Wednesday, December 20, 2006

U.S. Chamber Wants EPA International Air Program

Dec 13: The U.S. Chamber of Commerce called on U.S. EPA to implement a comprehensive regulatory program to address the impact of air emissions emanating from outside the United States on domestic compliance with clean air rules. Bill Kovacs, Chamber vice president for Environment, Technology and Regulatory Affairs said, "As economies in China and India continue to grow, so will emissions resulting from this economic growth. Governments and businesses seeking to comply in good faith with clean air rules shouldn't be penalized because emissions migrate from overseas."

According to the Chamber, the Clean Air Act provides an answer to this dilemma. Under section 179B of the Clean Air Act [See link below], EPA must approve a state implementation plan (SIP) if the state establishes that it would be in compliance with EPA's air quality rules but for emissions emanating from outside the United States. Despite the existence of this provision for more than a decade, EPA has failed to develop a regulatory program to implement it.

In order to bring relief to states and businesses, the Chamber has filed a petition for rulemaking with the EPA, calling on the Agency to implement section 179B of the Clean Air Act and develop a comprehensive regulatory program that fully addresses the influence of air emissions emanating from outside the United States on domestic air quality and air quality compliance requirements. The program should also provide states with access to the data needed to make this demonstration.

Kovacs said, "Now is the time for EPA to set forth a process that states can use to demonstrate compliance with air quality standards without being penalized for emissions over which neither the states, nor localities, have control. The Chamber urges EPA to promptly implement this longstanding Clean Air Act provision today."

Access a release (
click here). Access the Chamber's 10-page petition (click here). Access the full text of the 1990 Amdendments to the Clean Air Act (click here, then search for "SEC. 179B." [*Air]

Note: During the holidays while we are on our annual break, we will be posting some articles from recent issues of our daily newsletters. We will return with timely daily posts each day on January 2, 2006.

Tuesday, December 19, 2006

NRDC Says Methyl Bromide Exemptions Are Unnecessary

Dec 13: Commenting on U.S. EPA's announced exemptions allowing the production and importation of 9.48 million pounds of the ozone-depleting chemical methyl bromide in 2007 [See WIMS 12/14/06, 12/12/06, & 11/14/06], David Doniger, policy director for the Climate Center at the Natural Resources Defense Council (NRDC) said, "There is enough methyl bromide sitting in railroad tankers and other storage depots to take care of every farmer with a real need for it. With the ozone layer in such serious trouble, the EPA shouldn't allow chemical companies to make even more."

Methyl bromide was supposed to be banned after 2004 under the ozone the Montreal Protocol, and the Clean Air Act. The Montreal treaty and the Clean Air Act allow exemptions only for "critical uses" -- where there are no alternatives. NRDC said EPA continues to allow farmers and agribusinesses who were not given critical exemptions to continue drawing millions of pounds of the chemical from the stockpiles, totaling as much as 6 million pounds in 2005.

The group said, two chemical companies stand to gain the most from what they called the government's "treaty violations" - a chemical maker called Chemtura (formerly called Great Lakes Chemicals), and an importer, Ameribrom (importing methyl bromide from Israel). NRDC said they will earn between $60 million and $80 million from the approximately 20 million pounds of bonus production over the next two years. Methyl bromide currently sells for $3-$4 per pound, but has sold for much more in the past few years, when unnecessary production was occurring.

NRDC said Dow Agrosciences and other companies currently produce viable alternatives to methyl bromide. Doniger said, "EPA is allowing a kind of 'black market' where those who are not supposed to be using this ozone-destroying chemical anymore can still get as much as they want from the stockpiles. There are alternatives, and farmers have been switching to them for years. It's time to stop coddling the laggards and support the leaders."

Access an NRDC release (click here). Access an EPA 11/13/06 release (click here). Access an EPA 12/12/06 release (click here). Access EPA's 12/14/06 FR announcement [71 FR 75385-75406] (click here). Access EPA's MeBr Phaseout website for further details (click here). Access the Montreal Protocol website for additional information (click here). [*Climate, *Toxics]

Note: During the holidays while we are on our annual break, we will be posting some articles from recent issues of our daily newsletters. We will return with timely daily posts each day on January 2, 2006.

Monday, December 18, 2006

Forest Service Exempts Forest Plans From NEPA Review

Dec 15: In a final directive published in the Federal Register [71 FR 75481-75495], the U.S. Forest Service announced that effective December 15, 2006, it was revising procedures for implementing the National Environmental Policy Act (NEPA) and Council on Environmental Quality (CEQ) regulations. The final directive amends Forest Service Handbook (FSH) 1909.15, chapter 30 that describes categorical exclusions; that is, categories of actions which do not individually or cumulatively have a significant effect on the human environment, and therefore, normally do not require further analysis and documentation in either an environmental assessment (EA) or an environmental impact statement (EIS). The amendment adds one such category of actions to the Agency's NEPA procedures for final decisions on proposals to develop, amend, or revise land management plans.

