Ear To The Ground

EPA to adopt new methodology to assess chemical risk

Like most regulatory agencies, EPA relies heavily on animal studies for assessing the potential health risk from a particular chemical.  Various strains of rats and mice are dosed with various concentrations of a chemical and the effect assessed; using well established toxicological principles, implications for risk to humans can be drawn from the test results.  However, this process has been criticized.  As noted in a 2008 GAO report [http://www.gao.gov/products/GAO-08-743T], a combination of changing scientific methods, bureaucratic gamesmanship, and a reluctance to move forward on evaluations meant that many studies did not happen, had to be repeated, or were accomplished only after the passage of much time.

Thus, EPA recently took the lead in commissioning the National Research Council (NRC) of the National Academies of Science to develop a long-range vision for toxicity testing and risk assessment.  Their 2007 report, Toxicity Testing in the 21st Century: a Vision and a Strategy [see http://books.nap.edu/openbook.php?record_id=11970], envisioned a transformation that focused on identifying and evaluating "toxicity pathways," i.e., cellular response pathways responsible for adverse health effects when sufficiently perturbed by environmental agents under realistic exposure conditions.

To build upon the changes advocated in the NRC study, EPA established a workgroup under the auspices of its internal Science Policy Council.  This workgroup produced The U.S. Environmental Protection Agency's Strategic Plan for Evaluating the Toxicity of Chemicals that provides a framework for EPA to comprehensively move forward to incorporate this new scientific paradigm into future toxicity testing and risk assessment practices.  A copy of the Plan can be found at http://www.epa.gov/OSA/spc/toxicitytesting/docs/toxtest_strategy_032309.pdf.

This “new paradigm” has the potential to address increasingly complex issues that EPA faces in evaluating environmental contaminants for risks to human health and the environment.  For example, it is expected to create more efficient and cost-effective means to screen and prioritize for further assessment the tens of thousands of chemicals that are already found in the environment.  It should [emphasis on should] facilitate evaluating the susceptibility of different life-stages and genetic variations in the population, understanding the mechanisms by which toxicity occurs, and considering the risks of concurrent, cumulative exposure to multiple and diverse chemicals, while at the same time significantly reducing reliance on animal testing for assessing human risk.

This Plan is centered on three interrelated components: (1) the use of toxicity pathways identification and use of this information in screening and prioritization of chemicals for further testing; (2) the use of toxicity pathways information in risk assessment; and, (3) the institutional transition necessary to implement such practices across EPA.  This Plan describes an ambitious and substantive improvement in the efficiency and effectiveness of the process by which environmental pollutants are evaluated for toxicity and risk.  According to the NRC, the strategic plan will require funding of up to $100 million per year for 10-20 years in order to have a reasonable chance of success.

Department of Transportation slightly increases mileage requirements for 2011

Prior posts have noted the earlier mileage standards set for automobiles and light trucks, and noted that current technology was capable of significantly increasing mileage without major alternations in fleet makeup (e.g., more gasoline-electric hybrids, switch to plug-in hybrids).  

The U.S. Department of Transportation has posted the new fuel economy standards for cars and light trucks for the 2011 model year.  The new standards will raise the industry-wide combined average to 27.3 miles per gallon, a two mpg increase over the 2010 model year average, as estimated by the National Highway Traffic Safety Administration.  The standard for cars will average 30.2 mpg, up from 27.5 currently, and 24.1 for light trucks, up from 23.1 mpg for 2009 models.  DOT says the new standards will save about 887 million gallons of fuel and reduce carbon dioxide emissions by 8.3 million metric tons.

The new rule can be found at http://www.nhtsa.gov/portal/site/nhtsa/menuitem.43ac99aefa80569eea57529cdba046a0/.

Fish & Wildlife Service advisory committee seeks to establish best practices for wind turbines to minimize harm to birds and bats

Controversy over the potential for adverse impacts [no pun] on birds and bats from wind turbines have featured prominently in some recent litigation.  See, for example, Center for Biological Diversity, Inc., et al v. FPL Group, Inc., et al (2008) 166 Cal. App. 4th 1349, discussed in a prior post.  As such, in 2007, the U.S. Fish & Wildlife Service, under the Federal Advisory Committee Act, convened representatives of State government, wind turbine companies, and conservation/environmental groups to seek to develop "best practices" for the construction and operation of wind turbines.  Two preliminary drafts have recently been issued. 

The drafts outline a tiered or staged strategy to gathering data and information necessary for decision-making on where to site wind turbines in order to minimize harm to birds and bats.  The first stage might be a regional review; the second, discussions with local government and environmental organizations.  The third stage would be field studies to ascertain wildlife conditions and predict the potential for project impacts.  Studies would examine not only direct harm (e.g., impacts by blades on birds and bats), but also habitat fragmentation or wildlife displacement. 

