Friday, September 29, 2006

PLF Petition To Define “Waters Of The United States”

Sep 27: Pacific Legal Foundation (PLF), who brought and argued the Rapanos v. United States case before the U.S. Supreme Court last term, announced that it has formally petitioned the Federal government to change the regulatory definition of “waters of the United States” to reflect Congressional intent and the United States Supreme Court’s interpretation in the recent Rapanos decision. PLF said the petition is part of a major new Clean Water Act litigation project known as “Beyond Rapanos: Charting a Course to Liberty.”

According to the rulemaking petition filed by PLF the immediate adoption of new regulations, consistent with the intent of Congress as interpreted by the Supreme Court in Rapanos, is vital to the public interest. PLF argues that based on the Court’s findings, the government’s current interpretation is unreasonable and invalid. Principal Attorney Reed Hopper, who argued Rapanos said, “For 30 years, the public has been subject to uncertain and inconsistent jurisdictional standards that have been the hallmark of Clean Water Act enforcement. It is time for action and time for a change.

PLF indicated that their Beyond Rapanos project will be a major focus of the foundation’s efforts for several years to come and will center on defending victims of Clean Water Act enforcement actions throughout the country. Hopper said, “PLF is actively pursuing litigation all over the United States that will, once and for all, return common sense and the rule of law to enforcement of the Clean Water Act. At every turn, PLF will be working to effect change and rein in government’s unjustified power over property owners who are being victimized by unreasonable enforcement of the Act.”

Last month, PLF announced the filing of its first “Beyond Rapanos” case – Fairbanks North Star Borough v. United States Army Corps of Engineers. According to PLF, this case is one of the first to test the Corps’ interpretation of the Clean Water Act following the Rapanos decision. In Fairbanks, PLF sued the Army Corps of Engineers over what they called arbitrary enforcement of the Clean Water Act on land that is frozen to a depth of 20 inches. In this case, PLF is representing an Alaskan Borough which they say is "simply attempting to build playgrounds and athletic fields on a two-acre parcel. The land has no hydrological connection to navigable waters of the United States yet the Army Corps of Engineers asserts that the land is suitable for regulation under the CWA because it includes areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions."

Aside from the PLF efforts, two Circuits of the U.S. Court of Appeals have recently provided interpretations of the confusing 4-4-1, U.S. Supreme Court decision in Rapanos -- the Seventh Circuit, USA v. Gerke Excavating, Inc. (September 22, 2006) [See WIMS 9/25/06]; and the Ninth Circuit, Northern California River Watch v. City of Healdsburg (August 10, 2006) [See WIMS 8/11/06].

Access a release from PLF with links to the petition and related information including a list of Rapanos-related cases (click here). Access the WIMS-eNewsUSA Blog post on the Seventh Circuit, USA v. Gerke Excavating, Inc., September 22, 2006 decision of the Seventh Circuit with links to that opinion and additional information (click here). Access the WIMS-eNewsUSA Blog post on the Northern California River Watch v. City of Healdsburg, August 10, 2006,decision of the Ninth Circuit with links to that opinion and additional information (click here). Access the complete June 16, 2006, Supreme Court Rapanos opinion and syllabus (click here). [*Water]

Thursday, September 28, 2006

EPA Changes Air Quality Monitoring Regulations

Sep 28: U.S. EPA has issued a final rule changing its national air quality monitoring regulations as part of a strategy to update technology and keep pace with more advanced approaches to air quality management. EPA says the changes will help it and states, tribes and local air quality agencies better protect and inform the public about air quality in their communities. Reflecting extensive independent scientific review and public input, the rule will change the locations of some types of monitors, add new monitors for some pollutants, and allow states and tribes to shut down unneeded monitors for some pollutants. The rule also will add more monitors capable of providing real-time measurements for some pollutants.

The changes affect monitoring for six common pollutants known as "criteria pollutants" and the pollutants that form them. The six pollutants are: ground-level ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide, particulate matter and lead. There will continue to be a national network of monitors for each criteria pollutant, but EPA said the improved network will be more strategic and more efficient. Ambient air monitoring systems play a critical role in the nation's air quality management program infrastructure. They are used for a wide variety of purposes, including providing data used to determine whether areas are meeting the National Ambient Air Quality Standards. Other important uses of the monitors include: support of timely reporting of the Air Quality Index and issuing air quality forecasts, support of long-term health assessments, and tracking long-term air quality both to gauge effectiveness of emission control strategies and to quantify accuracy of supporting model evaluations.

The ambient air monitoring amendments will require each state to operate one to three monitoring stations that take an integrated, multipollutant approach to ambient air monitoring. A number of the amendments relate specifically to PM2.5, revising the requirements for reference and equivalent method determinations (including specifications and test procedures) for fine particle monitors. The final rule will become effective 60-days following publication in the Federal Register.

Access a release (click here). Access a fact sheet on the rules (click here). Access a prepublication copy of the 522-page final rule (click here). [*Air]

Wednesday, September 27, 2006

Agreement Reached On Chemical Facility Security

Sep 26: An agreement reached last week by Senate Homeland Security Committee Chairman Susan Collins (R-ME) and House Homeland Security Committee Chairman Peter King (R-NY) on bipartisan chemical security legislation has been approved by a Senate-House negotiating panel and will be included in the Department of Homeland Security Appropriations Conference Report for FY07 (HR 5441) [See WIMS 9/25/06]. The agreement give DHS three-year authority to regulate certain “high-risk” chemical plants. Senator Collins said, “This is major step forward in our efforts to better secure our homeland. Many homeland security experts, including [Department of Homeland Security (DHS)] Secretary Chertoff, have said time and time again that our nation’s chemical facilities pose a threat that must be immediately addressed. Our chemical security provisions, which represent two years of work and negotiations with a number of my colleagues, will, for the first time, provide DHS with the authority to require security measures at more than 3, 400 chemical facilities. The bill provides the Secretary with the strongest possible authority to enforce those standards by empowering the Secretary to shut down a facility that does not meet security standards. This is critical legislation, and I am pleased that it will be included in the DHS spending bill.”

