Ear To The Ground

EPA lacks authority to regulate nanomaterials, states EPA IG, even if regulations are soon issued under FIFRA and TSCA

Prior posts have noted the wide use of nanomaterials in consumer goods, and the threat to human health that particles of such size may pose.

An example of the risk posed by nanomaterials is sunscreen. Dermal penetration of some nanomaterials into the skin can potentially pose a hazard to human health. [Prior posts have noted
that particles in this size range can breach the blood-brain "barrier."] Also, by washing sunscreen off by showering, users of materials containing nanomaterials may be unknowingly releasing nanomaterials into the water supply. Furthermore, because of titanium dioxide contaminants within the product, improper disposal of sunscreen presents a risk of harm greater than previously hypothecated. The titanium dioxide in an "empty" sunscreen bottle that is disposed in a landfill may
eventually end up leaching into waterways and being ingested by humans.

Unfortunately, a report from the EPA Office of Inspector General (EPA IG) has concluded that the EPA lacks the data or ability to manage the challenges associated with nanomaterials. According to the report, the problem begins with the lack of data from manufacturers of nanomaterials and continues with EPA's lack of formal processes to handle information and lack of communication strategy to manage all nano-related data. The result of these organizational deficiencies, the report says, is that the agency "will not be able to assure that it is effectively managing nanomaterial risks" until these internal processes are improved.

Regarding the lack of data, most companies are unwilling to voluntarily provide information. As much as 90% of industry data is labeled as confidential and therefore was not accessible to EPA. According to the EPA IG's report, only 29 companies disclosed data about their use of 123 different nanomaterials. EPA also set up a program that encouraged companies to further provide information about research, development, and use of nanomaterials. However, only four companies participated.

In prior reports the EPA IG has noted that EPA has an action plan that is moving forward. The major question, of course, is will it be effective.

The EPA IG report can be found at
http://www.epa.gov/oig/reports/2012/20121229-12-P-0162.pdf

One component of the EPA action plan that is moving forward involves proposed mandatory reporting rules for nanomaterials under the FIFRA. Additionally, EPA is developing regulations under TSCA. The TSCA regulations would include four areas: premanufacture notification, a significant new use rule, an information gathering rule, and a test rule. However, as noted above, the EPA IG has questioned if EPA has sufficient information or processes to effectively manage the human health and environmental risks of nanomaterials. A primary shortcoming is the lack of environmental and human health exposure and toxicological data. The four main problems are the lack of a formal process for coordinating and disseminating mandated information; the lack of an overall message to external stakeholders about policy changes and risks; regulating nanomaterials as chemicals will be limited by the limitations of existing statutes; and, a lack of information about risks and a reliance on industry-submitted data.

The TSCA regulatory program for nanomaterials can be found at http://epa.gov/oppt/nano/.

Information on the over 1,000+ manufacturer identified products using nanomaterials can be found at http://www.nanotechproject.org/inventories/consumer/.

9-11 firefighters show increased cancer risk, notes new study

Prior posts have addressed the various studies that have been published regarding the impact of exposure to the toxic dust and smoke that was generated by the 9-11 disaster.  Researchers have now identified that male firefighters who were exposed to the toxic dust and smoke from the 9-11 attacks have a 19% higher risk of getting cancer of all kinds than colleagues who were not exposed.  Given the methodology of the study, these figures will likely increase over time.

9-11 firefighters were exposed to a several known cancer-causing agents, including polycyclic aromatic hydrocarbons, polychlorinated biphenyls, asbestos, and dioxins.  Prior studies have shown increased rates of post traumatic stress disorder, asthma, and other respiratory illnesses among rescue workers. To date, only a couple of smaller studies have shown increased rates of cancer, which can take five to 20 years to develop.  On the negative side regarding causation, a report in July by the National Institute for Occupational Safety and Health concluded that there was not yet enough evidence to support a causal link between the 9-11 attacks and cancer.

The new study looked at nearly 10,000 male firefighters, providing a huge sample pool from which conclusions could be drawn.

