Ear To The Ground

Oil from Gulf of Mexico spill may still be present, particularly on the Gulf floor

Prior posts have noted that the dispersants used in the BP spill had a longer than anticipated life in the Gulf.  Additionally, prior posts have noted the evidence supporting the thesis that the oil was consumed by microbes unusually fast.  Recently published evidence indicates that the latter assertion may lack merit.

Underwater images show that, within 40 miles of the damaged wellhead, "huge" quantities of oil from the BP blowout taint the Gulf of Mexico seafloor.  The deposits are patchy, and range from small spots of oil to localized blankets several inches thick.  The oil is in the form of bacterial slime, mucus streamers that ranged from one millimeter to almost two meters long.  The key "ingredient" in the slime are surfactants which are secreted by many oil-eating bacteria, and render the oil easier for them to digest by breaking apart large globules of oil.  As the sticky slime picks up cells and other debris from the water, it becomes heavy and sinks.  The mucus streamers are distinct from oil that was chemically dispersed with Corexit, the commercial dispersant used by cleanup crews.  Corexit created an oil-water emulsion that looks like chocolate mousse under water, the researchers claim.

To test the hypothesis, the researchers collected a milliliter of oil from the BP well and added it to a liter of surface seawater that had been collected from an oil-free part of the Gulf.  After just one day, naturally occurring microbes in the water began growing on the oil. After a week, the cells formed blobs, held together by spit, that were so heavy they began sinking to the bottom of a jar. Two weeks later, large streamers of microbial slime and cells were evident. Brown dots visible inside the mix were emulsified oil.

When the researchers extracted cores of sediment from the Gulf’s spill-impacted zones, the top sediment layers often showed signs of what appeared to be the microbial spit.  That layer also was devoid of living animals, forming an "invertebrate graveyard."  The researchers report seeing dead corals, crabs and sea stars in the affected seafloor areas.  Absent were sea cucumbers that are normally abundant in parts of the Gulf where natural petroleum seeps occur.  Damage was also evident above the seafloor.  Mortality in free-floating jellyfish and sea squirts proved especially high, researchers reported; also some worms had become nothing more than hollow tubes filled with the slimy goop that chemical fingerprinting methods showed had contained BP oil.

Also of interest was that oil was not the only spill-related pollution raining down onto the seabed.  Data also indicated that remnants of the burning of oil by spill-cleanup crews was also present on the seabed. Soot, which normally is not present in ocean sediment, turned up in the September 2010 water samples. Also found were an elevated ratio of certain combustion byproducts known as polycyclic aromatic hydrocarbons, or PAHs, in sediments directly under burn sites.

Information on the study can be found at http://www.boingboing.net/2011/02/23/highlights-from-aaas-1.html, http://www.nytimes.com/2011/03/22/science/22conversation.html, and http://blogs.discovermagazine.com/80beats/2010/09/14/bp-update-bottom-kill-nearly-complete-but-oil-found-on-seafloor/.

Deviation by Army Corps from operating plan, resulting in a temporary or ad hoc flowage easement, does not constitute a taking

Taking cases have been reviewed in prior posts.  To state that the law is convoluted, complex, and obscure is to state the obvious.

In Arksansas Game & Fish Commission v. U.S., 2011 U.S. App. LEXIS 6417 (Federal Circuit: 3/30/11), the U.S. appealed a judgment of the U.S. Court of Federal Claims for Plaintiff Arkansas, that a temporary taking could be in violation of the Fifth Amendment, and that thus the U.S. had taken the property of Plaintiff without just compensation.  The acts complained of were temporary deviations from a federal water release plan governing an adjacent dam that allegedly increased flooding on Plaintiff's property.  Plaintiff cross-appealed on claims that the $5.7 million damage award was insufficient.

The Federal Circuit Court of Appeals reversed the judgment for Plaintiff, holding that the theory underlying the ruling was contrary to governing law.  It found that any analysis of whether the government’s decision to release the water resulted in a taking that was compensable under the Fifth Amendment had to begin with a consideration of whether the flood control policy resulting in the discharge was a permanent or temporary one.  This was key factor because releases of water that were ad hoc or temporary were, by their very nature, not an “inevitably” recurring event, which was essential to the finding of a flowage easement. Though the temporary deviations might be a sufficient basis for tort liability, they could not constitute a compensable Taking as a matter of law.

