NAS Says OMB Risk Assessment Document "Fundamentally Flawed"

Jan 11: A draft bulletin issued by the White House Office of Management and Budget (OMB) prescribing technical standards for Federal risk assessments is "fundamentally flawed" and should be withdrawn, according to a new National Academy of Sciences' (NAS), National Research Council report. OMB requested that the Research Council review the bulletin.

Last January OMB issued the draft bulletin, which included a new definition of risk assessment and proposed standards aimed at improving Federal risk assessments [See WIMS 1/10/06]. Risk assessments are often used by the Federal government to estimate the risk the public may face from such things as exposure to a chemical or the potential failure of an engineered structure, and they underlie many regulatory decisions.

John F. Ahearne, chair of the committee that wrote the report said, "We began our review of the draft bulletin thinking we would only be recommending changes, but the more we dug into it, the more we realized that from a scientific and technical standpoint, it should be withdrawn altogether." The committee agreed with OMB that there is room for improvement in Federal risk assessments and that additional guidance would help. However, it concluded that the bulletin would not accomplish its stated goal of enhancing the technical quality and objectivity of Federal risk assessments. The Committee said, "OMB should instead issue a different type of bulletin that outlines goals and general principles for risk assessments, but that directs federal agencies to develop their own technical guidelines to meet those goals and principles. The new bulletin should draw on the risk assessment expertise that exists in federal agencies and the organizations that advise them."

In a release the Committee indicated that although the general thrust of the draft bulletin appears to be consistent with past expert recommendations on risk assessments, a number of specific proposals are inconsistent. It added that the bulletin attempts to move standards for risk assessment into "territory beyond what previous reports have recommended and beyond the current state of the science." Also, OMB's definition of risk assessment is "too broad and in conflict with long-established concepts and practices."

Many of the standards proposed in the bulletin are unclear, the report adds. In particular, OMB's proposal of separate standards for general risk assessments and "influential" ones is problematic because agencies may not know at the outset whether a risk assessment will be considered influential. The committee also took issue with the bulletin's definition of an "adverse health effect" because it implies that only clinically apparent effects should be considered adverse. They said, "This ignores a fundamental public health goal to control exposures well before they cause functional impairment."

The Committee said the bulletin also omits several topics, further limiting its usefulness. For example, OMB erred in focusing mainly on human health risk assessments while neglecting risk assessments of technology and engineered structures. The bulletin's incomplete and unbalanced approach to engineering, ecological, and other types of risk assessments contradicts its stated objective of improving the quality of risk assessment throughout the Federal government. The bulletin also gives little attention to the integral role of risk communication, the importance of default assumptions in conducting risk assessments, and the risks faced by sensitive populations, such as children and pregnant women.

The Committee said, "OMB has not established a baseline of each agency's proficiency at conducting risk assessments, nor estimated the cost of implementing the bulletin. However, the committee determined -- based on comments from the agencies and its own knowledge of risk assessment practices -- that some aspects of the bulletin's implementation could be beneficial but that the costs are likely to be substantial. Overall, the committee concluded that the potential for negative impacts on the practice of risk assessment in the federal government would be very high." The Committee noted that risk assessment is not a monolithic process or single method, adding that "one size does not fit all."

House Chairmen Bart Gordon (D-TN, Science & Technology), John D. Dingell (D-MI, Energy & Commerce), Henry A. Waxman (D-CA, Oversight & Government Reform), and James Oberstar (D-MN, Transportation & Infrastructure) issued a joint release saying they agreed with the NAS conclusions that the document was fundamentally flawed. The Members, who have been critical of the document, expressed their concerns in a letter to NAS last May when they initiated their review of the Risk Assessment Bulletin.

Access a release from NAS (click here). Access the complete report on-line and a summary report (click here). Access the complete 26-page OMB Proposed Risk Assessment Bulletin document (click here). Access the Members joint release (click here). [*All]

New Energy Policy For Europe To Reduce GHG

Jan 10/11: The European Commission proposed a comprehensive package of measures to establish a new Energy Policy for Europe to combat climate change and boost the EU's energy security and competitiveness. The package of proposals set a series of ambitious targets on greenhouse gas (GHG) emissions and renewable energy and aim to create a true internal market for energy and strengthen effective regulation. The Commission believes that when an international agreement is reached on the post-2012 framework this should lead to a 30% cut in emissions from developed countries by 2020. To further underline its commitment the Commission proposes that the European Union commits now to cut GHG emissions by at least 20% by 2020, in particular through energy measures.

