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]
Friday, September 22, 2006
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
Tuesday, August 29, 2006
Late Summer Break
We are on our late summer break and will return with daily blog posts of important environmental developments on Monday, September 11, 2006 (Patriot Day).
Friday, August 25, 2006
A Critical Look At The Future Of Bio-fuels
Aug 24: The Washington, DC-based, Center for Science and Public Policy has posted a critical analysis entitled, The Future of Bio-fuels: A Blend of Hope and Concerns, by Richard S. Courtney. According to the synopsis of the report, "Biomass is biological material used as fuel, and biofuel is biomass that has been converted into a form that makes it useful as a displacement for a fossil fuel; for example, petroleum. Biomass is solar energy collected by photosynthesis over a small area and a few growing seasons in plants that are not compressed and not dried. Simple calculations of the solar energy collection at the Earth's surface demonstrate that no developments of biomass can provide significant amounts of energy because the energy required to farm and harvest it is a substantial proportion of the collected solar energy. And biomass cannot be economic because the net amount of energy harvested can only be small. Indeed, governments would not need to subsidize bio-mass if it were an economically competitive fuel. But the production of biomass has potential for environmental damage by reducing biodiversity, and reliance on the use of biomass threatens energy security."
The report concludes, "Biomass has some significant uses to provide economic waste disposal, but it has little potential as a primary energy source. For example, the European Commission admits that achieving its target of 5.75% of its transport fuels by use of biomass will require substantial imports of biomass despite turning more than 14% of EU agriculture over to biomass production. The limits to biomass for primary energy supply are set by physical laws and, therefore, cannot be overcome... conversion of 10% of US agricultural production to biomass production would provide less than 0.1% of US energy needs... However, the production of biomass has potential for environmental damage by reducing biodiversity and reliance on the use of biomass threatens energy security. These problems are causing concern to environmentalists in Europe..."
Richard S Courtney is a Member of the European Science and Environment Forum (ESEF) and acts as a technical advisor to several UK Members of Parliament. He is Chairman of the Southern Region of a Trade Union (BACM-TEAM) affiliated to the UK’s Trades Union Congress. Having been the contributing Technical Editor of CoalTrans International, he is now on the Editorial Board of Energy & Environment. His present work mostly consists of providing commissioned advice to national governments, although he has recently conducted research studies of energy interactions at sea surface. The Center for Science and Public Policy (CSPP) is a non-profit, non-partisan public policy organization. CSPP relies on scientific experts in many nations and the vast body of peer-reviewed literature to help lawmakers, policy makers, and the media distinguish between scientific findings that are agenda-driven and those that are based on accepted scientific methods and practices. CSPP operates as a policy center for the conservative organization Frontiers of Freedom.
Access the complete 18-page analysis (click here). Access the CSPP website (click here). [*Energy]
The report concludes, "Biomass has some significant uses to provide economic waste disposal, but it has little potential as a primary energy source. For example, the European Commission admits that achieving its target of 5.75% of its transport fuels by use of biomass will require substantial imports of biomass despite turning more than 14% of EU agriculture over to biomass production. The limits to biomass for primary energy supply are set by physical laws and, therefore, cannot be overcome... conversion of 10% of US agricultural production to biomass production would provide less than 0.1% of US energy needs... However, the production of biomass has potential for environmental damage by reducing biodiversity and reliance on the use of biomass threatens energy security. These problems are causing concern to environmentalists in Europe..."
Richard S Courtney is a Member of the European Science and Environment Forum (ESEF) and acts as a technical advisor to several UK Members of Parliament. He is Chairman of the Southern Region of a Trade Union (BACM-TEAM) affiliated to the UK’s Trades Union Congress. Having been the contributing Technical Editor of CoalTrans International, he is now on the Editorial Board of Energy & Environment. His present work mostly consists of providing commissioned advice to national governments, although he has recently conducted research studies of energy interactions at sea surface. The Center for Science and Public Policy (CSPP) is a non-profit, non-partisan public policy organization. CSPP relies on scientific experts in many nations and the vast body of peer-reviewed literature to help lawmakers, policy makers, and the media distinguish between scientific findings that are agenda-driven and those that are based on accepted scientific methods and practices. CSPP operates as a policy center for the conservative organization Frontiers of Freedom.
Access the complete 18-page analysis (click here). Access the CSPP website (click here). [*Energy]
Thursday, August 24, 2006
Insurance Industry Response To Global Climate Change
Aug 22: Dozens of new insurance activities, such as 'green' building credits and incentives for investing in renewable energy, are emerging to tackle the causes of climate change and rising weather-related losses in the U.S. and globally, according to a major new report issued by the Ceres investor coalition. But the report also states that more insurance companies need to be offering similar services to minimize losses and make the most of business opportunities related to climate change. Mindy Lubber, president of Ceres said, "Climate change poses unprecedented risks to the insurance industry, but it also creates vast opportunities for new products and services to help consumers and businesses reduce their losses, while also reducing the pollution causing global warming. We've seen encouraging progress from big-name insurers and brokers since last year's devastating hurricanes, but many more creative services will be needed as we confront what is perhaps the biggest threat in the industry's history." The insurance industry is the world's largest industry, with $3.4 trillion in yearly premium revenue.
The report comes on the heels of devastating back-to-back hurricane seasons in the U.S. that caused a record $75 billion in insured losses during 2004 and 2005, including $45 billion from Hurricane Katrina alone. While no individual weather event can be attributed to global warming, a growing body of new scientific data show that rising temperatures are likely increasing the intensity of hurricanes, floods, drought, wildfires and other extreme weather events in the U.S. and globally. The report, From Risk to Opportunity: How Insurers Can Proactively and Profitably Manage Climate Change, highlights the insurance industry's unique, powerful role historically in helping the country grapple and manage emerging risks. Just as the industry asserted its leadership to minimize risks from building fires and earthquakes, it is well positioned today to further society's understanding of global warming and advance forward-thinking solutions to minimize its impacts.
The report, written by two insurance industry experts, identifies 190 innovative products and services available or in the pipeline from dozens of insurance providers in 16 countries. Many provide win-win benefits, by reducing financial losses and greenhouse gas emissions. More than half of the activities come from U.S. companies, covering climate change solutions including energy efficiency, green building design, carbon emissions trading and sustainable driving practices.
Examples cited include the Firemen's Fund Insurance that is launching a first-of-its-kind "green" coverage, including rate credits and other incentives, for commercial building owners who re-build damaged properties using green and LEED-certified (Leadership in Energy and Environmental Design) building practices. California-based Firemen's Fund will begin seeking state regulatory approvals this month so that the products can be offered in states around the country this fall. Another example, Marsh, the world's largest insurance broker, and AIG, the world's largest insurer, have launched carbon emissions credit guarantees and other new renewable energy-related insurance products that are allowing more companies to participate in carbon offset projects and growing carbon emissions trading markets. The carbon trading market in the European Union alone is expected to hit $30 billion by the end of 2006.
