Cross-posted from Legal Planet.
Yesterday, Berkeley Law’s Center for Law, Energy, and the Environment hosted a public presentation by EPA Administrator Lisa Jackson. She delivered brief prepared remarks, then took a lot of questions. She didn’t announce any new policy initiatives, but she did make it clear that she (and the President) are not going to cave to pressure from Republicans in the House.
Jackson did seem glad to be well outside the Beltway for a while, and who can blame her? She noted that the House has taken some 170 anti-environmental votes this term, more than one for every day it has been in session. And she’s been called in for a number of grillings. Although she faced some difficult questions in Berkeley, she noted that at least Dan Farber, who moderated the questions, didn’t frame each of them as a five-minute tirade against the EPA, and that she was actually given time to respond. She didn’t shy away from any of the questions, which covered the gamut from the delay in issuing new ozone regulations to EPA’s role in the Keystone Pipeline decision to regulation of concentrated animal feeding operations and of toxic chemicals.
This is the first time I’ve seen Jackson speak in person. I was very impressed, with two things standing out for me. First, she truly does seem optimistic despite facing a hostile Congress and challenging (to put it mildly) budget times. She’s clearly both tough and resilient. Second, she has absolute command of what’s going on in her agency, not just on the regulatory side but also at the research labs, and also of the network of interrelated initiatives at other agencies. Whether you agree with EPA’s decisions under her watch or not (and probably most of us, wherever we stand on the political spectrum, can find something to disagree with), you have to respect Administrator Jackson and her approach to her job. She’s the kind of public servant I’d like to see more of in Washington.
Video of the session should be available on the CLEE website soon.
Full textAs EPA’s long-awaited rule curbing mercury emissions from coal-fired power plants heads to OMB for its review, new scientific studies suggest that the harms of mercury contamination may be more severe and more widespread than previously understood. According to the report Great Lakes Mercury Connections: The Extent and Effects of Mercury Pollution in the Great Lakes Region, released October 11, “the scope and intensity of the problem is greater than had been previously recognized.” Despite these harms, utilities have been relentless in their efforts to derail mercury regulation. (The most recent attempts of this industry and its allies in 25 states to prop up the recalcitrant “old dirties” that still hope to avoid reducing their mercury emissions is discussed by my colleague Rena Steinzor.) These ongoing efforts to undermine protection of human and ecological health are unconscionable. The release of this recent collection of scientific data only underscores this point.
The Great Lakes Mercury Connections report summarizes the findings of 35 new scientific papers that are the result of an ambitious multi-disciplinary effort to enlarge understanding about the impacts of mercury contamination in the Great Lakes region. According to the report, regulatory controls on the sources of mercury pollution, namely discharges to the water and emissions to the air, “have resulted in substantial progress, but have not yet addressed the full scope of the problem.” Importantly, the report concludes that mercury concentrations “still exceed human and ecological risk thresholds” throughout the Great Lakes region.
Mercury emitted to the air from coal-fired power plants gets deposited to surrounding land and waters; ultimately, it makes its way into the food web, including fish tissue, in the form of methylmercury. In terms of human health, methylmercury is well-recognized as a potent neurotoxin. Exposure to even small amounts of methylmercury in utero or during childhood can lead to irreversible neurological damage, placing the developing fetus and children at particular risk. Because fish consumption is the primary route of human exposure to methylmercury, those who depend on fish for food are at the greatest risk from mercury contamination. The report confirms that fish – ordinarily a healthful source of food – remain contaminated at levels of concern in the Great Lakes region:
Full textMaryland has a long-held reputation as a regional and national leader in environmental protection. But in some areas, especially enforcement, that reputation warrants scrutiny, says a CPR briefing paper released today. For example, the Maryland Department of the Environment (MDE) cannot by law assess fees for issuing and administering permits for municipalities for water pollution, despite the many resources required to regulate and monitor the pollution. The state’s penalties for violating the Clean Water Act have remained chronically below the level allowed under federal law. And state law does not require MDE to penalize polluters for the full amount of the economic gain they achieved by flouting the law, unlike laws in Pennsylvania and Virginia. Together, these shortcomings may effectively dilute the power of deterrent effect of environmental laws across the state. The end result: waters less protected from pollution.