Earthjustice attorney Tim Preso issued a statement on the action saying, "Today's new rule is part and parcel of the Bush Administration's long-running agenda to take the 'public' out of public lands, and hand our national forests over to big energy and timber interests. For the first time since modern forest planning began more than 25 years ago, the Forest Service is seeking to exclude the long-term management plans that govern each national forest from the National Environmental Policy Act (NEPA). This new rule is an attempt to hide the administration's plans for our forests from the public scrutiny required under NEPA... In recent years, the Forest Service has created and widely used a number of categorical exclusions that prevent NEPA review for individual timber sales. Excluding the forest plans themselves from NEPA review means that a great many of the agency's actions will never receive a hard look at all, at any level of forest management, much less involve the public in a meaningful way. Americans have a right to expect more from the agency that oversees our common trust, America's national forests."

In announcing the final directive, the Forest Service said, "The environmental review has documented that writing management plans has no effect on the environment, which qualifies the individual plans of each National Forest for categorical exclusion from individual study under the National Environmental Policy Act... The new rule improves the planning process by actively involving the public at every step. The Forest Service first collaborates with communities to identify how forests should improve in the future. The public participates throughout the process as plans are refined and finalized... forest plan revisions will now take 2-3 years instead of over 5 years with the previous rule. Under the 2005 planning rule, full environmental analysis will continue at the project level where public involvement and the best available science can inform on the ground decision-making."

Access the FR announcement (click here). Access the Forest Service release (click here). Access the Forest Service website for the directive (click here). Access the National Forest Management Act Planning website for additional information (click here). Access an Earthjustice announcement (click here). [*Land]

Note: During the holidays while we are on our annual break, we will be posting some articles from recent issues of our daily newsletters. We will return with timely daily posts each day on January 2, 2006.

Friday, December 15, 2006

DOJ Guidance On Federal Prosecution Of Business Organizations

Dec 12: U.S. Deputy Attorney General Paul McNulty announced during a speech at a meeting of the Lawyers for Civil Justice in New York that the Department of Justice (DOJ) is revising its corporate charging guidelines for federal prosecutors throughout the country. The new guidance revises the Thompson Memorandum, which was issued in January 2003 by then-Deputy Attorney General Larry Thompson and titled the “Principles of Federal Prosecution of Business Organizations.” The memo provides useful guidance to prosecutors in the field through nine factors to use when deciding whether to charge a corporation with criminal offenses.

The guidance continues to require consideration of the factors from the Thompson memo but adds new restrictions for prosecutors seeking privileged information from companies. Specifically, it creates new approval requirements that Federal prosecutors must comply with before they can request waivers of attorney-client privilege and work product protections from corporations in criminal investigations. McNulty said, “Our efforts to investigate and prosecute corporate fraud in the past five years through the President’s corporate initiative have been tremendously successful. With this new guidance, we want to encourage corporations to prevent corruption through self-policing and continue to punish wrongdoers through cooperation with law enforcement.”

The new guidance requires that prosecutors must first establish a legitimate need for privileged information, and that they must then seek approval before they can request it. When Federal prosecutors seek privileged attorney-client communications or legal advice from a company, the U.S. Attorney must obtain written approval from the Deputy Attorney General. When prosecutors seek privileged factual information from a company, such as facts uncovered in a company’s internal investigation of corporate misconduct, prosecutors must seek the approval of their U.S. Attorney. The U.S. Attorney must then consult with the Assistant Attorney General of the Criminal Division before approving these requests.

The guidance cautions prosecutors that attorney-client communications should be sought only in rare circumstances. If a corporation chooses not to provide attorney-client communications after the government makes the request, prosecutors are directed not to consider that declination against the corporation in their charging decisions. Prosecutors are told to request factual information first and make sure they can establish a legitimate need to go further before requesting a waiver of privilege to obtain attorney-client communication or legal advice.

On September 12, 2006, the Senate Judiciary Committee, Chaired by Senator Orrin Hatch (R-UT) held a hearing on, The Thompson Memorandum’s Effect on the Right to Counsel in Corporate Investigations. The hearing dealt with what some are called policies of Federal agencies that prevent executives and employees from freely, candidly, and confidentially consulting with their attorneys [See WIMS 9/18/06 and links below].

On the latest guidance, Stanton Anderson, Senior Counsel to the President of the United States Chamber of Commerce, issued a statement on the so-called "McNulty memorandum" that revises DOJ's policies on attorney-client privilege and said, "While containing some improvements, this new policy does not adequately protect the right to attorney-client privilege, and unwisely ignores many of the recommendations of former senior Justice Department officials, the American Bar Association, and a massive coalition of some of the nation's most prominent business, legal, and civil rights groups."