The new report also outlines the nation's growing insurance availability crisis that has hundreds of thousands of coastal homeowners feeling the combined sting of premium shocks and coverage restrictions after last year's hurricanes. In Louisiana and Florida alone, more than 600,000 homeowners' property policies have been cancelled or not renewed in the past year. In Massachusetts and New York, private insurers have cancelled coverage for more than 80,000 coastal homeowners the past two years, even though it has been decades since the last major hurricane hit the region. Among the impacts of the pullouts is a stronger reliance on governments as insurers of last resort. As more private insurers refuse to take on new policies or renew existing ones, mandated state-run insurance "pools" are being forced to take on more customers and more financial exposure.
Ceres is a national coalition of investors, environmental groups and other public interest organizations working with companies to address sustainability challenges such as climate change. Ceres directs the Investor Network on Climate Risk (INCR), a network of 50-plus institutional investors who collectively manage more than $3 trillion in assets.
Access a release and link to the audio of the press conference (click here). Access the complete 55-page report (click here). Access the Ceres website for additional information (click here). [*Climate]
The report comes on the heels of devastating back-to-back hurricane seasons in the U.S. that caused a record $75 billion in insured losses during 2004 and 2005, including $45 billion from Hurricane Katrina alone. While no individual weather event can be attributed to global warming, a growing body of new scientific data show that rising temperatures are likely increasing the intensity of hurricanes, floods, drought, wildfires and other extreme weather events in the U.S. and globally. The report, From Risk to Opportunity: How Insurers Can Proactively and Profitably Manage Climate Change, highlights the insurance industry's unique, powerful role historically in helping the country grapple and manage emerging risks. Just as the industry asserted its leadership to minimize risks from building fires and earthquakes, it is well positioned today to further society's understanding of global warming and advance forward-thinking solutions to minimize its impacts.
The report, written by two insurance industry experts, identifies 190 innovative products and services available or in the pipeline from dozens of insurance providers in 16 countries. Many provide win-win benefits, by reducing financial losses and greenhouse gas emissions. More than half of the activities come from U.S. companies, covering climate change solutions including energy efficiency, green building design, carbon emissions trading and sustainable driving practices.
Examples cited include the Firemen's Fund Insurance that is launching a first-of-its-kind "green" coverage, including rate credits and other incentives, for commercial building owners who re-build damaged properties using green and LEED-certified (Leadership in Energy and Environmental Design) building practices. California-based Firemen's Fund will begin seeking state regulatory approvals this month so that the products can be offered in states around the country this fall. Another example, Marsh, the world's largest insurance broker, and AIG, the world's largest insurer, have launched carbon emissions credit guarantees and other new renewable energy-related insurance products that are allowing more companies to participate in carbon offset projects and growing carbon emissions trading markets. The carbon trading market in the European Union alone is expected to hit $30 billion by the end of 2006.
The new report also outlines the nation's growing insurance availability crisis that has hundreds of thousands of coastal homeowners feeling the combined sting of premium shocks and coverage restrictions after last year's hurricanes. In Louisiana and Florida alone, more than 600,000 homeowners' property policies have been cancelled or not renewed in the past year. In Massachusetts and New York, private insurers have cancelled coverage for more than 80,000 coastal homeowners the past two years, even though it has been decades since the last major hurricane hit the region. Among the impacts of the pullouts is a stronger reliance on governments as insurers of last resort. As more private insurers refuse to take on new policies or renew existing ones, mandated state-run insurance "pools" are being forced to take on more customers and more financial exposure.
Ceres is a national coalition of investors, environmental groups and other public interest organizations working with companies to address sustainability challenges such as climate change. Ceres directs the Investor Network on Climate Risk (INCR), a network of 50-plus institutional investors who collectively manage more than $3 trillion in assets.
Access a release and link to the audio of the press conference (click here). Access the complete 55-page report (click here). Access the Ceres website for additional information (click here). [*Climate]
Wednesday, August 23, 2006
Gas Demand Grows In July Despite $3/Gallon Average
Aug 21: U.S. gasoline demand rose in July compared to year-earlier levels despite higher pump prices, data compiled by the American Petroleum Institute (API) shows. In its Monthly Statistical Report covering July 2006, API noted that gasoline deliveries, a proxy for demand, climbed 1.7 percent. U.S. distillate fuel use also climbed, up 9.2 percent compared to July 2005, but lower deliveries of jet fuel, residual fuel oil and other products offset the gains to push total U.S. petroleum deliveries down 0.2 percent versus July 2005 levels. API said the gasoline demand increase was a bit "puzzling," given the potential dampening effect of higher retail prices averaging nearly $3 per gallon for the month -- up 30 percent from one year earlier and 56 percent from July 2004. API said, “Stronger income growth may have provided a boost to demand, but we still believe consumers are adjusting their travel patterns as a result of higher prices."
On the supply side, U.S. crude oil production slid 1.3 percent July compared with a year earlier, the smallest year-on-year decline in 14 months. Domestic refinery operations continued at a strong pace as the national capacity utilization rate averaged 92.6 percent in July, down from 94 percent in July 2005. U.S. petroleum imports rose to 14 million barrels per day, a record for the month of July and the fifth highest level ever.
Access a release from API (click here). [*Energy]
On the supply side, U.S. crude oil production slid 1.3 percent July compared with a year earlier, the smallest year-on-year decline in 14 months. Domestic refinery operations continued at a strong pace as the national capacity utilization rate averaged 92.6 percent in July, down from 94 percent in July 2005. U.S. petroleum imports rose to 14 million barrels per day, a record for the month of July and the fifth highest level ever.
Access a release from API (click here). [*Energy]
Tuesday, August 22, 2006
Worldwide Assessment Of Water Management In Agriculture
Aug 21: One in three people is enduring one form or another of water scarcity, according to new findings released by the Comprehensive Assessment of Water Management in Agriculture at World Water Week in Stockholm. According to a release, "These alarming findings totally overrun predictions that this situation would come to pass in 2025." Frank Rijsberman, Director General of the International Water Management Institute (IWMI) said, "Worrisome predictions in 2000 had forecast that one third of the world population would be affected by water scarcity by 2025. Our findings from the just-concluded research show the situation to be even worse. Already in 2005, more than a third of the world population is affected by water scarcity. We will have to change business as usual in order to deal with growing scarcity water crisis we see in some countries like India, China, and the Colorado River basin of USA and Mexico."
The Comprehensive Assessment, carried out by 700 experts from around the world over the last five years, indicates that one third of the world’s population is currently living in places where water is either over-used - leading to falling groundwater levels and drying rivers - or can not be accessed due to the absence of the appropriate infrastructure. The Assessment, the first of its kind critically examining policies and practices of water use and development in the agricultural sector over the last 50 years, was co-sponsored by the Consultative Group on International Agricultural Research (CGIAR), FAO, the Ramsar Convention on Wetlands, and the Convention on Biological Diversity in a bid to find solutions to the challenge of balancing the water-food-environment needs. It was spearheaded by IWMI, one of 15 agricultural research centers supported by the CGIAR that are striving to increase food production, increase rural incomes, and safeguard the environment.
Despite the impending threat, the Assessment identifies numerous bright spots -- innovative approaches that hold potential for the future. These include very low cost technologies that facilitate access to, and use of water by, the rural poor. With health issues addressed, for example, people can effectively use urban wastewaters as a productive resource. Irrigation could also be reformed and transformed to reduce water wastage and increase productivity. The report finds that agriculture uses up to 70 times more water to produce food than is used in drinking and other domestic purposes, including cooking, washing and bathing. As a rule of thumb, each calorie consumed as food requires about one liter of water to produce.
