Supreme Court Judge Steven Breyer, commenting on the tendency towards administrative zeal in matters of risk regulation, cited a case he adjudicated, United States v. Ottati & Goss. Following a ten-year cleanup of a toxic waste dump in New Hampshire, the site had been mostly cleaned up and all but one private party had settled on the costs. The remaining firm litigated over the remaining $9.3 million, a sum intended to remove a small amount of highly diluted PCBs and "volatile organic compounds" (benzene and gasoline components) by incinerating the dirt.

The 40,000-page record of the cleanup effort indicated, and all parties seemed to agree, that without the extra expenditure, the waste dump was clean enough for children playing on the site to eat small amounts of dirt daily for 70 days each year free of significant harm. Burning the soil, on the other hand, would have made it safe enough for the children to eat small amounts daily for 245 days a year. But in fact there were no dirt-eating children because the area was a swamp. And the parties involved also agreed that at least half of the organic compounds would evaporate by the year 2000.

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