The Collins-King agreement included in the DHS Appropriations Act Conference Report would: For the first time, give DHS the authority to require high-risk chemical plants to implement security measures; Direct DHS to establish risk-based and performance-based standards for chemical facilities to help protect against terrorist attacks; Require chemical plants to conduct vulnerability assessments and create and implement site security plans based on their specific vulnerabilities, subject to approval by the Secretary of DHS; Give DHS the authority to require compliance with its security requirements, including the authority to audit and inspect facilities, and to shut down a facility if it is not complying; Provide strong interim authority for up to three years until permanent, comprehensive authority is enacted.

The American Chemistry Council (ACC) issued a release urging Congress to act before they adjourn this week. ACC, the leading trade association of the chemistry industry, represents 133 chemical manufacturers who encompass approximately 85% of the chemical production capacity in the United States. ACC President and CEO Jack Gerard said, "Congress just took an important step toward enacting meaningful chemical security legislation. While not perfect, it is a fair compromise that allows the Department of Homeland Security to protect this critical part of the nation’s infrastructure and builds on the leadership demonstrated by our members who have already spent nearly $3 billion enhancing security under the Responsible Care Security Code®. We urge the full Congress to act within the limited time remaining and pass this important legislation that gives the Department of Homeland Security full authority to secure America’s chemical facilities.”

The National Petrochemical & Refiners Association (NPRA), representing 450 companies, including virtually all US refiners and petrochemical manufacturers, also issued a statement saying, "NPRA agrees that the provision should not cover facilities already subject to the extensive security requirements of the Maritime Transportation Security Act (MTSA), and that the regulations should permit each covered facility to select appropriate measures to meet the standards set by DHS. NPRA is pleased that the legislation recognizes the importance of protecting vulnerability assessments and specific site security plans from unwarranted and problematic public disclosure, as does the MTSA. The measure does provide for the appropriate sharing of information with state and local law enforcement officials, along with first responders, whose vital duties may require in-depth knowledge of security-related information."

There were disagreements expressed on the agreement from both Republicans and Democrats. Concerns on both sides were expressed regarding the a concept called Inherently Safer Technology (IST) and its relation, if any, to making chemical sites more secure against terrorist acts. At a Senate hearing on IST in June [See WIMS 6/21/06), Senator James Inhofe, Chair of the Committee on Environment and Public Works said that IST is essentially the idea of giving the Federal government authority to mandate that a private company change its manufacturing process or the chemicals that they use. Some Republican members are concerned that the DHS "shut down" provisions could require facilities to implement IST. Democrats, on the other hand said the agreement was too weak because IST wasn't mandated and language allowing states to develop stronger requirements was not included.

Access a release from Susan Collins (click here). Access a statement and links to additional information from ACC (click here). Access the NPRA statement (click here). Access legislative details for HR 5441 (click here). Access the Senate hearing website on IST for links to all testimony and statements (click here). Access the GAO statement on IST (click here). Access links to the latest media coverage on the agreement (click here). [*Haz]

Tuesday, September 26, 2006

NOAA Reports Recent Cooling Of Upper Ocean

Sep 21: The average temperature of the water near the top of the Earth's oceans has cooled significantly since 2003. The new research suggests that global warming trends are not always steady in their effects on ocean temperatures. Although the average temperature of the upper oceans has cooled significantly since 2003, the researchers say the decline is a fraction of the total ocean warming seen over the previous 48 years. Josh Willis, a co-author of the study at NASA's Jet Propulsion Laboratory, Pasadena, CA said, "This research suggests global warming isn't always steady but happens with occasional 'speed bumps.'" This cooling is probably natural climate variability. The oceans today are still warmer than they were during the 1980s, and most scientists expect the oceans will eventually continue to warm in response to human-induced climate change."

Researchers found that the average temperature of the upper ocean rose by 0.16 degrees Fahrenheit from 1993 to 2003, and then fell 0.055 degrees Fahrenheit from 2003 to 2005. The recent decrease is a dip equal to about one-fifth of the heat gained by the ocean between 1955 and 2003. John Lyman, at the NOAA Pacific Marine Environmental Laboratory in Seattle, WA, and said the recent cooling is not unprecedented. "While global ocean temperatures have generally increased over the past 50 years, there have also been substantial decadal decreases. Other studies have shown that a similar rapid cooling took place from 1980 to 1983. But overall, the long-term trend is warming."

Willis indicated the findings have significant implications for global sea-level rise saying, "Average sea level goes up partly due to warming and thermal expansion of the oceans and partly due to runoff from melting glaciers and ice sheets. The recent cooling episode suggests that sea level should have actually decreased in the past two years. Despite this, sea level has continued to rise. This may mean that sea level rise has recently shifted from being mostly caused by warming to being dominated by melting. This idea is consistent with recent estimates of ice-mass loss in Antarctica and accelerating ice-mass loss on Greenland."

Access a lengthy release from NOAA and links to additional information (
click here). Access a 15-page technical paper on the study (click here). [*Climate]

USA v. Gerke Excavating, Inc. Interprets Rapanos Decision

Sep 22: In the U.S. Court of Appeals, Seventh Circuit (WI, IL, IN), Case No. 04-3941. This is the second U.S. appeals court case to interpret the U.S. Supreme Court 4-4-1 decision in Rapanos v. United States, 126 S.Ct. 2208 (2006) [See links below]. In a brief, but important 5-page decision, the Appeals Court reconsiders its previous decision in this case as a result of the Rapanos decision.

This suit charges that the defendant, Gerke Excavating, violated the Clean Water Act by discharging pollutants into “navigable waters” from “point sources” without having obtained the permit from the Corps of Engineers that is required if the pollutant consists of dredge or fill material. The district judge granted summary judgment for the government and imposed a civil penalty. The Seventh Circuit Appeals Court affirmed that decision on June 21, 2005. 412 F.3d 804 (7th Cir. 2005).

Gerke filed a petition for certiorari with the Supreme Court and the High Court granted the petition, 126 S. Ct. 2964 (2006), and remanded the case to the Appeals Court for further consideration in light of its June 19, 2006, decision Rapanos v. United States, where the Court reversed two judgments by the Sixth Circuit upholding Federal authority over wetlands [See WIMS 6/19/06], as the Seventh Circuit had in the instant case.