NRDC challenge to EPA approval of California CAA SIP fails

California submitted a Clean Air Act State Implementation Plan to the EPA for approval. Pursuant to the "conformity rule" under 40 C.F.R. Section 93.118, the EPA conducted a review to determine whether the SIP's motor vehicle emissions budgets were adequate for transportation conformity purposes. The EPA found that one set of budgets was not adequate, but another set of "baseline" budgets for milestone years was adequate under the conformity rule, allowing transportation projects and plans to proceed in accordance with those budgets.

NRDC et al argued that the EPA failed to consider the ability of California to achieve attainment when it made its adequacy determination for the budgets concerning milestone years.

The Ninth Circuit held that it was not unreasonable for the EPA to have interpreted the conformity rule to provide that, for a milestone year, a budget need only demonstrate reasonable further progress toward the ultimate goal of attainment.

The Court also determined that EPA's decision did not violate 40 C.F.R. Sections 51.1007 through 51.1009 for implementation of standards for particulate matter since nothing in those rules required the EPA to consider attainment data when determining the adequacy of milestone-year budgets.

9th Circuit upholds California's Vessel Fuel Rules in face of constitutional challenge

Prior posts have noted that California issued Vessel Fuel Rules designed to reduce air pollution created by ships moving along the coast.  The Pacific Merchant Shipping Assoc. sued, alleging that it was unconstitutional to apply such rules to shipping more than 3 miles from the California Coast.  The District Court denied a MSJ by plaintiff.  The 9th Cir. just affirmed at 2011 U.S. App. LEXIS 6239 (3/28/11).

The association contended that the regulations were preempted by the Submerged Lands Act ("SLA") which provided for a three-mile offshore limit to the state's coastal boundary, that the dormant Commerce Clause of the U.S. Constitution, Art. 1, Section 8, Cl. 3, precluded the state's extraterritorial regulation of commerce, and that the federal maritime jurisdiction under U.S. Constitution, Art. III, Section 2, Cl. 2, precluded the regulations.

The 9th Circuit held, however, that the association failed to show that the state lacked authority to implement the regulations.  Given the state's police power to prevent air pollution and the presumption against field preemption, the SLA did not preempt the state from regulating the effects of extraterritorial activity on the state, and it remained to determine the health effects of maritime fuel use on state residents and the impact upon maritime commerce.  Further, the extraterritorial application of the regulations did not discriminate unfairly in favor of state residents to the detriment of out-of-state interests and only incidentally burdened commerce, and thus there was no direct conflict with federal interests in interstate commerce and maritime regulation.

One can reasonably anticipate that cert will be sought from the U.S. Supreme Court.

Rivers are discovered in the atmosphere, and they can convey a lot of water

As I look out the window and once again view the downpours that have impacted California for months, it seems appropriate to describe one of the more interesting discoveries of the last decade, rivers in the atmosphere.  Think of it as the "Pineapple Express", only in spades.

Completely unknown a decade ago, atmospheric rivers are turning out to be a key factor not only in Western flooding and water supply, but also in the Earth's water cycle.  At any given time, somewhere between three and five atmospheric rivers are ferrying water in each hemisphere.  More than 1,000 kilometers long, they are often no wider than 400 kilometers; they carry the equivalent, in water vapor, of the flow at the Mississippi River’s mouth.  This is not small potatoes.  Some estimates are that they transport 90+% of Earth's water vapor.

"Ordinary" clouds do not carry water vapor long distances.  They "rain out" as soon as water droplets coalesce and become heavy enough to fall as precipitation.  In contrast, atmospheric rivers can drop very significant quantities of water indeed after conveying the water vapor long distances.  Some examples.  In January 2005 more than 20" of rain soaked Southern California, a huge amount for a desert region.  In December 2010 atmospheric rivers dumped more than 10' of snow in parts of the Sierra Nevada mountains. 

Atmospheric rivers happen because of the temperature differential between Earth's tropics and poles.  The temperature differential causes low-pressure storms to spin off in the mid-latitudes.  It is not just the Pineapple Express (an atmospheric river which delivers moisture from Hawaii to the West Coast).  Atmospheric rivers can also come up through the Gulf of Mexico or along the East Coast of the U.S.

To investigate the subject in more detail, California is establishing four "observatories" to track the rivers as they arrive.  Each river can have different effects depending on the angle and speed with which it approaches mountain ranges and watersheds.  Contrary to the buzz that has built around this phenomenon, most atmospheric rivers are weak and cause little or no devastation, but some cause extreme West Coast floods.

Atmospheric rivers may become more relevant as global temperatures rise. Researchers are uncertain how climate change will affect the rivers, but warmer air generally means that the atmosphere can hold more water vapor.  On the other hand, winds may weaken in a globally warmed world, meaning the rivers might carry more water but be less effective at delivering it.  As they say, stay tuned.