Today CPR releases Back to Basics: An Agenda for the Maryland General Assembly to Protect the Environment, written by CPR President Rena Steinzor and me. The briefing paper recommends that the state’s legislature better protect the environment by providing MDE with the tools needed to operate its programs and to restore the full deterrent effect of its enforcement program. Our paper says the General Assembly should act to:
For example, because current law doesn’t authorize MDE to charge fees for municipal permits, the state gives up hundreds of thousands of dollars each year, permit revenue that is critical at a time when MDE is expected to do more with less. In addition, the deterrent effect of MDE’s enforcement program could be significantly strengthened by increasing the maximum penalty amount or implementing a mandatory minimum penalty, as New Jersey and California do.
By addressing the basic needs of the MDE—resources and effectiveness—the General Assembly can ensure a healthy, clean, and beautiful Maryland for present and future generations.
Full textIt’s no secret that past efforts to restore the Chesapeake Bay have suffered from a lack of accountability. And so as the EPA, the Chesapeake Bay states, and the District of Columbia engage in their current effort to restore the health and water quality of the Bay, getting accountability right is extremely important. This theme is the focus of this year’s Ward Kershaw Forum, which CPR and the UMaryland Carey School of Law will co-host at the law school in Baltimore tomorrow, October 21.
The panels and speakers will address questions such as:
Speakers include EPA Bay “czar” Jeff Corbin, Maryland Department of Environment Secretary Robert Summers, and Maryland State Senator Brian Frosh – as well as a host of stakeholders and experts. The Chesapeake Bay Funders Network will also demonstrate the Chesapeake Commons, a new online data management and mapping tool that allows the public to input, map, and analyze geospatial data about the Chesapeake Bay and its pollution sources.
An agenda for the forum is here, and registration information is here.
Full textIn perhaps the most profoundly embarrassing development yet for the U.S. government’s star-crossed efforts to police offshore drilling, the Interior Department’s Bureau of Safety and Environmental Enforcement announced last week that it was asking BP, Transocean, and Halliburton to pay a total of up to $45.7 million in fines for 15 violations arising out of the catastrophic failure of the Deepwater Horizon in the Gulf of Mexico. That’s million, not billion, by the way, and a total for all three companies, not each. The $15 million or so that they might each pay is so small in comparison to their annual profits that they might just go ahead and put the sum on an expense account. Meanwhile, as if their humiliation was not enough, the Department of Justice remains strangely silent on its criminal investigation of BP, more than a year after the companies managed somehow to close the benighted well that had spewed oil into the Gulf of Mexico for two solid months in 2010.
The whole point of fining companies for violations of environmental laws is to deter future violations. Despite pledging to pay $20 billion in Gulf Coast relief, as well as cleanup costs and natural resources damages of an as-yet undetermined several billion more, BP reported second quarter profits of $5.6 billion—that’s billion, not million—this year. The company has already demonstrated itself immune to the publicity surrounding the typical penalties assessed for regulatory violations, amassing such a dreadful track record of environmental and occupational safety violations at its Texas City refinery and land-based drilling sites on Alaska’s North Slope that it should have been notorious long before the Gulf Spill. The company pled guilty to criminal violations and kept right on doing business as usual.
Only dramatically more damaging punishment will ever succeed in inspiring the creation of the safety culture needed to ensure that BP workers don’t continue to die on the job (11 died in the Gulf and 15 died at Texas City). One solution would be to prosecute individual BP executives criminally, rather than letting the corporate shield protect them from accountability no matter what they do. A second would be to bar BP from lucrative U.S. government contracts and offshore leasing agreements until it corrects its company-wide disdain for safety and routine maintenance.
Full textThe residents of Kingston, Tennessee had no inkling that the Christmas of 2008 would be any different than another year. In the wee morning hours three days before the holiday, an earthen dam holding back a 40-acre surface impoundment at a Tennessee Valley Authority (TVA) power plant burst, releasing 1 billion gallons of inky coal ash sludge across Kingston, Tennessee. The sludge flood crossed a river, destroying 26 houses. One had a man inside, and was lifted off its foundation and moved 40 feet downhill. In the end, the spill covered 300 acres in four to five feet of sludge and mud. Estimated cleanup costs are more than $1.2 billion.
