A group of organizations who work to eliminate health hazards in housing have sent a letter to OMB chief Peter Orszag expressing concern over the "detailing" of Randall Lutter to the Office of Information and Regulatory Affairs (OIRA). The letter focuses on Lutter's writings on the economics of lead poisoning:
Mr. Lutter's statement, "...the children who would benefit from reduced lead hazards are living in the care of their parents, and their parents have control of such hazards" profoundly ignores the realities of the housing market and the extent to which families are able to identify and select housing that is free from hazards.
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Although Mr. Lutter's contributions to the literature appropriately belong in an academic discussion of cost-benefit and regulatory analysis, we cannot understand why the Administration, given its public commitment to pursuing many of the very goals and policies viewed as ill-advised by Mr. Lutter, would choose to elevate him to the role of a regulatory gatekeeper at OIRA.
The letter was signed by the Alliance For Healthy Homes, the National Center for Healthy Housing, WE ACT for Environmental Justice, and a number of other groups.
See our previous: "Sunstein Watch: Randall Lutter to OIRA?" and "Sunstein Watch: Randall Lutter on Loan, Says OMB -- Yet WashPost Reports He's Actively Involved"
Full textCross-posted from Legal Planet.
On Sunday, 60 Minutes had a long story on the California water crisis, featuring Lesley Stahl interviewing (among others) Arnold Schwarzenegger and UC Davis professor Jeff Mount. On the positive side, the story accurately portrayed the vulnerability of California’s fragile through-Delta water delivery system to a major earthquake or catastrophic levee break. But CBS News flubbed the overall storyline.
In typical media fashion, it oversimplified the story to “Delta smelt versus farmers,” with barely a mention of the two-year closure of the coastal salmon fishery or the crash of the Bay-Delta ecosystem as a whole. Worse, 60 Minutes swallowed whole a tall tale concocted by anti-regulatory interests: that protecting the Delta smelt has economically crippled California agriculture.
Full textEPA today took an important step toward reversing one of the Bush Administration’s “midnight regulations,” announcing a proposed rule that would improve monitoring standards for airborne lead. Under EPA’s new proposal, any establishment that emits lead into the air at a rate of a half a ton per year or more could be required to have a monitoring station.
In a previous post I noted that EPA finalized a rule in late 2008 that only required monitoring at sites with emissions topping 1 ton per year, after a last-minute entreaty from the lead battery industry and some of their accomplices at OMB. EPA had originally proposed a threshold somewhere in the 0.2 to 0.6 tons per year range.
After President Obama took over the White House and put Lisa Jackson in charge of the EPA, several environmental and public health groups petitioned the agency to reconsider the lead monitoring requirements. The newly proposed monitoring requirements are EPA’s response to the petition.
Monitoring stations that detect airborne lead are important to EPA because they help the agency determine whether existing emissions controls are keeping lead below the health-based ambient air quality limits set under the Clean Air Act.
One year ago today, about 1 billion gallons of coal ash were spilled when a dyke collapsed at the Tennessee Valley Authority's fossil plant in Kingston, Tennessee.
The Knoxville News-Sentinel has the moment-by-moment account of what happened that night. They report that Roane County real estate and tourism have suffered, and that there are 14 lawsuits pending against TVA in relation to the disaster, which will likely take years to resolve. And they editorialize:
TVA and the EPA have vowed that they will do everything in their power to prevent anything of this kind and this magnitude from ever happening again. We believe they will try — and public oversight and accountability will be the best tools to hold them to their promise.
The Chattanooga Times Free Press reports a group of local residents speaking up against TVA and state and county authorities.
The Washington Post and the Charleston Gazette look at prospects for EPA action on coal ash regulation. As the Post puts it:
One year later, most of the ash on the land is still there. And the problem of similar coal-ash ponds still sits on the long and fast-expanding to-do list of President Obama's Environmental Protection Agency.
Last week, we noted here that the White House's Office of Information and Regulatory Affairs has already held 10 meetings with industry representatives on the issue, before any EPA notice-and-comment period has begun.