The analytical methodology also provides some support for the conclusion.  The researchers only looked at cancers that developed in the first seven years after the World Trade Center attacks, comparing rates among exposed and non-exposed firefighters; as cancers go, this is a truncated time period.  The results were also adjusted to exclude information that might skew the results.  For example, excluded was data on 576 firefighters who were over age 60 on September 11, 2001, because the small number of men in that age group would have made the results statistically "unstable."  Also excluded was data on 32 women, 13 Asians, and 8 native Americans for the same reason, as well as data on 85 men who had a prior cancer diagnosis.  After adjusting for these factors, the researchers found the exposed firefighters had a 19% higher rate of having any type of cancer.  The study focused simply on cancer, not on any specific type of cancer.

The study did not consider rescue workers; these will be addressed in a separate study.

The study can be found at http://www.sciencedirect.com/science/article/pii/S0140673611609896.  The earlier, NIOSH study can be found at www.cdc.gov/niosh/docs/2011-197/pdfs/2011-197.pdf.

California Supreme Court upholds municipal ban on plastic bags

In June 2008, the city manager of Manhattan Beach (a small, beach-front community in Southern California) issued a staff report recommending the adoption of an ordinance banning the use of “point-of-sale plastic carry-out bags” in the city.  The proposed ordinance included a finding that the California Environmental Quality Act ("CEQA") did not apply because the ban would have no significant effect on the environment (14 C.C.R. Section 15061(b)(3)), and because the ban qualified as a regulatory program to protect the environment (14 C.C.R. Section 15308).  The Save the Plastic Bag Coalition, which described itself as “a newly formed group of companies that will be affected by any ordinance to ban or impose fees on plastic bags,” objected to the proposed ordinance.  It claimed that the ban would increase the use of paper bags, with negative environmental consequences.  The Coalition notified the City that it would sue if the ordinance was passed without a full CEQA review.

The city then conducted an initial study evaluating the environmental impacts of the proposed ordinance.  The study noted: “Reducing the use of plastic bags in Manhattan Beach will have only a modest positive impact on the migration of plastic refuse into the ocean.  However, as a coastal City the imposition of the ban is likely to have some modest impact on improving water quality and removing a potential biohazard from the marine environment.”  The study recognized that a switch from plastic to paper bags would have some negative environmental consequences since more energy is needed to manufacture and distribute paper bags, and more wastewater is produced in their manufacture and recycling.  However, the study concluded that the impacts of a plastic bag ban would be less than that level of significance mandating an EIR.  The initial study concluded that any increase in the use of paper bags in Manhattan Beach would be relatively small, with minimal impacts on energy use, air quality, water quality, vehicle traffic, and solid waste facilities.  It noted that the ordinance posed no environmental threat to fish, wildlife, plant communities, historical resources, or human beings.  Further, it would decrease the prevalence of plastic bag litter, both in the city itself and in the ocean.  Therefore, the study recommended adoption of a negative declaration finding that the ordinance could not have a significant effect on the environment.  The Coalition disagreed, and stated that a life cycle assessment would demonstrate a significant impact from the switch to paper, and therefore stated that a full EIR be conducted.

City staff reviewed various reports and concluded that a multitude of factors influenced the impact of a ban, such as that proposed for the City.  Staff recommended an aggressive campaign promoting the use of reuseable bags.  The ordinance was adopted, and the Coalition sued.

In Save the Plastic Bag Coalition v. City of Manhattan Beach, 52 Cal. 4th 155 (7/14/11), the California Supreme Court addressed the issues.  The Court, reversing a contrary holding by an earlier Court of Appeal, held that the industry group had standing to seek a writ of mandate because entities with commercial interests were as free as natural persons to assert the public right and duty exception to the beneficial interest requirement.  Environmental arguments were deemed appropriate for a citizen suit under CEQA; further, the Coalition had a beneficial interest because the ban would affect its business in the city.  Although product life cycle studies which were urged by the Coalition as showing a significant impact and thus mandating an EIR be undertaken might be relevant to impacts outside the project area (that is, the City), the Court viewed any increase in paper bag usage resulting from the ordinance was uncertain and would be small; thus, the life cycle studies put forth by the Coalition did not provide substantial evidence to support a fair argument for significant effects which would mandate that an EIR be undertaken.  The Court concluded that the city's negative declaration was thus sufficient, and an EIR was not required prior to adoption of the ordinance.

What the case demonstrates is that challenges to local ordinances need to keep the context of the geographic area in the forefront of any argument.  The use of studies that do not take into account the unique or limited characteristics of the impacted area will not be deemed of sufficient worth as to compel an EIR. 