On it reconsideration the Seventh Circuit said, "There was, however, no majority opinion in Rapanos. Four Justices, in an opinion supporting reversal, wanted to limit federal authority over 'navigable waters' ... Justice Kennedy concurred in the judgment to reverse but not in the plurality opinion. The four dissenting Justices took a much broader view of federal authority; Justice Kennedy criticized them as well as criticizing the plurality. When a majority of the Supreme Court agrees only on the outcome of a case and not on the ground for that outcome, lower-court judges are to follow the narrowest ground to which a majority of the Justices would have assented if forced to choose. Marks v. United States, 430 U.S. 188, 193 (1977). In Rapanos, that is Justice Kennedy’s ground...

"Thus, any conclusion that Justice Kennedy reaches in favor of federal authority over wetlands in a future case will command the support of five Justices (himself plus the four dissenters), and in most cases in which he concludes that there is no federal authority he will command five votes (himself plus the four Justices in the Rapanos plurality), the exception being a case in which he would vote against federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection. The plurality’s insistence that the issue of federal authority be governed by strict rules will on occasion align the Justices in the plurality with the Rapanos dissenters when the balancing approach of Justice Kennedy favors the landowner. But that will be a rare case, so as a practical matter the Kennedy concurrence is the least common denominator (always, when his view favors federal authority)."

In its final determination on the instant case, the Appeals Court concluded, "Justice Kennedy’s proposed standard, which we conclude must govern the further stages of this litigation, requires factfinding not yet undertaken by the district court. We therefore remand the case to that court for such further proceedings as may be necessary to apply the standard."

Access the complete opinion (
click here). Access the previous, June 21, 2005, decision of the Seventh Circuit in this case (click here). Access the WIMS-eNewsUSA Blog post on the Northern California River Watch v. City of Healdsburg, August 10, 2006, decision of the Ninth Circuit with links to that opinion and additional information (click here). Access the complete Supreme Court Rapanos opinion and syllabus (click here). [*Water]

Friday, September 22, 2006

Harsh & Opposite Reactions To EPA's PM Regulations

Sep 21: The American Lung Association (ALA) released a statement on U.S. EPA's final regulations for establishing National Ambient Air Quality Standards (NAAQS) for fine and coarse particle particulate matter (PM) [See our 9/21/06 post]. While EPA's Administrator Stephen Johnson hailed the regulations as "the strongest national air quality standards in the country's history," ALA said, "We are extremely disappointed with the National Ambient Air Quality Standards for particulate matter pollution announced today by the U.S. Environmental Protection Agency (EPA). Unfortunately, EPA’s standards fail to protect the health of the public, despite the requirement in the Clean Air Act that they must. Overwhelming evidence shows that millions of people suffer unnecessarily -- even face an earlier death -- because they breathe this pollution. EPA could have -- should have -- done better. The American Lung Association recommended much more protective fine particle standards, an annual standard of 12 µg/m3 and a daily standard of 25 µg/m3. ALA indicated, "While almost any improvement in the weak 1997 standards is better than nothing, EPA’s modest revisions cannot be justified. The EPA chose not to tighten the annual PM 2.5 standard, 15 µg/m3 and the 24-hour standard was only lowered to 35 µg/m3.

The State and Territorial Air Pollution Program Administrators/Association of Local Air Pollution Control Officials (STAPPA/ALAPCO) -- the two national associations of air pollution control agencies throughout the United States -- also issued a brief statement saying, "EPA's rule defies the agency's stated principle of 'ensuring that the best available science remains at the center of [its] decision making.' For the first time in its 36-year history, EPA has ignored the recommendations of its independent scientific advisors, as well as agency staff experts, in setting health-based air quality standards. This final action will result in thousands of avoidable premature deaths, and thousands of cases of cardiovascular and lung disease throughout the country. On top of all this, after years of delay, EPA still has not published the rule on how states must implement the 1997 fine particulate standards. In addition, at a time when states and localities are preparing plans to achieve the 1997 standards, the Administration has proposed to slash funding for their clean air programs by over 15 percent."

The American Chemistry Council (ACC) issued a release saying it is "concerned that Environmental Protection Agency’s (EPA) recent decision to change current air quality standards will further drive up the nation's already sky-high energy prices and reduce or restrict affordable energy choices for consumers and industrial users. While ACC supports EPA’s final decision to retain the previously existing annual limit of the National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM2.5), it is disappointed that EPA decided to further tighten the daily limit. The signed final rule retained the current annual standard of 15 µg/m3, while increasing the stringency of the daily standard from the existing 65 µg/m3 to the new standard of 35 µg/m3. EPA’s own analysis shows that the existing PM2.5 standard is more protective than EPA had assumed when it first issued the standard in 1997, and would have continued to provide the necessary public health protection as EPA improves its understanding of fine particulate emissions."

The National Association of Manufacturers (NAM) criticized EPA's new air quality regulations saying they "will impose significant burdens and great costs on U.S. manufacturers." NAM said the “scientific evidence does not show any significant association with health effects at ambient concentrations.” NAM President John Engler said, “Changing the standard now, even while the current standard has yet to be implemented, would move the goalposts during the middle of the game, creating investment and business uncertainty. Manufacturers already spend considerably more on pollution abatement than their global competitors, and imposing excessive and needless new regulations would do nothing to fulfill EPA’s duty to protect environmental quality. This further revision of an air quality regulation is further proof that Congress should step in to streamline contradictory and overlapping programs. Doing so would ensure continued improvement in the nation’s air quality while sustaining economic growth.”

Senator James Inhofe (R-OK), Chairman of the Environment & Public Works Committee commented on the PM regulations saying, “I am disappointed that EPA is tightening the particulate matter standard in today’s final rule. Recognizing that Administrator Stephen Johnson is a scientist himself, I respect his judgment and his command of the science, but I respectfully disagree that this new rule meets the threshold burden of proof necessary to impose these costly requirements on our nation’s economy... “Unfortunately, clean air progress has not been uniform across the country, as some regions are not expected to comply with existing law. Recognizing this fact, I recently introduced legislation to ensure that the nation’s worst polluted areas comply with the laws of the land. The simple fact is that more than half of the avoidable deaths from air pollution in this country occur in California, and most of these lives could be saved if the worst polluted areas were to attain the same clean air standards that the rest of the nation is going to meet."