Commission President José Manuel Barroso said: "Today marks a step change for the European Union. Energy policy was a core area at the start of the European project. We must now return it to centre stage. The challenges of climate change, increasing import dependence and higher energy prices are faced by all EU members. A common European response is necessary to deliver sustainable, secure and competitive energy. The proposals put forward by the Commission today demonstrate our commitment to leadership and a long-term vision for a new Energy Policy for Europe that responds to climate change. We must act now, to shape tomorrow's world".

Stavros Dimas, Commissioner for the Environment stated that, "Climate change is one of the gravest threats to our planet. Acting against climate change is imperative. Today, we have agreed on a set of ambitious, but realistic targets which will support our global efforts to contain climate change and its most dire consequences. I urge the rest of the developed world to follow our lead, match our reductions and accelerate progress towards an international agreement on the global emission reductions".

On January 11, in a major follow-up speech on climate change to the Launch event of the European Commission and the All Party Parliamentary Group on Climate Change co-operation for 2007, Stavros Dimas indicated, "...the fight against climate change is much more than a battle. It is a world war that will last for many years and probably for many generations. Damaged economies, refugees, political instability, and the loss of life are typically the results of war. But they will also be the results of unchecked climate change. It is like a war because to reduce emissions something very like a war economy is needed. All sectors – transport, energy, agriculture and foreign policy must work closely together to meet a common objective. And it is a world war because every country in the world will be affected by the results of climate change – although it will be the poorest who are hit hardest...

"The science on climate change is clear and we can see the evidence is before our eyes. We have a good idea of the likely social, environmental and – following the Stern Review - economic cost of climate change [See WIMS 10/31/06]. We already have the basic technologies that can reduce emissions ... and these are being improved all the time. We have the resources to make the necessary investments. If we are to have a chance of successfully tackling climate change the real challenges are not scientific, or technical or economic. They are political...

"As we celebrate the 50th anniversary of the creation of the European Union I am convinced that protecting the environment – and in particular tackling climate change – will be at the very heart of the European project over the next 50 years. The alternative is to surrender in the war against climate change ... and that is really no alternative at all."

Access a release and overview from the European Commission (click here). Access links to all documents (click here). Access a EurActiv report on the actions and links to extensive information (click here). Access the Dimas 1/11/07 speech (click here). [*Climate, *Energy]

Two OCS Areas May Be Offered For Oil & Gas Leases

Jan 9: Interior Secretary Dirk Kempthorne announced that President George Bush has modified the leasing status of two areas in the Outer Continental Shelf (OCS) in response to Congressional action and the requests of state leaders. In addition, Kempthorne announced that he has increased the royalty rate for most new offshore deepwater federal oil and gas leases to 16.7 percent (1/6th). Kempthorne said, “Together, these actions will enhance America’s energy security by improving opportunities for domestic energy production, and will also increase the revenues that the federal government collects from oil and gas companies on behalf of American taxpayers.”

The areas were withdrawn from consideration for leasing through 2012 by President Bill Clinton in 1998. By modifying that Presidential withdrawal to remove these two areas, President Bush’s action allows the Secretary of the Interior the option of offering these areas during the Minerals Management Service’s next five-year OCS oil and gas leasing program (2007-2012). Kempthorne said, “Both OCS areas -- one in the North Aleutian Basin of Alaska (known as Bristol Bay) and the other in the Central Gulf of Mexico (referred to as the 181 South Area) – would receive thorough environmental reviews. There will be significant opportunities for study and public comment before any oil and gas development could take place in these areas.”

Saying it will increase opportunities for domestic energy production to meet escalating demand, the U.S. Chamber of Commerce applauded the U.S. Department of Interior for modifying the leasing status of two areas on the Outer Continental Shelf (OCS), Bristol Bay, Alaska and an area in the Central Gulf of Mexico. Bruce Josten, U.S. Chamber executive vice president for Government Affairs said, "Allowing the development of new oil and gas production in the Outer Continental Shelf is an important step in meeting the energy needs of a growing nation. This decision, along with recent legislation allowing additional exploration in a portion of the Gulf of Mexico, underscores the growing realization among policymakers that increasing domestic production is an important component of breaking our dependence on foreign oil."