David Molden who led the Comprehensive Assessment said, “The Assessment shows that while a third of the world population faces water scarcity, it is not because there is not enough water to go round, but because of choices people make. It is possible to reduce water scarcity, feed people and address poverty, but the key trade-off is with the environment. People and their governments will face some tough decisions on how to allocate and manage water. Not all situations are going to be a win-win for the parties involved, and in most cases there are winners and losers. If you don't consciously debate and make tough choices, more people, especially the poor, and the environment will continue to pay the price.”
The 2006 World Water Week in Stockholm is taking place August 20-26 at the Stockholm City Conference Centre in the Swedish capital. The World Water Week is hosted and organized by the Stockholm International Water Institute (SIWI). Over 100 different organizations and programs are on board as convenors or co-convenors of different activities and more than 1500 participants are expected from 100 countries.
Access a release (click here); and another (click here). Access the Assessment website for links to the research reports, discussion papers & briefs, conference papers and additional information (click here). Access the CGIAR website for more information (click here). Access the World Water Week website for complete details on the conference (click here). [*Water]
The Comprehensive Assessment, carried out by 700 experts from around the world over the last five years, indicates that one third of the world’s population is currently living in places where water is either over-used - leading to falling groundwater levels and drying rivers - or can not be accessed due to the absence of the appropriate infrastructure. The Assessment, the first of its kind critically examining policies and practices of water use and development in the agricultural sector over the last 50 years, was co-sponsored by the Consultative Group on International Agricultural Research (CGIAR), FAO, the Ramsar Convention on Wetlands, and the Convention on Biological Diversity in a bid to find solutions to the challenge of balancing the water-food-environment needs. It was spearheaded by IWMI, one of 15 agricultural research centers supported by the CGIAR that are striving to increase food production, increase rural incomes, and safeguard the environment.
Despite the impending threat, the Assessment identifies numerous bright spots -- innovative approaches that hold potential for the future. These include very low cost technologies that facilitate access to, and use of water by, the rural poor. With health issues addressed, for example, people can effectively use urban wastewaters as a productive resource. Irrigation could also be reformed and transformed to reduce water wastage and increase productivity. The report finds that agriculture uses up to 70 times more water to produce food than is used in drinking and other domestic purposes, including cooking, washing and bathing. As a rule of thumb, each calorie consumed as food requires about one liter of water to produce.
David Molden who led the Comprehensive Assessment said, “The Assessment shows that while a third of the world population faces water scarcity, it is not because there is not enough water to go round, but because of choices people make. It is possible to reduce water scarcity, feed people and address poverty, but the key trade-off is with the environment. People and their governments will face some tough decisions on how to allocate and manage water. Not all situations are going to be a win-win for the parties involved, and in most cases there are winners and losers. If you don't consciously debate and make tough choices, more people, especially the poor, and the environment will continue to pay the price.”
The 2006 World Water Week in Stockholm is taking place August 20-26 at the Stockholm City Conference Centre in the Swedish capital. The World Water Week is hosted and organized by the Stockholm International Water Institute (SIWI). Over 100 different organizations and programs are on board as convenors or co-convenors of different activities and more than 1500 participants are expected from 100 countries.
Access a release (click here); and another (click here). Access the Assessment website for links to the research reports, discussion papers & briefs, conference papers and additional information (click here). Access the CGIAR website for more information (click here). Access the World Water Week website for complete details on the conference (click here). [*Water]
Monday, August 21, 2006
International Report Sees Delays In Ozone Recovery
Aug 18: The Executive Summary of a new scientific assessment by the World Meteorological Organization (WMO) and the United Nations Environment Programme (UNEP), and based on a full report prepared by over 250 international scientists, concludes among its findings that the stratospheric ozone layer that protects life on earth from excessive solar radiation will recover five to 15 years later than previously expected. According to the report, UNEP/WMO Scientific Assessment of Ozone Depletion: 2006, the updated scientific understanding indicates that the ozone layer over the mid-latitudes (30° - 60° North and South) should recover by 2049, five years later than anticipated by the previous (2002) assessment. The ozone over the Antarctic should recover by 2065, 15 years later than once expected. Because of special conditions within the Antarctic vortex (a natural cyclone of super-cold, super-fast winds), the Antarctic ozone “hole” is expected to recur regularly for another two decades.
Michel Jarraud, Secretary-General of WMO said, “While these latest projections of ozone recovery are disappointing, the good news is that the level of ozone-depleting substances continues to decline from its 1992-94 peak in the troposphere and 1990s peak in the stratosphere. Global changes in climate suggest that atmospheric conditions are different today from those prior to periods marked by ozone depletion. This may have implications for ozone recovery. Maintaining and improving observational and assessment capabilities are critical in separating effects due to changes in climate from those in ozone -- depleting substances and will play a major role in verifying the effectiveness of actions taken under the 1985 Vienna Convention, the 1987 Montreal Protocol and its amendments.”
The next annual Meeting of the Parties to the Montreal Protocol, to be held in New Delhi from October 30 to November 3, will consider the policy implications of the Executive Summary of the current report. The full body of the report, which was written and reviewed by over 250 experts from around the world, will be available in early 2007.
Access a release and links to related information (click here). Access the Executive Summary (click here). [*Climate]
Michel Jarraud, Secretary-General of WMO said, “While these latest projections of ozone recovery are disappointing, the good news is that the level of ozone-depleting substances continues to decline from its 1992-94 peak in the troposphere and 1990s peak in the stratosphere. Global changes in climate suggest that atmospheric conditions are different today from those prior to periods marked by ozone depletion. This may have implications for ozone recovery. Maintaining and improving observational and assessment capabilities are critical in separating effects due to changes in climate from those in ozone -- depleting substances and will play a major role in verifying the effectiveness of actions taken under the 1985 Vienna Convention, the 1987 Montreal Protocol and its amendments.”
The next annual Meeting of the Parties to the Montreal Protocol, to be held in New Delhi from October 30 to November 3, will consider the policy implications of the Executive Summary of the current report. The full body of the report, which was written and reviewed by over 250 experts from around the world, will be available in early 2007.
Access a release and links to related information (click here). Access the Executive Summary (click here). [*Climate]
Friday, August 18, 2006
7th Circuit Says 4th Circuit Is "Out Of Bounds" On Air Act Ruling
Aug 17: In the U.S. Court of Appeals, Seventh Circuit, USA v. Cinergy Corp., Case No. 06-1224. U.S. EPA sued the owner of a number of coal-fired electric power plants claiming that the owner (Cinergy) had violated section 165(a) of the Clean Air Act, 42 U.S.C. § 7475(a), by physically modifying the plants without first obtaining from EPA a permit that the Agency contends is required by EPA regulation 40 C.F.R. § 52.21 for the type of modification that Cinergy made. The modifications produced increases in the nitrogen oxides and sulfur dioxide annually emitted by the plants. The Appeals Court notes, "If the EPA prevails in the suit, Cinergy will be required to retrofit the plants with costly pollution-control equipment (best available control technology). Cinergy argues that the regulation does not require modifications that do not increase the hourly rate at which a plant emits pollutants, even if the modifications increase the annual rate. The EPA argues that Cinergy is misreading the regulation. The district judge agreed with the EPA but authorized Cinergy to take an interlocutory appeal from his ruling, and the Seventh Circuit consented to take the appeal.