Senator Jim Jeffords (I-VT) Ranking Member, Senate Committee on Environment and Public Works, issued a statement saying, "I am deeply disappointed by EPA's decision to disregard the advice of its own science advisors. Instead of following their advice by adopting standards that would save thousands of lives, the EPA chose the politically expedient path. We need air quality standards that tell us when the air is safe to breathe, not standards that tell us when the air is only partially safe to breathe."

Other groups issued releases including Sierra Club, Natural Resources Defense Council (NRDC), Earthjustice, the National Environmental Trust (NET), U.S. PIRG [See links below].

Access the ALA release (
click here). Access the STAPPA/ALAPCO website for additional information (click here). Access the ACC release (click here). Access the NAM release (click here). Access the Senator Inhofe release (click here). Access the Senator Jeffords release (click here). Access the Sierra Club release (click here). Access the NRDC release (click here). Access the NET release (click here). Access the Earthjustice release (click here). Access a release from U.S. PIRG (click here). Access the WIMS article on EPA's final regulations on the eNewsUSA Blog (click here). [*Air]

Thursday, September 21, 2006

EPA Issues Final Fine & Coarse PM Air Standards

Sep 21: U.S. EPA announced what it said are the strongest national air quality standards in the country's history establishing National Ambient Air Quality Standards (NAAQS) for fine and coarse particle particulate matter (PM). EPA Administrator Stephen Johnson said, "Regardless of the rhetoric, facts are facts -- today EPA is delivering the most health protective national air standards in U.S. history to all 300-million Americans. As a 26-year EPA scientist, I have spent my career working to hand down a cleaner, healthier environment -- and these stronger air quality standards do just that."

PM is a complex mixture of extremely small particles and liquid droplets in the air (i.e. dust, soot and particles too small to see). The standards address two categories of particle pollution: fine particles and inhalable coarse particles. Fine particles are 2.5 micrometers in diameter and smaller (PM2.5); inhalable coarse particles have diameters between 2.5 and 10 micrometers. Exposure to particle pollution is linked to a variety of significant health problems ranging from aggravated asthma to premature death in people with heart and lung disease.

EPA said its final action significantly strengthens EPA's previous daily fine particle standard – by nearly 50 percent – from 65 micrograms of particles per cubic meter to 35 micrograms of particles per cubic meter of air. This standard increases protection of the public from short-term exposure to fine particles. By revising the daily fine particle standard, it will yield additional estimated health benefits valued at between $9 billion to $75 billion a year. The standards will reduce premature deaths, heart attacks and hospital admissions for people with heart and lung disease. EPA is also retaining the current annual standard for long-term exposure to fine particles at 15 micrograms per cubic meter. Based on recently updated benefits estimates, meeting this standard will result in benefits ranging from $20 billion to $160 billion a year.

EPA said it is protecting all Americans from effects of short-term exposure to inhalable coarse particles by retaining the existing daily PM10 standard of 150 micrograms per cubic meter. This standard protects against premature deaths and increased hospital admissions for individuals with heart and lung disease. EPA is revoking the annual coarse particle standard because the Agency says the available evidence does not suggest an association between long-term exposure to coarse particles at current ambient levels and health effects.

The standards will require significant reductions in air pollution. EPA said the comprehensive clean air strategy established by the Bush Administration gives states the tools needed to meet – and achieve reductions beyond – the national clean air standards. In a release EPA said, "Two of the five rules with the largest projected health benefits in EPA's history have been adopted under the Bush Administration – Clean Air Interstate Rule (CAIR) and Clean Air Nonroad Diesel Rule." CAIR requires the power sector to reduce fine particle-forming sulfur dioxide emissions in the eastern U.S. by more than 70 percent and nitrogen oxides emissions by more than 60 percent. These reductions will help a number of areas meet the particle pollution standards, and CAIR will prevent an estimated 17,000 premature deaths annually. The Clean Air Nonroad Diesel Rule will require significant reductions of direct emissions of fine particles and emissions that contribute to particle pollution formation nationwide.

EPA selected the levels for the final NAAQS after reviewing thousands of peer-reviewed scientific studies about the effects of particle pollution on public health and welfare. The Agency's science and policy review documents were examined by external scientific advisors and the public. EPA said it also carefully considered public comments on the proposed standards. EPA held three public hearings and received more than 120,000 written comments. States must meet the revised standards by 2015, with a possible extension to 2020, depending on local conditions and the availability of controls. Later this month, EPA will issue guidance on monitoring fine and coarse particle pollution. The rules will become effective 60-days following official publication in the Federal Register.

Access a release (click here). Access links to the prepublication copies of the final rule preamble and regulatory text, a fact sheet, maps and modeling estimates (click here). Access additional background on the new standards (click here). Access general information on particulate matter (click here). [*Air]

Wednesday, September 20, 2006

CBO Report Examines Two Methods Of Limiting CO2 Emissions

Sep 19: The Congressional Budget Office (CBO) issued a report entitled, Evaluating the Role of Prices and R&D in Reducing Carbon Dioxide Emissions. According to the report, atmospheric concentration of greenhouse gases, most notably carbon dioxide, has gradually increased over the last century and, in the view of many climate scientists, is warming the global climate. Two policies -- pricing carbon dioxide emissions and encouraging research and development of new carbon-reducing technologies -- have been discussed as methods of limiting current and future emissions. The CBO paper examines available research on the role that those policies might play in encouraging cost-effective reductions in emissions as well as analyses on whether it would be more efficient to implement the policies simultaneously or sequentially. The paper was prepared in response to a request from Senators Jeff Bingaman (D-NM) and James Jeffords (I-VT), the Ranking Members of the Senate Committee on Energy and Natural Resources and the Senate Committee on the Environment and Public Works, respectively.

