrograms per eu m. Obviously, the Bunker Hill smelter is not in compliance with the lead standard. But the standard can't be enforced until the state writes its implementation plan defining how it and its industries will comply. The state claims that it can't develop the plan until it can differentiate better between emissions from Bunker Hill's stacks and materials-transfer points and those from lead-laden dust kicked up on roads by cars, or carried on the east-west winds that blow along the valley trough. The state is now doing this. According to EPA, however, Bunker Hill contends that the high ambient lead levels in communities around its plant result not from smelting operations, but from leadladen dust along roadways and open areas. The problem, the company claims, is a community not a company problem. Company problem or not, in 1974 Idaho called in the federal Center for Disease Control to survey children living within a 20-mile radius of the smelter. Philip J. Landrigan, a medical epidemiologist at the center (now
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CIRCLE 24 ON READER SERVICE CARD 24
C&ENDec. 10, 1979
with the National Institute for Occupational Safety & Health), was involved in that survey of more than 1000 children. He told the subcommittee that the 1974 survey found increased absorption of lead by inhalation and ingestion—then defined as blood lead levels of 40 micrograms per 100 ml or more—in 99% of young children living within 1 mile of the smelter, and in 42% of all children living within 20 miles of the plant. Lead causes injury to bone marrow, where red blood cells are produced; to the nervous system, including the brain; and to the kidneys. Landrigan and his colleagues found red blood cell damage and injury to the nervous system in Kellogg children. Dennis' children took part in the 1974 survey. From the spring of 1974 until December 1975, her children lived one-half mile from the smelter, and played in the school yard that abutted the smelter stacks. They were found to have very high blood lead levels, and were later diagnosed as having "brain damage due to lead poisoning." The brain damage is irreversible and the Dennis family, along with another family, is suing Bunker Hill for $20 million. The company doesn't expect the case to be tried until late next year. And a former state medical official volunteers that a cause-and-effect relationship will be difficult to prove, although that doesn't preclude a favorable ruling for the Dennis family. Bunker Hill spent $125,000 to fund the Shoshone Lead Health Study to refute Dennis' claims that lead damaged her children. The state of Idaho, with some federal involvement, retested children for absorbed lead. EPA monitored stack and fugitive emissions, and the state measured lead in soil and vegetation. In 1975* the Shoshone Project was able to conclude that despite the high airborne lead levels, the children of Kellogg and Smelterville had no "permanent clinical impairment or illness." Landrigan disagrees. He contends that questionable scientific methods and the exclusion from the Shoshone study of children found to have had high blood lead levels in his study result in an underestimation of potential lead problems. Nevertheless, Bunker Hill's director for public relations, Tom Tennent, says that the company "still feels that the Shoshone Project was well done." John Mather, then the state medical officer assigned to the project and now a consulting physician with the Idaho Department of Health & Welfare, has continued to test some of the children annually, though not those relocated by the company in 1975. He
finds that "almost all the children tested have blood lead levels below 60 micrograms per 100 ml, and the majority are below 40 micrograms per 100 ml." Smelterville's children "do not have increased body burdens of lead," Mather says. He insists that lead ingestion, not inhalation, is the serious problem and that diets rich in zinc, calcium, vitamin D, and iron may somehow protect children against lead damage. The Kellogg area, he adds quickly, is rich in zinc. The Center for Disease Control has asked the state for permission to return to Kellogg to retest the children, and thereby make its 1974 study more exhaustive. The state is considering the request, but Mather says that a decision will not be made before March 1980. Mather adds that the decision must take into account that "the people of the community don't want it done," that they want no more federal involvement. Mather himself is finding it difficult to continue his annual blood surveys. One reason may be that the children bear no gross signs of ill health. They continue to perform well on the President's physical fitness test. And yes, Cassandra Tate, a free-lance writer familiar with the Bunker Hill saga, says: "The people in the community do see the feds as posing a tangible threat to their livelihood." She continues, "Faced with the tangible threat to the checkbook, and the intangible threat to the health of their children, they choose the tangible threat." The lead industry is not so philosophical. It merely claims that EPA's ambient lead standard, which is set to produce blood levels below 30 micrograms per 100 ml, is excessively protective of health and, therefore, punitive. Although Bunker Hill has threatened to shut down the smelter if forced to comply with the current standard, it may have reconsidered this ultimatum inasmuch as the price of lead is rising dramatically. In addition to the escalating lead prices, other factors have converged to make lead smelting a very profitable business. For instance, no smelter has been required to add new pollution abatement equipment in the past two years. The industry also is immune to the spiraling price of fossil fuel because the fuel in smelting is sulfur. And finally, most of the seven primary lead smelters in the U»S. have not been socked with rising labor costs because labor contracts have generally been long-term. Still, in small towns along the South Fork of the Coeur d'Alêne River, where smelting is the primary industry, and overt signs of illness in
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25