Much still remains to be done, but the Committee hopes to have a final document by the end of 2009.  The Committee is drawing upon, among other bases for information, current experience.  For example, it has been found that raptors ride air currents up the sides of ridges, and thus (to avoid harm to raptors) turbines need to be placed away from the edge of ridges (often a favorable power generating location).  Similarly, prairie potholes are highly attractive to migratory birds, and thus it would help minimize wildlife harm to keep turbines away from such locales.

The first draft recommendations developed can be found at http://www.fws.gov/habitatconservation/windpower/First_Release_Draft_FWS_Wind_Turbine_Recommendations.pdf.  The most recent draft can be found at http://www.fws.gov/habitatconservation/windpower/Second_Release_Draft_One_Text_FAC_Briefing_3_13_09.pdf. 

EPA moves forward on setting NAAQS for NO2 without following the Bush Administration notice of proposed rulemaking process

In 2006, the Bush Administration established a new procedure for setting national ambient air quality standards (NAAQS) for criteria air contaminants [aka criteria pollutants; see http://en.wikipedia.org/wiki/Criteria_pollutant].  EPA was to issue a notice of advanced rulemaking that included a proposed standard, and then a request for public comment.  The process was criticized for inviting political interference when the CAA standards were suppose to be science based.  In reply, EPA stated that the advance notice process, in lieu of the former staff recommendation process, would streamline the process, which was often late in meeting the 5-yr. schedule established by the CAA.  EPA is now reviewing whether to continue this process.

In the interim, EPA is moving forward with the process to set a NO2 standard without following the Bush Administration process because a judicial consent decree requires that a proposed rule be issued by June 26.  Since the notice of advanced rulemaking is not legally required, EPA can modify its approach.  In the case of NO2, two science-related documents on NO2 pollution have been issued, including a July 2008 final integrated science assessment.  The documents noted that ambient NO2, even at levels of the current standard, increase the risk of hospital visits for respiratory symptoms by 2-20%.

Further information on the NAAQS for NO2, including background information and links to the science documents, can be found at http://www.epa.gov/ttn/naaqs/standards/nox/data/20090210NO2NAAQSstatus.pdf.

Climate change, a pessimistic view, or is it realistic?

At a meeting in Copenhagen, four environmental scientists stated that sea levels may rise nearly twice as rapidly as had been forecast two years ago by the U.N. International Panel on Climate Change.  Their warning was meant for the politicians who will meet in December 2009 in Copenhagen to discuss the same subject and draft an international agreement to address the problem.  [See http://unfccc.int/2860.php.]  The rationale for the increased rate of change was that allegedly there is more and better information available.  The IPCC had predicted an increase of between 18 centimeters (7 inches) and 59 centimeters (23 inches) by 2100 [see prior post on the fact that the increase will not be uniform across the globe]; the lack of understanding of the trends in the polar ice caps was behind the wide range of uncertainty.  As noted in several prior posts, there is an increased level of information about trends in the polar ice caps, and the trends are not good.  The Greenland and Antarctic ice caps are melting faster than anticipated, resulting in estimates of sea level changes of between 50cm (almost 20 inches) and 100cm (39-1/3 inches) by 2100. 

For more information on the predictions of these scientists and other informative studies and scientific analyses, see http://www.reuters.com/article/latestCrisis/idUSLA435701, http://climatecongress.ku.dk/newsroom/rising_sealevels/, http://www.sciencedaily.com/releases/2009/03/090310104742.htm, http://books.google.com/books?hl=en&lr=&id=HichHMpc73kC&oi=fnd&pg=PA11&dq=climate+change+sea+levels+Steffen+Church+Rahmstorf&ots=fbkYLUwdH1&sig=Zk04wQ0p8JOSus8LrR7UmPbTTPc#PPR17,M1, http://www.springerlink.com/content/v65402564j02170h/, and http://www.garnautreview.org.au/CA25734E0016A131/WebObj/D0823065GeneralSubmission-AndrewGlikson-Roundtable_briefing_Brook_Glikson/$File/D08%2023065%20General%20Submission%20-%20Andrew%20Glikson%20-%20Roundtable_briefing_Brook_Glikson.pdf.

In California, following a mistrial, the plaintiff/cross-complainant may revive a claim abandoned prior to the first trial

In California, a new trial leaves the parties in the same position as if the first trial had never taken place.  Thus, in Gordon v. Nissan Motor Co. (2009), 170 Cal. App. 4th 1103, plaintiff abandoned one of his claims prior to trial.  After a mistrial was granted, plaintiff sought to revive the previously abandoned claim and assert it in the second trial.  The Superior Court ruled that plaintiff could not revive the abandoned claim.  On appeal from a judgment for the defendant in the second trial, the Court of Appeal reversed, holding that the error was reversible error per se, and held that an order granting a new trial leaves the parties in the same posture as if the first trial had never taken place.  Thus, abandonment of a claim in the first trial does not bind the plaintiff in the second trial.  