In a related attorney-client privilege matter, on August 17, 2006, the U.S. Court of Appeals, Sixth Circuit issued an important ruling in Regional Airport v. LFG,LLC (Case No. 05-5754) involving the Comprehensive Environmental Response, Compensation and Liability Act litigation [See WIMS 8/18/06]. On the important first impression issue of disclosure of attorneys "work product," the Appeals Court says, "While the attorney-client privilege protects only confidential communications, the work product doctrine generally protects from disclosure documents prepared by or for an attorney in anticipation of litigation... Prior to 1993, there was general agreement that Federal Rule of Civil Procedure 26 excluded categorically the discovery of attorney opinion work product, even when provided to testifying experts." In 1993, however, Rule 26 was amended to require parties to submit expert reports for all testifying experts." The district court held that the Authority "must disclose all information given to its testifying experts, including attorney opinion work product." The Appeals Court said, "We agree with the district court and the majority view that Rule 26 now requires disclosure of all information provided to testifying experts."

Access a 12/12/06 release from the DOJ (click here). Access the full text of the McNulty 12/12/06 speech (click here). Access the 21-page McNulty Memo (click here). Access the Senate hearing website and links to all testimony (click here). Access the complete U.S. Chamber 12/12/06 statement (click here). Access the Sixth Circuit opinion cited above (click here). [*All]

Thursday, December 14, 2006

EPA Announces Final & Proposed Oil SPCC Regulations

Dec 14: U.S. EPA announced that it is amending certain requirements for facilities subject to EPA's Oil Spill Prevention, Control, and Countermeasure (SPCC) regulations. Originally proposed in December 2005, the final rule amendments streamline the requirements for the owners/operators of qualified facilities with aboveground oil storage capacities of 10,000 gallons or less and certain containers and equipment regulated under the rule. The SPCC regulations require covered facilities to prevent, prepare for and respond to oil discharges. The final rule will provide alternative compliance options for certain regulated facilities. The final rule provides streamlined options for specifically qualified facilities and exemptions from the SPCC regulations for certain vehicle fuel tanks and other on-board bulk oil storage containers.

EPA is also exempting mobile refuelers from the sized secondary containment requirements for bulk storage containers, and removing requirements for animal fats and vegetable oils that pertain to onshore and offshore oil production facilities, oil drilling and workover facilities. In the final rule, EPA is also extending the compliance date for farms to either prepare and implement new SPCC plans or amend existing (maintained) SPCC plans and implement the amended plans until EPA publishes a future rule specifically addressing how farms should be regulated under the SPCC rule.

To provide the regulated community time to implement these modifications, as well as anticipated additional modifications, EPA is also issuing a proposed rule to extend the compliance dates to July 1, 2009 for owners and operators of facilities (with the exception of farms) to amend and implement an existing SPCC plan or in the case of new facilities, time to prepare and implement a new SPCC plan.

Nothing in the final rule and the proposed rule removes any regulatory requirement for owners or operators of facilities in operation before August 16, 2002 to have developed, implemented and maintained a SPCC plan in accordance with the SPCC regulations then in effect. Such facilities continue to be required to maintain their plans during the interim until the applicable date for amending their existing plans and implementing their amended plans. EPA also indicated that it will be revising the 2005 SPCC Guidance for Regional Inspectors, as appropriate, to reflect the 2006 amendments to the rule and will post any changes on the website.

Access an EPA release (click here). Access a prepublication copy of the 97-page final rule (click here). Access extensive summary information on the final rule (click here). Access the prepublication copy of the 14-page proposed rule to extend compliance dates (click here). Access the Inspectors Guidance website (click here). Access EPA's Oil Program website for additional information (click here). [*Haz, *Water]

Wednesday, December 13, 2006

European Parliament Adopts REACH Compromise

Dec 13: The European Parliament (EP) adopted the compromise it negotiated with Council on the new regulation for chemicals -- the Registration, Evaluation, Authorization of CHemicals (REACH) [See WIMS 12/1/06] -- which will require producers to register all chemical substances produced or imported above a total quantity of 1 tonne per year. Registration will affect about 30,000 substances. For more hazardous substances, producers will have to submit a substitution plan to replace them with safer alternatives. When no alternative exists, producers will have to present a research plan aimed at finding one. The compromise package agreed with the Council and tabled by 4 political groups was approved with 529 in favor, 98 against and 24 abstentions.

The regulation will enter into force progressively from June 2007, and the registration process will take 11 years to be completed. The calendar for registration depends on the risk of the substance and the quantity produced. All covered substances will have to be registered by 2018. REACH also creates a new Chemicals Agency, to be based in Helsinki, which will be responsible for the authorization process.

European Parliament President Josep Borrell commenting on the EP adoption of REACH said, "This vote, on one of the most complex texts in the history of the EU, sets up an essential piece of legislation to protect public health and the environment from the risks of chemical substances, without threatening European competitiveness. It offers EU citizens true protection against the multitude of toxic substances in everyday life in Europe."

The authorization process will cover about 3 000 substances considered more dangerous. The Helsinki Chemicals Agency will be responsible to authorize them and the producers will have to present either replacement proposals or research plans to develop alternatives. The authorization will be for a limited time period. The regulation transfers the burden of proof regarding testing and evaluation of the risks of chemicals from the authorities to industry. It also includes obligations of duty of care for the industry and of communication to the public about dangerous substances in products. It also includes safeguards for confidential information and provisions to avoid duplication of animal testing.

