Title: How Safe is Safe?
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Permanent Link: http://ufdc.ufl.edu/UF00052856/00001
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Title: How Safe is Safe?
Alternate Title: Waterstone, Marvin and Lord, William B. "How Safe is Safe? Phi Kappa Phi Journal. Winter 1989
Physical Description: 5p.
Language: English
Creator: Waterstone, Marvin ( Author )
Lord, William B ( Author )
Spatial Coverage: North America -- United States of America -- Florida
General Note: Box 5, Folder 22 ( SF - SIGNIFICANT NUMBERS ), Item 10
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00052856
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

l ^, ,o

-~ V

H Marvin Waterstone and William B. Lord

ow Safe is Safe?

n July 31, 1976 a flash flood raced down Colo- threat of nuclear war. Some of those risks, such as the
rado's Big Thompson canyon. Within just a few health risks of cigarette smoking, we assume voluntarily
hours this event, so large that it might be ex- and with prior knowledge. Others, such as the health
pected to occur only once in 300 years, had claimed at effects of domestic water supplies contaminated by in-
least 139 lives and imposed recovery costs estimated at dustrial chemicals, are imposed upon us involuntarily,
$56,000,000. Before the flood of 1976 most residents of often without our knowledge or consent.
the canyon thought they were safe. Those who survived We are just beginning to think effectively about risk
had learned they were not. Experts knew some day the and its management; about how safe is safe, and what to
Big Thompson would suffer a flood like that of 1976, and do about managing risk. Engineers still design dams and
huge losses would then occur; the only uncertainty was levees to control the "standard project flood" (a flood as
when they would occur, large as they can imagine might occur) without balancing
The Big Thompson flood losses could have been pre- potential damages averted against the costs of such
vented or reduced by several kinds of actions. A major projects. Water supply systems are designed to provide
upstream flood-control dam could have been built to "firm yield" (enough water to supply demands during a
intercept and store flood waters for later, gradual re- drought as severe as any on record), without comparing
lease. However, such a dam would have been extremely the costs of enduring some degree of water shortage with
costly, both in construction expense and in the loss of the costs of building and maintaining system capacity
many miles of magnificent canyon environment. Sites for that is rarely used and without examining water conser-
human activities (residences, commercial establish- vation and other nonstructural measures of adapting to
ments, and the highway which served both them and drought. Water quality standards are set on the basis of
visitors to Rocky Mountain National Park) could have tests of the disease-causing effects of short-term inten-
been removed from the canyon, but that, too, would sive exposure of laboratory animals to potential pollut-
have been costly, both economically and politically. A ants, and only imperfect knowledge of the effects of
sophisticated and relatively inexpensive flood warning low-level, long-term exposure on human beings. Stan-
system could have been installed. Such a system might dards for carcinogens are based on a concept of "zero
have prevented all or much of the loss of life, but it would threshold" (i.e., any amount may cause harm) and there-
have been much less effective in reducing property dam- fore are set at those levels which available monitoring
ages. None of these actions had been taken. What, if technology permits us to detect.
anything, should have been done? Decisions about acceptable risk levels are derived in
The Issue of Acceptable Risk. To ask what should have a variety of ways. The standard project flood, for ex-
been done before, during and after a disaster such as the ample, represents an accepted professional standard.
Big Thompson flood is to ask how risk (which we use to The one in one million cancer risk level (frequently ap-
mean possible undesirable consequences of uncertain plied in setting water quality standards) is based upon
future events) should be managed. Risky situations accepted, but unexamined past practice. These deci-
which call for appropriate policies and actions are wide- sions about acceptable risk and how to achieve it are
spread in water management and use, as they are in all made by a mix of scientists, engineers, other technical
facets of human life. We are never completely safe, experts, and public policymakers. Experts may be well-
whether from the threat of natural events, such as flood- qualified to identify the hazards which can cause dam-
ing or drought, or from the unintended consequences of ages, to estimate the likelihood of loss, and to describe
our own action, such as contamination of groundwater options for managing resultant risk. But are they as well-
supplies or the failure of dams. qualified to make the trade-offs which are required (since
On a broader scale, we are exposed continually to risk reduction is never cost free), to determine how much
risks from natural hazards, such as earthquakes and risk is acceptable to others, and what risk management
tornadoes, and to human-caused risks, such as automo- measures are most desirable? Such decisions involve
bile and airplane accidents, and to the ultimate risk, the value judgments as well as factual ones. Experts by


