Legal Update

Oregon passes pesticide law

Groups representing farmers, laborers, pesticide sellers, public health groups and environmental activists began meeting in January to work out the details of a bill passed by the 1999 Legislature that requires, for the first time, pesticide users to tell state officials what pesticides they use, the amount and where they use them. The requirements apply to commercial pesticide users, including farmers. The Oregon Department of Agriculture also must find a way to track household use.

California and New York are the only other states that require pesticide reporting, but Oregon is the only state to try to track household use. Once lawmakers pass bills and leave Salem, it's up to state agencies to make rules to figure out how to enforce the new laws. The pesticide reporting law requires the agency to appoint a work group to develop a tracking system for the chemicals.

The reporting, which will begin in January 2002, will allow the Agriculture Department to monitor pesticide use and determine its effects on humans and wildlife. The agency must publish an annual report beginning in 2003.

Nine thousand pesticides are registered for use in Oregon, and state officials estimate that more than 13 million pounds are applied each year. The reporting program will cost $1.5 million every two years and will be financed with taxpayer money and an increase in pesticide registration fees.

One potential sticking point was resolved before the law passed: Whether to keep the identity and location of the users secret. Environmentalists compromised and agreed that it remain private except to investigators and to health and environmental researchers.

Michigan officials decry impending changes to EPA air standards

The U.S. Environmental Protection Agency's (EPA) plan to reinstate the former standard governing acceptable levels of the air pollutant ozone could actually curtail economic growth and cancel federally funded transportation projects in affected areas, state and congressional officials cautioned.

Potential impacts of the EPA proposal were outlined at informational meetings conducted in Holland and Muskegon by the Michigan Department of Environmental Quality (DEQ), Michigan Department of Transportation and Michigan Economic Development Corp.

State Representatives Peter Hoekstra (R-Holland), Fred Upton (R-St. Joseph) and Vernon Ehlers (R-Grand Rapids) were also present to express their concerns with the issue.

EPA wants to reinstate the 1-hour ozone standard that it revoked last year in anticipation of a new, more stringent 8-hour standard. In May 1999, however, the U.S. Court of Appeals for the District of Columbia ruled that the new standard is not enforceable and deferred it back to the agency.

Michigan officials believe a national ozone standard is necessary and support the reinstatement of the 1-hour standard. However, the state disagrees with EPA's proposed reinstatement of attainment designations and classifications that existed prior to the nullification.

The redesignations completely ignore the state's clean air data for these areas and pose needless economic and transportation barriers, according to DEQ Director Russell Harding.

"This is not a debate about clean air," Harding said. "Michigan's emphasis on improving air quality continues to result in significant gains, and we're committed to further progress through additional voluntary steps. In fact, we're extremely proud that Michigan had earned attainment with the previous ozone standard. It is nothing short of absurd for the EPA to disregard the hard evidence gathered by Michigan's statewide air monitors."

States not in compliance face the withholding of federal road repair funds. Michigan currently receives roughly $825 million in federal highway funds.

A monitored violation of the 1-hour standard occurred in Michigan this past summer, which prompted the requirement to implement a contingency measure from the maintenance plan to address this problem.

Court rules companies must pay cash for financial assurance

The South Carolina Department of Health and Environmental Control (DHEC) regulations that allow companies to provide financial assurance for potential environmental impairment through financial instruments such as letters of credit and insurance are invalid due to a procedural technicality, a state appeals court ruled.

In a Jan. 17 appellate decision related to a case involving Safety-Kleen's Pinewood landfill, the appeals court ruled that while it recognized that the South Carolina General Assembly had approved the regulations' substantive content of the financial assurance provision, the court failed to find that the statutory public notice provisions had been fulfilled.

The ruling would allow DHEC to require cash for financial assurance, according to Safety-Kleen officials.

"Requiring cash for financial assurance would set a draconian and unprecedented standard for our facility and hundreds of other businesses across the state," said Henry H. Taylor, vice president and general counsel of Safety-Kleen Corp. "We anticipate the General Assembly will reaffirm its earlier decision to allow companies to choose and the state treasurer to review the final mechanism."

Safety-Kleen officials said they would appeal the decision.

However, in its decision, the court resolved one issue in favor of the company. The court unanimously disagreed with allegations of potential harm to the environment from the Pinewood facility. The court stated that the landfill's design and monitoring system "exceeded the regulatory requirements."