European Commission Vice-President Günter Verheugen, responsible for enterprise and industry policy said, “I welcome the end to a long period of uncertainty which has hung over these negotiations. This compromise is good for health and environment, while keeping European businesses competitive and encouraging innovation. It is very important that the final agreement also takes into account the special situation of the SMEs. In addition, replacing over 40 legislative instruments with a one single regulation is yet another practical example of Better Regulation and cutting red tape in Europe. Another positive aspect is that every effort has been made under REACH to reduce animal testing to the absolute minimum.”

Commissioner Stavros Dimas, responsible for environmental policy said, “REACH is an extremely important piece of legislation, which will significantly improve the protection of human health and the environment. It will increase our knowledge about chemicals, enhance safety, and spur innovation while encouraging substitution of highly dangerous substances by safer ones."

European Environmental organizations issued a release saying, "Major loopholes in REACH will still allow many chemicals that can cause serious health problems, including cancer, birth defects and reproductive illnesses, to continue being used in manufacturing and consumer goods. Further concessions exempt companies which import and manufacture chemicals in volumes below 10 tonnes a year - 60% of chemicals covered by REACH - from the requirement to provide any meaningful safety data."

American Chemistry Council (ACC) President and CEO Jack Gerard issued a statement saying, “Today’s vote by the European Parliament has unfortunately failed to produce workable chemical legislation. The compromise package approved by the Parliament has not addressed many of the key concerns repeatedly expressed by industry and major EU trading partners. A more focused and flexible approach to registration, and a truly risk-based approach to authorization, could have brought our economies and regulatory systems closer together. Strong and effective chemical regulation should not have to come at the expense of global trade and competitiveness."

Access a lengthy EP release (click here). Access a release from the European Commission with links to additional information (click here). Access the EurActive website for the latest reports and links to background and documents (click here). Access the European Commission REACH website for additional information (click here). Access the European Chemical Industry Council's REACH website (click here). Access a release from European environmental groups (click here). Access a release from ACC (click here). Access the Greenpeace European Unit REACH website (click here). Access the WIMS-EcoBizPort REACH links for additional information (click here). [*Toxics]

Tuesday, December 12, 2006

10,600 Scientists Call For Integrity In Federal Policy Making

Dec 11: The Union of Concerned Scientists (UCS) announced that a statement by Nobel laureates and other leading scientists calling for the restoration of scientific integrity to Federal policy making has been signed by 10,600 scientists from all 50 states. The announcement came as UCS released an "A to Z" guide that documents dozens of recent allegations involving censorship and political interference in Federal science.

Dr. Francesca Grifo, senior scientist and director of UCS's Scientific Integrity Program said, "From airborne bacteria to Ground Zero, science continues to be misrepresented for political gain. The new Congress should enact meaningful reforms so decisions within federal scientific agencies and advisory committees are based on objective and unbiased science. The scientist statement makes clear that while science is rarely the only factor in public policy decisions, this input should be objective and impartial. Sustained protest from scientists, individual Republicans and Democrats in Congress, and the nation's leading editorial pages has not been enough to make the abuse of science stop."

According to a release, the "integrity of science statement" has grown steadily since it was first released in February 2004. Signatories now include 52 Nobel Laureates, 63 National Medal of Science recipients, and almost 200 members of the National Academies of Science. Meanwhile, the new UCS compendium details censorship and political interference in federal science on issues as diverse as air quality, childhood lead poisoning, and prescription drug safety.

For example, in late October UCS released documents tying high-level political appointees at the Department of Interior to the manipulation and distortion of numerous scientific documents to prevent the protection of six different species under the Endangered Species Act. UCS also cites: "For example, in support of the president’s decision to avoid regulating emissions that cause climate change, the administration has consistently misrepresented the findings of the National Academy of Sciences, government scientists, and the expert community at large. Thus in June 2003, the White House demanded extensive changes in the treatment of climate change in a major report by the Environmental Protection Agency (EPA). To avoid issuing a scientifically indefensible report, EPA officials eviscerated the discussion of climate change and its consequences."

Additionally, UCS cites: "The administration also suppressed a study by the EPA that found that a bipartisan Senate clean air proposal would yield greater health benefits than the administration’s proposed Clear Skies Act, which the administration is portraying as an improvement of the existing Clean Air Act. “Clear Skies” would, however, be less effective in cleaning up the nation’s air and reducing mercury contamination of fish than proper enforcement of the existing Clean Air Act."

Access a release (
click here). Access the A to Z Guide to Political Interference in Science (click here). Access extensive information on the project (click here). Access a list and database of signers by state and name (click here). [*All]

Monday, December 11, 2006

Gulf Of Mexico Energy Bill Passes

Dec 8: In last minute actions of the Republican-controlled Congress, S. 3711, the Gulf of Mexico Energy Security Act [aka OCS legislation, See WIMS 12/6/06], was added to H.R. 6111, an unrelated vehicle bill to amend the Internal Revenue Code of 1986. The bill pass the House by a vote of 367-45. Later, at 1:49 AM Saturday, the Senate approved the measure by a vote of 79-9.

