Name:______________________________

(please print) .

Midterm Examination I

October 17, 2003

Instructions: Please answer the questions (on the paper provided. Please staple your answers (in numerical order) to the test. If appropriate, sign the pledge below.

Pledge:

I pledge my honor that on this examination I neither gave nor received assistance

and that I saw no dishonest work.

Signed:____________________________

¥Check to indicate if you have left the pledge blank intentionally.

1. Please read the following article from the Minneapolis Star Tribune, then answer the questions which follow. [30 points]

W.R. Grace documented asbestos dust

Greg Gordon, Star Tribune Washington Bureau Correspondent

Published January 25, 2003

WASHINGTON, D.C. -- At least four sets of data, some stemming from manufacturer W.R. Grace & Co.'s own air samplings in the 1970s, have documented unsafe levels of asbestos dust in vermiculite insulation.

Attic tests in Montana, Washington state and Canada since 1997 measured airborne asbestos fibers at levels 50 times the federal worker exposure limit and higher. But the government has yet to warn homeowners or workers who spend much of their time in attics.

Officials at the Environmental Protection Agency (EPA) said Friday they were unaware of some of the test data and were trying to obtain them. They said they expect to do more to inform the public within the next two weeks.

Sen. Mark Dayton, D-Minn., saying he is appalled by the agency's delay, called EPA officials "criminally negligent."

"It's the worst kind of betrayal of the public trust to walk away from the lives of fellow citizens," he said. "I don't know how they can live with themselves. . . . To withhold that information from the public is immoral and despicable."

Tom Simons, an EPA environmental specialist, said the agency has been "pushing" for completion of the study and is "about to make more public information available." EPA officials also say they are being meticulous so that any action they take will stand up to legal challenges.

Grace contends the insulation has never harmed anyone. But its documents, introduced in property owners' class-action suits against the company, show that its air samplings in 1977 exceeded 4.5 asbestos fibers per cubic centimeter and some were above 10 fibers -- far above the current worker exposure limit of 0.1 fiber.

Workers and homeowners have expressed deep concerns about recent revelations of the insulation hazards. Mark McLaughlin, one of more than 100 Minnesota weatherization inspectors who move from attic to attic checking the energy efficiency of low-income households, said he has worked around vermiculite in "hundreds of attics" over the past 20 years.

"I'm a little disturbed," said McLaughlin, who lives in Apple Valley. "They could easily give us a warning so we could provide more protection for ourselves. . . . I was hoping to have a nice retirement, not a short one."

Which federal act or acts, discussed in our reading or in class, likely regulate exposure to airborne asbestos? Explain your reasoning for including this (these) acts. Would these acts be in the U.S. Code or the Code of Federal Regulations? Explain.
Property owners and former Grace employees have sued the company citing unsafe exposure to asbestos fibers found in vermiculite products manufactured by W.R. Grace. The class-action suit against W.R. Grace is a civil action governed by the principles of common law. What do the parties of the suit have to establish in order to prevail under common law? What standing, if any, does Mark McLaughlin have against W.R. Grace?

Senator Dayton is clearly frustrated by the amount of time it is taking the EPA to release information concerning asbestos exposure to individuals in private homes insulated with vermiculite manufactured by the W.R. Grace corporation. To the best of your knowledge, is this delay a violation of any statute or regulation? Is it criminally negligent? Do you agree with the senator or with the agency?
Student Choice:

Please answer EITHER question 2 and two parts of question 3, OR four parts of question 3, skipping question 2 entirely.

2. Describe the significance of each of the following to environmental regulation and policy formation. Give examples in which these entities have been used in an argument for or against a particular regulatory initiative. [30 points]

Commerce power
Legislative delegation
Regulatory takings

3. SHORT ANSWER. Answer 2 of the following 6 questions if you have answered question 2, above. Answer 4 of the following 6 questions if you have skipped question 2. You will not get credit for additional work. Your answers should be brief and concise. Each is worth 15 points.

a. What is the difference between the Clean Air Act’s treatment of criteria pollutants and HAPs? What explains this difference? Do you think this differential treatment vulnerable to a court challenge? Explain.

b. Distinguish between air pollution emissions and air pollution exposure. How do they relate to each other? Which is limited by the NAAQS? Which is regulated through the SIPs?

c. Describe the NPDES of the Clean Water Act, paying particular attention to its emphasis on uniform effluent standards. How has the emphasis on effluent standards contributed to the present problems we face with both non-point source pollution and impaired use of our nation’s waterways?

d. Offer a critique of the EPA’s interpretation of “unreasonable risk” as a standard in both the Federal Insecticide, Fungicide and Rodenticide Act and the Toxic Substances Control Act.

e. Describe the American Antiquities Act, and its role in the conservation of national resources. What changes to the act are being proposed by the Republican majority in Congress? Why would Congress seek to modify a 130-year-old law?

f. What challenges does the GATT prohibition on trade sanctions based on PPM pose for the environmental policy maker? Please give examples to illustrate your answer.