The Seventh Circuit said, "Cinergy’s suggested interpretation, besides not conforming well to the language of the regulation, would if adopted give a company that had a choice between making a physical modification that increased the hourly emissions rate and one that enabled an increase in the number of hours of operation an incentive to make the latter change even if that would produce a higher annual level of emissions, because it would elude the permit requirement. Cinergy’s interpretation would also distort the choice between rebuilding an old plant and replacing it with a new one."
The Appeals Court indicates that Cinergy’s argument was rejected by the D.C. Circuit in New York v. EPA, which upheld the EPA’s interpretation of the regulation. But it was accepted by the Fourth Circuit in United States v. Duke Energy Corp., 411 F.3d 539, 546-51 (4th Cir. 2005), cert. granted, 126 S. Ct. 2019 (2006), creating a circuit conflict which the Appeals Court says is the reason "the Supreme Court presumably granted certiorari in the Duke Energy case to resolve."
In its brief 9-page opinion, the Seventh Circuit says in affirming the district courts agreement with EPA's interpretation, "In so ruling, the Fourth Circuit stepped out of bounds, as we have said in describing Cinergy’s argument. But in any event the argument’s premise is incorrect... The New Source Performance Standards and Prevention of Significant Deterioration provisions of the Clean Air Act are at one in defining a modification as a physical change in a plant that results in an increase in emissions, but are silent on whether the increase is in the hourly rate of emissions or in some other rate. The task of deciding was left to the EPA. There was nothing to require that it flesh out the vague statutory meaning in the identical way in different parts of the Clean Air Act adopted years apart and reflecting, to an extent anyway, different philosophies of pollution control. Cinergy’s other arguments are makeweights, and we will not extend this opinion to discuss them."
Environmental Defense issued a release hailing the decision and said, "The ruling in the government’s 'new source review' enforcement case against Cinergy firmly and explicitly rejects the flawed Fourth Circuit opinion now pending appeal in the U.S. Supreme Court’s review of the case, Environmental Defense, et al. v. Duke Energy Corporation (No. 05-848). The case is being briefed this summer and the High Court just established November 1st as the oral argument date in the Duke case. A corporate merger of Duke and Cinergy was approved in April. This pivotal decision by one of the most influential federal court of appeals in the nation sends a powerful signal that it is time to address the serious human health and environmental impacts of coal-fired power plants. The court's strong, clear decision also puts its considerable weight behind a protective interpretation of the Clean Air Act's clean up requirements for coal plants at the same time that the Supreme Court is considering a major case presenting these very questions.”
Access the complete opinion (click here). Access a release from Environmental Defense (click here). Access discussion on the SCOTUSblog (click here). Access links from the Indiana Law blog including background and the 8/29/05 district court decision (click here) the [*Air]
The Seventh Circuit said, "Cinergy’s suggested interpretation, besides not conforming well to the language of the regulation, would if adopted give a company that had a choice between making a physical modification that increased the hourly emissions rate and one that enabled an increase in the number of hours of operation an incentive to make the latter change even if that would produce a higher annual level of emissions, because it would elude the permit requirement. Cinergy’s interpretation would also distort the choice between rebuilding an old plant and replacing it with a new one."
The Appeals Court indicates that Cinergy’s argument was rejected by the D.C. Circuit in New York v. EPA, which upheld the EPA’s interpretation of the regulation. But it was accepted by the Fourth Circuit in United States v. Duke Energy Corp., 411 F.3d 539, 546-51 (4th Cir. 2005), cert. granted, 126 S. Ct. 2019 (2006), creating a circuit conflict which the Appeals Court says is the reason "the Supreme Court presumably granted certiorari in the Duke Energy case to resolve."
In its brief 9-page opinion, the Seventh Circuit says in affirming the district courts agreement with EPA's interpretation, "In so ruling, the Fourth Circuit stepped out of bounds, as we have said in describing Cinergy’s argument. But in any event the argument’s premise is incorrect... The New Source Performance Standards and Prevention of Significant Deterioration provisions of the Clean Air Act are at one in defining a modification as a physical change in a plant that results in an increase in emissions, but are silent on whether the increase is in the hourly rate of emissions or in some other rate. The task of deciding was left to the EPA. There was nothing to require that it flesh out the vague statutory meaning in the identical way in different parts of the Clean Air Act adopted years apart and reflecting, to an extent anyway, different philosophies of pollution control. Cinergy’s other arguments are makeweights, and we will not extend this opinion to discuss them."
Environmental Defense issued a release hailing the decision and said, "The ruling in the government’s 'new source review' enforcement case against Cinergy firmly and explicitly rejects the flawed Fourth Circuit opinion now pending appeal in the U.S. Supreme Court’s review of the case, Environmental Defense, et al. v. Duke Energy Corporation (No. 05-848). The case is being briefed this summer and the High Court just established November 1st as the oral argument date in the Duke case. A corporate merger of Duke and Cinergy was approved in April. This pivotal decision by one of the most influential federal court of appeals in the nation sends a powerful signal that it is time to address the serious human health and environmental impacts of coal-fired power plants. The court's strong, clear decision also puts its considerable weight behind a protective interpretation of the Clean Air Act's clean up requirements for coal plants at the same time that the Supreme Court is considering a major case presenting these very questions.”
Access the complete opinion (click here). Access a release from Environmental Defense (click here). Access discussion on the SCOTUSblog (click here). Access links from the Indiana Law blog including background and the 8/29/05 district court decision (click here) the [*Air]
Thursday, August 17, 2006
ACC Supports HPV Chemical Information Collection Rule
Aug 16: The American Chemistry Council (ACC) expressed its support for U.S. EPA's use of authority under the Toxic Substances Control Act (TSCA) to obtain information on “orphan” High Production Volume (HPV) chemicals. The final rule and technical corrections were announced in the Federal Register [71 FR 47122-47130, 8/16/06]. EPA has now finalized separate Preliminary Assessment Information Reporting (PAIR) rules and Health and Safety Data Reporting rules for each of 243 “orphan” High Production Volume (HPV) chemicals. Orphan HPV chemicals are those which were not voluntarily sponsored in the HPV Chemical Challenge Program. ACC indicates that since 1998, the association and its members have worked with EPA, the environmental organization Environmental Defense, and other stakeholders to ensure that the HPV Chemical Challenge Program is a success. Through this unprecedented program, chemical companies have volunteered to provide the public with important health and environmental effects data and other information for more than 2,222 individual substances, which together represent approximately 93 percent (by volume) of chemicals in U.S. commerce.
EPA's final rule, issued pursuant to section 8(a) of TSCA, requires certain manufacturers (including importers) of certain HPV Challenge Program orphan (unsponsored) chemicals to submit a one-time report on general production/ importation volume, end use, and exposure-related information to EPA. The Interagency Testing Committee (ITC), established under section 4(e) of TSCA to recommend chemicals and chemical mixtures to EPA for priority testing consideration, amends the TSCA Section 4(e) Priority Testing List through periodic reports submitted to EPA. The ITC recently added certain HPV Challenge Program orphan (unsponsored) chemicals to the Priority Testing List in its 55\th\ and 56\th\ ITC Reports, as amended by deletions to this list made in its 56\th\ and 58\th\ ITC Reports. Two tungsten oxide compounds were added to the Priority Testing List by the ITC in its 55\th\ ITC Report but were removed from the Priority Testing List in the 58\th\ ITC Report. In addition, EPA is making technical corrections to update the EPA addresses to which submissions under the Preliminary Assessment Information Reporting (PAIR) rule must be mailed or delivered.