The report indicates that an efficient response by policy makers is likely to involve two separate types of policies: One type of policy would reduce carbon emissions by increasing the costs of emitting carbon, both in the near term and in the future, to reflect the damages that those emissions are expected to cause. The other type of policy would increase Federal support for R&D on various technologies that could help restrain the growth of carbon emissions and would create spillover benefits.

The report concludes, "Pricing and R&D policies are neither mutually exclusive nor entirely independent -- both could be implemented simultaneously, and each would tend to enhance the other. Pricing policies would tend to encourage the use of existing carbon-reducing technologies as well as provide incentives for firms to develop new ones; federal funding of R&D would augment private efforts; and successful R&D investments would reduce the price required to achieve a given level of reductions in emissions. Neither policy alone is likely to be as effective as a strategy involving both policies..."

Senator Jeffords issued a release on the report saying, "One frequent criticism of mandatory policies to reduce greenhouse gas emissions has been that putting a market price on emissions would be too costly to the U.S. economy. Critics of mandatory greenhouse gas measures have argued that it would be just as effective, and cheaper, to rely simply on the development and voluntary adoption of new technologies. CBO’s economic analysis, contained in the report, has demonstrated the opposite. It found that the way to reduce greenhouse gas emissions in the most cost-effective manner would be to combine a price for emissions with R&D funding. The combination strategy would balance the expected costs and benefits of both policies and achieve results that would not be obtained by either policy in isolation..."

Access the complete report (click here). Access the release from Senator Jeffords (click here) [*Climate]

Tuesday, September 19, 2006

Court Orders EPA To Develop Ballast Water Discharge Regs

Sep 18: According to a release from three environmental organizations (Northwest Environmental Advocates, The Ocean Conservancy, and Baykeeper), a Federal Court in the Northern District of California [Northwest Environmental Advocates v. EPA (North D. Ca.)] has found that EPA’s regulation exempting ballast water discharges from the Clean Water Act is “plainly contrary to the congressional intent,” and has ordered the Agency to develop new regulations in two years. The order follows the court’s finding last year (March 2005) that EPA had illegally exempted ships’ ballast water discharges from Clean Water Act permit requirements. The three organizations filed a petition with EPA in January 1999, requesting it to develop regulations. EPA denied the petition in 2003, which triggered the lawsuit. The ruling directs EPA to take specific action by September 30, 2008 to ensure that shipping companies comply with the Clean Water Act and restrict the discharge of invasive species in ballast water.

Deborah Sivas, Director of the Stanford Law School Environmental Law Clinic and representing the three plaintiff groups, noted that, “If EPA had spent the last seven years developing a permitting program for ballast water instead of fighting this court battle, not only would our water be safer but our economy would be better protected. Invasive species come at a tremendous cost to both the environment and taxpayers.” Nina Bell, Executive Director of Northwest Environmental Advocates, one of the plaintiffs, said the court order will shift some of the burden of invasive species from taxpayers to shippers. She said, “This is a very important ruling for the taxpayers, American businesses, and environment that currently pay the huge price of EPA’s continuing refusal to implement the Clean Water Act. Now we have a fighting chance to prevent further invasions of species that are clogging the intake pipes of drinking water facilities and power plants, harming the commercial fishing industry, and destroying habitat. To regulate ballast water has never required that we reinvent the wheel; the Clean Water Act could have been effectively controlling these discharges for over thirty years.”

In their release the groups said the absence of effective federal action, combined with the high cost of invasive species to the environment, industries, and drinking water sources, has led numerous states to pass their own laws. Michigan will require shippers to have permits by early next year. In California, a bill is pending that would adopt the most strict limitations on the discharge of ballast-borne invasive species in the world. Six Great Lakes states -- New York, Michigan, Pennsylvania, Illinois, Minnesota, and Wisconsin -- joined the environmental groups’ lawsuit to persuade the court to require a Federal permitting program [See WIMS 9/7/05].

Access a posted release (
click here). Access the complete 19-page, March 2005 Federal Court decision (click here). Access the environmental groups complaint and original petition for review (click here). Access a September 2005, release from Michigan AG Mike Cox on the states' intervention in the case (click here). [*Water, *GLakes]

Monday, September 18, 2006

EPA Is Not Conducting Environmental Justice Reviews

Sep 18: U.S. EPA's Office of Inspector General (OIG) has issued a report entitled, EPA Needs to Conduct Environmental Justice Reviews of Its Programs, Policies, and Activities (Report No. 2006-P-00034, September 18, 2006). OIG found that EPA senior management has not sufficiently directed program and regional offices to conduct environment justice reviews in accordance with Executive Order 12898. Consequently, the majority of respondents reported their programs or offices have not performed environmental justice reviews. Though some offices may not be subject to an environmental justice review, the respondents expressed a need for further guidance to conduct reviews, including protocols, a framework, or additional directions. Until these program and regional offices perform environmental justice reviews, the Agency cannot determine whether its programs cause disproportionately high and adverse human health or environmental effects on minority and low-income populations.

Executive Order 12898 was signed on February 11, 1994. In August 2001, the EPA Administrator issued a memorandum reaffirming the Agency’s commitment to environmental justice. On November 4, 2005, the EPA Administrator issued another memorandum reaffirming the Agency’s commitment to environmental justice and directing Agency officials “to implement [EPA] programs and activities to ensure that they do not adversely affect populations with critical environmental and public health issues, including minority and low-income communities.” The 2005 memorandum also directed “EPA to more fully and effectively integrate environmental justice considerations into its programs, policies, and activities” and “to incorporate environmental justice considerations into its planning and budgeting processes.”

OIG recommended that the EPA Deputy Administrator: (1) Require the Agency’s program and regional offices to identify which programs, policies, and activities need environmental justice reviews and require these offices to establish a plan to complete the necessary reviews; (2) Ensure that environmental justice reviews determine whether the programs, policies, and activities may have a disproportionately high and adverse health or environmental impact on minority and low-income populations; (3) Require each program and regional office to develop, with the assistance of the Office of Environmental Justice, specific environmental justice review guidance, which includes protocols, a framework, or directions for conducting environmental justice reviews; and (4) Designate a responsible office to (a) compile the results of environmental justice reviews, and (b) recommend appropriate actions to review findings and make recommendations to the decisionmaking office’s senior leadership. OIG said EPA accepted its recommendations.