More information on atmospheric rivers can be found at http://www.esrl.noaa.gov/psd/atmrivers/, http://www.esrl.noaa.gov/psd/atmrivers/, http://journals.ametsoc.org/doi/abs/10.1175/MWR2896.1, and http://journals.ametsoc.org/doi/abs/10.1175/1520-0493(1998)126%3C0725:APAFMF%3E2.0.CO;2?prevSearch=&searchHistoryKey=.  Also, in Google, use this search term: "doi:10.1029/2010GL044696".

EPA announces new air emission regulations for coal-fired power plants

Prior posts have noted the numerous studies that support the view that emissions from a variety of sources, including automobiles, trucks, and power plants, have an adverse impact on the health of those exposed to such emissions.  It is also fairly certain that one significant source of mercury contamination in the environment is from coal-fired power plants; the rough estimate is 1/3.  See, for example, http://www.epa.gov/hg/exposure.htm and http://www.fossil.energy.gov/programs/powersystems/pollutioncontrols/overview_mercurycontrols.html.

In response to a court deadline, EPA has now proposed the first national standards for mercury, arsenic, and other toxic air pollution from coal-fired power plants.  The proposed regulations would require many power plants to install commonly used pollution control technologies to decrease emissions of mercury, arsenic, chromium, nickel and acid gases.  EPA alleges that the regulations will prevent up to 17,000 premature deaths and 11,000 heart attacks per year; additionally, EPA states that the regulations will provide health benefits for children, preventing 120,000 cases of childhood asthma symptoms and about 11,000 fewer cases of acute bronchitis among children each year.  The proposed regulations are also projected to avert more than 12,000 emergency room visits and hospital admissions and 850,000 fewer days of work missed due to illness.  Incidentially, EPA notes that the regulations will support 31,000 short-term construction jobs and 9,000 long-term utility jobs.

EPA posits that the regulations will cost the industry around $10 billion (a figure in line with some industry estimates; other estimates are much higher), and provide benefits worth $100 billion.  There seems to be some consensus that the rules will also result in the closing of a number of power plants for which it is not economic to come into compliance. 

There will be a 60-day public comment period on the new regulations.  If they are adopted, it is likely that the power industry will institute litigation to challenge their validity.

Details of the proposed regulations, including "fact sheets", can be found at http://www.epa.gov/airquality/powerplanttoxics/actions.html.

Gasification of garbage: A future strategy?

One of the problems with the disposal of even household trash (in California, at so-called Class 3 landfills) is that pollution, particularly of groundwater, may result, even from well constructed sites.  Sometimes construction is less than ideal; sometimes earth movement or earthquakes fracture the containment systems. 

For years some particularly toxic types of waste, such as refinery sludge, have been "remediated" by breaking them into their constituent atoms with plasma torches.  Such technology can be expensive, running $2,000 per ton of waste.  Since costs are beginning to drop and strategies to use the byproducts of the process to generate electricity are being considered, there may be a path toward decreasing the use of landfills. 

If the waste is turned into its constituent carbon and oxygen atoms, then these can be recombined into CO and H, the latter being linked up as diatomic hydrogen molecules.  The electricity generation thus comes from "torching" organic materials into syngas, a mixture of CO and H, which is burned to generate electricity.  Metals and other inorganics conceptually fall to the bottom of the torch chamber as slag, which may have use as bricks or road paving. 

One technological advance that helps this concept are improvements in plasma torches.  The nickel alloys in the torches have improved considerably, and hold up better even in such a harsh environment.  Also, computational fluid dynamics (http://en.wikipedia.org/wiki/Computational_fluid_dynamics) can be applied so that the rubbish mix going into the process is maximized for syngas production.

The first such plants were built in Japan, driven by the high cost of land.  There are now pending more than 3 dozen proposals to build plasma-torch syngas plants in the U.S.  Some of the proposals harken back to the days of yore when syngas was an important industrial input; it was eclipsed by the petro chemical industry, but may arise again.

For more information, see http://www.tampabay.com/news/perspective/turning-garbage-into-gas/1150825, http://science.howstuffworks.com/environmental/energy/plasma-converter.htm, http://www.slate.com/id/2181083/, and http://discovermagazine.com/2007/may/the-ultimate-garbage-disposal.

What is third-hand tobacco smoke and is it dangerous?

