Legal update

• By Katie McCarthy
• Oct 01, 2000

EPA report details air quality progress, challenges

WASHINGTON, D.C. -- Air quality continues to improve nationwide, however, 62 million Americans live in areas that have unhealthy levels of at least one of the six major pollutants, according to the U.S. Environmental Protection Agency's (EPA) annual air quality report, Aug. 7, 2000.

"Americans have made significant progress in improving our air quality and protecting public health, but real challenges still remain," said EPA Administrator Carol M. Browner.

Overall, national air quality levels have shown improvement for the six major pollutants since the 1970 Clean Air Act was signed into law, EPA officials said. The pollutants are smog, carbon monoxide, sulfur dioxide, lead, nitrogen dioxide and particulate matter.

However, air pollution remains a problem in many areas, including rural areas and some national parks, which have experienced high smog levels resulting from pollution emitted many miles away.

"That is why the administration has taken major actions to reduce air pollution that will have benefits for decades to come," said Browner. "Those actions include requiring the cleanest cars, sports utility vehicles, trucks and cleanest gasoline ever produced as well as controlling windblown smog through the first-ever strategy designed to protect air quality throughout much of the eastern United States. And, we will do more to ensure continued air quality improvements."

EPA's nationwide assessment of air quality indicates that between 1990 and 1999:

• Carbon monoxide concentrations decreased 36 percent;
• Lead concentrations decreased 60 percent;
• Nitrogen dioxide concentrations decreased 10 percent;
• Smog concentrations decreased four percent;
• Particulate matter concentrations decreased 18 percent; and
• Sulfur dioxide concentrations decreased 36 percent.

One of the recent steps the administration has taken in an effort to reduce air pollution is tailpipe emission standards announced in December 1999 for cars, SUVs, mini vans and pickup trucks. According to EPA officials, the standards are expected to reduce emissions in new vehicles by up to 95 percent. Also, the administration is moving ahead with its rules for cleaner buses and heavy-duty trucks.

On Aug. 1, EPA issued a final rule for the first phase of its two-part strategy to reduce harmful diesel emissions from heavy-duty trucks and buses. The first phase deals exclusively with cleaner truck engines. Under this phase of the strategy, diesel truck and bus engines will emit 40 percent less air pollution beginning in 2004.

The second phase of the program will require cleaner diesel fuels as well as cleaner engines by 2007 and will reduce air pollution from trucks and buses by another 90 percent, according to officials. EPA expects to issue the final rule for this second phase of the program by the end of this year.

When both of these phases are fully in effect, heavy-duty trucks and buses will burn almost as clean as alternative fuel vehicles (AFV) such as compressed natural gas vehicles, officials said. Heavy-duty trucks that run on gasoline, as opposed to diesel fuel, must also meet tougher standards in both phases of the strategy.

The report is a summary version of the longer Air Quality Trends report that EPA issued in the past. Additional information is available at www.epa.gov/airtrends.

Worker protection for sludge application recommended

WASHINGTON, D.C. -- The National Institute for Occupational Safety and Health (NIOSH) recommended practices to protect workers who handle treated sewage sludge. The institute made the recommendations in a hazard identification report, Workers Exposed to Class B Biosolids During and After Field Application, July 28, 2000.

Sewage sludge, or biosolids, is separated by the Clean Water Act into two classes. While Class A biosolids are subjected to more rigorous treatment and are considered to have no detectable pathogens, Class B biosolids may contain some microrganisms.

Under environmental rules, access for the general public to areas where Class B biosolids have been applied is restricted for varying time periods. However, workers may be occupationally exposed in handling, applying or distributing the material during this restricted period.

"Workers are the individuals most likely to be exposed to biosolids, but practical steps can be taken to limit exposures and prevent the possible risk of disease transmission," said NIOSH Director Linda Rosenstock. "In the absence of definitive information about the extent of risk to workers, our recommendations are based on good public practice."

NIOSH recommended that:

• Engineering controls and work practices should be used as first measures to prevent worker exposures to Class B biosolids during and after field application. Examples may include: mixing Class B biosolids thoroughly into the soil were feasible; providing sealed, air-conditioned, filtered-air-recirculation cabs for heavy equipment used on the site; and avoiding disturbance of the material during the restricted periods;
• If engineering controls are not feasible at a Class B biosolid site or while engineering controls are being installed or maintained, personal protective equipment for workers should be provided and required. Equipment may include goggles, splash-proof face shields, respirators, liquid-repellant coveralls and gloves;
• Hand-washing stations with clean water and mild soap should be provided, and cabs on heavy equipment should be cleaned of residual mud or dust after each use; and
• Employers should provide periodic training about standard hygiene practices on the job.

According to Al Gray, deputy executive director of the Water Environment Federation (WEF), the report's recommendations are currently in practice at most publicly owned treatment works and "are measures WEF has actively supported and promoted for years in its manuals of practice, publications and other training manuals."

Wastewater treatment industry officials were concerned when NIOSH was preparing to release the report because the institute didn't seek industry input before distributing a draft for interagency review. The draft indicated that "the best control is to eliminate the hazard by treating the biosolids to the Class A pathogen-free levels before application."