Access the OIG report (click here). [*P2]

Friday, September 15, 2006

Hearings On Spent Nuclear Fuel Storage

Sep 14: The Senate Committee on Environment and Public Works, Subcommittee on Clean Air, Climate Change, and Nuclear Safety, Chaired by Senator George Voinovich (R-OH)held an Oversight Hearing on NRC’s Regulatory Responsibilities and Capabilities for Long -and Short- term Spent Fuel Storage Programs. Those testifying at the hearing included: Director, Office of Civilian Radioactive Waste Management, U.S. Department of Energy (DOE); Shane Johnson, Principal Deputy Assistant Secretary, Office of Nuclear Energy, DOE; Executive Director of Operations, U. S. Nuclear Regulatory Commission; President and CEO, Nuclear Energy Institute; and an Independent Energy Consultant.

Senator James Jeffords (I-VT) delivered and opening statement indicating, "Vermont, along with 39 other states, relies on nuclear power for a large portion of its electricity generation. It is an important part of our energy mix. Nonetheless, we must be realistic in dealing with the downsides associated with nuclear power. One of those downsides is finding a way to manage the waste. Throughout my time in Congress, I have continued to work for a comprehensive solution to our nuclear waste problem... I have consistently supported a central storage solution for nuclear waste. I continue to believe that it is essential that we find a permanent, geologic storage site if we are to continue to produce nuclear power... However, I have also made clear my view that Yucca Mountain will not provide this solution, and the project faces many challenges. I have been very concerned that the Yucca site will only take part of the waste, leaving some, if not most of the spent nuclear fuel sitting along the banks of rivers, beside our small communities and our large population centers... Both the Governor of Vermont and the Attorney General of my state have contacted me in opposition to recent proposals for new interim storage..."

Currently more than 50,000 metric tons of spent nuclear fuel is located at more than 100 above-ground sites in 39 states, and every year reactors in the United States produce an additional approximately 2,000 metric tons of spent fuel. The permanent, geologic repository for spent nuclear fuel at Yucca Mountain currently has a "best-achievable schedule"opening date of 2017. DOE testified that that date is predicated upon enactment of the pending legislation -- S. 2589, the "Nuclear Fuel Management and Disposal Act," introduced by Senator Inhofe (R-OK) and Senator Domenici (R-NM). DOE said the bill would significantly enhance the Nation’s ability to manage and dispose of spent nuclear fuel and high-level radioactive waste. The Agency said, "This proposed legislation addresses many of the uncertainties, currently beyond the control of the Department, that have the potential to significantly delay the opening date for the repository." Among five other major provisions in the bill, it would eliminate the current statutory 70,000 metric ton cap on disposal capacity at Yucca Mountain which DOE said would "allow for maximum use of the mountain’s true technical capacity."

The Nuclear Energy Institute testified, that the industry "strongly supports S. 2610," a bill to enhance the management and disposal of spent nuclear fuel and high-level radioactive waste, "since it includes those provisions of the comprehensive legislative proposal submitted by the administration that relate to issues within this committee’s jurisdiction. These provisions should be enacted along with many of the additional provisions in S. 2589... Industry representatives previously have testified in detail on the provisions of S. 2589, including land withdrawal, changes in the regulatory process and the budget treatment of the Nuclear Waste Fund. We also identified the need to address contract provisions related to used fuel for new nuclear plants."
A similar hearing was held before the House Energy and Commerce Committee, Subcommittee on Energy and Air Quality, Chaired by Representative Ralph Hall (R-TX), on September 13. DOE submitted similar testimony in support of H.R. 5360, a companion bill to S. 2589, and introduced by Committee Chairman Joe Barton (R-TX). According to a release from Representative Barton, members of the Subcommittee "were unenthusiastic about funding numerous nuclear waste interim storage sites, instead focusing their attention on legislative fixes to move forward on Yucca Mountain."

Access the hearing website for links to all testimony (click here). Access legislative details for S. 2589 (click here). Access legislative details for S. 2610 (click here). Access the House hearing website for links to all testimony (click here). Access a release from Representative Barton (click here). Access a release from Representative John Dingell (D-MI) (click here). Access legislative details for H.R. 5360 (click here). [*Haz/Nuclear]

Thursday, September 14, 2006

House Hearing On Great Lakes Restoration Strategy

Sep 13: The House Committee on Transportation and Infrastructure, Water Resources & Environment Subcommittee, Chaired by John Duncan, Jr. (R-TN), held a hearing entitled, The Great Lakes Regional Collaboration Strategy: Can it be Implemented to Restore and Protect the Great Lakes? The purposed of the hearing was to receive testimony on the Great Lakes Regional Collaboration Strategy and how it is serving as a framework for restoring and protecting the Great Lakes. The Great Lakes Basin includes part of the States of Minnesota, Wisconsin, Illinois, Indiana, Ohio, Pennsylvania, and New York, all of the State of Michigan, and part of Ontario, Canada. Over 33 million people live in the Basin, representing one tenth of the U.S. population and one quarter of the Canadian population. The Great Lakes constitute the largest system of fresh surface water on Earth, holding 18% of the world’s fresh water supply and 95% of the U.S. fresh water supply. As Chairman Duncan emphasized in his opening remarks, while the Great Lakes are a high priority for the Great Lakes states and Canada, "...the Great Lakes are also important to our entire nation."

Witnesses testifying included: representatives of the Great Lakes and St. Lawrence Cities Initiative; U.S. EPA; U.S. Army Corps of Engineers; U.S. Department of the Interior; Council of Great Lakes Governors; and the University of Michigan,School of Natural Resources & Environment, Michigan Sea Grant program.