In general terms, the phrase "third-hand tobacco smoke" ("THS") refers to the tobacco particulates and gas that get on clothes, in hair, etc.  You have smelled it when you approach a smoker, even if they are smoking at that time.  Technically, it consists of residual tobacco smoke pollutants that 1) remain on surfaces and in dust after tobacco has been smoked, 2) are re-emitted back into the gas phase, or 3) react with oxidants and other compounds in the environment to yield secondary pollutants.  Although obnoxious, is it dangerous?  At this stage of toxicological research, it depends.

In 1991 nicotine was first reported as being detected in the dust of homes of smokers.  See http://www.ncbi.nlm.nih.gov/sites/entrez?db=pubmed&cmd=Search&doptcmdl=Citation&defaultField=Title%20Word&term=Hein%5Bauthor%5D%20AND%20Indoor%20dust%20exposure%3A%20an%20unnoticed%20aspect%20of%20involuntary%20smoking.%20AND%20Arch%20Environ%20Health%5BJournal%5D%20AND%201991%5BPublication%20Date%5D%20AND%2098%5BPagination%5D. 

In 2004, the amount present in house dust was quantified.  See http://www.ncbi.nlm.nih.gov/sites/entrez?db=pubmed&cmd=Search&doptcmdl=Citation&defaultField=Title%20Word&term=Matt%5Bauthor%5D%20AND%20Households%20contaminated%20by%20environmental%20tobacco%20smoke%3A%20sources%20of%20infant%20exposures.%20AND%20Tob%20Control%5BJournal%5D%20AND%202004%5BPublication%20Date%5D%20AND%2029%5BPagination%5D. 

In 2008, the amount present was quantified for the interior of cars of smokers.  See http://www.ncbi.nlm.nih.gov/sites/entrez?db=pubmed&cmd=Search&doptcmdl=Citation&defaultField=Title%20Word&term=Matt%5Bauthor%5D%20AND%20Residual%20tobacco%20smoke%20pollution%20in%20used%20cars%20for%20sale%3A%20air%2C%20dust%2C%20and%20surfaces.%20AND%20Nicotine%20Tob%20Res%5BJournal%5D%20AND%202008%5BPublication%20Date%5D%20AND%201467%5BPagination%5D. 

In 2010, research showed that nicotine was present in homes two months after the smokers had left.  See http://tobaccocontrol.bmj.com/content/20/1/e1.abstract. 

Studies have also shown that some tobacco smoke compounds adsorb onto interior walls of homes, and over time desorb.  See http://www.ncbi.nlm.nih.gov/sites/entrez?db=pubmed&cmd=Search&doptcmdl=Citation&defaultField=Title%20Word&term=Singer%5Bauthor%5D%20AND%20Gas-phase%20organics%20in%20environmental%20tobacco%20smoke.%201.%20Effects%20of%20smoking%20rate%2C%20ventilation%2C%20and%20furnishing%20level%20on%20emission%20factors.%20AND%20Environ%20Sci%20Technol%5BJournal%5D%20AND%202002%5BPublication%20Date%5D%20AND%20846%5BPagination%5D and http://cat.inist.fr/?aModele=afficheN&cpsidt=15352925.

In terms of the potential for harm, recent research has raised some concerns.  Research has shown that nicotine adsorbed onto surfaces reacts with nitrous acid, a common air pollutant from vehicle exhaust and improperly vented stoves, as well as from burning tobacco, to form tobacco-specific nitrosamines.  See http://www.ncbi.nlm.nih.gov/sites/entrez?db=pubmed&cmd=Search&doptcmdl=Citation&defaultField=Title%20Word&term=Sleiman%5Bauthor%5D%20AND%20Formation%20of%20carcinogens%20indoors%20by%20surface-mediated%20reactions%20of%20nicotine%20with%20nitrous%20acid%2C%20leading%20to%20potential%20thirdhand%20smoke%20hazards.%20AND%20Proc%20Natl%20Acad%20Sci%20USA%5BJournal%5D%20AND%202010%5BPublication%20Date%5D%20AND%206576%5BPagination%5D. 

Some of these nitrosamines are classified as carcinogenic, likely to be carcinogenic, or potential mutagens.  See http://www.ncbi.nlm.nih.gov/sites/entrez?db=pubmed&cmd=Search&doptcmdl=Citation&defaultField=Title%20Word&term=Crespi%5Bauthor%5D%20AND%20A%20tobacco%20smoke-derived%20nitrosamine%2C%204-%28methylnitrosamino%29-1-%283-pyridyl%29-1-butanone%2C%20is%20activated%20by%20multiple%20human%20cytochrome%20P450s%20including%20the%20polymorphic%20human%20cytochrome%20P4502D6.%20AND%20Carcinogenesis%5BJournal%5D%20AND%201991%5BPublication%20Date%5D%20AND%201197%5BPagination%5D; http://monographs.iarc.fr/ENG/Monographs/vol89/mono89.pdf; and, http://ntp.niehs.nih.gov/index.cfm?objectid=32BA9724-F1F6-975E-7FCE50709CB4C932.