children are missing, it is understandable that the people will opt for jobs. However, lead is continuously being spewed into the air, and, as children are progressively exposed to this toxic metal, symptoms of physical and mental damage may become more overt and, as with Dennis' children, may be irreversible. Lois Ember, C&EN Washington
Changes in patent law, policy are likely The White House Domestic Policy Review on Innovation disappointed a number of people (C&EN, Nov. 5, page 6), but apparently it has provided a needed impetus in at least one area—patent reform. A sweeping overhaul of the U.S. patent system has not been considered in Congress since 1976, when a major bill passed the Senate but never even got out of committee in the House. And it won't be considered by the 95th Congress either. The legislation that is being considered now and has a good chance of success, particularly with Administration backing, would make smaller but still important changes in U.S. patent law and federal patent policy. In his innovation messsage to Congress, President Carter asked for passage of legislation that would establish a uniform government policy toward inventions discovered under government-supported research. Under the Carter proposal, the government would retain title to the patent, but the contractor who made the invention would be given an exclusive license to market it under certain conditions. Small businesses and universities would be allowed to retain title outright to patents grow-
Bayh: reduce court proceedings 26
C&EN Dec. 10, 1979
ing out of federally funded research. Carter also supports legislation giving the Patent & Trademark Office greater authority to re-examine patents already issued and creating a new court to handle patent appeals. A number of House and Senate committees already have considered legislation along the lines suggested by Carter, and the innovation message appears to have provided the final push. Action right now is centered in the Senate, but it is likely that the House won't be far behind. On Oct. 30 the Senate approved an omnibus court reform bill that includes creation of the requested new court to handle patent appeals. On Nov. 20 the Senate Judiciary Committee sent to the floor a bill sponsored by Sen. Birch Bayh (D.-Ind.), who appears to have become the Senate patent man, that would allow universities, nonprofit organizations, and small businesses to obtain limited patent protection on discoveries that they have made under governmentsupported research. Then on Nov. 30 the Judiciary Committee held hearings on another bill introduced by Bayh, S. 1679, which, he says, is designed to remedy the frequency with which patent holders are in lengthy court proceedings, when valuable patents are challenged on the grounds that the patent examiner missed pertinent data during the initial patent search. The cost of such litigation to both parties frequently exceeds $250,000 and as a result, he says, many independent inventors and small business owners are susceptible to being "blackmailed" into allowing infringements on their patents or are forced to license them for nominal fees to avoid going to court. Under the Bayh bill, the Patent & Trademark Office would be given the authority to re-examine issued patents either on its own initiative or at the request of any person. Under the present law only the patent owner can obtain a re-evaluation by the patent office of the validity of a patent on the basis of newly discovered prior art. A third party can question the validity of a patent only by challenging it in federal court. The bill, with one dissenter, drew enthusiastic support from the patent attorneys and small businessmen testifying at the hearings. And the new patent commissioner, Sidney A. Diamond, termed it a "long-overdue modernization" of the patent system. He believes that by limiting re-examination to consideration of prior patents and printed publications, the patent office would be given a task that it can perform effectively at a reasonable cost. D
Federal Alert— new legislation This C&EN report lists new legislation introduced between Oct. 16 and Nov. 28. Senate and House bills are listed according to areas of interest by bill number, primary sponsor, and the committee(s) to which each bill has been referred. SENATE Business. S. 1980—Hatch (R.-Utah). Transfers Federal Trade Commission's judicial authority in antitrust cases to federal district courts; referred to Judiciary. Health. S. 1939—Glenn (D.-Ohio). Establishes federal radiation protection council, federal conference on research into biological effects of ionizing radiation; referred to Governmental Affairs. Research. S. 1993—Hart (D.-Colo.). Requires 12% of all Department of Energy R&D funds be awarded to small businesses; referred to Energy & Natural Resources. Trade. S. 1916—Javits (R.-N.Y.). Authorizes operations by Overseas Private Investment Corp. in People's Republic of China; referred to Foreign Relations. HOUSE Business. H.R. 5976—LaFalce (D.-N.Y.). Establishes uniform product liability tort law that would pre-empt existing state liability tort laws; referred to Interstate & Foreign Commerce. Environment. H.R. 5675—McClory (R.-lll.). Requires EPA to establish that a drinking water contaminant poses a substantial health hazard before regulating it; referred to Interstate & Foreign Commerce. H.R. 5749—Florio (D.-N.J.). Sets up fund, based on producer fees, to pay for cleanup of abandoned hazardous waste dumps; referred to Interstate & Foreign Commerce, Public Works & Transportation. H.R. 5764—LaFalce (D.-N.Y.). Coordinates federal acid rain programs, sets up 10-year effort emphasizing research in first years to mitigate problem; referred to Interstate & Foreign Commerce, Science & Technology. H.R. 5819—McCormack (D.-Wash.). Establishes 12 regional low-level radioactive waste burial sites; referred to Interior & Insular Affairs, Interstate & Foreign Commerce. Research. H.R. 5881—Vanik (D.-Ohio). Provides tax credits, deductions for companies that support basic research in universities; referred to Ways & Means. Safety. H.R. 5642—Clay (D.-Mo.). Applies occupational safety and health standards to federal workplaces; referred to Education & Labor, Post Office & Civil Service. Taxes. H.R. 5665—Ullman (D.-Ore.). Restructures federal tax system by imposing 10% value added tax, reduces social security, income taxes; referred to Ways & Means.