The final rule is effective September 15, 2006; however, Sec. 712.28 and 712.30(c), which contain technical corrections, are effective August 16, 2006. For purposes of judicial review, this rule shall be promulgated at 1 PM EDT on August 30, 2006. PAIR Forms must be submitted to EPA on or before November 14, 2006. A request to withdraw a chemical from the PAIR rule, pursuant to 40 CFR 712.30(c), must be received on or before August 30, 2006. ACC said that the final rule helps to “level the playing field” by ensuring that health and environmental information is also provided on chemicals for which the manufacturers or importers did not voluntarily commit to providing this information to EPA and to making this information public. The rules are also among EPA’s office pollution prevention and toxics largest rulemakings, in terms of the number of chemicals covered. As such, ACC said, "they demonstrate that TSCA is both strong and flexible."
Access the FR announcement (click here). Access an ACC release with links to related information (click here). Access EPA's HPV Challenge Program website for extensive information (click here). [*Toxics]
EPA's final rule, issued pursuant to section 8(a) of TSCA, requires certain manufacturers (including importers) of certain HPV Challenge Program orphan (unsponsored) chemicals to submit a one-time report on general production/ importation volume, end use, and exposure-related information to EPA. The Interagency Testing Committee (ITC), established under section 4(e) of TSCA to recommend chemicals and chemical mixtures to EPA for priority testing consideration, amends the TSCA Section 4(e) Priority Testing List through periodic reports submitted to EPA. The ITC recently added certain HPV Challenge Program orphan (unsponsored) chemicals to the Priority Testing List in its 55\th\ and 56\th\ ITC Reports, as amended by deletions to this list made in its 56\th\ and 58\th\ ITC Reports. Two tungsten oxide compounds were added to the Priority Testing List by the ITC in its 55\th\ ITC Report but were removed from the Priority Testing List in the 58\th\ ITC Report. In addition, EPA is making technical corrections to update the EPA addresses to which submissions under the Preliminary Assessment Information Reporting (PAIR) rule must be mailed or delivered.
The final rule is effective September 15, 2006; however, Sec. 712.28 and 712.30(c), which contain technical corrections, are effective August 16, 2006. For purposes of judicial review, this rule shall be promulgated at 1 PM EDT on August 30, 2006. PAIR Forms must be submitted to EPA on or before November 14, 2006. A request to withdraw a chemical from the PAIR rule, pursuant to 40 CFR 712.30(c), must be received on or before August 30, 2006. ACC said that the final rule helps to “level the playing field” by ensuring that health and environmental information is also provided on chemicals for which the manufacturers or importers did not voluntarily commit to providing this information to EPA and to making this information public. The rules are also among EPA’s office pollution prevention and toxics largest rulemakings, in terms of the number of chemicals covered. As such, ACC said, "they demonstrate that TSCA is both strong and flexible."
Access the FR announcement (click here). Access an ACC release with links to related information (click here). Access EPA's HPV Challenge Program website for extensive information (click here). [*Toxics]
Wednesday, August 16, 2006
NE-Mid-Atlantic States Release Final Model GHG Rule
Aug 15: The participating states issued a model rule for the Northeast-Mid-Atlantic Regional Greenhouse Gas Initiative (RGGI) program. The model set of regulations details the proposed program, as outlined in the Memorandum of Understanding (MOU). The model rule will form the basis of individual state regulatory and/or statutory proposals to implement the program [See WIMS 3/27/06]. The states that agreed to sign the MOU include Connecticut, Delaware, Maine, New Hampshire, New Jersey, New York, and Vermont. Development of the model rule was subject to detailed public input. On March 23, 2006, the participating states released a draft version of the model rule for public comment. The states received public input on the draft model rule for a period of 60 days. In excess of 1,000 pages of comments were received from more than 100 organizations.
The states made substantial revisions to the draft model rule in response to public comments. Some of the changes made to the model rule required substantive changes to the MOU. As a result, an amendment to the MOU was also agreed to and signed by the agency heads of the energy regulatory and environmental agencies in each participating state. The participating states also released a Post-Model Rule Action Plan outlining the actions that will be taken to implement the program and work items that will be undertaken to support program implementation.
Under the Regional Greenhouse Gas Initiative (RGGI), seven Northeast states agreed to propose a cap-and-trade program to reduce carbon dioxide (CO2) emissions, which are a major contributor to global warming. This is the first mandatory cap-and-trade program for CO2 emissions in U.S. history. In addition to the states listed above, the State of Maryland recently adopted legislation requiring Maryland to join RGGI by June 2007. Under RGGI, the seven states will launch a regional cap-and-trade system that utilizes emissions credits or allowances to limit the total amount of CO2 emissions. Beginning in 2009, emissions of CO2 from power plants in the region would be capped at approximately current levels -- 121 million tons annually -- with this cap remaining in place until 2015. The states would then begin reducing emissions incrementally over a four-year period to achieve a 10 percent reduction by 2019. Compared to the emissions increases the region would see from the sector without the program, RGGI will result in an approximately 35 percent reduction by 2020.
Access links to a press release, the model rule, rule revisions, the rule action plan and the MOU (click here). Access the WIMS-EcoBizPort Climate Change website for links to additional resources [*Climate]
The states made substantial revisions to the draft model rule in response to public comments. Some of the changes made to the model rule required substantive changes to the MOU. As a result, an amendment to the MOU was also agreed to and signed by the agency heads of the energy regulatory and environmental agencies in each participating state. The participating states also released a Post-Model Rule Action Plan outlining the actions that will be taken to implement the program and work items that will be undertaken to support program implementation.
Under the Regional Greenhouse Gas Initiative (RGGI), seven Northeast states agreed to propose a cap-and-trade program to reduce carbon dioxide (CO2) emissions, which are a major contributor to global warming. This is the first mandatory cap-and-trade program for CO2 emissions in U.S. history. In addition to the states listed above, the State of Maryland recently adopted legislation requiring Maryland to join RGGI by June 2007. Under RGGI, the seven states will launch a regional cap-and-trade system that utilizes emissions credits or allowances to limit the total amount of CO2 emissions. Beginning in 2009, emissions of CO2 from power plants in the region would be capped at approximately current levels -- 121 million tons annually -- with this cap remaining in place until 2015. The states would then begin reducing emissions incrementally over a four-year period to achieve a 10 percent reduction by 2019. Compared to the emissions increases the region would see from the sector without the program, RGGI will result in an approximately 35 percent reduction by 2020.
Access links to a press release, the model rule, rule revisions, the rule action plan and the MOU (click here). Access the WIMS-EcoBizPort Climate Change website for links to additional resources [*Climate]
$15 Million U-M Michigan Dioxin Exposure Study Released
Aug 15: People living in parts of Midland and Saginaw counties, near the Dow Chemical Co. plant have higher levels of dioxins in their bodies than a control group of people elsewhere in Michigan, according to a University of Michigan study released August 15, 2006. The $15 million U-M Dioxin Exposure Study was financed by a grant from Dow Chemical and was controlled and conducted entirely by U-M researchers. Research decisions were reviewed by an independent scientific advisory board. U-M researchers spent two years studying residents in five geographic areas.