Evidence has also developed that THS reacts to form ultra-fine particulates smaller than 100 nm.  See, for example, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2974714/.

Yet, despite all this suggestive evidence, proof of harm has not been formally demonstrated; that being said, there is reason for serious concern.  However, such research about harm from THS is about to begin.  The California Tobacco-Related Disease Research Program, which is funded by the California tobacco tax, recently made $3.75 million of funding available for studying THS and cigarette butt waste.  See http://www.trdrp.org/fundingopps/callrfp.asp.

This is clearly a subject about which further information will be developed over the next several years. 

Even toxics can act as a generic selection factor in the environment

One of the themes of this blog has been that virtually anything present in the environment can act as a selection factor influencing the course of evolution.  A recent study on fish and PCB's and dioxins illustrates this point.  Unfortunately for humans, the end result is not necessarily positive or beneficial.

New York's Hudson River is home to the Atlantic tomcod (Microgadus tomcod).  From 1947 to 1976, two General Electric manufacturing plants along the Hudson River produced PCB's for a range of uses, including as insulating fluids in electrical transformers.  Over the years, PCB and dioxin levels in the livers of the Hudson’s tomcod rose to become “among the highest known in nature,” according to researchers.  Because these fish do not detoxify PCB's, it was a surprise to the researchers that they could accumulate such hefty contamination without becoming poisoned.  The researchers have now found that the tomcod’s protection traces to a single mutation in one gene; the gene is responsible for producing a protein needed to unleash the pollutants’ toxicity.

All vertebrates contain molecules in their cells that will bind to dioxins and related compounds; these proteins (aryl hydrocarbon receptors, or AHR's) are often referred to as dioxin receptors.  Once these poisons diffuse into an exposed cell, each molecule can mate with a receptor and together they eventually pick up a third molecule.  This trio can then dock with select segments of DNA in the cell’s nucleus to inappropriately turn on genes that can poison the host animal.

The tomcod actually has two types of AHR's, with AHR-2 offering the most effective binding to dioxin-like pollutants.  But one naturally occurring AHR-2 variant, the result of a gene mutation, proves a very poor mate; it takes roughly five times more of the pollutants to get substantial binding than is needed with the conventional AHR-2.

In local rivers relatively free of dioxins and PCB's, 95 percent of tomcod possess AHR-2 only in the conventional form.  But in the PCB-rich Hudson, the researchers found that the only kind of AHR-2 protein in 99 percent of tomcod is the poorly binding variant.  Thus, the PCB's and dioxins have acted as a selection factor.  The result is that the PCB's and dioxins are stored in the fat of the tomcod.

The bad news?  As the tomcods are eaten by predators, the PCB's and dioxins move up the food-chain.  The result is that species consumed by humans may have very high PCB and dioxin content even though they themselves have not been exposed directly to the contaminants.

The study can be found at http://www.sciencemag.org/content/early/2011/02/16/science.1197296.    

Where is the methane from the BP Deepwater Horizon blowout?

Natural gas in various forms comprised approximately 2/3 of the hydrocarbons emitted from the Deepwater Horizon well blowout.  Methane is believed to compose an estimated 87.5% of that natural gas. Sampling in June 2010 found no microbial breakdown of methane.  [See http://www.sciencemag.org/content/330/6001/208.]  Some estimates were that it would take decades for the methane to be decomposed.

Seeking to quantify the rate of degradation, researchers sampled at more than 200 sites between mid-August 2010 and the beginning of October 2010.  They found exceptionally low methane in the Gulf waters, and no BP-related methane.  In support of their conclusion that degradation had occurred, the researchers pointed to the following facts: (a) a huge drawdown in dissolved oxygen, which methane-munching bacteria (methanotrophs) would have consumed, and (b) the disappearance of almost all of the methane, ethane, and propane and some of the hydrocarbons in oil.  Further, the researchers noted that they saw almost no methanotrophs in plume zones in June 2010, but many methanotrophs and other oil-degrading species in their subsequent sampling.

Critics argue that the plumes are very localized and mobile, and that the researchers simply lost track of where the plumes were located.

Related research papers can be found at http://www.sciencemag.org/content/330/6001/201.abstract and  http://www.sciencemag.org/content/330/6001/204.abstract.