EPA proposes new hazardous waste recycling regulations to address environmental justice concerns

EPA is has released for public comment its draft expanded environmental justice analysis of the 2008 definition of solid waste.  The draft evaluates the rule’s potential impact on low-income and minority communities.  EPA is also requesting public comment on the environmental justice analysis as well as on suggested changes received from peer review.  The analysis and peer-review comments will be available in the docket for this rulemaking once the proposal is published.  As with all environmental justice initiatives, the objective is to show EPA’s commitment to achieving sustainable materials management through increased recycling, while retaining safeguards to protect "vulnerable communities" and the environment.

EPA’s re-examination of the 2008 DSW final rule identified areas in the regulations that could be improved to better protect public health and the environment with a particular focus on adjacent communities by ensuring better management of hazardous waste.  Comments will be accepted for 60 days following publication in the Federal Register.

The prepublication version of the proposed regulations can be found at http://www.epa.gov/waste/hazard/dsw/downloads/2011-pr-fr-prepub.pdf.

EPA's Frequently Asked Questions (and answers) can be found at http://www.epa.gov/waste/hazard/dsw/2011pr-faqs.htm.

A list of supporting studies (and links for their download) can be found at http://www.epa.gov/waste/hazard/dsw/2011pr-support.htm.

Mycoremediation shows promise in breaking down "disposable" diapers

Despite their name, disposable diapers are difficult to break down in a landfill; studies suggest they may take centuries to rot away. The reason they are so persistent is that the main ingredient of disposable diapers is cellulose, a rather persistent material. Researchers therefore took a look at Pleurotus ostreatus (aka oyster mushroom) because it grows on dead or dying trees in the wild using enzymes that break down cellulose.

Researchers found that Pleurotus broke down 90% of the material within two months. Within four, they are degraded completely. While impressive, the diapers were soiled only with urine, not feces. A healthy person’s urine is sterile and researchers also treated the diapers with steam, to make sure. Such treatment would kill the nasty bugs in faeces. The researchers also indicate that Pleurotus grown in this manner could, to help recoup costs, be sold for food, and thus their caution in sterling the "growth medium" for the mushrooms.

While the willingness of the public to accept such mushrooms is questionable, the effectiveness of the degradation by the mushrooms on the "disposable" napkins is impressive.

The study can be found at http://www.sciencedirect.com/science?_ob=ArticleURL&_udi=B6VFR-52JK5MB-1&_user=10&_coverDate=04%2F06%2F2011&_rdoc=1&_fmt=high&_orig=gateway&_origin=gateway&_sort=d&_docanchor=&view=c&_acct=C000050221&_version=1&_urlVersion=0&_userid=10&md5=0a25b740fc0fc6a6b05d5456dad6a5d3&searchtype=a

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.

Plastic garbage zones are not just in the Pacific

The plastic garbage patch in the Pacific Ocean has received substantial media attention.  However, recent studies have shown that there are a number of such garbage patches, and that unfortunately they are larger than originally believed.

 

The so-called Great Pacific Garbage Patch is estimated to be 3.5-million-square-kilometer swath (about twice the size of Alaska); sampling suggests it contains more than 20,000 bits of floating plastic per square kilometer.  Large swaths of the western North Atlantic also hold significant amounts of plastic debris, according to recently published research.  As in the Pacific, the vast majority of the plastic bits scooped from the North Atlantic were tiny; analyses indicate that most of these barely buoyant bits were less than a centimeter across and weighed less than 0.15 grams.

 

While the stereotype is that this plastic detritus floats on the surface, researchers found that wave action could drive the material to 20-meters below the surface.

 

Computer simulations indicate that the ideal conditions for the accumulation of these materials are in areas where surface currents converged and flowed at less than two centimeters per second.  If correct, then two areas particularly suited to trap flotsam are near South America, one west of central Chile and the other stretching from Argentina across the Atlantic nearly to South Africa.  However, little research has occurred in these areas, perhaps because these regions are not biologically productive.

 

Abstracts of recent papers presented at the February, 2010 Conference of the American Geophysical Union on this issue can be found at http://www.eurekalert.org/pub_releases/2010-02/agu-2os021810.php.

