Legal Update

• By Katie McCarthy
• Jun 01, 2000

Court rejects EPA's periodic monitoring guidance

WASHINGTON, D.C. - A federal appeals court ruled against the U.S. Environmental Protection Agency's (EPA) periodic monitoring guidance because it significantly broadened a 1992 rule without undergoing the needed rulemaking process. In the case of Appalachian Power Co. vs. EPA, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the guidance EPA issued Sept. 15, 1998, "must be set aside in its entirety. State permitting authorities therefore may not, on the basis of EPA's guidance ... require in permits that the regulated source conduct more frequent monitoring of its emissions than that provided in the applicable state or federal standard." The only exception the court indicated was if "that standard requires no periodic testing, specifies no frequency or requires only a one-time test."

The 1992 rule referred to in the case was the operating permit regulation issued under Title V of the Clean Air Act that limited emissions from stationary sources. The rule lists the items each state permit program must contain, including monitoring and related record keeping and reporting requirements.

In order to establish nationwide consistency of air pollution permits, EPA officials state in the guidance that state permitting authorities must indicate that major industrial facilities monitor their pollution sources to ensure permit compliance.

EPA attorneys argued that the guidance is not subject to judicial review because it is not binding but intended to serve as a "backstop" for compliance with the rule. However, the court found that "if an agency acts as if a document issued at headquarters is controlling in the field, if it treats the document in the same manner as it treats a legislative rule, if it bases enforcement actions on the policies or interpretations formulated in the document, if it leads private parties or state permitting authorities to believe that it will declare permits invalid unless they comply with the terms of the document, then the agency's document is for all practical purposes 'binding.'"

DOE nuclear weapons sites cleanup could cost almost $200 billion

WASHINGTON, D.C. — About $151 billion to $195 billion likely will be needed through 2070 for cleanup of U.S. Department of Energy (DOE) nuclear weapons sites, according to a long-range plan for accelerating cleanup of the sites.

DOE officials issued an update to the Paths to Closure report that provides a forecast of sites that could be cleaned up by 2006 and those that will take longer. According to the report, the increase from the last cost estimate of $147 billion reflects increases due to a better understanding of the project work scope and cost, including long-range stewardship and includes a cost estimate for project uncertainties.

"This type of life-cycle planning is critical to understanding and executing a long-term cleanup strategy. It will help us improve our management of projects and better apply new science and technology to accelerate the cleanup and closure of sites and reduce total costs." said Carolyn Huntoon, assistant secretary of Energy for Environmental Management.

"Reviewing this report also has reinforced the importance of applying better project management practices across the complex — to do less would be unacceptable. Toward that end, I have directed my senior managers to implement a series of actions that will ensure that we are employing the best project cost and schedule controls," said Huntoon.

Although progress has been made in the department's environmental management program, the report indicates that challenges remain. Therefore, steps are being taken to ensure success, enhance safety and reduce costs, such as:

• Improving project and program management practices;

• Capitalizing on new developments in science and technology;

• Improving cross-site and cross-program integration;

• Applying site completion strategies to projects at sites with long term environmental missions;

• Continuing to explore with regulators and stakeholders options for accelerating the largest and most complex projects; and

• Continuing to define and refine long-term stewardship requirements.

Copies of the report are available at www.em.doe.gov/closure.

Clinton vetoes nuclear waste legislation

WASHINGTON, D.C. — As he promised, President Clinton vetoed legislation that would have cleared the way for thousands of tons of nuclear waste to be shipped to Nevada as early as 2007.

On April 25, Clinton vetoed the Nuclear Waste Policy Amendments Act of 2000, a measure to authorize the transportation of 40,000 tons of the spent fuel rods piling up at commercial reactors in 31 states to Yucca Mountain. The bill passed the Senate by a vote of 64-34 and the house by 253-167 — neither of which had the two-thirds majority needed to override a veto.

Clinton's action was cheered by Nevada legislators and environmentalists, who had argued that the transport of the waste would endanger residents along the routes the waste would travel.

"This legislation that the Republican majority in Congress has been trying to force down the throats of the American people not only jeopardizes the health and safety of every Nevadan, but also puts millions of other Americans at risk," said Sen. Richard Bryan (D-NV).

Clinton's veto didn't include a criticism of the Yucca Mountain site; he criticized the legislation for postponing U.S. Environmental Protection Agency (EPA) authority to set radiation standards at the site until mid 2001.