United States, Mexico to disclose border hazwaste sites

EPA and the U.S. Embassy in Mexico City announced the signing of a new bi-national, United States-Mexico arrangement committing both countries to publicly disclose information regarding all existing and proposed hazardous or radioactive waste sites within 100 kilometers of their shared border. For the first time, government agencies and residents of both nations will have access to information about all such waste sites on both sides of the border.

"This new arrangement is a major leap forward in the level of openness and environmental cooperation between the United States and Mexico," said Felicia Marcus, administrator of EPA's regional office in San Francisco, which serves California and Arizona. "Never before have residents of both nations had cross-border access to information about hazardous waste facilities — and the opportunity to participate in decisions about siting new ones."

The arrangement, known as a "consultative mechanism," covers hazardous and radioactive waste disposal sites as well as recycling, treatment and incineration facilities. The mechanism was developed by the bi-national Hazardous and Solid Waste Workgroup, which includes representatives from the environmental agencies of both countries and the 10 U.S. and Mexican border states. It complements current efforts in both countries to increase openness in decisions on environmental and health matters and fulfills recommendations of the U.S. and Mexican cabinets and the governors of 10 U.S. and Mexican border states.

For more information, see EPA's Web site at www.epa.gov/usmexicoborder.

Governor wants improved Superfund, brownfield programs

Gov. George E. Pataki (R) announced in January a plan to refinance the state's Superfund program as part of his proposed fiscal budget.

Under the plan, the Superfund program would be refinanced with $138 million annually in funding — provided equally through a combination of state support, industry fees and fines and cost recoveries — commencing in 2001-02, according to the governor's office. The plan also calls for $12 million in tax credits for brownfield cleanup in 2000-01 — growing to $42 million when fully effective.

"For 20 years, New York has run the nation's best program to clean up hazardous waste and other contamination," Pataki said. "Now, after decades of experience, we are ready to make New York state's Superfund program the envy of the nation."

Additionally, the types of sites covered by the Superfund program would be expanded to include properties contaminated by hazardous substances that don't meet the current statutory definition of hazardous waste. Under the proposal, the state's liability rules would be changed to be more similar to those in the federal Superfund program.

The 1986 Environmental Quality Bond Act (EQBA) provided $1.1 billion for the investigation and cleanup of Superfund sites. However, the EQBA funds are expected to run out.

DOE agrees to Utah land transfer and mill tailing cleanup

U.S. Department of Energy (DOE) Secretary Bill Richardson announced Jan. 14 an agreement for the largest voluntary return of land to Native Americans in the lower 48 states in more than a century and for the cleanup and removal of 10.5 million tons of radioactive mill tailings from the doorstep of two national treasures: Arches National Park and Canyonlands National Park, near Moab, Utah. The agreement also will provide for additional environmental protection for a 75-mile stretch of the Green River.

Under the agreement, signed by Richardson, Interior Secretary Bruce Babbitt, Ute Tribal Business Committee Chairman O. Roland McCook Sr. and Utah Governor Michael Leavitt (R), DOE's Naval Oil Shale Reserve No. 2, an undeveloped tract of land in the northeastern corner of Utah, would be returned to the Ute Tribe. The land, which is rich in oil shale deposits, was taken from the Ute reservation in 1916 for use as a potential source of fuel for the Navy's oil-burning ships.

The Ute Tribe has agreed to establish a 1/4-mile land corridor for a 75-mile stretch of the Green River that will be protected as environmentally sensitive. Additionally, a portion of any royalties from future energy production on the lands would go into a fund to help clean up the nation's fifth largest pile of uranium mill tailings located near Moab, Utah.

The cost to move the tailings away from Moab is estimated to be about $300 million. The uranium waste resulted from mill operations at the site from 1956 to 1984. Denver-based Atlas Corp., which owned the site from 1962 through 1984, filed for bankruptcy two years ago. The U.S. Nuclear Regulatory Commission, which had been working with the Atlas Corp. for more than a decade to select and implement a final cleanup plan, recently appointed a trustee to manage the work.

"This agreement gives us the momentum we need for congressional action," Richardson said. From the agreement, the Clinton/Gore Administration will be seeking legislation to carry out the land transfer and the mill tailing cleanup.

For concise, continuous coverage of the news and issues that affect all aspects of the environmental industry, call (972) 687-6730; or visit www.stevenspublishing.com.

This article appeared in the March 2000 issue of Environmental Protection magazine, Vol 11, No. 3, p. 16.

This article originally appeared in the 03/01/2000 issue of Environmental Protection.

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