California enacts new laws regarding e-discovery, hazardous materials business plans, meth lab contamination, marine sanitation devices, gold dredging, reporting oil spills, stealing recyclables, idling school buses, and the false claims act

ELECTRONIC DISCOVERY

 

California has now enacted its own e-discovery law; the statute affects all civil litigation.  In some manners the California law is broader in scope than the comparable Federal law.  As an urgency law, it went into effect 6/29/09.  [I have already used the law in several civil litigations.]

 

The law is quite complex, and cannot be summarized effectively in this blog.  However, if your organization or group would like a free seminar on the topic, let me know.

 

AB 5 can be found at http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0001-0050/ab_5_bill_20090629_chaptered.html.

 

 

HAZARDOUS MATERIALS BUSINESS PLANS

 

AB 305 extends, from one to five years, the statute of limitations on actions for civil penalties or punitive damages related to business plans for the handling of hazardous materials (Chapter 6.95 [commencing with H&S 25500] of Division 20 of the Health & Safety Code).

 

This amendment, which went into effect 1/1/10, conforms the statute of limitations for hazardous materials business plans to the statute of limitations for other hazardous materials and waste violations in the same division of the Health & Safety Code.

 

AB 305 can be found at http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0301-0350/ab_305_bill_20091011_chaptered.html.

 

 

METH LAB CONTAMINATION

 

AB 1489, which went into effect 1/1/10, changes the level of contamination by methamphetamine laboratory activity that is “safe” for human occupancy from less than or equal to 0.1 micrograms per 100 square centimeters, to less than or equal to 1.5 micrograms per 100 square centimeters. This is the maximum level of residue from methamphetamine that may be present without rendering the property uninhabitable.  AB 1489 can be found at http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_1451-1500/ab_1489_bill_20091011_chaptered.html.

 

Of course, California common law requires the disclosure by a seller or landlord of such past activities and the presence of any contamination at the site, even if such contamination is below the newly established “safe” level.

 

 

DISCONNECTING A MARINE SANITATION DEVICE

 

SB 717 specifies a fine of up to $500 as the punishment for the infraction of disconnecting or bypassing a marine sanitation device so as to potentially discharge sewage, or operating a vessel in which the marine sanitation device is not properly secured.  SB 717 also specifies the punishment (up to six months in jail and/or a fine of up to $1,000) for a misdemeanor violation of this section (which is either a second or subsequent violation of the infraction crimes noted above, or the crime of disconnecting or bypassing a marine sanitation device so as to discharge sewage into the waters of this state).

 

SB 717 can be found at http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0701-0750/sb_717_bill_20091011_chaptered.html.

 

Speaking of marine sewage, SB 614 extends, from January 1, 2010 to January 1, 2014, the sunset date for those sections of the Pub. Resources Code that regulate the release of sewage from large passenger vessels and oceangoing ships. These sections are a part of the California Clean Coast Act.  SB 614 can be found at http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0601-0650/sb_614_bill_20091011_chaptered.html.

 

Both laws went into effect 1/1/10.

 

 

VACUUM OR SUCTION DREDGING FOR MINING PURPOSES

 

SB 670, which went into effect 1/1/10, prohibits vacuum or suction dredging for mining purposes in any river, stream, or lake until an environmental review of existing suction dredge mining regulations has been completed, and new regulations are adopted and operative.  [The bill specifies that non-motorized recreational mining activities, such as panning for gold, are not prohibited.]  SB 670 can be found at http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0651-0700/sb_670_bill_20090806_chaptered.html.

 

 

FAILING TO REPORT AN OIL SPILL IN STATE WATERS

 

Current law related to oil spills occurring in waters of the state, other than marine waters, only specifies that fines are to be imposed; there is no jail time associated with the violations.  AB 305, which went into effect 1/1/10, specifies that knowingly failing to report an oil spill, or making a false report about an oil spill, is punishable as a misdemeanor (with imprisonment in the county jail for up to one year).  The amount of the maximum fine is maintained per current law ($50,000).

 

Also, AB 305 notes that prosecution or sentencing under other provisions of law is not precluded by the existence of this law.

 

AB 305 can be found at http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0301-0350/ab_305_bill_20091011_chaptered.html.

 

 

THEFT OF RECYCLABLES

 

SBx3 18, which went into effect 1/1/10, increased from $400 to $950 the threshold value of stolen recyclable materials that may be charged as either an infraction or misdemeanor.  The threshold necessary for a felony charge is also increased from $400 to $950.  SBx3 18 can be found at http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/sbx3_18_bill_20091011_chaptered.html.