The report indicates that in the Tittabawassee River floodplain near Dow, one of the geographic areas studied, people had 28 percent higher median levels of total dioxin-like chemicals in their blood than people in a control group in Jackson and Calhoun counties. Dioxins are toxic chemicals. They had 32 parts of dioxins for every trillion parts of blood, compared to 25 in people living in Jackson and Calhoun counties.
The Jackson/Calhoun region was used as a comparison because it is similar to Midland/Saginaw but is more than 100 miles away from the Dow plant. Dioxin levels in Jackson/Calhoun residents are close to the national median level. According to a release, much of the increased amount of dioxins in Midland/Saginaw residents was related to age. Nationally, older people have higher dioxins levels. People in Midland/Saginaw tend to be older than people in Jackson/Calhoun. Some of the increase was associated with eating certain foods such as fish from local waters contaminated by Dow and other sources, engaging in recreational activities on or near contaminated waters, or having worked at the Dow plant from 1940 to 1959. A small portion of the increase was related to living on soil contaminated by Dow, the study found.
U-M scientists studied levels of dioxins in people’s property soil, household dust and blood samples, and interviewed residents about their age, body mass, dietary habits, land use, occupation, and other personal details. A total of 695 Midland/Saginaw residents and 251 Jackson/Calhoun residents gave blood samples. Participants in the study were at least 18 years old. The researchers found that the median level of dioxins in soil in Jackson/Calhoun, the control area, was 4 parts per trillion -- 4 parts of dioxins for every trillion parts of soil. The median levels in Midland/Saginaw ranged from 4 parts per trillion in the near-floodplain area to 13 in the floodplain and 59 in the area downwind of Dow. The researchers found that people who lived in Midland/Saginaw on property with contaminated soil had higher median levels of dioxins in their blood. If the dioxins in their soil increased by 1,000 parts per trillion, the dioxins in their blood increased by about 0.7 parts per trillion (a 2 percent increase over the average level of blood dioxin for most people).
Access a release (click here). Access the U-M Dioxin website for the complete report, handouts, presentations, information on meetings and background information (click here). Access the WIMS-EcoBizPort Special Report on Midland Area Dioxin Issues for further background information and links to additional resources (click here). [*MIToxics]
The report indicates that in the Tittabawassee River floodplain near Dow, one of the geographic areas studied, people had 28 percent higher median levels of total dioxin-like chemicals in their blood than people in a control group in Jackson and Calhoun counties. Dioxins are toxic chemicals. They had 32 parts of dioxins for every trillion parts of blood, compared to 25 in people living in Jackson and Calhoun counties.
The Jackson/Calhoun region was used as a comparison because it is similar to Midland/Saginaw but is more than 100 miles away from the Dow plant. Dioxin levels in Jackson/Calhoun residents are close to the national median level. According to a release, much of the increased amount of dioxins in Midland/Saginaw residents was related to age. Nationally, older people have higher dioxins levels. People in Midland/Saginaw tend to be older than people in Jackson/Calhoun. Some of the increase was associated with eating certain foods such as fish from local waters contaminated by Dow and other sources, engaging in recreational activities on or near contaminated waters, or having worked at the Dow plant from 1940 to 1959. A small portion of the increase was related to living on soil contaminated by Dow, the study found.
U-M scientists studied levels of dioxins in people’s property soil, household dust and blood samples, and interviewed residents about their age, body mass, dietary habits, land use, occupation, and other personal details. A total of 695 Midland/Saginaw residents and 251 Jackson/Calhoun residents gave blood samples. Participants in the study were at least 18 years old. The researchers found that the median level of dioxins in soil in Jackson/Calhoun, the control area, was 4 parts per trillion -- 4 parts of dioxins for every trillion parts of soil. The median levels in Midland/Saginaw ranged from 4 parts per trillion in the near-floodplain area to 13 in the floodplain and 59 in the area downwind of Dow. The researchers found that people who lived in Midland/Saginaw on property with contaminated soil had higher median levels of dioxins in their blood. If the dioxins in their soil increased by 1,000 parts per trillion, the dioxins in their blood increased by about 0.7 parts per trillion (a 2 percent increase over the average level of blood dioxin for most people).
Access a release (click here). Access the U-M Dioxin website for the complete report, handouts, presentations, information on meetings and background information (click here). Access the WIMS-EcoBizPort Special Report on Midland Area Dioxin Issues for further background information and links to additional resources (click here). [*MIToxics]
Tuesday, August 15, 2006
UNFCCC Awards Kyoto International Transaction Log Contract
Aug 15: The United Nations Framework Convention on Climate Change (UNFCCC) Secretariat has awarded the multi-million dollar contract to build the electronic infrastructure required for settling emission trades under the Kyoto Protocol, the International Transaction Log (ITL). The contract went to Trasys SA, an IT company based in Belgium. The company subcontracted the European company LogicaCMG to maintain the system’s day-to-day operation. Richard Kinley, acting head of the UNFCCC Secretariat said, “Both companies are solid members of the IT community. They bring strong reputations and many years of experience from developing and operating similar systems in other markets.”
The Kyoto Protocol requires 35 industrialized countries to reduce greenhouse gas emissions below levels specified for each of them in the Protocol. Overall, this should amount to reductions of at least 5% below 1990 levels between 2008 and 2012. The ITL will be connected to the emissions trading registries of all the industrialized countries that sign up to the Kyoto Protocol. Kinley said, “Awarding this contract is a significant milestone in finalizing the systems to make carbon trading under the Kyoto Protocol a reality. We remain on track for Kyoto countries' systems to link to the ITL and become fully operational by April 2007.” Companies investing in climate friendly projects can obtain additional carbon credits in exchange for every tonne of emissions saved through the Kyoto Protocol’s project-based mechanisms (Clean Development Mechanism and Joint Implementation, i.e. CDM & JI). These can then be freely traded on the carbon market.
Access a UNFCCC release (click here). Access the UNFCCC website with links to extensive information including details of the CDM and JI programs (click here). [*Climate]
The Kyoto Protocol requires 35 industrialized countries to reduce greenhouse gas emissions below levels specified for each of them in the Protocol. Overall, this should amount to reductions of at least 5% below 1990 levels between 2008 and 2012. The ITL will be connected to the emissions trading registries of all the industrialized countries that sign up to the Kyoto Protocol. Kinley said, “Awarding this contract is a significant milestone in finalizing the systems to make carbon trading under the Kyoto Protocol a reality. We remain on track for Kyoto countries' systems to link to the ITL and become fully operational by April 2007.” Companies investing in climate friendly projects can obtain additional carbon credits in exchange for every tonne of emissions saved through the Kyoto Protocol’s project-based mechanisms (Clean Development Mechanism and Joint Implementation, i.e. CDM & JI). These can then be freely traded on the carbon market.