EPA is expected to issue final radiation standards this summer so that they will be in place well in advance of the Department of Energy's recommendation in 2001 on the sustainability of the Yucca site.

"There is no scientific reason to delay issuance of these final radiation standards beyond the last year of this administration; in fact, waiting until next year to issue these standards could have the unintended effect of delaying a recommendation on whether or not to go forward with Yucca Mountain," Clinton said.

Supporters of the legislation criticized the president for not providing resolution on where to permanently store the nation's nuclear waste.

"The federal government's nuclear waste management program is 12 years behind schedule," said Joe F. Colvin, president and chief executive officer of the Nuclear Energy Institute. "Consumers of nuclear-generated electricity already have committed to the government more than $16 billion for an environmental stewardship program they have not received."

In 1980, Congress passed legislation that mandated the U.S. Department of Energy (DOE) to take possession of the waste no later than 1995. DOE hasn't followed through on that assignment, and some utilities are complaining that they are running out of storage room.

"President Clinton has shown an inexplicable disconnect between his pro-environment goals and his environmental actions," Colvin said. "With his veto of the Nuclear Waste Policy Amendments Act, he has missed a tremendous opportunity to maximize the benefits that emission-free nuclear energy provides to U.S. society, the environment and the economy."

Currently, the Yucca Mountain site is the only site DOE is studying for disposal of the waste. The Nuclear Regulatory Commission is expected to decide as early as 2006 whether the site should receive a license.

Sen. Frank Murkowski (R-AK) and other supporters of the measure vowed to attempt to override the veto.

Legislators introduce fisheries habitat measures

WASHINGTON, D.C. — Legislation was introduced in the Senate that would encourage community-based partnerships to address fisheries habitat issues.

Introduced by Sen. Christopher Bond (R-MO) and Rep. John Tanner (D-TN), The Fishable Waters Act of 2000 builds on the Dingell-Johnson Sportfish Restoration Program, Farm Bill conservation programs, the Clean Water Act and other initiatives by establishing a national framework for voluntary, non-regulatory, community-led, incentive-based partnerships to improve fisheries habitat, bolster water quality and "deliver on the Clean Water Act's promise of fishable waters."

"The Fishable Waters Act of 2000 is the result of a collaborative effort to achieve broad support for a solution-oriented program that will help us build on the successes of the past three decades and address the new challenges of the 21st century," Tanner said. "It's built on voluntary, non-regulatory, locally led, incentive-based partnerships with the flexibility to take advantage of the innovative spirit of our citizens to boost fisheries conservation and improve water quality. Farmers, anglers and others are coming together as partners to do good things for fish habitat and water quality."

Over the last 28 years, the nation's water quality has improved dramatically. Thanks to the Clean Water Act, discharges from industrial plants and city sewers into rivers, lakes and streams have been reduced. In addition, agricultural and fishing interests, concerned with the health of their local watersheds, have voluntarily taken steps to clean up waterways and enhance wildlife habitat.

However, more work needs to be done. According to the American Sportsfishing Association, nearly 40 percent of the nation's waters still are not considered fishable. Barely 2 percent of America's 3.6 million stream miles are healthy enough to be considered high quality. And 70 percent of the nation's riparian corridors have been damaged in some way, or destroyed outright.

"The Clean Water Act promised to make our waters fishable and swimmable, but the promise has not been fulfilled. Fish and habitat repair have simply taken a back seat for the last 25 years," said Charles Gauvin, president of Trout Unlimited. "The FWA opens the door to local participation, strengthens partnerships between public and private landowners and offers more resources to our watersheds. This legislation is a strong step towards protecting and repairing America's troubled waters."

The Fishable Waters Coalition participated in the development of the Fishable Waters Act. Its members are ASA, Trout Unlimited, the Izaak Walton League of America, the National Corn Growers Association, the National Council of Farmer Cooperatives, American Rivers, the Bass Anglers Sportsman Society, the American Fisheries Society, the International Association of Fish and Wildlife Agencies, the American Fly-Fishing Trade Association and the Pacific Rivers Council.

TNRCC approves plan to help Texas cities meet clean air standards

AUSTIN, Texas — The Texas Natural Resource Conservation Commission (TNRCC) approved a package of plans to help the Dallas-Fort Worth and Beaumont-Port Arthur areas meet federal clean air standards for ground-level ozone.