On Friday, inspired by relentless electric utility industry lobbying, House Republicans and some three dozen Democrat colleagues voted to gut a proposed Environmental Protection Agency (EPA) rule that had the potential to get a grip on the dangerous state of affairs at similar dumps across the country. With luck, the Senate will not take up the bill because although President Obama issued a statement opposing it, he stopped short of the veto threat that is the only way to build a firewall against such initiatives. The President’s weak knees on this are no surprise. As we have observed previously in this space, his Office of Information and Regulatory Affairs, which serves as a perpetual barrier to protective EPA rules that inconvenience industry more than it cares to be inconvenienced, had already compromised the EPA proposal by forcing the agency to propose a strong rule alongside a weak rule, signaling the Administration’s lack of commitment to the initiative.
Just how dangerous and how ubiquitous are Kingston’s brother facilities? In one bizarre twist, in June 2009, the Obama Administration refused to disclose the location of 44 such sites for fear that terrorists would target them for sabotage, causing grave damage and even death in surrounding communities. It’s easy to see why the sites prompt such concerns.
In 2008, some 495 electric plants generated 136 million tons of ash. Utilities disposed of about 34 percent (46 million tons) in so-called “dry” landfills that, at least in theory, cover deposits so that rainfall cannot infiltrate them. But another 22 percent (29.4 million tons) went into “surface impoundments” like the one at Kingston—the term, of course, is a euphemism for a big, waterlogged pit in the ground, shored up by planks, walls, fences, or any other “structure” the companies thought was appropriate as long as five decades ago. The threat of collapse is particularly acute for surface impoundments: some 186 of the 584 estimated to be operating in the United States were not designed by a professional engineer. Fifty-six of these units are older than 50 years, 96 are older than 40 years, and 340 are between 26-40 years old.
The dumps also cause long-term environmental damage. Thirty-one percent of landfills and 62 percent of surface impoundments lack liners to contain leaching of hazardous constituents like mercury, cadmium, lead, and arsenic into underground aquifers. Half of the American people rely on groundwater for their drinking water supplies.
Full textEPA’s chemical management efforts have been under attack on every front. Chemical safety was one of Lisa Jackson’s priorities from her first day as EPA administrator. But during her tenure, efforts to improve chemicals policy at the agency have been met with fierce resistance. One recent attack was on EPA’s efforts to identify priority chemicals for risk assessment and risk management.
Jackson has already tried one strategy to beef up the agency’s response to hazardous chemicals through the Chemical Action Plans. The plans quickly became a target for chemical industry groups, and in August, EPA announced that it was scrapping the program, and published a discussion guide for a new approach to prioritizing chemicals for risk assessment and potential regulation. EPA recently hosted a public discussion blog on principles for identifying priority chemicals for review and assessment.
Despite the reset, EPA’s discussion guide covers mostly familiar territory on toxics. EPA’s proposed two-step process would draw from existing sources of chemical hazard and exposure data, including EPA’s beleaguered Integrated Risk Information System (IRIS); the Toxics Release Inventory’s Persistent, Bioaccumulative, and Toxic rule; the International Agency for Research on Cancer; and the National Toxicology Program, and then produce a “first pass” list of chemicals to target for additional risk assessment or risk management action. Then once it produces a list, it will seek additional information to determine which of these chemicals should be prioritized for further risk assessment and potential regulation.
Full textContinuing their crusade to undermine the Integrated Risk Information System (IRIS), the most prominent worldwide database of toxicological profiles of common chemicals, House Republicans held yet another hearing Thursday morning to review how the Environmental Protection Agency’s (EPA) chemical risk assessment program interacts with and informs regulatory policy. This time, witnesses descended from politics into the weeds of science policy, doing their best to pretend that scientific risk assessments that say how “safe” dioxin is or isn’t have the same supposedly “job-killing” impact as all those actual environmental, health and safety regulations they’ve been maligning for the past year.
