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Industry Presses EPA On Letter
RCR Wireless News
Journalist: Jeffrey Silva
September 02, 2002

WASHINGTON-The mobile-phone industry, blind sided by an Environmental Protection Agency letter that could hurt wireless firms at a critical moment in cancer litigation, once again has turned for help to a powerhouse law firm here that represents the world's top tobacco maker and that previously negotiated a research agreement between the Cellular Telecommunications & Internet Association and the Food and Drug Administration.

Arnold & Porter, outside counsel for Philip Morris, has contacted the EPA on behalf of CTIA to set up a meeting about a recent agency letter that raised questions about the adequacy of the government's mobile-phone radiation standard.

The controversial EPA letter could not have surfaced at a worse time for the financially troubled cellular industry.

A federal judge in Baltimore could rule as early as this week on whether an $800 million cancer lawsuit against top wireless carriers and manufacturers goes to trial. If U.S. District Judge Catherine Blake allows the case to move forward, it will mark the first time such a lawsuit has made it to a jury and could give traction to health litigation either pending or waiting in the wings. All previous phone-cancer lawsuits have failed.

Plaintiffs' lawyers representing a cancer victim in one of the lawsuits before Blake included the EPA letter in a recent filing with the court.

CTIA is not acting alone.

The Institute of Electrical and Electronics Engineers, which crafted the cell-phone radiation exposure standard and is a defendant alongside CTIA and its members in health lawsuits, is drafting a letter to protest the July 16 letter written by Norbert Hankin, of the EPA's Radiation Protection Division.

"Arnold & Porter, which represents us on a number of issues, is assisting us procedurally to arrange a meeting with EPA. The purpose of the meeting is to seek clarification of Mr. Hankin's letter and how this reconciles with previous public statements by EPA and other government agencies," said Jo-Anne Basile, vice president of external and industry relations at CTIA. Basile last week said planning for the EPA meeting was in a preliminary stage.

EPA and Arnold & Porter did not return calls for comment.

Basile declined to identify the Arnold & Porter lawyer enlisted by CTIA. Basile said it is not Arthur Levine, an Arnold & Porter lawyer who represents Philip Morris and who crafted a 2000 research pact between the cellular industry and FDA. That research effort, a follow-up to previous industry-funded studies that found genetic damage from low-level radio-frequency radiation, has yet to yield any results.

To date, most research has failed to identify a definitive link between mobile phones and brain cancer. Most of the research is being conducted outside the United States. Vermont lawmakers soon are expected to introduce new legislation calling for more government research on radiation from mobile phones and communications transmitters.

In his letter to The EMR Network, Hankin stated: "The FCC's exposure guideline is considered protective of effects arising from a thermal mechanism but not from all possible mechanisms. Therefore, the generalization by many that the guidelines protect human beings from harm by any or all mechanisms is not justified."

The wireless industry insists Hankin's letter is a departure from previous EPA pronouncements on the mobile-phone radiation standard adopted by the Federal Communications Commission. The EMR Network, which unsuccessfully challenged the FCC standard in court but continues to press the agency on the question, believes Hankin is on solid ground.

It turns out, EPA is ambiguous on this point.

In several letters to the FCC between 1996 and 1999, EPA officials embraced the FCC radiation standard and, in one correspondence, played down potential risks of non-thermal, or non-heating, effects of mobile phones.

"It therefore continues to be EPA's view that the FCC exposure guidelines adequately protect the public from all scientifically established harms that may result from RF energy fields generated by FCC licensees," Robert Brenner, EPA's acting deputy assistant administrator for air and radiation, told the FCC in April 1999.

However, in the same letter, Brenner acknowledged a few studies had reported non-thermal effects "that may have biological consequences." Since the 1999 Brenner letter, additional studies have claimed biological effects-some adverse-from a non-thermal mechanism.

Moreover, in 1993 comments to the FCC, Margo Oge, then-director of EPA's office of radiation and indoor air, stated: "The thesis that the 1992 ANSI/IEEE recommendations are protective of all mechanisms of interaction is unwarranted because the adverse effects level in the 1992 ANSI/IEEE standard is based on a thermal effect."

ANSI is the American National Standards Institute.

Among the limited studies in progress in the United States is government-sponsored research by the National Toxicology Program-an arm of the National Institutes of Health-on whether chronic exposure to mobile-phone radiation causes non-thermal effects.

This is not Hankin's first run-in with industry. Past statements by Hankin have irked industry and prompted lobbyists to go over his head. In most cases, industry has succeeded in getting the EPA to write a letter that embraces the FCC standard without expressly overruling Hankin. That is likely the result industry seeks in the latest flare-up. But this time around, industry-already facing a slew of cancer lawsuits that could grow in number if the Baltimore case goes to trial-appears to be attaching an even higher priority to the Hankin letter.

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