Access a UNFCCC release (click here). Access the UNFCCC website with links to extensive information including details of the CDM and JI programs (click here). [*Climate]
Monday, August 14, 2006
8th Circuit Joins 2nd Circuit On CERCLA Suits
Aug 11: In the U.S. Court of Appeals, Eighth Circuit, Atlantic Research v. United States, Case No. 05-3152. Atlantic Research Corporation of Camden, Arkansas, sought partial reimbursement from the United States for costs incurred in an environmental cleanup. Atlantic’s claim is based on the Comprehensive Environmental Response, Compensation, and Liability Act, amended by the Superfund Amendments and Reauthorization Act of 1986. The issue for consideration is whether CERCLA forbids a party such as Atlantic, which has voluntarily cleaned up a site for which it was only partly responsible, to recover part of its cleanup costs from another liable party. The Appeals Court held that CERCLA § 107 permits such a cause of action.
Atlantic sought to recover a portion of these costs from the United States by invoking CERCLA §§ 107(a) and 113(f).3 Atlantic and the government began to negotiate in an effort to resolve these financial matters. The negotiations ended with the United States Supreme Court decision in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S. Ct. 577, 160 L.
Ed. 2d 548 (2004) (Aviall). In Aviall, the court found a party could only attempt to obtain § 113(f) contribution 'during or following' a §§ 106 or 107(a) CERCLA civil action. Id. at 161, 125 S. Ct. at 580. As no action had been commenced against Atlantic under either §§ 106 or 107(a), the Aviall decision barred its § 113(f) contribution claim. With its § 113(f) claim Aviall-foreclosed, Atlantic amended its complaint. The amended complaint relied solely on § 107(a) and federal common law. In lieu of answer, the government moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing this Court’s pre-Aviall decision in Dico, Inc. v. Amoco Oil Co., 340 F.3d 525 (8th Cir. 2003) (Dico) foreclosed Atlantic’s § 107 claim. The district court agreed and Atlantic appealed the decision.
The Appeals Court provides considerable discussion of pre-Aviall claims and the effect of the Aviall Supreme Court decision. The Second Circuit is the only Court which has considered this question since the Aviall decision. That Court also revisited its pre-Aviall precedent and concluded that § 107 allowed one liable party to recover voluntarily incurred response costs from another. Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90, 100 (2d Cir. 2005).
The Eighth Circuit said, "We agree with our sister Circuit, and hold that it no longer makes sense to view § 113 as a liable party’s exclusive remedy. This distinction may have made sense for parties such as Dico, which was allowed to seek contribution under § 113. But here, Atlantic is foreclosed from using § 113. This path is barred because Atlantic – like Aviall – commenced suit before, rather than 'during or following,' a CERCLA enforcement action. Atlantic has opted to rely upon § 107 to try to recover its cleanup costs exceeding its own equitable share. We conclude it may do so."
Atlantic sought to recover a portion of these costs from the United States by invoking CERCLA §§ 107(a) and 113(f).3 Atlantic and the government began to negotiate in an effort to resolve these financial matters. The negotiations ended with the United States Supreme Court decision in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S. Ct. 577, 160 L.
Ed. 2d 548 (2004) (Aviall). In Aviall, the court found a party could only attempt to obtain § 113(f) contribution 'during or following' a §§ 106 or 107(a) CERCLA civil action. Id. at 161, 125 S. Ct. at 580. As no action had been commenced against Atlantic under either §§ 106 or 107(a), the Aviall decision barred its § 113(f) contribution claim. With its § 113(f) claim Aviall-foreclosed, Atlantic amended its complaint. The amended complaint relied solely on § 107(a) and federal common law. In lieu of answer, the government moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing this Court’s pre-Aviall decision in Dico, Inc. v. Amoco Oil Co., 340 F.3d 525 (8th Cir. 2003) (Dico) foreclosed Atlantic’s § 107 claim. The district court agreed and Atlantic appealed the decision.
The Appeals Court provides considerable discussion of pre-Aviall claims and the effect of the Aviall Supreme Court decision. The Second Circuit is the only Court which has considered this question since the Aviall decision. That Court also revisited its pre-Aviall precedent and concluded that § 107 allowed one liable party to recover voluntarily incurred response costs from another. Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90, 100 (2d Cir. 2005).
The Eighth Circuit said, "We agree with our sister Circuit, and hold that it no longer makes sense to view § 113 as a liable party’s exclusive remedy. This distinction may have made sense for parties such as Dico, which was allowed to seek contribution under § 113. But here, Atlantic is foreclosed from using § 113. This path is barred because Atlantic – like Aviall – commenced suit before, rather than 'during or following,' a CERCLA enforcement action. Atlantic has opted to rely upon § 107 to try to recover its cleanup costs exceeding its own equitable share. We conclude it may do so."
Editor's Update Note: On January 19, 2007, the U.S. Supreme Court agreed to hear the case of U.S. v. Atlantic Research Corp. (Docket: 06-0562). The case was appealed from the Eighth Circuit Court of Appeals decision of August 11, 2006 [See WIMS 8/14/06]. The primary questions presented in the case is: "Whether a party that is potentially responsible for the cost of cleaning up property contaminated by hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), but that does not satisfy the requirements for bringing an action for contribution under Section 113(f) of CERCLA, 42 U.S.C. 9613(f), may bring an action against another potentially responsible party under Section 107(a), 42 U.S.C. 9607(a)?"
Access the complete Eighth Circuit opinion (click here). Access a Medill News Service summary of the action (click here). Access the U.S. Supreme Court Docket for the case (click here). [*Remed]
Friday, August 11, 2006
Ninth Circuit Interprets Supreme Court Wetlands Decision
Aug 10: In the case of Northern California River Watch v. City of Healdsburg, in the U.S. Court of Appeals, Ninth Circuit, Case No. 04-15442. [Editor's Note: The Ninth Circuit provides considerable discussion of its interpretation of the Rapanos decision and, in particular, the interpretation of Justice Kennedy's "controlling" opinion. The discussion begins on page 9 of the opinion.]
The City of Healdsburg appeals the district court’s judgment in favor of Northern California River Watch, an environmental group, in this litigation under the Clean Water Act (CWA). Plaintiff alleges that Healdsburg, without first obtaining a National Pollutant Discharge Elimination System (NPDES) permit, violated the CWA by discharging sewage from its waste treatment plant into waters covered by the Act. Healdsburg discharged the sewage into a body of water known as “Basalt Pond,” a rock quarry pit that had filled with water from the surrounding aquifer, located next to the Russian River.
The issue is whether Basalt Pond is subject to the CWA because the Pond contains wetlands adjacent to a navigable river of the United States. The district court held that discharges into the Pond are discharges into the Russian River, a navigable water of the United States protected by the CWA. The court followed the United States Supreme Court decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
The Ninth Circuit, in what is believed to be the first Appeals Court interpretation of the Supreme Court's Rapanos decision [See WIMS 8/2/06] said, "The Supreme Court, however, has now narrowed the scope of that decision. See Rapanos v. United States, 126 S.Ct. 2208 (2006). In a 4-4-1 decision, the controlling opinion is that of Justice Kennedy who said that to qualify as a navigable water under the CWA the body of water itself need not be continuously flowing, but that there must be a “significant nexus” to a waterway that is in fact navigable. Adjacency of wetlands to navigable waters alone is not sufficient. Id. at 2236-52. In light of Rapanos, we conclude that Basalt Pond and its wetlands possess such a “significant nexus” to waters that are navigable in fact, because the Pond waters seep directly into the navigable Russian River. We affirm the district court’s holding that Basalt Pond is subject to the CWA. We also affirm the district court’s ruling that neither the waste treatment system nor the excavation operation exceptions in the Act apply to Healdsburg’s discharges."