Full textOn December 9, Senator Olympia Snowe (R-ME) introduced S. 2856, a one paragraph bill that would quietly gut a key portion of the Magnuson-Stevens Act (MSA) by dramatically expanding a narrow exception to one of the Act’s central mandates. Were it to pass, the bill would mark a significant step in the wrong direction for United States fisheries policy. The bill, the "International Fisheries Agreement Clarification Act," is co-sponsored by interim Senator Paul Kirk (D-MA).
The MSA requires fisheries managers to impose scientifically defensible annual catch limits (ACLs). For fisheries identified as overfished, the Act immediately ends overfishing, and requires that the fish stocks be rebuilt as rapidly as possible (with 10 years as the outside limit.)
Section 304(e)(4)(A)(ii) of the MSA creates an exception for fisheries covered by international treaties from this “rebuild in 10 years” requirement. If enacted, Senator Snowe’s amendment would expand this exception to include Maine’s groundfisheries, which are covered by an informal understanding between Canada and the United States. Worse, the amendment would also exempt any other fishery for which there was a comparable international understanding.
There is a reason the MSA limits its exception to treaties. Under our Constitution, treaties are the supreme law of the land. They are negotiated at the presidential level, and are ratified by a two-thirds vote in the Senate. Memoranda of Understanding, (MOU) by contrast, are often used when the parties cannot or do not want to create legally binding commitments. That is exactly what happened in the Gulf of Maine. The “Understanding” Snowe is so concerned about grows out of a document titled Guidance on Options, which was produced by a bilateral government-industry committee.
Full textWhile the EPA announced Thursday that it was delaying a decision on issuing a proposed rule for coal ash, the White House Office of Information and Regulatory Affairs (OIRA) has already hosted 10 meetings with industry representatives in recent months on the issue.
The 10 meetings -- the most on any topic at OIRA so far in the Obama Administration, according to records on its website -- were completely outside of EPA's rulemaking process. In that process, once a proposed rule is issued, industries have ample opportunity to give comment and present their case. The EPA is required by law to examine and respond to those comments. No law requires the White House to hear industry pleas, let alone before the notice and comment period has begun.
Coal ash comprises all the solid waste from the burning of coal to generate power. Chock-full of toxic substances, coal ash presents a serious public health and environmental threat if its disposal is not carefully regulated. Unfortunately, that just happens to be the present state of affairs, as EPA has largely neglected the issue of regulating coal ash disposal for over 25 years. With virtually no regulatory oversight, power plants have been content to dump the spent coal ash in shallow holes or pile it up and then build weak earthen walls around the stuff in an inadequate attempt to keep it contained. The dangers of this latter method of disposal were tragically demonstrated a year ago Tuesday (12/22/08), when an earthen wall in Kingston, Tennessee collapsed, resulting in the release of 5.4 million cubic yards of toxic coal ash into a nearby river.
Full textNOAA issued a draft of its new catch share policy last week. Despite Director Jane Lubchenco’s clear support for the concept, the draft policy stops short of requiring that fisheries managers implement catch shares. This is a good thing. Instead of mandating catch shares, the draft policy focuses on education, cooperation, and transparency. The agency commits itself to “reducing technical barriers and administrative impediments” to implementing catch shares. Those are exactly the roles that NOAA should be playing.
Too often, proponents of catch shares imply that all we need do is wave a private property wand and the problems besetting fisheries will magically solve themselves. If only it were that easy. The basic idea is to set a firm cap on how much of each kind of fish can be captured in a fishery. This cap, the Annual Catch Limit (ACL) is supposed to be set at a level that prevents overfishing, and restores depleted stocks (that's good). Catch shares then divide that catch up among participants in the fisheries. In most cases, the participants are then free to use their shares or to lease them to others, or trade them on the much fabled “free-market”. Much of the conversation surrounding catch shares is so focused on the supposed efficiencies of this property-rights regime that it ignores the problems of overcapacity, by-catch and enforcement.