The witnesses, a peculiar mix of industry-funded scientists and hostile state regulators, were united by the fact that they don’t seem to know the difference between a straightforward scientific assessment of the potential risks of chemicals, and a regulation to do something about those risks. IRIS provides the former – scientific assessments of risk. Once those assessments are completed, regulators can get to work weighing the costs and benefits of diminishing whatever risks the chemicals pose, and perhaps promulgating a regulation. The honest scientific assessment is a starting point. Industry wants to characterize IRIS risk assessments themselves as regulations in a blatant attempt to slow and weaken the risk assessment process.
Michael Honeycutt, of the Texas Commission on Environmental Quality, provided testimony that was largely concerned with public perception of EPA risk assessments and the potential impacts of risk assessments on future remediation efforts. Honeycutt’s concern about public perception and remediation would be more fruitfully directed at those agencies and regulations designed to consider such possibilities in the decision-making process, such as the Food and Drug Administration for his food safety examples and the Comprehensive Environmental Response, Compensation, and Liability Act for standards required by remediation efforts.
Jerry Cook, Chief Technological Officer of Chemical Products Corporation, also conflated risk assessment and regulation. He used his testimony as a forum to impugn the EPA. Cook’s primary focus was barium, no surprise given that he is employed by a barium producer and depends on the substance for his livelihood. However, even Cook took no issue with EPA’s current IRIS risk assessment for barium. Rather, he voiced frustration that the most recent IRIS assessment has yet to be rolled into regulations promulgated under RCRA. This by no means a criticism of IRIS, and is in fact evidence of IRIS efficacy.
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At a growing number of contaminated sites across the nation, “cleanup” means that toxic contaminants are left in place while environmental agencies look to institutional controls (ICs) to limit human contact with these contaminants. Agencies hope that ICs such as deed restrictions or advisory signs will inform people about the continued presence of contaminants at a site and help them steer clear, thus avoiding exposure. Yet agencies have done little to ascertain whether these hopes are well-founded, particularly over the long term. Against this backdrop, EPA released guidance last month that for the first time seeks to systematize its evaluation of ICs. The guidance directs EPA investigators conducting five-year reviews to determine whether ICs called for as part of site cleanups have actually been implemented and maintained. This guidance is a welcome first step. But larger questions remain about agencies’ increased reliance on ICs and other forms of “risk avoidance.”
Contaminated site cleanup tends to conjure images of so-called engineering measures such as dredging or excavation. These measures actually remove contaminated substances from the site or treat them so that they become less toxic. With toxic contaminants no longer present, risks to humans and the environment are reduced. Institutional controls, by contrast, are administrative or legal measures intended to address those instances in which toxic contaminants have been permitted to linger at a site, such that risks to humans and the environment remain. According to EPA, “ICs typically work by limiting land or resource use and/or by providing information that helps modify or guide human behavior at the site.” Institutional controls include proprietary controls, such as restrictive covenants or easements; government controls, such as zoning ordinances or ground water use regulations; legal tools such as consent decrees that limit permitted activities at a site; and informational measures, such as state registries of contaminated sites, posted signage, and fish and wildlife consumption advisories.
Full textA few weeks ago, Rena Steinzor used this space to highlight some questionable activity happening at EPA’s IRIS office and wonder, “ Is IRIS Next on the Hit List?” The good news last week was that EPA released a number of documents, including the controversial and long-awaited assessment of TCE, giving some reassurance that IRIS staff are still plugging away at their important work (see Jennifer Sass and Daniel Rosenberg over at Switchboard for more on the TCE news).
A new report from Inside EPA, available here, sheds more light on the state of IRIS, by which we now see that the chemical industry’s lobbying arm, the American Chemistry Council, has its cross-hairs trained directly on the IRIS program.
Maria Hegstad reports that ACC recently met with Cass Sunstein, Administrator of OIRA, and David Lane, assistant to President Obama and counselor to the President’s Chief of Staff, Bill Daley, to argue for elimination of several government programs designed to assess the risks posed by toxic chemicals. The programs that ACC has targeted include EPA’s IRIS program, the National Toxicology Program (NTP) housed at NIH, the Agency for Toxic Substances and Disease Registry (ATSDR), and HHS’s Report on Carcinogens (ROC) program.
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