In it discussion of the Supreme Court ruling in Rapanos, the Ninth Circuit said, "In the last term, however, the Supreme Court discussed the intersection between Riverside Bayview Homes and SWANCC. United States v. Rapanos, 126 S.Ct. 2208 (2006). The Rapanos decision involved two consolidated cases, United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004) (Rapanos I) and Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004)...
"In Rapanos, a 4-4-1 plurality opinion, the Supreme Court addressed how the term 'navigable waters' should be construed under the Act. The plurality, written by Justice Scalia for four Justices, would have reversed on the grounds that only those wetlands with a continuous surface connection to bodies that are 'waters of the United States' are protected under the CWA. Justice Stevens, writing the dissent for four Justices, would have affirmed on the grounds that wetlands not directly adjacent to navigable waters, but adjacent to tributaries of navigable waters, are protected under the CWA. Justice Stevens argued that Riverside Bayview Homes is still the controlling precedent and does not require a 'significant nexus' test.
"Justice Kennedy, constituting the fifth vote for reversal, concurred only in the judgment and, therefore, provides the controlling rule of law. See Marks v. United States, 430 U.S. 188, 193 (1977) (explaining that '[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds')..."
Access the complete opinion (click here). On August 1: The Senate Committee on Environment and Public Works, Subcommittee on Fisheries, Wildlife, and Water, Chaired by Lincoln Chafee (R-RI) held a hearing on interpreting the effect of the U.S. Supreme Court's recent decision in the joint cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers on "The Waters of the United States". Access the hearing website and links to all testimony (click here). Access a "simple" explanation of the Rapanos v. U.S. decision from QuizLaw (click here). [*Water]
The City of Healdsburg appeals the district court’s judgment in favor of Northern California River Watch, an environmental group, in this litigation under the Clean Water Act (CWA). Plaintiff alleges that Healdsburg, without first obtaining a National Pollutant Discharge Elimination System (NPDES) permit, violated the CWA by discharging sewage from its waste treatment plant into waters covered by the Act. Healdsburg discharged the sewage into a body of water known as “Basalt Pond,” a rock quarry pit that had filled with water from the surrounding aquifer, located next to the Russian River.
The issue is whether Basalt Pond is subject to the CWA because the Pond contains wetlands adjacent to a navigable river of the United States. The district court held that discharges into the Pond are discharges into the Russian River, a navigable water of the United States protected by the CWA. The court followed the United States Supreme Court decision in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
The Ninth Circuit, in what is believed to be the first Appeals Court interpretation of the Supreme Court's Rapanos decision [See WIMS 8/2/06] said, "The Supreme Court, however, has now narrowed the scope of that decision. See Rapanos v. United States, 126 S.Ct. 2208 (2006). In a 4-4-1 decision, the controlling opinion is that of Justice Kennedy who said that to qualify as a navigable water under the CWA the body of water itself need not be continuously flowing, but that there must be a “significant nexus” to a waterway that is in fact navigable. Adjacency of wetlands to navigable waters alone is not sufficient. Id. at 2236-52. In light of Rapanos, we conclude that Basalt Pond and its wetlands possess such a “significant nexus” to waters that are navigable in fact, because the Pond waters seep directly into the navigable Russian River. We affirm the district court’s holding that Basalt Pond is subject to the CWA. We also affirm the district court’s ruling that neither the waste treatment system nor the excavation operation exceptions in the Act apply to Healdsburg’s discharges."
In it discussion of the Supreme Court ruling in Rapanos, the Ninth Circuit said, "In the last term, however, the Supreme Court discussed the intersection between Riverside Bayview Homes and SWANCC. United States v. Rapanos, 126 S.Ct. 2208 (2006). The Rapanos decision involved two consolidated cases, United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004) (Rapanos I) and Carabell v. U.S. Army Corps of Engineers, 391 F.3d 704 (6th Cir. 2004)...
"In Rapanos, a 4-4-1 plurality opinion, the Supreme Court addressed how the term 'navigable waters' should be construed under the Act. The plurality, written by Justice Scalia for four Justices, would have reversed on the grounds that only those wetlands with a continuous surface connection to bodies that are 'waters of the United States' are protected under the CWA. Justice Stevens, writing the dissent for four Justices, would have affirmed on the grounds that wetlands not directly adjacent to navigable waters, but adjacent to tributaries of navigable waters, are protected under the CWA. Justice Stevens argued that Riverside Bayview Homes is still the controlling precedent and does not require a 'significant nexus' test.
"Justice Kennedy, constituting the fifth vote for reversal, concurred only in the judgment and, therefore, provides the controlling rule of law. See Marks v. United States, 430 U.S. 188, 193 (1977) (explaining that '[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds')..."
Access the complete opinion (click here). On August 1: The Senate Committee on Environment and Public Works, Subcommittee on Fisheries, Wildlife, and Water, Chaired by Lincoln Chafee (R-RI) held a hearing on interpreting the effect of the U.S. Supreme Court's recent decision in the joint cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers on "The Waters of the United States". Access the hearing website and links to all testimony (click here). Access a "simple" explanation of the Rapanos v. U.S. decision from QuizLaw (click here). [*Water]
Thursday, August 10, 2006
EPA Proposes Revisions To Degreaser Air Toxics Rule
Aug 10: U.S. EPA is proposing options to reduce air toxics emissions by up to 70 percent from halogenated solvent cleaning operations. Halogenated solvents, also known as degreasers, are used to remove soils such as grease, oils, waxes, carbon deposits and tars from metal, plastic, fiberglass and other surfaces. The proposal includes two options, both of which would result in increased health protection for the public and cost savings for the industry. The proposals would impose an annual cap on emissions of the solvents methylene chloride, perchloroethylene and trichloroethylene. The caps would provide affected facilities with the flexibility to reduce their emissions using any traditional methods available. Most degreasing operations already emit less than either proposed caps. The proposal would focus on facilities posing the highest risks by requiring them to reduce emissions and meet the cap. EPA issued a national rule to limit emissions of air toxics from degreasing operations in 1994.
The proposal addresses the residual risk and the eight-year technology review provisions in the Clean Air Act. These provisions direct EPA to review existing control technology standards. EPA is to tighten those standards if needed to protect health or because of improvements in emissions reduction methods. EPA will accept public comment on its proposal for 45 days following publication of the proposed action in the Federal Register.
Access a release (click here). Access a fact sheet on the proposed rule (click here). Access a prepublication copy of the proposed rule (click here). [*Air]
The proposal addresses the residual risk and the eight-year technology review provisions in the Clean Air Act. These provisions direct EPA to review existing control technology standards. EPA is to tighten those standards if needed to protect health or because of improvements in emissions reduction methods. EPA will accept public comment on its proposal for 45 days following publication of the proposed action in the Federal Register.
Access a release (click here). Access a fact sheet on the proposed rule (click here). Access a prepublication copy of the proposed rule (click here). [*Air]
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