The current binational framework for restoring the Great Lakes ecosystem is the Great Lakes Water Quality Agreement that was established in 1972. The purpose of the Agreement is to “restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem.” In 1987, the U.S. and Canada amended the Great Lakes Water Quality Agreement (Annex 2). The purpose of Annex 2 is to strengthen the management of the Agreement, develop ecosystem objectives and indicators, address nonpoint sources of pollution, contaminated sediments, airborne toxins, contaminated groundwater, and improve monitoring. Under the Annex 2 management structure, water quality problems are addressed on a sub-basin, lake-wide, and basin-wide basis. To support the commitments made in the Great Lakes Water Quality Agreement, in 1987, Congress added section 118 to the Clean Water Act. Section 118 established the Great Lakes National Program Office within EPA. Currently, the annual authorization for appropriations for EPA’s Great Lakes National Program Office is $25 million. In recent years, the Great Lakes National Program Office has been funded at a level of approximately $21 million per year.

The governors of the eight Great Lakes states and the premiers of Ontario and Quebec signed the Great Lakes Charter in 1985 to respond to growing interest in diverting water from the Great Lakes to arid regions of the United States. The charter discourages new proposals to divert Great Lakes water, but it has no enforcement provisions. In order to update the regional water management system and ensure that the Great Lakes are protected, the governors and premiers signed the Great Lakes Charter Annex in 2001. Since that time, the Council of Great Lakes Governors has been working to implement the Charter Annex. On December 13, 2005, the Annex Implementing Agreements were signed by the Great Lakes governors and premiers. Once implemented, the signed agreements will provide the necessary framework to help the states and provinces protect the water resources of the Great Lakes Basin.

In 2002, the Great Lakes Legacy Act amended section 118 of the Clean Water Act to authorize $250 million ($50 million a year over five years) for the EPA’s Great Lakes National Program Office to carry out cost-shared projects to remediate sediment contamination in Areas of Concern. Congress has appropriated approximately $61.5 million for the Great Lakes Legacy Act through Fiscal Year 2006. In 1986, section 1109 of the Water Resources Development Act of 1986 required approval of all Great Lakes governors for any diversions of Great Lakes waters outside of the Great Lakes basin.

On May 18, 2004, President Bush signed an Executive Order creating the Great Lakes Interagency Task Force (ITF). The Task Force, under the lead of the U.S. Environmental Protection Agency (EPA), brings together ten Agency and Cabinet officers to provide strategic direction on Federal Great Lakes policy, priorities, and programs for restoring the Great Lakes.
The Great Lakes Regional Collaboration (GLRC) Strategy formed eight Strategy Teams, each focusing on a different issue related to Great Lakes restoration. The Strategy makes recommendations covering eight areas including: Aquatic Invasive Species ($693.5 million/5 years); Habitat/Species ($1.44 billion/5 years); Coastal Health ($15.3 billion/5 years); Areas of Concern ($823 million/5 years); Nonpoint Source Pollution ($1.63 billion/5 years); Toxic Pollutant Strategy ($340 million/5 years); Information and Indicators ($82 million/5 years); and Sustainable Development ($42 million/5 years).

The GLRC reported in the Strategy that some of the recommendations can be implemented promptly without additional funding while others would require substantial increases in expenditures over many years at Federal, state, and local levels. However, on October 28, 2005, U.S. EPA Administrator Stephen Johnson signed and sent to the White House the ITF report. The report dealt a serious blow to the Collaboration's efforts to secure major new funding for Great Lakes restoration. The Task Force report said, "The Federal government strongly believes that the strategy should focus on what can be accomplished within current budget projections." [approximately $5 billion over the next ten years]. The ITF report continued, "The members of the Interagency Task Force have serious concerns with the direction of the GLRC's draft strategy, and strongly urge the GLRC to focus on improving the efficiency and effectiveness of existing programs, based on likely spending levels and shared responsibilities..."

In its testimony before the Subcommittee, EPA did not make any new or additional funding commitments to the Strategy. A representative of the Great Lakes and St. Lawrence Cities Initiative testified that it was disappointed by the lack of funding commitments from the Federal government for the Strategy which is estimated to cost $20 billion to implement fully. It was indicated that the Governors and Mayors had requested an initial $300 million commitment and had agreed to nearly match that amount.

Access the hearing website with links to an extensive background, and all witness testimony (
click here). Access the WIMS/EcoBizPort Special Report on Great Lakes Restoration issues for further background information (click here). Access the WIMS-EcoBizPort Special Report on Water Management In Michigan & the Great Lakes for extensive background and links (click here). [*GLakes]

Wednesday, September 13, 2006

Senate Hearing On Federal Renewable Fuels Programs

Sep 6: The Senate Committee on Environment and Public Works, Chaired by Senator James Inhofe (R-OK), held an oversight hearing on the Federal Renewable Fuels Programs. Opening statements were delivered by Senators Inhofe, Isakson (R-GA), Jeffords (I-VT), Baucus (D-MT), Lieberman (D-CT) and Obama (D-IL). Witnesses testifying included representatives from U.S. EPA, U.S. Department of Energy (DOE) and U. S. Department of Agriculture (USDA). The Renewable Fuels Standard (RFS) passed as part of the Energy Policy Act (EPAct) last year, requires the use of 4 billion gallons of ethanol and biodiesel in 2006. By 2012 that requirement rises to 7.5 billion gallons.

Inhofe indicated, "This is the first of what will be a series of hearings on renewable fuels, especially given the level of bi-partisan interest in the topic and EPA’s continued work on the renewable fuel standard implementation... Several politicians, including the President, and other interest groups have stressed the security implications of importing oil from unstable parts of the world. Yet, corn cannot be the answer. Even under the most extreme hypothetical - if the entire 2005 corn production of 11.1 billion bushels were dedicated to ethanol, the resulting 30 billion gallons of ethanol would represent only 14.5 percent of gasoline use (Congressional Research Service). Corn ethanol proponents must understand that natural gas is a key feedstock in ethanol production. Therefore, policymakers could de facto substitute foreign oil for foreign natural gas. Continuing my earlier example, processing the entire 2005 corn crop of 11.1 billion bushels into ethanol would be approximately 1.5 trillion cubic feet of natural gas. Total U.S. natural gas consumption was 22 tcf in 2005 (CRS). That said, there are certain bright spots on the horizon when it comes to renewable fuels. Cellulosic biomass ethanol could be an important part of addressing domestic transportation fuel needs."