The NOAA draft policy deserves credit for at least raising these issues, although it could do far more to bring them into focus. Unfortunately, the draft policy doesn’t engage with the serious distributional concerns associated with many catch share plans raise. Other than some general language about “community sustainability” the draft plan ignores the distributional implications of catch shares entirely. Catch share programs can lead to boat owners being squeezed by armchair fishermen seeking economic rents. The crew and deckhands plying their dangerous craft are even more vulnerable in a catch share situation. Their already measly share of the catch is often further reduced to cover leasing fees, and there are even reports of crew being booted off boats in favor of share holders. Catch shares cannot be a progressive tool for fisheries management if hard working crews wind up as sharecroppers. Managers need to create an appropriate regulatory context within rigorous, scientifically-defined, and well-enforced annual catch limits. Only then might well-designed catch share programs be worth exploring.
Full textIn this morning's "Underused Drilling Practices Could Avoid Pollution," ProPublica has more important reporting on hydraulic fracturing, the process of injecting chemicals at high pressure under deep rock to extract natural gas. Reports Abrahm Lustgarten:
Energy companies have figured out how to drill wells with fewer toxic chemicals, enclose wastewater so it can't contaminate streams and groundwater, and sharply curb emissions from everything from truck traffic to leaky gas well valves.
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Yet these environmental safeguards are used only intermittently in the 32 states where natural gas is drilled. The energy industry is exempted from many federal environmental laws, so regulation of this growing industry is left almost entirely to the states, which often recommend, but seldom mandate the use of these techniques.
If natural gas is to be a growing 'bridge' energy source in coming years, will we mandate that the industry do what's possible to protect the residents affected by hydraulic fracturing?
Previously in this space: Yee Huang explained how hydraulic fracturing escapes Safe Drinking Water Act regultion and Rena Steinzor lamented calls for state regulation of fracking (as opposed to federal regulation).
Full textA few notes on the Chinese drywall issue from the past weeks:
The CPSC announced that it was expanding its investigation to include some American-made drywall, following some reports of similar problems -- bad odors and pipe corrosion. But meanwhile, the Bradenton Herald asked "Is scope of Chinese drywall problem exaggerated?" Reporter Duane Marsteller notes that "100,000" has become an often-repeated number for how many homes are affected, but that in fact it's quite unclear.
About 300 people rallied in Florida over the weekend calling for a stronger response to the issue. Floridians and Louisianans, and their members of Congress, remain upset over the speed of CPSC's response. Last week, a deadline passed for joining the big class action suit against Knauf Plasterboard Tianjin Co. -- set to be heard in a U.S. Circuit Court in New Orleans in February. The judge ordered the complaint to be filed by today.
Full textCross-posted from Legal Planet.
Precisely what the Clean Water Act requires of point sources that discharge to already-polluted waterways has long been a point of confusion. Now, according to Inside EPA, EPA may revise the rules it applies to new permits on impaired waterways. A rulemaking seems far from certain at this point — the story quotes an EPA spokesperson as saying the agency is “considering the possibility” — but if EPA does launch one it should make sure that any regulatory revisions serve the Clean Water Act’s goal of restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters.
It may seem odd that new permits are ever allowed on impaired waters. The Clean Water Act requires that states set water quality standards for the waters within their borders. All NPDES permits (the permits issued for point source discharges by EPA or state authorities) must include both technology-based requirements and any additional limitations needed to ensure that those water quality standards are met. No permit may be issued if “the imposition of conditions cannot ensure compliance with the applicable water quality requirements.” 40 C.F.R. 122.4(d). And no permit may be issued to any new source which “will cause or contribute to the violation of water quality standards.” 40 C.F.R. 122.4(i). Impaired waterways by definition do not meet water quality standards and will not even after technology-based standards are fully applied to the relevant point sources. At first blush it seems that any new source discharging a pollutant that already impairs a receiving water would necessarily “cause or contribute” to violation of water quality standards.
EPA has never endorsed quite such a strong reading of the Clean Water Act, however. The 10th Circuit did, but it was slapped down by the Supreme Court, which ruled in Arkansas v. Oklahoma, 503 U.S. 91 (1992), that new permits are not absolutely banned on impaired waters. That case had highly unusual facts — EPA had found that the disputed discharge would not cause any detectable change in water quality. Most new sources can’t make that claim. Nonetheless, until recently EPA and state permitting authorities thought they could approve new permits that would make water quality worse provided the permittee arranged for an offseting reduction in the pollutant load from some other source.
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