American Chemistry Council (ACC) President & CEO Jack Gerard issued statement saying, “We applaud the President’s action making more of America’s own energy supplies eligible for leasing to meet our nation’s needs. It represents another decisive step toward a more rational natural gas policy, addressing the supply-demand imbalance by adding more than 11 million acres to the deep sea federal waters eligible for exploration. Today’s announcement along with the historic Gulf of Mexico Energy Security Act – signed into law last month – signal growing national recognition that affordable, reliable access to natural gas is critical in our economy and to progress on priorities such as jobs, competitiveness, energy security and the development of alternative and cleaner energies, many of which rely on natural gas.” The National Association of Manufacturers (NAM) also issued a statement of support for the action (See link below).

Bristol Bay, called America's "Fish Basket," supports a billion dollar fishery, valuable sport hunting and fishing industry, Native Alaskan cultural and subsistence values, and marine wildlife populations. Environmental groups like the World Wildlife Fund have said, "We strongly urge President Bush to leave Bristol Bay alone Oil and gas drilling would jeopardize the nation's most important fishery, hundreds of communities reliant on fishing and a treasure trove of wildlife." [See WIMS 12/4/06].

The 181 South Area was included in the 2007-2012 OCS Oil and Gas Proposed Program. In December 2006, Congress passed and President Bush signed the Gulf of Mexico Energy Security Act, which requires leasing in that area [See WIMS 12/11/06]. On December 4, then Speaker of the House-designate Nancy Pelosi (D-CA) issued a statement saying, “The Exxon Valdez oil spill in 1989 showed the world the devastation and destruction that oil spills could have on Alaska’s fragile waters... The American people paid $95 million to buy back leases from oil companies to ensure that Bristol Bay would be forever protected from devastating oil spills... Allowing oil drilling to go forward in Bristol Bay puts our precious environment at risk. Allowing new oil company leasing of these lands is an insult to all taxpayers who have helped protect them."

Bill Eichbaum, managing director and vice-president of the marine portfolio at World Wildlife Fund (WWF), issued a statement saying, "I am very disappointed with the president's action today. Bristol Bay should be off the table for drilling. WWF will now work with Congress to override the president's action and re-instate the Congressional moratorium on oil and gas development in Bristol Bay which was allowed to expire in 2004. Why risk ruining a billion dollar fishery, a valuable sport hunting and fishing industry, a critical resource for Native Alaskans and one of the most important places for marine wildlife populations in the Bering Sea?"

Access an Interior Department release (click here). Access a fact sheet (click here). Access the Bush Memo to Kempthorne (click here). Access a map of the Bristol Bay area (click here). Access a map of the Gulf/181 South area (click here). Access a release from the U.S. Chamber (click here). Access the ACC release (click here). Access the NAM statement (click here). Access a release from Representative Pelosi (click here). Access a release from WWF (click here). [*Energy, *Water, *Wildlife]

Supreme Court Oral Argument In Solid Waste Flow Control Case

Jan 8: The U.S. Supreme Court heard oral arguments in the case of United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste Management Authority (Case No. 05-1345). The case is being appealed from the U.S. Court of Appeals, Second Circuit, February 16, 2006, decision (Case No. 05-2024) which upheld the Northern District of New York decision [See WIMS 3/1/06]. The district court found that the municipal solid waste flow control ordinances enacted and implemented by the Authority did not impose a "differential burden on interstate commerce."

The Second Circuit said in its decision, "even if we were to recognize that the ordinances burden interstate commerce, we would find that the burden imposed is not clearly excessive in relation to the local benefits conferred by the ordinances... We therefore decline to resolve the former question," and affirmed the district court decision. The Second Circuit said further, "In our view, then, the local benefits of the flow control measures substantially outweigh whatever modest differential burden they may place on interstate commerce." The Second Circuit decision raises a rationale for local flow control regulations, which have basically been deemed invalid since the U.S. Supreme Court issued its definitive ruling in C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 386 (1994) [See WIMS 11/14/06].

