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Abstract: For the first time ever, the Environmental Protection Agency is attempting explicitly to define “acceptable” risk. The D.C. Circuit Court of Appeals recently ordered EPA to base national emission standards for hazardous air pollutants under section 112 of the Clean Air Act on a finding of “acceptable risk”. In response to this decision in Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency (“Vinyl Chloride”), EPA has proposed four alternative approaches for determining acceptable risk in recently proposed NESHAPs for benzene and radionuclides. These alternative approaches have attracted a great deal of attention, since EPAs eventual decision on which of the four approaches to adopt will set the precedent for all future section 112 rulemakings and may have important implications for other environmental regulations in the future as well. The four alternative approaches have, not surprisingly given the stakes involved, provoked considerable disagreement between industry and environmentalists over which is the best approach for determining acceptable risk. This Comment summarizes the Vinyl Chloride decision and the EPA’s recent benzene and radionuclides proposals, then reviews the response of environmentalists and industry to EPA’s proposed approaches, and finally analyzes hot acceptable risk decision should be made for section 112 standards.
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