According to TRNCC officials, the plans are expected to be a blueprint of the strategy due later this year for the eight-county Houston-Galveston nonattainment area and also are expected to improve overall air quality in Texas' most populous counties. The plans didn't include the California low-emission-vehicle standard that Gov. George W. Bush (R) sought the commission to adopt. Instead, at press time, the commission had postponed the decision whether to proceed with the California LEV or the federal Tier II vehicle emissions standard and planned to reach a decision on May 17.

The plans now are pending approval by the U.S. Environmental Protection Agency.

"This is one of the largest efforts ever undertaken in the United States to reduce nitrogen oxide (NO_x) emissions, one of the two building blocks of ground-level ozone," said TNRCC Chairman Robert J. Huston.

According to TNRCC Commissioner Ralph Marquez, the plans will get Dallas-Fort Worth and Beaumont-Port Arthur in compliance with the federal ozone standard by 2007. "We have a successful plan because of the cooperation of local communities, public officials, citizens and those affected who answered our call for better ideas to clean up the air," Marquez said.

The commission also adopted a new statewide standard for cleaner-burning natural gas water heaters. Rules to establish pollution controls in major sources of NO_x emissions, including cement kilns and power plants, outside nonattainment areas also received final approval. Power plants with current state permits are expected to reduce NO_x emissions by about 50 percent; cement kilns are expected to reduce NO_x emissions by about 30 percent. This program will be phased in beginning in 2003.

The commission also approved reductions in NO_x emissions from two of the largest sources of "grandfathered" air emissions in Texas, Alcoa in Rockdale and Texas Eastman in Longview. Alcoa will be required to reduce grandfathered NO_x emissions by 30 percent beginning Dec. 31, 2000. The Texas Eastman reductions, also 30 percent of its grandfathered NO_x emissions, are required beginning in 2002.

A coalition of groups united under the Texas Air Crisis Campaign called for stronger actions to be included in the TNRCC clean air plan.

Administration announces proposal to compensate thousands of sick workers

WASHINGTON, D.C. — Acknowledging workers' claims that their illnesses resulted from the hazards associated with nuclear weapons production, the Clinton administration unveiled a compensation package for workers who were exposed to radiation at the nation's nuclear bomb factories.

"We are moving forward to do the right thing by these workers," Energy Secretary Bill Richardson said. "The men and women who served our nation in the nuclear weapons industries of World War II and the Cold War labored under difficult and dangerous conditions with some of the most hazardous materials known to mankind."

It is unclear how many people would be affected; however, the U.S. Department of Energy (DOE) has estimated that about 3,000 workers and their families are likely to be eligible.

DOE estimates that the cost of the program, which must be approved by Congress, will be at about $120 million annually over the first three years the program is fully operational, declining to about $80 million per year as the backlog of claims is reduced.

Most of the workers who would benefit from this proposal have worked at DOE's Hanford Reservation (Washington), Oak Ridge Reservation (Tennessee), Savannah River Site (South Carolina), Nevada Test Site, Rocky Flats Environmental Technology Site (Colorado), Pantex Plant (Texas), Mound Plant (Ohio), Lawrence Livermore National Laboratory (California), Los Alamos National Laboratory (New Mexico), Fernald Environmental Management Project (Ohio) and the gaseous diffusion plants in Paducah, Ky., Portsmouth, Ohio and Oak Ridge, Tenn.

The program would give lump sum financial benefits or a package of benefits including lost wages, medical expenses and job retraining to workers with pulmonary diseases caused from breathing particles of beryllium, workers with cancers caused by workplace radiation exposure and specific groups of workers at DOE's Paducah, Portsmouth and Oak Ridge sites.

The government had denied a direct link between work exposure and later illnesses, but a White House panel recently concluded that there was credible evidence that many of the workers at the nuclear weapons facilities became ill because of exposure to radiation or toxic chemicals.

While the panel didn't find a direct causal link between workplace exposures and specific illnesses, the panel found that workers suffered higher than normal rates of cancer.

The proposal expands an earlier one by DOE that would have provided compensation to a limited number of workers who contracted an incurable beryllium disease because of occupational exposure at the Kentucky and Ohio uranium enrichment facilities.

Sen. Harry Reid (D-NV) announced that he is prepared to take a lead in introducing legislation to compensate the workers. "These brave men and women helped America win the Cold War, and now it is our turn to repay their sacrifices and to provide compensation to those injured as a result of their work on America's nuclear defense programs," Reid said.

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This article appeared in Environmental Protection magazine, June 2000, Vol. 11, No. 6, p. 24.

This article originally appeared in the 06/01/2000 issue of Environmental Protection.