The National Association of Manufacturers (NAM), National Solid Wastes Management Association (NSWMA) and the American Trucking Associations (ATA) filed an amicus brief urging the U.S. Supreme Court to overturn the Second Circuit's "controversial decision" which they say could lead to a resumption of local solid waste disposal monopolies – reducing competition and raising prices for consumers [See WIMS 11/17/06].

Adding to the interest in the case the U.S. Court of Appeals, Sixth Circuit, in the case of National Solid Wastes v. Daviess County KY (Case No. 04-6498), upheld a district court ruling in a similar case saying that a proposed Daviess County Ordinance was unconstitutional, and enjoined the County from enforcing it [See WIMS 1/25/06]. In that case the Sixth Circuit said, it refused to adopt what it termed, "the public-private distinction with respect to the dormant commerce clause;" as provided in the Second Circuit Court of Appeals United Haulers case.

The Supreme Court oral argument included appearances by Evan Tager representing the waste hauling Petitioners; Michael Cahill, representing the Respondent Authority; and Caitlin Halligan, Solicitor General, New York, N.Y.; on behalf of New York, as amicus curiae, supporting Respondents. After arguments from each, Tager was allowed a rebuttal. Tager argued that, "The barriers to interstate commerce imposed by the flow control ordinances in this case are even more severe than those resulting from the ordinance this Court struck down in Carbone."

The Justices appeared to be carving out an exception regarding public vs. private operations. Chief Justice Roberts asked the question, "What happens in a lot of municipalities of course is that they decide, well, we're going to run the waste treatment facility and we're going to tax the people in the municipality to support it and the service is going to be free. Now, is that a violation of the Commerce Clause?" Justice Ginsburg said, "I'm sorry. At least as I read the Carbone opinion, it didn't deal with the public-private distinction." Justice Breyer said, "Well, there is still at least the obvious distinction, that one of the main purposes of the dormant Commerce Clause is to prevent protectionism... But now where the municipality is running it itself, no one is favored." Justice Souter said to Tager, "It sounds to me as though, if we accept your argument that, going back to Justice Breyer's first question, every municipal utility in the United States is going to fall."

Respondent attorney Cahill said, "No decision of this Court has held that public service is comparable to private enterprise for purposes of dormant Commerce Clause analysis. Here the only entity that benefits from these laws is the government itself... I don't think that we're engaging in commercial activity in this particular case. If we were to offer our services to citizens to whom we do not have a governmental responsibility, then I think we're entering into the realm of competition with the private sector.

The New York Solicitor General Halligan argued, "As you suggested, Justice Breyer, the theory that petitioners would have the Court adopt here is in fact a novel one. What they are suggesting is that there is discrimination sufficient to trigger near fatal scrutiny every time the government takes over, to the exclusion of all private actors both in state and out of state, a government service, that that is sufficient to trigger strict scrutiny. That is completely inconsistent with the way that this Court has defined what constitutes discrimination for purposes of the dormant Commerce Clause."

Access the complete oral argument transcript (click here). Access the Supreme Court docket in the case (click here). Access a more detailed account of the long history in this case from the Medill School of Journalism (click here). Access the Second Circuit opinion (click here). Access the Sixth Circuit opinion (click here). [*Solid]

Senate Committee "Conference" On Biofuels

Jan 5: The Senate Energy and Natural Resources Committee, Chaired by Senator Jeff Bingaman (D-NM), has issued a request for submissions from interested parties to respond to five questions related to transportation biofuels. Responses may address any one or more of the listed questions. Submittals must be received by Friday, January 12, 2007, and a conference/meeting will be held by the Committee on February 1, 2007. Specific forms and instructions are provided for the submittals.

All submittals will be reviewed; however, only a limited number of participants can be invited to participate in the conference. The limitation is necessary to manage the meeting and permit a useful exchange of ideas. All efforts will be made to ensure that a variety of stakeholders and recommendations are represented. Invitations to participate in the conference will be made by January 18, 2007. The submittals to be discussed at the conference will be posted in advance of the meeting on the Committee website.

Senator Bingaman said, “One of the preeminent energy policy questions facing us is how to diversify energy supplies for transportation. As our first energy hearing next week will show, the United States faces significant energy security challenges stemming from our dependence on foreign oil. Biologically derived fuels have an important role to play in promoting our energy security.”