The bill would open two areas of the Outer Continental Shelf (OCS) for oil and gas development. The bill passed the Senate on August 1, 2006 by a bipartisan vote of 71-25. S. 3711 would open 8.3 million acres in Lease Sale 181 and Lease Sale 181 South for oil and gas exploration. The government estimates that the region contains 1.26 billion barrels of oil and 5.8 trillion cubic feet of natural gas -- enough to heat six million homes for 15 years. The bill would also share production revenues with Alabama, Louisiana, Mississippi and Texas.

In remarks on the Senate floor, Senate Majority Leader Bill Frist characterized the legislation as “one of the most significant accomplishments of the 109th Congress which will have a lasting impact on American consumers and our economy.” Senator Pete Domenici (R-NM), Chair of the Senate Energy & Natural Resources Committee and one of the chief sponsors of the bill said, “The OCS legislation is very important and should be something that everybody in this chamber is proud of. It is particularly fitting that the Senate pass the bill just as the cold winter was setting in and as families start seeing a sharp rise in their natural gas bills. The price of natural gas has more than doubled since October. We aim to ease the gas price volatility by increasing supply.”

Also, referring to the fact that the legislation was part of a larger package that included several energy tax provisions to encourage more renewable energy, more clean energy and the increased conservation of energy, Domenici said, “I think it’s fitting that we passed legislation that develops more oil and gas in tandem with a tax package that will increase the production of electricity from wind and solar power and help government, businesses and homeowners conserve energy and use it more efficiently.”

Senator Mary Landrieu (D-LA), who crafted a compromise bill with Domenici said, "Today the Senate confirmed its strong support for Louisiana and the entire Gulf Coast by passing the Domenici-Landrieu fair-share bill, which after nearly 60 years, provides for Louisiana a significant share of oil and gas revenues produced off our shores. In August, 71 Senators agreed to the bill because they recognized that a dedicated stream of revenue is necessary for Louisiana to protect itself from future storms. Katrina and Rita showed us what devastation can ensue if our communities remain vulnerable."

Under the legislation, 37.5 percent of offshore revenues will go to Louisiana, Texas, Mississippi and Alabama. The funds are specifically dedicated to coastal wetlands restoration, hurricane protection, levee and flood control projects in the four energy-producing states. An additional 12.5 percent is dedicated to the state side of the Land and Conservation Fund, which funds the acquisition of parks and green spaces across the country.

Senator Landrieu thanked many interest groups who helped in the passage of the bill including: America's WETLAND Campaign to Save Coastal Louisiana; Parishes Against Coastal Erosion; Coalition to Restore Coastal Louisiana; Women of the Storm;; Coast Guardians; National Association of Manufacturers (NAM); the American Chemistry Council (acc); the Consumer Alliance for Energy Security; the Agriculture Energy Alliance and "countless others."

Natural Resources Defense Council (NRDC) issued a statement saying that the lame-duck Congress was sneaking "in a measure endangering this fragile coast by opening up 8.3 million previously protected acres to oil and gas drilling." They said, "Rather than permanently redirecting oil royalties from off-shore drilling to the coffers of just four states, Congress should commit the necessary funds for restoration but should also make oil and gas companies pay their fair share for repairing wetlands and pay their full share of royalties to the American people for drilling both on- and off-shore. And Congress should now turn its attention to ending our addiction to oil." Sierra Club also opposed the bill.

Access legislative details for the vehicle bill, H.R. 6111 (
click here). Access the legislative details for the original S. 3711 (click here). Access a lengthy statement from Senator Domenici (click here). Access a statement from Senator Landrieu (click here). Access a statement from ACC (click here). Access a statement from NAM (click here). Access a release from the U.S. Chamber of Commerce (click here). Access a release from NRDC (click here). Access a release from Sierra Club (click here). Access the latest media reporting on the voting activity (click here). [*Energy]

Friday, December 08, 2006

EPA Announces Revised NAAQS Review Process

Dec 7: U.S. EPA officially announced its updated process for reviewing and setting the Agency's National Ambient Air Quality Standards (NAAQS). EPA said the updates will help improve the efficiency of the NAAQS review process and ensure that the best available science is used in making air quality decisions. The Clean Air Act requires that EPA review each standard on a five year schedule. EPA Deputy Administrator Marcus Peacock said, "EPA is bringing air rule making into the 21st Century. EPA is committed to a timely and transparent process that uses the most up-to-date science available."

EPA has been examining the NAAQS process for the past year to determine how it can be improved. On June 26, 2006, EPA held a public workshop to receive comments on an April 2006 Agency report on ways to improve the NAAQS review process [The so-called "Top-To-Bottom" NAAQS Review Report, See WIMS 4/4/06]. EPA also met with the Clean Air Scientific Advisory Committee (CASAC) to get input on recommendations for revising the process. At the time, CASAC's called the proposed process more costly and time consuming [See WIMS 5/18/06 & 6/13/06].