a, O Courts

moved enough phosphorus from the sewage treatment suming and complicated process. Who has a stake? Who
plants and because it would have done nothing to reduce doesn't? And, who has the right to decide which parties
nitrogen loadings. The dispute threatened to block $29 have a stake? One test for determining who has a stake
million of EPA sewage treatment construction grants to in a dispute consists in asking who has the ability to block
the state. the implementation of an agreement, if one is reached.
In October 1981, the state invited mediator John Mc- Again, consultation is often the key to success.
Glennon to help them resolve the dispute, but gave the 4. Environmental disputes can be significantly morecom-
participants only until the end of the year to work out a plicated than the negotiations with which most parties are
satisfactory resolution. After consulting with a steering familiar. Such negotiations often involve multiple par-
committee representing key interests, the mediator de- ties, organizations not individuals, multiple issues with
veloped a two-stage process. At a preliminary meeting, a high degree of technical and scientific complexity, and
the mediator convened scientists and technical repre- parties with greatly different resources to deal with the
sentatives of the various parties to establish a common complexity. Although expertise in negotiation and me-
understanding of what was known, not known, and in diation can be helpful in dealing with some complexities,
dispute about the water quality of the Patuxent. A three- such expertise alone may not always be sufficient. The
day meeting involving 40 people representing the diverse incentive to negotiate in the first place may require sug-
interests in the Patuxent River followed, from which a gesting a novel, cost-effective, management proposal,
consensus nutrient control strategy emerged. based on an understanding of the parties' needs and
Key portions of the long-term strategy included: re- interests. Or, the resolution of differences may require
duction of both phosphorus and nitrogen loading of the organizing ajoint fact-finding effort. These problems can
river from sewage treatment plants in the upstream coun- be handled; they just make resolving environmental con-
ties, development of a plan for control of nonpoint- flicts more difficult.
source pollution in the downstream counties, and a ma- 5. Planningfor implementation is critical. Reaching an
jor experiment in sewage disposal on land. A month after agreement isn't enough. The parties care about a solu-
the agreement was reached, the state of Maryland issued tion to their problems, not simply words on paper. Thus,
its plan embodying the terms of the agreement, and im- identifying and including those who can block the im-
plementation of the plan began shortly thereafter. plementation of an agreement is essential. And, analysis
What Have We Learned? This case and numerous of the political, economic, and technical feasibility of
other examples over the past decade have demonstrated options should be an integral part of the information
that negotiation and mediation approaches offer useful before the parties as they negotiate with one another.
opportunities for those affected by environmental prob- Conclusion. The interest in "alternative" approaches
lems to reach mutually acceptable decisions that can for resolving natural resource disputes often has its or-
satisfy their interests and their sense of what is in the igins in dissatisfaction with litigation and other tradi-
public interest. However, the path to resolving conflicts tional decision-making processes. Even at great cost,
may not be easy, and several clear lessons have been litigation still provides few opportunities to deal satis-
learned. factorily with the real issues in dispute. Parties rarely
1. Effective conflict resolution requires facing the differ- stop to ask what each others' real needs are or make the
ences that divide people. Although conflict makes some effort to engage in a joint analysis of complicated scien-
people uncomfortable, it is only by acknowledging and tific or technical problems.
listening to the concerns of others and by learning how Rather than presuming that litigation is bad, however,
to deal with differences that adversaries can challenge negotiation and mediation processes are better viewed as
themselves and one another to invent more creative so- additional tools that may or may not be more effective or
lutions to problems. more efficient in particular circumstances. Often, pre-
2. Attention must be given to the assumptions on which cedents are at stake, the other side refuses to negotiate,
conflict resolution processes are based. How the agenda for or technical decisions rendered by an expert are valued
a negotiation is defined, who gets to play, and what rules by the parties.
of the game are set, are decisions crucial to whether the Negotiation and mediation have demonstrated re-
interests of all parties truly will be met. It is always markably positive results, but litigation, administrative
tempting to tell others what the agenda for negotiation procedures, and other public processes remain impor-
will be, but it is much better to ask what their concerns tant options. Water resource disputes are so diverse that
are as well. For example, it is unlikely that a group, no single dispute-resolution process is likely to be suc-
concerned about the impacts of a proposed water proj- cessful in all situations. With the growing sophistication
ect, will be comfortable with an agenda that only in- in and success of negotiation and mediation, there is now
eludes mitigation measures and avoids a discussion of a broader array of effective options for resolving differ-
the degree to which conservation might be a viable al- ences when they arise. I\
ternative. Consultation and agreement among the parties ...
on such assumptions is a necessary, early step in plan- GAI i t
ning a successful conflict resolution process. GAIL BINGHAM s Vice-President and Diretor of the Pro-
Sn res gram on Environmental Dispute Resolution at The Conserva-
3. In bringing interested parties together, t is better to be tion Foundation. She is a practicing mediator and conducts
inclusive than exclusive. What satisfies one set of the research on the use of negotiation and mediation to resolve
parties to a dispute may not protect the interests of environmental policy issues. Among other publications, she is
others who are not at the table. Shaping the table and the author of Resolving Environmental Disputes: A Decade of
getting the necessary parties there often is a time-con- Experience.