The five questions include: (1) What is a sustainable goal for biofuels penetration of the U.S. transportation energy market? And, in what timeframe? (2) What are the key economic challenges to the development of the biofuels transportation industry? (3) What infrastructure will be required to support increased use of biofuels for transportation? Please discuss whether a national transportation and distribution network will be necessary, versus a larger number of regional networks. (4) What are the key environmental impacts of increased biofuels consumption? If some of the environmental impacts are adverse, what policy responses would be appropriate? (5) How should government support research and development efforts related to transportation biofuels?

Access an announcement of the Conference (click here). Access links to the instructions and five questions (click here). [*Energy]

Senate Dems Sets Stage On Energy & Climate Change

Jan 5: In a floor statement regarding the National Energy and Environment Security Act of 2007, the new Chairman of the Senate Energy and Natural Resources Committee, Senator Jeff Bingaman (D-NM), set the stage for the energy and climate change debate of the 110th Congress. The bill was introduced by Senate Majority Leader Harry Reid (D-NV) and is cosponsored by Senator Bingaman and Senator Barbara Boxer (D-CA), Chair of the Senate Environment and Public Works Committee.

Bingaman said, "I'm pleased to cosponsor S. 6, the National Energy and Environment Security Act of 2007. This is a message bill that Sen. Reid introduced earlier today. It lays out a number of important goals that will guide our thinking and our action on energy-related matters, including the issue of global warming, in the 110th Congress.

Bingaman outlined five key goals of the bill: (1) to reduce our dependence on foreign and unsustainable energy sources; (2) to reduce exposure to the risks of global warming; (3) to diversify and expand our use of secure, efficient and environmentally friendly energy supplies and technologies; (4) to reduce the burdens on consumers of rising energy prices; and (5) to eliminate tax giveaways and prevent energy price gouging and manipulation.

Bingaman indicated, “All of this is a tall order for Congress. I would predict that instead of seeing just one big energy bill, we will be addressing these issues through multiple bills that move through the Senate as issues and proposals for addressing these issues become ripe for action. In the Senate we will not make much progress on energy or environment unless we can develop a strong bipartisan approach on the issues. The Committee on Energy and Natural Resources has a strong tradition of bipartisan accomplishment that I plan on continuing in this new Congress. I look forward to working with my colleague, Sen. Pete Domenici, and all members of the committee as we forge an effective path forward to promote our energy and energy-related environmental security.”

In a lengthy speech announcing a number of legislative initiatives, Majority Leader Reid said, "This year, the Senate will work full weeks, with votes on Monday and Friday... The extra time will give our committees the time they need to put their expertise to use for our country. The best legislation -- with the broadest possible support -- always comes from our Committees. Senator Bingaman has scheduled a full Committee hearing, Wednesday, January 10, to receive testimony on the global oil balance and its implications for U.S. economic and national security. Specific witnesses have not yet been announced.

Specifically, on the S. 6 bill, Reid said, "For too long, our country’s energy policy has had only one concern: oil company profits. We’ve allowed Exxon’s bottom-line to take priority over families struggling at the gas pump and the harmful effects of global warming. In an effort to begin to solve the energy crisis, our sixth bill will take an aggressive approach to reducing America’s dependence on oil, especially foreign oil, and putting more advanced technologies in the hands of consumers. It will boost production of electricity from solar, geothermal and other renewable sources that are abundant in states like Nevada, and grow the nation’s renewable energy technology jobs and manufacturing base. Freeing ourselves from Oil, particularly from unstable regimes, is a tremendous challenge, but it’s one we cannot afford to ignore."

In a related matter, the Brookings Institute scholars offer a variety of publications and commentary on energy, transportation, and environmental issues, as well as pertinent policy recommendations. According to the Institute, the rise of China and India as major global economic powers, the continued growth in U.S. energy demand, and instability in key oil-exporting regions are dramatically affecting international energy markets. These dynamics have implications for the global balance of power, as energy security is becoming an increasingly important factor in countries' national security and economic development calculations. The series of papers include discussions of energy matters in China, India, Japan, The Russian Federation and the Middle East.