After considering comments, EPA said it will move forward with the following structure for reviewing the NAAQS:

Planning: After completion of each NAAQS review, EPA will prepare a science and policy plan that outlines the schedule, process and expectations for the next review. EPA will consult with the CASAC on the draft integrated plan.

Integrated Science Assessment: EPA will develop a more concise evaluation, integration and synthesis of the most policy-relevant science, including key science judgments that will be used in conducting the risk and exposure assessments. CASAC and the public will have an opportunity to evaluate and comment on drafts of the Integrated Science Assessment.

Risk/Exposure Assessment: EPA will more clearly link the Integrated Science Assessment and the Risk/Exposure Assessment to ensure that the characterization of risk and exposure are based on the clearest possible understanding of the available scientific information.

Policy Assessment/Rulemaking: The staff paper will be replaced with a more narrowly focused policy assessment that will connect the agency's scientific assessment and the judgments the administrator must make in determining whether it is appropriate to retain or revise the standards. This policy assessment will reflect the agency's views and will be published in the Federal Register as an Advance Notice of Proposed Rulemaking (ANPRM). The ANPRM will provide both CASAC and the public the opportunity to review the policy options under consideration.

In a December 7, 2006, Memo from Peacock to Dr. George Gray, Assistant Administrator of the Office of Research and Development and Bill Wehrum, Acting Assistant Administrator of the Office of Air and Radiation he says, "Based on your advice to me following these public meetings and additional discussions with the internal working group, I have decided to institute a number of changes to the NAAQS review process. These changes reflect many of the recommendations contained in the working group's April report . Specifically, I direct your offices to proceed with the general structure recommended in your April 3, 2006 memo, as discussed below, which involves four major components: planning, science assessment, risk/exposure assessment, and policy assessment/rulemaking" [as summarized above and detailed further in the Memo].

The Memo continues, "In moving forward, I urge you to apply these revisions to the NAAQS review process to all upcoming NAAQS reviews and to any ongoing reviews . As to the latter, I would like these revisions to apply to the review of lead, which is currently underway. The last formal draft Staff Paper for lead, adhering to the previous standard setting process, has been transmitted to CASAC, and therefore the relevant changes noted above should apply to the remainder of the lead review."

Consistent with that request, EPA announced on December 5, that to date, the lead NAAQS review has followed its "historic approach" to reviewing NAAQS, including issuance of a criteria document and a first draft staff paper. The Agency said, however, that it is now moving forward to implement a "new, more efficient process for conducting NAAQS reviews." EPA said it intends to transition to the new process during the course of the lead NAAQS review [See WIMS 12/5/06].

Access an announcement of the new process (click here). Access the December 7, 3-page Memo which contains further details on the process (click here). Access the NAAQS website for background information including CASAC correspondence and other key documents (click here, scroll down). [*Air]

Thursday, December 07, 2006

Getting A Handle On The Scrap Tire Problem

Dec 5: A detailed report by the Rubber Manufacturers Association (RMA) says that nearly 87 percent of disposed tires each year are put to a new use. RMA’s report -- Scrap Tire Markets In The United States -- which is based upon a comprehensive survey of state scrap tire and solid waste officials and industry participants, indicates that 259 million of 299 million scrap tires generated in 2005 went to an end use market. By comparison, in 1990, only 11 percent of scrap tires was consumed by a market. State cleanup laws and growing markets are helping to alleviate serious environmental issue. Additionally, the number of tires sitting in stockpiles has been reduced to 188 million -- down from 275 million in 2003; and more than 1 billion scrap tires were stockpiled in 1990. RMA, which represents tire manufacturers, ranked states by their overall performance in dealing with scrap tire issues and how states improved since the previous scrap tire report in 2003.

According to the report, South Carolina, North Carolina and Maine lead the nation in a performance ranking of dealing with scrap tires. Rankings are based on percent of tires going to end use markets, number of stockpiled tires, stockpiled tires per capita, number of tires land-disposed and the percent of the number of tires/per capita land-disposed in 2005. Texas, Alabama, Michigan and Ohio were tops in improving the scrap tire situation in 2005 as compared to 2003. Michael Blumenthal, RMA senior technical director said, “Tire manufacturers have been working hard for 16 years to promote environmentally and economically sound solutions to reduce scrap tire waste. Additionally, states’ scrap tire cleanup laws and regulations and market development efforts have substantially reduced the nation’s scrap tire piles.”

The largest market for scrap tires is tire-derived-fuel (TDF) -- especially as a supplemental fuel for cement kilns, electric utilities and pulp and paper mills. TDF accounted for some 155 million scrap tires in 2005; an increase of 20% since 2003. Other major uses are ground rubber and construction applications. Ground rubber use, e.g athletic and recreational surfaces, rubber-modified asphalt, carpet underlay, flooring material, dock bumpers and railroad crossing blocks; accounted for more than 30 million tires in 2005. Road and landfill construction, septic tank leach fields and other construction applications consumed nearly 50 million tires in 2005.