S .. III I . I I . . .I I I I ... .. .

^ How Safe Is Safe?

definition possess certain specialized knowledge not environment is 30,000 times greater than that caused by
available to most of us. Their values, however, may not ingesting 2 liters per day of water with 5 ppb TCE.
represent our own, and in fact each profession holds its Tucson residents wanted assurance that they were
own set of values which are often not those of the public safe from the effects of future exposure to contaminated
it serves. groundwater. Several issues of acceptable risk were
Determining Acceptable Risk. Acceptable risk is a raised by the community. By and large, the reaction of
changeable concept. What it means for a risk to be ac- citizens was that there was not enough scientific infor-
ceptable depends largely upon the context in which the mation to enable the public to judge "acceptable" levels
risk is being evaluated, who is evaluating the risk, and of TCE. Therefore, the conclusion was that the cleanup
the criteria (including the perceptions, attitudes, and efforts ought to utilize the most stringent treatment meth-
values) that are being used. What is an acceptable risk ods in order to achieve the lowest concentrations of TCE
to an individual under one set of circumstances might be possible. Public officials involved in the cleanup proce-
unacceptable under other conditions. Likewise, a risk dures repeatedly emphasized the necessary trade-offs
that is acceptable to some would be seen as unacceptable between risk reduction and additional costs.
to others. A further complication arises in most public After a lengthy feasibility study, a preferred cleanup
resource decisions. In these cases, policymakers must method has been proposed. This would involve pumping
define a societal level of acceptable risk rather than an the contaminated groundwater, putting it through an "air
individual level. This means that the values held by dif- stripper" which allows the TCE to be volatilized and
ferent segments of society (e.g., the elderly, the poor, released into the atmosphere, thus removing it from the
those particularly vulnerable to pollution, and others) water. Nearby residents expressed concern over these
must be weighed against each other by policymakers. To air emissions, but the current official position is that
illustrate these points we now turn to three examples of these are within acceptable risk limits.
water policymaking which require determining accept- Under this plan, contaminated water would be treated
able levels of risk. to a TCE concentration of 1.5 ppb. This is below the one
The Tucson TCE Case. In 1981, organic chemicals used in one million cancer risk level and more stringent than
in the aerospace and electronic industries were detected state and federal drinking water standards. This treat-
in groundwater in southwest Tucson. A monitoring and ment level reflects the public's needs for assurance that
sampling effort delineated a large area of groundwater future water supplies will be "safe." Is this treatment
contamination adjacent to and north of Air Force Plant level worth the expense? Does the reduction in risk (e.g.,
#44, a defense manufacturing plant, owned by the from two excess cancers in one million to fewer than one
United States government and operated by Hughes Air- in one million) justify the increased costs? Clearly the
craft. The major pollutant was a chemical solvent, answer to these questions depends on who is being
trichloroethylene (TCE), which has been declared a asked, who is at risk, and who bears the cost.
"probable human carcinogen" by the United States En- Tucson residents also want to be reassured that there
vironmental Protection Agency (EPA). have not been adverse health effects in their community
As more contaminated wells were discovered, the City due to contaminated drinking water prior to 1981. Al-
of Tucson took the necessary steps to insure that no though the local newspaper won an award for investi-
water would be delivered to its customers with concen- gative reporting of possible epidemiological impacts,