In yet another related matter, the December 26, 2006 issue of the Proceedings of the National Academy of Sciences (PNAS) contained an article entitled, The Iranian petroleum crisis and United States national security. According to the article, the U.S. case against Iran is based on Iran's "deceptions regarding nuclear weapons development. This case is buttressed by assertions that a state so petroleum-rich cannot need nuclear power to preserve exports, as Iran claims. The U.S. infers, therefore, that Iran's entire nuclear technology program must pertain to weapons development. However, some industry analysts project an Irani oil export decline... If such a decline is occurring, Iran's claim to need nuclear power could be genuine. Because Iran's government relies on monopoly proceeds from oil exports for most revenue, it could become politically vulnerable if exports decline. Here, we survey the political economy of Irani petroleum for evidence of this decline."

Access the statement from Senator Bingaman (click here). Access available legislative details for S. 6 (click here). Access the statement from Senator Reid (click here). Access the hearing website for the energy security hearing (click here). Access the policy papers from the Brookings Institute on energy security (click here). Access the PNAS article (click here). [*Climate, *Energy]

DHS Regs To Improve Security At Chemical Facilities

Dec 22: The Department of Homeland Security (DHS) made available for public review what it said is an aggressive and comprehensive set of proposed regulations that will improve security at high-risk chemical facilities nationwide. The proposed regulations were published in the Federal Register on December 28, 2006, as an Advanced Notice of Rulemaking entitled, Chemical Facility Anti-Terrorism Standards, and will be available for public comment until February 7, 2007 [71 FR 78275-78332]. In October 2006, the President signed the Department of Homeland Security appropriations bill, H.R. 5441, which contained language requiring the Department to regulate security at the nation’s “high-risk” chemical facilities.

Homeland Security Secretary Michael Chertoff said, “The consequences of an attack at a high risk chemical facility could be severe for the health and safety of the citizens in the area and for the national economy. Congress has provided the department with a critical new authority to set performance standards that are both sensible and disciplined, allowing owners and operators the flexibility to determine an appropriate mix of security measures at their facility under our supervision and subject to our approval. We’re grateful for this new authority, and we intend to implement it quickly and apply it aggressively."

The proposed regulations require that chemical facilities fitting certain profiles complete a secure online risk assessment to assist in determining their overall level of risk. High-risk facilities will then be required to conduct vulnerability assessments and submit site security plans that meet the department’s performance standards. The department will validate submissions through audits and site inspections, and will provide technical assistance to facility owners and operators as needed. Performance standards will be designed to achieve specific outcomes, such as securing the perimeter and critical targets, controlling access, deterring theft of potentially dangerous chemicals, and preventing internal sabotage. Security strategies necessary to satisfy these standards will depend upon the level of risk at each facility.

The proposed regulations provide chemical facilities with two quick and simple opportunities to challenge the disapproval of a site security plan. Failure to comply with performance standards may result in civil penalties up to $25,000 per day, and egregious instances of noncompliance could result in an order to cease operations.

The American Chemistry Council (ACC) President & CEO Jack Gerard issued a statement saying that ACC and its members "recognize our obligations to secure our facilities and the chemicals we produce. Following 9/11, without waiting for the federal government, members of ACC moved aggressively to secure their facilities and have invested more than $3.5 billion enhancing security under ACC’s Responsible Care® Security Code... DHS is now authorized to establish risk-based performance standards to ensure that high-risk chemical facilities assess security vulnerabilities and develop and implement security plans. Equally important, DHS has clear enforcement authority to inspect these facilities and apply strong penalties to those that fail to properly address security. This represents a major step forward in the effort to secure America’s chemical industry, an essential part of the nation’s critical infrastructure. ACC looks forward to providing comment during the rulemaking process and will continue working closely with DHS in securing the nation’s critical chemical assets.”

Access a DHS release (click here). Access the FR announcement (click here). Access the DHS website and contact information for the proposed regulations (click here). Access the ACC release (click here). Access the 10/2/06 WIMS article and links on the legislation approval posted on the WIMS-eNewsUSA Blog (click here). [*Haz]

Get More Each Day! (click here)

Boxer & AWWA Differ On Monitoring For Perchlorate

Dec 22: U.S. Senator Barbara Boxer (D-CA), incoming Chair of the Senate Environment and Public Works Committee, issued a statement on EPA’s final rule which will require monitoring drinking water for up to 25 unregulated chemicals under the Unregulated Contaminant Monitoring Rule (UCMR2) [See WIMS 1/2/06]. Boxer said the rule will not require testing drinking water for the toxic chemical perchlorate. She said the toxin has been found in millions of Americans’ drinking water. EPA’s original 1999 rule ordered testing for perchlorate, and just last year EPA proposed to extend that requirement. However, she indicated in a release that, in the wake of industry opposition, the new final rule says that “based on public comment and further consideration, EPA has removed the requirement for monitoring perchlorate….”