Senator Obama indicated, "I’ve said it many times but our dependence on foreign oil threatens not only our economic security but also our national security. As long as our economic fortunes are tied to the price of oil, our ability to grow our economy and raise the standard of living for our people is threatened. Equally troubling, a large portion of the $800 million we spend on foreign oil each day goes to countries with volatile governments -- places that breed turmoil and terrorism."

EPA testified that based on data of ethanol use so far in 2006, it is expected that in excess of 4.5 billion gallons of renewable fuels will be used in the US this year and therefore the Agency does not anticipate that any deficit will be required to be carried over into 2007, in order to comply with EPAct. On September 7, EPA proposed its RFS regulation projecting it would result in annual cuts up to 3.9 billion gallons in petroleum use and 14 million tons in greenhouse gas emissions.

Access the hearing website and links to all statements and testimony (click here). Access the WIMS article and links related to EPA's proposed RFS posted on the eNewsUSA Blog (click here). Access a related WIMS article, A Critical Look At The Future Of Bio-fuels (click here). [*Energy]

Tuesday, September 12, 2006

NAS Report Addresses Deteriorating U.S. Water Distribution Systems

Sep 7: Much of the 1 million miles of pipes that make up U.S. water distribution systems are nearing the end of their expected life span, and an increasing proportion of waterborne disease outbreaks are linked to contamination of distribution systems, according to a new National Academy of Sciences (NAS), National Research Council (NRC) report -- Drinking Water Distribution Systems: Assessing and Reducing Risks. The report addresses the challenges of protecting and maintaining water distributions systems, crucial to ensuring high quality drinking water. Distribution systems -- consisting of pipes, pumps, valves, storage tanks, reservoirs, meters, fittings, and other hydraulic appurtenances -- carry drinking water from a centralized treatment plant or well supplies to consumers taps. The 1 million miles in the U.S. water distribution systems represent the vast majority of physical infrastructure for water supplies, and thus constitute the primary management challenge from both an operational and public health standpoint. Recent data on waterborne disease outbreaks suggest that distribution systems remain a source of contamination that has yet to be fully addressed.

The issues and concerns surrounding the nation's public water supply distribution systems are many. Of the 34 billion gallons of water produced daily by public water systems in the United States, approximately 63 percent is used by residential customers. More than 80 percent of the water supplied to residences is used for activities other than human consumption such as sanitary service and landscape irrigation. Nonetheless, distribution systems are designed and operated to provide water of a quality acceptable for human consumption. The type and age of the pipes that make up water distribution systems range from castiron pipes installed during the late 19th century to ductile iron pipe and finally to plastic pipes introduced in the 1970s and beyond. Most water systems and distribution pipes will be reaching the end of their expected life spans in the next 30 years (although actual life spans may be longer depending on utility practices and local conditions). Thus, the water industry is entering an era where it will have to make substantial investments in pipe assessment, repair, and replacement.

The report evaluates approaches for risk characterization and recent data, and identifies a variety of strategies that could be considered to reduce the risks posed by water-quality deteriorating events in distribution systems. Particular attention is given to backflow events via cross-connections, the potential for contamination of the distribution system during construction and repair activities, maintenance of storage facilities, and the role of premise plumbing in public health risk. The report also identifies advances in detection, monitoring and modeling, analytical methods, and research and development opportunities that will enable the water supply industry to further reduce risks associated with drinking water distribution systems. The report proposes that U.S. EPA work with states to establish consistent cross-connection control programs and to improve and unify plumbing codes, among other recommendations. An initial report entitled, Public Water Supply Distribution Systems: Assessing and Reducing Risks, First Report, is included as an appendix to the final report.

Access a 27-page Executive Summary of the report (click here). Access the complete 437-page report on-line by chapters (click here). [*Drink]

Monday, September 11, 2006

EPA Proposes Renewable Fuels Standard

Sep 7: Projecting annual cuts up to 3.9 billion gallons in petroleum use and 14 million tons in greenhouse gas emissions, the Bush Administration proposed a Renewable Fuels Standard (RFS) Program designed to reduce the nation's dependence on foreign oil by doubling the use of renewable fuels such as ethanol and biodiesel. The program, authorized by the Energy Policy Act of 2005, will promote use of fuels largely produced by American crops. U.S. EPA Administrator Stephen Johnson said, "For years, our nation's rolling farm fields have filled America's breadbaskets. Now, by helping meet President Bush's renewable energy goals, these same fields are filling America's gas tanks. Under President Bush's leadership, EPA is working with our partners in agriculture and industry to produce solutions that are good for our energy security, good for our environment, and good for the American people."

A national RFS is designed to expand the use of biodiesel and ethanol, creating new markets for farm products and greater energy security. Advanced technologies under development could make it possible to produce renewable ethanol from agricultural and industrial waste at a cost competitive with today's gas prices. The new regulation proposes that 3.71 percent of all the gasoline sold or dispensed to U.S. motorists in 2007 be renewable fuel. Last December, EPA issued a rule implementing the Energy Policy Act's default standard of 2.78 percent for 2006, which will continue to apply through this calendar year. The RFS program is designed to cut petroleum use by approximately 3.9 billion gallons a year in 2012 and reduce greenhouse gas emissions by up to 14 million tons annually.

In addition to preliminary analyses of the economic and environmental impacts, the proposed regulation explains how industry is likely to comply with the RFS for 2007 and beyond. The rule contains compliance tools and a credit and trading system that is integral to the overall program. The system allows renewable fuels to be used where they are most economical, while providing a flexible means for industry to comply with the standard. Various renewable fuels can be used to meet the requirements of RFS program, including ethanol and biodiesel. While the RFS program provides the certainty that a minimum amount of renewable fuel will be used in the United States; more can be used if fuel producers and blenders choose to do so. In 2006, there will be about 4.5 billion gallons of renewable fuel consumed as motor vehicle fuel in the United States. The RFS program requires that this volume increase to at least 7.5 billion gallons by 2012.

Access a release (click here). Access the 239-page notice of proposed rulemaking (click here). Access a 322-page draft regulatory impact analysis (click here). Access a fact sheet (click here). Access EPA's RFS website for additional information (click here). [*Energy]