The report also indicates that since 1990, the number of scrap tires in stockpiles has been reduced by 81 percent. Of the remaining stockpiles, 85 percent are concentrated in 7 states: Alabama, Colorado, Connecticut, Michigan, New York, Pennsylvania and Texas.

Access a release from RMA (
click here). Access the complete 93-page report (click here). Access RMA's Scrap Tire Management website for extensive information (click here). Access U.S. EPA's Scrap Tire Management website for additional information (click here). [*Solid]

Wednesday, December 06, 2006

Can A Lake Be Filled & Fish Killed Under CWA?

Dec 4: Environmental lawyers at Earthjustice are challenging a Clean Water Act (CWA) permit before the Ninth Circuit Court of Appeals that lets Coeur d'Alene Mines Corporation dump toxic waste into a lake, killing all fish for at least the 10-year life of the permit. According to a release, the U.S. Army Corps of Engineers issued the permit after "redefining language in the law so that toxic wastewater could be considered legally permitted fill." If allowed to go forward, the Kensington gold mine would be the first mine to kill a U.S. lake using the new, weakened dumping standard. Earthjustice expressed concern that if allowed to proceed, this mining operation would set a precedent, potentially spurring growth of such operations elsewhere in Alaska or the lower-48 states.

The Army Corps' new interpretation contradicts what the law actually says, argued Earthjustice attorney Tom Waldo, assisted by Eric Jorgensen, managing attorney in Juneau for Earthjustice. Waldo said, "The plain language of the Clean Water Act simply prohibits the discharge authorized by the Corps of Engineers." The argument revolves around a gold extraction process that creates 210,000 gallons per day of a toxic waste slurry. Kensington chose lake dumping despite the availability of disposal methods less damaging to the environment. Attorneys representing mine developers and the federal government said the slurry is legal fill in their view of the law. On August 24, 2006, the Ninth Circuit issued a temporary injunction halting activities and the dumping of "fill" into Lower Slate Lake at the site of the proposed Kensington Gold Mine (Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers and Coeur Alaska, Case No. 06-35679).

Access an Earthjustice release with links to additional information (click here). Access a background document with further details (click here). Access the 8/24/06 injunction (click here). Access the original 8/4/06 Federal District Court decision (click here). Access additional background from the Southeast Alaska Conservation Council website (click here). [*Water]

Tuesday, December 05, 2006

Ecosystem Challenges And Business Implications

Nov 21: A new publication -- Ecosystem Challenges and Business Implications -- produced by Earthwatch Institute (Europe), the World Conservation Union (IUCN), the World Business Council for Sustainable Development (WBCSD), and the World Resources Institute (WRI), is based on global scientific facts and projections from the UN's multi-year Millennium Ecosystem Assessment and interviews with a range of business leaders to assess the implications and strategies needed to respond to environmental challenges. The publication warns that companies must transform business models and operations if they are to avoid major economic losses caused by the current degradation of ecosystems and the vital services they provide.

The research indicates that many companies recognize the risks associated with degrading ecosystems and are trying to adapt accordingly, but most fail to associate healthy ecosystems with their business interests. According to a release from WBCSD a collective business response is therefore needed to address the scale of environmental change currently taking place. WBCSD President Björn Stigson says, “Business simply cannot function if ecosystems and the services they deliver -- like water, biodiversity, food, fiber and climate regulation -- are degraded or out of balance. There must be a value attached to natural resources, and businesses need to start understanding this value.”

The publication offers a detailed examination of the implications that water scarcity, climate change, nutrient overloading, biodiversity loss, habitat change and the overexploitation of oceans will have for the future of business. These include scarcity of raw materials, higher operating costs, government restrictions and reduced flexibility. It further cautions companies to prepare for these risks by measuring their impact and dependence on ecosystem services, taking advantage of emerging business opportunities and reducing their operational footprints.

The publication partners urge companies to pursue solutions that will help to conserve ecosystems, such as new energy efficient technologies and products, new businesses to undertake habitat restoration, and new markets, such as nutrient trading. The publication is the first of three to be produced by the four partners. The second will focus upon how new business models, markets and entrepreneurs can profit from responding to ecosystem challenges and the third will help business executives identify their dependences on ecosystem services and ways to retain them for the long term.

Access the WBCSD release (
click here). Access the 20-page document (click here). Access information from Earthwatch Institute (click here). Access information from IUCN (click here). Access information from WRI (click here). [*Sustainability]

Monday, December 04, 2006

Backyard Burn Barrels Are Largest Source Of Dioxin Emissions

Dec 1: U.S. EPA announced in the Federal Register [71 FR 69564-69565] an Inventory of Sources and Environmental Releases of Dioxin-Like Compounds in the United States for the Years 1987, 1995, and 2000 (EPA/600/P-03/002F, November 2006). The document is a peer-reviewed and final report representing EPA’s assessment of dioxin sources and their emissions to the environment. To the extent practical, the inventory is a comprehensive analysis of dioxin sources. Over 800 references were reviewed and cited in the preparation of the report. The citations generally reflect publications up to and including the year 2003. The final document reflects a consideration of all comments received on an External Review Draft dated March 2005 (EPA600/P-03/002A) provided by an expert panel at a peer-review workshop held September 13–15, 2005, and comments received during a 60-day public review and comment period (May 6–July 5, 2005).