The Senator said, “I am distressed that the agency has said there will be no required testing of our drinking water for the dangerous chemical perchlorate. This is another unwelcome holiday gift from EPA to the American public, one of several recent EPA actions undermining health protection. As a result of this new rule, Americans will not have up-to-date information on whether their tap water is contaminated with this toxin. I also remain deeply concerned that EPA has dragged its feet and refused to set a safety standard for perchlorate in our drinking water. Until EPA sets a standard, at the very least we should know if it's in our drinking water. We will not let this kind of action stand. We will closely examine this issue when the new Congress convenes.”

An October 21, 2005, letter from the American Water Works Association (AWWA), representing 4,200 utilities that supply roughly 80 percent of the nation's drinking water, commenting on the regulation indicated, "...we have significant concerns with an apparent disconnect between the CCL [Contaminant Candidate List] and the UCMR and the inclusion of perchlorate in the proposed UCMR2... AWWA recommends that perchlorate not be included in the final UCMR2. The perchlorate monitoring is unnecessary and will not provide meaningful data that for any regulatory decisions for any potential perchlorate drinking water regulation."

AWWA argued that, "The National Academy of Sciences’ (NAS) National Research Council (NRC) conducted a review of the health effects of perchlorate and concluded that a daily ingestion of up to 0.0007 milligrams per kilogram of body weight can occur without adversely affecting the health of even the most sensitive populations. EPA translated this to a Drinking Water Equivalent Level (DWEL) of 24.5 ug/L, assuming a 70 kg body weight and 2 L per day consumption.

"Based on our evaluation of the current regulatory data, it does NOT appear that any potential perchlorate regulation would be below 4 ppb, which was the UCMR1 minimum reporting level. Therefore, the monitoring requirement for perchlorate in the proposed UCMR2 is duplicative and unnecessary, and would be an inappropriate use of utilities’ limited resources. Requiring utilities to spend more than $4 million to obtain perchlorate occurrence data that is not needed for regulatory development is not justified. EPA already has a large, robust occurrence database above 4 ppb from UCMR1, and this occurrence database is adequate for a regulatory determination for perchlorate."

Access the statement from Senator Boxer (click here). Access an overview of the UCMR2 from AWWA regulations (click here). Access the AWWA comment letter of 10/21/05 (click here). Access an EPA release (click here). Access a pre-publication copy of the final rule (click here). Access EPA's UCMR 2 website for extensive information (click here). [*Drink]

South Coast Air Quality v. U.S. EPA

Dec 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 04-1200, consolidated with No. 04-1201, et al. The case consolidates challenges to the Final Phase 1 Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard, 69 Fed. Reg. 23,951 (Apr. 30, 2004) (codified at 40 C.F.R. parts 40, 51, 81) (hereinafter 2004 Rule), promulgated by the Environmental Protection Agency pursuant to the Clean Air Act (CAA or the Act), 42 U.S.C. § 7401 et seq. The Appeals Court said in a unanimous ruling, "Because EPA has failed to heed the restrictions on its discretion set forth in the Act, we grant the petitions in part, vacate the rule, and remand the matter to EPA for further proceedings."

In describing the arguments, the Appeals Court said in these consolidated petitions, a host of parties challenge the 2004 Rule and related EPA decisions on rehearing. No petitioner disputes that the eight-hour standard must be implemented; instead, they differ as to how quickly it must be attained and under what constraints. Parties with similar concerns were grouped for briefing purposes, leaving four principal opponents to various aspects of the 2004 Rule: (1) the State petitioners, (2) the Environmental petitioners, (3) the Industry petitioners, and (4) the State of Ohio. A subset of the petitioners also intervened to support different aspects of the 2004 Rule to which other petitioners objected.