The final report states that "as a rule, the most effective control for occupational safety and health hazards is to eliminate the hazard through substitution. In this case the use of Class A pathogen-free biosolids would eliminate the hazard; however, this report addresses reducing worker risk where Class B biosolids are used. When using Class B biosolids, engineering controls and work practices should be used to prevent exposures."

Industry officials also were concerned by a media report on a leaked draft of the recommendations that alluded that the recommendations also would apply to the general public. However, the final report didn't provide recommendations for the general public.

The report can be found at www.cdc.gov/niosh/hidlist.html.

Proposal addresses wetlands loophole left in wake of Tulloch case

WASHINGTON, D.C. -- The Clinton administration announced a proposal to address "a major regulatory loophole" in the Clean Water Act that has led to the destruction of thousands of wetlands, Aug. 10, 2000.

The proposal is aimed at clarifying regulations under Section 404 of the Clean Water Act (33 United States Code Section 1251) concerning earth-moving activities such as mechanized land clearing, ditching, channelization and in-stream mining associated with draining wetlands.

"Due to a legal loophole that has been exploited, an additional 20,000 acres of wetlands have been lost in this country over the last two years," said U.S. Environmental Protection Agency (EPA) Administrator Carol M. Browner. "This proposal will allow us to go as far as we can through administrative reforms to close this loophole and protect wetlands."

Under Section 404, Corps officials issue permits after they complete an environmental review of dredged material from proposed projects, including the potential adverse effects on wetlands. EPA and the U.S. Army Corps of Engineers first clarified in August 1993 that Clean Water Act permits were required for any discharges associated with draining wetlands. Referred to as the Tulloch rule, that definition was challenged by a number of trade associations and overturned in January 1997 by the U.S. District Court for the District of Columbia, a decision that was affirmed in National Mining Association vs. U.S. Army Corps of Engineers, (No. 97-5099, U.S. Court of Appeals, D.C. Circuit, 1998).

The chief issue in the lawsuit was whether the "incidental fallback" that accompanies land clearing and excavation activities is a "discharge of dredged material." According to the National Association of Home Builders, "Incidental fallback" means the small amounts of dirt and materials that fall off a shovel or excavating tools while being removed and that end up back in the wetland.

In its decision, the district court noted that the 404 Program refers to "discharges," not the regulation of excavation or dredging activities. The district court also asserted that the legislative history shows that "discharge" had a very definite meaning and that this definition excluded the minuscule incidental discharge that accompanies excavation and land clearing.

The appeals court noted that "the straightforward statutory term 'addition' cannot reasonably be said to encompass the situation in which material is removed from the waters of the United States and a small portion of it happens to fall back. Because incidental fallback represents a net withdrawal, not an addition, of material, it cannot be a discharge."

"The ruling created great confusion as to what was regulated and what was not, and developers have taken advantage of that confusion to wreak havoc on streams and wetlands," said Robin Mann, chairperson of Sierra Club's National Wetlands Committee. "Crafty developers have exploited the loophole by carving out ditches that drain wetlands and redirect streams all without having to obtain any permit."

However, the industry groups claimed that the Tulloch rule violated the congressional intent of the Clean Water Act and unlawfully exceeded the agencies' authority.

"The administration's latest decision is fundamentally flawed. Not only does it clearly circumvent and violate the spirit of the federal court decisions, it also exacerbates the current inefficiencies of the Corps' regulatory program," said Robert Mitchell, president of the National Association of Home Builders. "If the agencies believe the Clean Water Act inadequately protects wetlands, they should turn to Congress, not illegally tinker with the law."

EPA officials said that the proposed rule would establish a rebuttable presumption that because of the nature of the equipment and activities, mechanized land clearing, ditching, channelization, in-stream mining or other mechanized excavation activity in waters of the United States produce more than incidental fallback and result in a regulable discharge of dredged material subject to environmental review under Section 404. "The presumption of discharge can be rebutted by a case-by-case showing that the activity was designed and conducted so as to result only in incidental fallback," EPA officials said.

Since the 1997 district court decision, EPA and the Corps estimate that more than 150 miles of streams have been channeled without environmental review or mitigation. According to EPA's estimates, the new wetlands proposal is expected to protect tens of thousands of acres of wetlands from destruction each year. The administration's Clean Water Action Plan also has a commitment to an annual net gain of 100,000 acres of wetlands beginning in 2005 through wetlands restoration programs.

Administration officials cautioned that the latest proposal would not be sufficient to protect wetlands from destruction. "We also call on Congress to strengthen the Clean Water Act to fully protect and restore America's wetlands," said Browner.

However, Mann said that it is unlikely that Congress "will step to the plate on this issue, and, in fact, we are more concerned at this time that developers have been pushing riders to weaken wetlands protections."

The proposal was published in the Federal Register on Aug. 16, 2000 (Federal Register, Volume 65, Number 159, Pages 50107-50117) and is open for public comment. Additional information is available at www.epa.gov/owow/wetlands/dredgedmat/dredmat.html.

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This article appeared in Environmental Protection, Volume 11, Number 9, October 2000, Page 16.

This article originally appeared in the 10/01/2000 issue of Environmental Protection.