The major identified sources of environmental releases of dioxin-like compounds are grouped into six broad categories: combustion sources, metals smelting, refining and process sources, chemical manufacturing sources, natural sources, and environmental reservoirs. Estimates of annual releases to land, air, and water are presented for each source category and summarized for reference years 1987, 1995, and 2000. The quantitative results are expressed in terms of the toxicity equivalent (TEQ) of the mixture of polychlorinated dibenzo-p-dioxin (CDD) and polychlorinated dibenzofuran (CDF) compounds present in environmental releases using a procedure sanctioned by the World Health Organization (WHO) in 1998. Using this WHO procedure, the annual releases of TEQDF-WHO98 to the U.S. environment over the three reference years are 13,965 g in 1987, 3,444 g in 1995, and 1,422 g in 2000.

The analysis indicates that between reference years 1987 and 2000, there was approximately a 90% reduction in the releases of dioxin-like compounds to the circulating environment of the United States from all known sources combined. In 1987 and 1995, the leading source of dioxin emissions to the U.S. environment was municipal waste combustion; however, because of reductions in dioxin emissions from municipal waste combustors, it dropped to the 4th ranked source in 2000. The inventory also identifies bleached chlorine pulp and paper mills as a significant source of dioxin to the aquatic environment in 1987, but a minor source in 1995 and 2000. Burning of domestic refuse in backyard burn barrels remained fairly constant over the years, but in 2000, it emerged as the largest source of dioxin emissions to the U.S. environment.

Access an overview and links to the complete 677-page report and related information (
click here). Access the FR announcement (click here). [*Toxics]

Friday, December 01, 2006

European Parliament & Council Seal Deal On REACH

Dec 1: Delegations from the European Parliament and the Council hammered out a deal on the Registration, Evaluation, Authorization of CHemicals (REACH), the draft regulation on chemical products, at their sixth set of informal negotiations, which ended at around 11:00 PM on Thursday (November 30) [See WIMS 10/12/06 & 11/30/06]. The compromise will be put to the vote by the full Parliament at the plenary session scheduled for December 13 – if approved, the proposal would become law at this, second reading, stage. Parliament’s rapporteur, Guido Sacconi (PES, IT) confirmed at a press conference on Friday that agreement had been reached with the Finnish Presidency on the whole of the REACH package. The agreement must now be confirmed by the Member States’ representatives and by the full Parliament during the next plenary session in Strasbourg. Sacconi said, “I call on all the Parliament’s political groups to support me at the plenary.” If approved the deal would mark the end of a three-year long battle that has pitted industry and environmentalists debating the costs and benefits of the new chemicals control regime.

According to a release, the main points of the package agreed are as follows: (1) Agency: Parliament will appoint two members of the Helsinki-based European Chemicals Agency and the Executive Director will take part in a hearing with MEPs before his/her appointment is confirmed. (2) Authorization: for dangerous substances, there will be an obligation to submit a substitution plan to replace them with safer alternatives. Where no alternative exists, producers will have to present a research and development plan. (3) Endocrine disrupters: a clause was agreed, to review after six years, on the basis of the latest scientific data, the inclusion of substances with endocrine disrupter properties among those which can only be authorized if the socio-economic benefits of their use is higher than the risk to human health or the environment, and if no safer alternative exists. (4) Intellectual property provisions have been strengthened with data protection extended from 3 to 6 years. (5) Duty of Care: this principle is enshrined in the regulation in a recital which recalls that the manufacturing, importing or placing on the market of substances should, under reasonable foreseeable circumstances, not adversely affect human health or the environment. (6) Animal welfare: changes have been agreed with the aim of avoiding duplication of animal testing and at promoting alternative test methods.

A coalition of European environmental organizations reacted immediately to what they said was a "deal struck behind closed doors" saying, "If adopted at the plenary vote, the deal will allow many chemicals of very high concern - including many that cause cancer, birth defects and other serious illnesses - to stay on the market and be used in consumer products even when safer alternatives are available. The groups call on Parliamentarians to strengthen REACH when they vote on the proposal in mid-December." They said negotiators accepted the deal based on "cosmetic changes" to the Council’s "flawed approach of ‘adequate control’" which they said is being championed by the chemicals industry and is founded on the claim that exposure to hazardous chemicals can be controlled so as to pose no danger to human health and the environment.

Access a release from the European Parliament (click here). Access the EurActive website for the latest reports and links to background and documents (click here). Access the European Commission REACH website for additional information (click here). Access the European Chemical Industry Council's REACH website (click here). Access a release from European environmental groups (click here). Access the Greenpeace European Unit REACH website (click here). Access the WIMS-EcoBizPort REACH links for additional information (click here). [*Toxics]