trations of TCE which exceeded the State Action Level preliminary studies did not demonstrate excessive rates
(which can be interpreted as the acceptable risk level) of (i.e., rates higher for the examined categories than other
five micrograms per liter (parts per billion, ppb). Eight areas of Tucson) of adverse health effects for the south-
public supply wells closed because they exceeded the west Tucson area. However, residents have demanded
State Action Level for TCE. full-scale health effects studies in order to address their
The risk associated with 5 ppb of TCE is estimated by concerns. Both the Arizona Department of Health Serv-
the EPA to be two in one million. This means that for one ices (ADHS) and the United States Agency for Toxic
million people drinking 2 liters of water per day (con- Substances and Disease Registry (ATSDR) are now in-
taining 5 ppb TCE) over a 70-year lifetime, up to two volved in investigating these possibilities. Again, the
people could develop cancer as a result of being exposed question of whether these studies are warranted, and
to TCE. To put this in perspective, we know that these whether the expense is justified, depends on who is at
two cancers would be in excess of the 200,000-250,000 risk and who pays for the studies.
people among the one million who would be expected to Septic Tanks. Nearly a third of the nation's population
develop cancer from other sources, must rely upon septic tanks for liquid waste disposal.
Another way to put this risk in context is to compare There are about twenty-two million such individual dis-
the risk of exposure to TCE from drinking water with posal systems in operation, most of them in the eastern
exposure through other pathways. TCE is an extremely United States. Collectively, they discharge over a trillion
volatile organic chemical, and as such can be found in the gallons of water directly to groundwater, the largest sin-
air in most urban environments. Several estimates indi- gle source of such direct discharges.
cate that ambient air in urban settings contains average When properly installed and when properly main-
TCE concentrations equivalent to 23 ppb TCE in water, tained, septic tanks are an effective and safe method of
and a risk of seven in one million, waste treatment. However, they do not work properly
A final comparison is with typical industrial expo- when installed in areas with high water tables, shallow
sures. If one assumes an eight hour day, the weekly soils, slow percolation, or in areas over permeable bed-
occupational exposure of workers with TCE in their rock. They also do not work when their density becomes
-- ---- ------ --- i --

How Safe Is Safe?

too great. Up to one third of existing systems are not observed that the nation was spending millions of dollars
operating safely and effectively for these reasons. each year to control flood damages; yet the magnitude of
Septic tanks which are not operating properly cause those damages was rising, not falling. Further investi-
groundwater contamination with nitrates, phosphates, gation revealed two problems with the national flood
pathogens, heavy metals, other inorganic substances, control program.
system cleaners (including TCE), and other toxic organic First, flood control costs were rising steeply because
chemicals that are poured down the drain. Groundwater those who received the benefits of flood protection
pollution from these contaminants poses an immediate projects were not required to pay their costs. Those
threat to domestic water supplies, particularly where whose flood damages might be reduced or those who
such supplies come from individual wells in close prox- might profit from the sale of flood prone properties vig-
imity to the septic tanks. Such conditions exist in several orously sought such federal projects, even when the
densely settled suburban areas, prospective benefits were far overshadowed by the
Individuals who live in areas threatened by pollution costs, because the general taxpayer, not the project ben-