To summarize the challenges the Appeals Court said: The State and Environmental petitioners contend that EPA’s understanding of the interrelationship between Subpart 1 and Subpart 2 contravenes the Act and led to arbitrary and capricious choices reflected in the 2004 Rule. The State of Ohio contends that EPA erred by establishing an unreasonable timeframe for attainment. One Industry petitioner, the National Petrochemical & Refiners Association (NPRA), contends that EPA’s translation of the statutory one-hour Table 1, is flawed and thus arbitrary and capricious. Another Industry petitioner, the Chamber of Greater Baton Rouge (Baton Rouge), contends that EPA lacks authority to continue to enforce any one-hour requirements against areas with lower eight-hour classifications.

The State and Environmental petitioners, conversely, contend that EPA should have retained more of the one-hour control requirements to prevent backsliding, and the Environmental petitioners contend that EPA should not have revoked the one-hour standard at all.

In its 40-page opinion, the Appeals Court provides a lengthy review and analysis of the arguments and concludes, "Consistent with Whitman [Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 482-86 (2001)] and the Act, we grant the State petition and the Environmental petition, except with respect to the withdrawal of the one-hour NAAQS; we also deny the Industry petitions and we dismiss the Ohio petition. Accordingly, we vacate the 2004 Rule and remand the matter to EPA."

In a release, Earthjustice, who brought the court challenge on behalf of the American Lung Association, Environmental Defense, Sierra Club, and Natural Resources Defense Council said, "the Court held that EPA violated the Clean Air Act in relaxing limits on smog-forming pollution from large power plants, factories, and other sources in cities violating health standards." Earthjustice argued that EPA's action made no sense because it came after the Agency found that the previous ozone standard was too weak to protect public health. They said "The rule allowed more pollution in cities where the air was already unhealthy to breathe." Cities that were at risk for increased pollution according to Earthjustice included Chicago, Houston, Milwaukee, New York, Atlanta, Baltimore, Baton Rouge, Philadelphia, Sacramento, Washington (DC), Beaumont-Port Arthur, Boston, Dallas, Providence, and San Joaquin Valley, CA, among others.

U.S. Senator Barbara Boxer (D-CA), incoming Chair of the Senate Environment and Public Works Committee, issued a statement about the decision saying, "The court today ruled unanimously that EPA has failed to heed the restrictions on its discretion set forth in the Act, and therefore that the rule is invalid." Boxer said, "I am pleased that the Court of Appeals has seen through EPA’s transparent attempts to weaken implementation of the Clean Air Act’s rules for smog. This unanimous opinion from the Court of Appeals confirms that EPA’s approach is illegal. EPA must now throw out this rule and start anew. Because of the efforts of the South Coast Air Quality Management District, which brought this case, our citizens will not be forced to accept EPA’s plans to relax the smog rules. Smog kills people, it increases asthma and other respiratory illnesses, and it remains a major public health threat in many areas of the country. Sadly, we have once again had to rely on the court to tell EPA how to read the text of the Clean Air Act in a way that protects people, not polluters. When the new Congress convenes, we will scrutinize EPA’s approach to clean air very carefully to ensure that the health of our families is protected.”

Other parties challenging the EPA rules as too weak were the Clean Air Task Force (on behalf of the Conservation Law Foundation and Southern Alliance for Clean Energy), Louisiana Environmental Network, South Coast Air Quality Management District, and a coalition of states including Massachusetts, Delaware, Maine, New York, Pennsylvania, and the District of Columbia.

Access the complete opinion (click here). Access the Earthjustice release (click here). Access the statement from Senator Boxer (click here). Access a release from Environmental Defense (click here). Access links to various media coverage (click here). [*Air]

U.S. Chamber Wants EPA International Air Program

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

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

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

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

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

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

NRDC Says Methyl Bromide Exemptions Are Unnecessary

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

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

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

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

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

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

Forest Service Exempts Forest Plans From NEPA Review

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

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

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

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

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

DOJ Guidance On Federal Prosecution Of Business Organizations

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

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

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

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

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

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

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

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

EPA Announces Final & Proposed Oil SPCC Regulations

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

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

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

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

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

European Parliament Adopts REACH Compromise

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

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

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

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

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

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

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

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

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

10,600 Scientists Call For Integrity In Federal Policy Making

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

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

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

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

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

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

Gulf Of Mexico Energy Bill Passes

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

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

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

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

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

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

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

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

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

EPA Announces Revised NAAQS Review Process

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

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

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

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

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

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

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

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

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

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

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