California court may not require an evidentiary showing as a condition precedent to allowing a complaint to be amended

California takes a generous attitude toward amending complaints; a plaintiff will be granted leave to amend his/her/its complaint if there is a reasonable possibility that the plaintiff can state a cause of action, whether in tort, contract, or equity.  In Sanai v. Saltz (2009), 170 Cal.App.4th 746, the Court of Appeal noted that although courts should guard against amended pleadings not made in good faith, it is improper to require the plaintiff to submit admissible evidence in support of the proposed amendment before granting leave to amend the complaint.

California State Water Resources Control Board resurrects the primary/secondary liability determination vis-à-vis a site clean-up

Over the years, the SWRCB has applied the concepts of primary-secondary liability for a number of years, and then moved away from that distinction, finding everyone equally liable [in essence taking the position that it was up to the responsible parties to work out their various quantum of liability in the civil courts].  Under the primary/secondary doctrine, those secondarily responsible are only required to engage in characterization and/or remedial activities if those primarily responsible fail to undertake or complete the necessary characterization and/or remedial activities.  In a recent decision, the concept of primary-secondary liability has once again been given life.

Ultramar operated a gas station in Sonoma County until December, 1991; in March, 1991, Ultramar discovered a release and gave notice to the County.  In Nov., 1991, Ultramar removed the onsite USTs, installed new USTs, and sold the site to two individuals (Hansen & Molavi).  One of the individuals continued to operate the site as a gasoline station.  Meanwhile, Ultramar engaged in remedial activities pertaining to the release discovered in 1991.  In 2005, the County determined that a second release had occurred, and issued a Notice of Responsibility that named Hansen, Molavi, and Ultramar together as primarily responsible.  Subsequently, the County decided that the so-called second release was not related to the new USTs, but to the old USTs.  Ultramar appealed the determination to the SWRCB.

The SWRCB made an independent assessment of the data on the site, and determined that in fact the 2005 release was a vapor-phase release from the new USTs.  Hansen and Molavi argued that since the new USTs passed all integrity tests after repairs were made to the leak detection and secondary containment system in 2002, a leak could not have occurred.  The SWRCB conceded that in 2002 no evidence of a release was found, but noted that in 2004 a test of the secondary containment system found that it was faulty for 2 of the 3 USTs on the site.  Also, vapor samples collected from the backfill indicated that the UST system was not "tight".  Thus, the data contradicted the so-called tightness tests.

The SWRCB thus found that Hansen and Molavi, as the current owner and operator of the USTs, were primarily liable for the release even though the USTs were installed by Ultramar, which by default became secondarily liable.  The opinion can be found at http://www.waterboards.ca.gov/board_decisions/adopted_orders/water_quality/2009/wqo/wqo2009_0001_ust.pdf.

California State Water Resources Control Board proposes regulations to reestablish an "orphan fund" for UST clean-ups

On 1/1/08, authorization expired for the UST orphan fund for the State of California.  During its three-year lifetime, $30 million were disbursed for the clean-up of 37 orphan sites. 

Pursuant to SB 1161 [http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_1151-1200/sb_1161_bill_20080930_chaptered.html], which was signed into law 9/30/08, the orphan fund was authorized to be reestablished.  The State Water Resources Control Board has proposed regulations that are very much akin to those for the prior fund, but with a few significant differences.  The former allowed performance based contracts; the new fund will only issue time-and-material clean-up grants.  This would appear a step backwards.  The same $1.5 million cap per occurrence is maintained; this would appear to be on the small side if the site is (for example) a large tank farm.  The new fund will be financed by a $10 million transfer each year for the next three years from the UST Cleanup Fund, which (as has been noted in prior posts) is itself facing a funding shortfall.

A copy of the proposed regulations for the new fund can be found at  http://www.waterboards.ca.gov/water_issues/programs/ustcf/oscf.shtml.

The race to stop mountaintop coal mining

Posts over the last couple of days have noted that EPA is reviewing permit applications for mountaintop mining, that the Fourth Circuit case that began this brouhaha could be easily reversed by a very simple amendment to a key EPA regulation, and that Representative Frank Pallone (D., N.J.) had introduced H.R. 1310, which would appear to ban all mountaintop mining that caused soil or debris to be placed in bodies of water (within Federal jurisdiction, of course). 

Now, Senators Benjamin L. Cardin (D-Md.) and Lamar Alexander (R-Tenn.) have introduced S. 696 [see http://thomas.loc.gov/cgi-bin/query/z?c111:S.696:], which is just as succinct as HR 1310 and appears to do the same thing, ban all mountaintop mining that caused soil or debris to be placed in bodies of water (within Federal jurisdiction, of course).  The Senators note that the technique produces less than 5 percent of the coal mined in the U.S., and noted the legislation would not ban other methods of coal mining.

Given the action by both Legislative bodies and by EPA, it would seem fair to speculate that the days of mountaintop coal mining are numbered.