eficiaries, would pay those costs. The flood plain devel-
opment encouraged by subsequent protection created
"greater vulnerability to future flooding.
"First, flood control costs were rising steeply Second, national disaster relief programs were used to
"bail out flood plain occupants in the wake of flood events
because those who received the benefits of because many of the costs of relief and rehabilitation
flood protection projects were not required to were paid by the public. An incentive to encouraging
pay their costs." unwise and excessive exposure to risk was created by
designers of well-meaning public policy when the risk
was shifted from flood plain residents to the taxpayers.
A program of flood plain zoning and flood insurance was
devised as a more appropriate policy response to this
from their own septic tanks deal with the resultant risks particular water-related risk.
in several ways. Some simply are unaware of the exist- Implications. Several lessons can be drawn from these
ence of the risk. Even when substantial efforts have been cases. In areas of resource management, including water
made to increase their awareness, however, some will resources, most (perhaps all) decisions must be made
deny or ignore the risk. This is especially true of those under conditions of risk and uncertainty. In addition, in
who feel powerless to do anything to reduce the risk. most situations policymakers (and the citizens they rep-
Some will take individual action, such as relying on resent) do not have the choice of reducing risk to zero.
bottled or boiled water. Others will demand collective Therefore, decisions must be based upon a notion of
action, such as extension of public water supplies or "acceptable" risk. The term "acceptable" is slippery,
waste treatment systems. and immediately raises such questions as, To whom is
What is an appropriate governmental response to the the risk acceptable? Under what conditions is the risk
septic tank problem? Should government take all rea- acceptable? As we have seen, particularly in the TCE
sonable steps to inform those at risk of the extent of the and flood policy cases, acceptable risk is a changeable
risk and of available measures to deal with it? Almost concept and depends largely upon the context in which
everyone would say so. Should government go beyond the risk is being evaluated, who is evaluating the risk,
this information-providing role and take active steps to and the criteria (including the perceptions, attitudes, and
manage the risk? Some would say no, that government's values) that are being used.
responsibility ends when people are well-informed. Another set of issues involves the proper roles for
Whatever decisions they then make are appropriate experts and policymakers in the determination of ac-
ones, and it is not the role of government to second guess ceptable risk. Clearly this process for determining risks
them (this is the notion of "informed consent," which we requires the interaction of scientific analysts with public
will elaborate below), policymakers. The scientific role is primarily one of pro-
If government's role should be more active than that viding information and placing the risk analysis in con-
of providing information to support individual decision text. If trade-offs are to be made, policymakers must
making, how much further should it go; and what form understand the nature of the risk and the costs and/or
should it take? Should public funds be used to extend benefits of alternative courses of action. However, at
public water supplies or waste treatment systems to least in a democracy, the final choice must be made by
areas at risk from septic tank pollution? Should the cost individuals (in appropriate cases) or by elected or ap-
of extending such systems be a factor in this decision? pointed policymakers who are accountable to their con-
Should police power be used to regulate where wells and stituents. This ultimate social choice cannot be made
septic tanks may be installed, and thus where people may properly by experts.
live? Would this be more acceptable in places where the The examples also illustrate the complexities of indi-
costs of other methods of reducing risks are higher than vidual versus group choice in the determination of ac-
in areas where they are not? ceptable risk and in defining the proper role of govern-
National Flood Policy. National flood-control policies ment. Who should make such decisions? What standards
illustrate some of the questions which arise when public should be used? When should individuals be allowed to
action in risk management goes beyond the simple pro- define their own risks, and when should government play
vision of information. Many years ago Gilbert White a role in managing risk?

.... ...... .II ... .. ..... I I

S"- How Safe Is Safe?