 

 

SCHOOL BUS IDLING, AND IDLING AT SCHOOLS

 

Existing regulations issued by the ARB require drivers of school buses, transit buses, school pupil activity buses, youth buses, general public paratransit vehicles, and specified transit buses and commercial motor vehicles to, among other things, turn off the bus or vehicle engine upon stopping at or within 100 feet of a school, prohibits those drivers from turning the bus or vehicle engine on more than 30 seconds before beginning to depart from a school or within 100 feet of a school, and prohibits those drivers from causing the bus or vehicle to idle for more than 5 consecutive minutes or 5 aggregate minutes in any one hour at any location greater than 100 feet from a school.

 

SB 124, which went into effect 1/1/10, provides that the regulations adopted by the Air Resources Board may be enforced by peace officers, the state board, and air districts, and increases penalties for a violation by setting a minimum civil penalty of $300, adding other civil penalties pursuant to H.&S.C. § 39674, and providing for criminal penalties as set forth in H.&S.C. §§ 42400–42410 (misdemeanor and felony crimes pertaining to air contaminants).  SB 124 can be found at http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0101-0150/sb_124_bill_20091011_chaptered.html.

 

 

FALSE CLAIMS ACT

 

Some plaintiffs have found that the False Claims Act is an interesting and esoteric tool that has application in some environmental circumstances.

 

AB 1196 made some changes to the law, which went into effect Jan. 1, 2010.

 

The False Claims Act was created to address the problem of companies or contractors defrauding state and local governments of public funds by making false claims for payment or reimbursement for their services. The Attorney General is required to diligently investigate violations involving state funds. The prosecuting authority is required to diligently investigate violations involving political subdivision funds. “Prosecuting authority” is defined as the county counsel, city attorney, or other local government official charged with investigating, filing, and conducting civil legal proceedings on behalf of, or in the name of, a particular subdivision.

 

Among other things, this bill adds the Attorney General and the prosecuting authority to the entities (the court) whose consent is necessary for the dismissal of an action brought by a qui tam plaintiff.  [A qui tam plaintiff is a person who brings a civil action for a violation of the False Claims Act for himself or herself and either for the State of California in the name of the state, if state funds are involved, or for a political subdivision in the name of the political subdivision, if political subdivision funds are involved.]

 

Changes the statute of limitations to provide that a civil action may not be filed more than three years from the date of discovery by the Attorney General or prosecuting authority with jurisdiction to act, and in any event, not more than 10 years after the date the violation was committed.  [Previously, the discovery that triggered the three-year statute of limitations was discovery by an official of the state or political subdivision.]

 

Uncodified Section 5 of the bill provides that the Attorney General or prosecuting authority of a political subdivision has a duty to investigate violations of Gov. Code § 12651 (i.e., false claims). [Gov. Code § 12652 already provides that both are required to “diligently investigate” violations of Gov. Code § 12651.]

 

AB 1196 can be found at http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_1151-1200/ab_1196_bill_20091011_chaptered.html.

California Waste Board is eliminated as part of buget compromise

As part of the recent budget compromise in California, Governor Schwarzenegger signed SB 63 [http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0051-0100/sb_63_bill_20090728_chaptered.html] which abolishes, effective 1/1/10, the Integrated Waste Management Board.  The IWMB oversaw municipal waste landfills and recycling programs in California.  The functions of the Board were transferred to the Natural Resources Agency.

Critics claim electronic waste legislation has loophole that allows nefarious conduct

HR 2595 was introduced in the House in May; its laudable objective is to prohibit the export of certain electronic waste (e.g., PC's, servers, monitors, TV's, printers, copiers, video game systems, and other products with circuit boards) to countries that are not members of the OECD or EU [plus Liechtenstein].  See http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.2595:.  The concern is the health and environmental impact of a variety of so-called heavy metals, such as lead, cadmium, beryllium, and chromium, which can be dangerous if they are not handled properly.

Critics have focused on one term that provides an exception if the recycler states that the electronics are being shipped "for repair or refurbishment."  Concern is that dishonest recyclers could abuse the exception. 

The legislation is pending in the House Energy & Commerce Committee.