It is possible to postulate several varied roles for gov- supply contamination. We are unwilling to accept any
ernment (and, consequently, for individuals) in deter- degree of groundwater contamination, even though to
mining acceptable risk levels. Is the role of government avoid it completely will be extremely costly, if it is pos-
simply to provide individuals with enough information to sible at all. Arizona's new groundwater quality protec-
tion program, for example, sets a drinking water quality
...... ____ standard for all of the state's aquifers, whether or not
they are presently used for potable water supply. We

"We seem quite willing to assume substantial seem quite willing to assume substantial risks if we as-
risks if we assume them voluntarily and if we sume them voluntarily, and if we have to bear the costs
S ear t o u i of reducing them ourselves. We seem quite unwilling to
have to bear the costs of reducingassume much smaller risks if they are imposed upon us
selves. We seem quite unwilling to assume involuntarily and if the benefits associated with the risky
much smaller risks if they are imposed upon us activities accrue to others.
The lessons to be learned from the national flood pol-
involuntarily and if the benefits associated icy example further illustrate this point. First, we all
with the risky activities accrue to others." want to reduce our exposure to risk, and if someone else
can be persuaded to pay for that reduction, we will find
risk far less acceptable than if we must pay for its re-
duction ourselves. In this case, "safe" is very safe,

allow them to make their own decisions? Or should gov- indeed. Second, we will find reduction in levels of risk
ernmental policymakers take a more protectionist posi- far more acceptable if we can shift the costs to others
tion and actually intervene to reduce hazardous situa- than if we must bear those costs ourselves. In this case,
tions? Or should government's role lie somewhere "safe" is not very safe at all. Setting a stringent standard
between these positions? These policy orientations lead of acceptable risk can mean spending more for risk re-
to fundamentally different views of risk management and duction than society should pay. Setting a lenient stan-
of the requirements for communicating risk information. dard may mean incurring losses greater than the costs of
Under the first position, which has sometimes been averting them. If we cannot impose the costs of man-
termed "informed consent," the role of government aging risks upon those who would benefit from risk re-
would be seen as primarily that of providing information duction, we may create incentives for individuals to act
and allowing people to make up their own minds regard- in ways which are undesirable for the group. The sum
ing the risks they would be willing to incur (i.e., about total of all of our actions to avoid or shift risk can carry
what constitutes acceptable risk). a price tag far higher than we as taxpayers can or should
What does the term "informed consent" really mean? accept.
How informed does someone have to be to be One question that arises out of all this is: Are these
"informed"? Can risks be communicated accurately? really inconsistencies? As we have stated, risk assess-
Can the risk context be communicated? Are individuals ments vary depending upon the context (i.e., the mix of
able to trade off the risks and benefits reliably? Are perceived risks, benefits, and alternatives) in which the
alternatives analyzed and presented so that various risk is presented, upon the perceived controllability (per-
courses of action can be evaluated? All of these issues sonal) of the risk, upon the magnitude of the likely ad-
require attention if individuals are expected to make verse effects (small vs. catastrophic), and upon a whole
informed choices about the risks they face. host of other considerations. It is quite unlikely that
In many situations, however, individual decisions are analysis will be able to capture all of these components.
not adequate for preventing or reducing societal risks. What is clear, is that it is highly inappropriate to attribute
(This is the case for many water resource decisions, these differential assessments to irrationality. How safe
including the TCE case and the national flood policy is safe? What levels of risk are acceptable? These are
issues.) In these instances, then, governmental agencies complex and challenging questions for water managers,
see their role as necessarily more active in the manage- for others involved in the business of making public
ment of hazards and risks. What does the notion of policy, and for each of us, who ultimately must bear the
consent mean in these cases? Arriving at an understand- risks and the costs of avoiding those risks which we
ing of society's implied consent is extremely difficult, choose to avoid. !B
The final set of issues pertains to the rationality of risk
decision making. We scientists often proclaim that if MARVIN WATERSTONE is Associate Director of the Water
only the public could be educated and informed, their Resources Research Center and Adjunct Associate Professor
of Geography and Regional Development at the University of
perceptions of risk would more closely match our own. Arizona. His major interests are in water policy and planning,
Very-high-probability events are overlooked, while the risk and decision analysis, and the interaction of science and
significance of very-low-probability events is exagger- public policy. WILLIAM B. LORD is Director of the Water
ated. Risk levels accepted in one context are not toler- Resources Research Center and Professor of Hydrology and
ated in other situations. Water Resources at the University of Arizona. He has served
This seems to be the situation in the case of water in two federal agencies and in two nonprofit organizations.


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