Regulatory News

News Item 1: Federal Government Proposes To List Polar Bears as Threatened Under Endangered Species Act

Citing the threat to polar bear populations caused by receding sea ice, the U.S. Fish and Wildlife Service proposed on Dec. 27, 2006, to list the bear as a threatened species under the Endangered Species Act.

This action was prompted by a multi-year court battle by conservation groups who contended that the Bush administration was slow to protect polar bears from the effects of climate change.

"This is a victory for the polar bear and all wildlife threatened by global warming," said Kassie Siegel of the Center for Biological Diversity (CBD), one of the plaintiffs in the suit. "This is a watershed decision in the way this country addresses global warming. There is still time to save polar bears, but we must reduce greenhouse gas pollution immediately."

The U.S. Fish and Wildlife Service will use the next 12 months to gather more information, undertake additional analyses, and assess the reliability of relevant scientific models before making a final decision whether to list the species.

"Based on current analysis, there are concerns about the effect of receding sea ice on polar bear populations," Secretary of the Interior Dirk Kempthorne said. "I am directing the U.S. Fish and Wildlife Service and the U.S. Geological Survey to aggressively work with the public and the scientific community over the next year to broaden our understanding of what is happening with the species. This information will be vital to the ultimate decision on whether the species should be listed."

While the proposal cites the threat of receding sea ice, it does not include a scientific analysis of the causes of climate change. That analysis is beyond the scope of the Endangered Species Act review process, which focuses on information about the polar bear and its habitat conditions, including reduced sea ice, officials said.

A copy of the proposed rule and other information about the proposal is available at http://alaska.fws.gov/fisheries/mmm/polarbear/issues.htm.

News Item 2: Senate Committee To 'Scrutinize' EPA Smog Rule

When the new Congress convenes, the Senate Committee on Environment and Public Works will "scrutinize EPA's approach to clean air very carefully to ensure that the health of our families is protected," said Senator Barbara Boxer (D-CA), who will chair the committee.

On Dec. 22, 2006, the U.S. Court of Appeals for the D.C. Circuit found that smog-reduction regulations adopted by EPA in 2004 are too weak, sending the rules back to the agency for reworking. (South Coast Air Quality Management District vs. EPA, No. 041200A).

This case involves challenges to the Final Phase 1 Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard. The 1990 Clean Air Act required stronger anti-smog measures in cities violating ozone standards, including limits on pollution from new and expanded factories, requirements for annual cuts in smog-forming emissions, and caps on truck and car exhaust. In 1997, EPA found that the then-existing "1-hour" ozone health standard wasn't strong enough to protect health, and adopted a new "8-hour" standard to provide greater protection. However, the agency in 2004 adopted rules that relaxed pollution control requirements for areas violating both the old and the new standard.

"I am pleased that the Court of Appeals has seen through EPA's transparent attempts to weaken implementation of the Clean Air Act's rules for smog. This unanimous opinion from the Court of Appeals confirms that EPA's approach is illegal. EPA must now throw out this rule and start anew," Boxer said.

The decision can be accessed at the D.C. Circuit's Web site: http://www.cadc.uscourts.gov/internet/internet.nsf.

News Item 3: New EPA Rule Eases Requirements For Toxic Emissions Reporting

On Dec. 18, 2006, EPA announced changes to Toxics Release Inventory (TRI) requirements that will cut paperwork for some companies. Agency officials said their final rule will lessen the regulatory burden on small businesses, while critics contend the changes will enable facilities to withhold currently reported information about toxic chemicals and restrict public access to information about toxic pollution.

These changes in no way affect the specific chemicals or amounts of chemicals facilities are authorized to release to the environment, agency officials said. In addition, the final rule does not exempt any facility from reporting their releases, nor does it remove any chemicals from the TRI. The rule allows facilities that completely eliminate releases of persistent, bioaccumulative and toxic chemicals (PBTs), and recycle and treat no more than 500 pounds of such chemicals, to use a shorter reporting form. By reducing long-lasting PBTs, EPA and facilities are delivering a cleaner environment, officials said.

For non-PBT chemicals, the rule allows businesses to use the simpler reporting form if their releases are no more than 2,000 pounds of waste as part of an overall waste management limit of 5,000 pounds. By imposing the 2,000 pound cap on releases for non-PBT chemicals, the rule encourages businesses to rely on preferred waste management methods, such as recycling and treatment, rather than disposal and other releases, officials said.

Thomas M. Sullivan of the Office of Advocacy of the U.S. Small Business Administration said that "EPA's burden reduction recognizes that the United States must take steps to level the playing field for small firms and search for reforms that eliminate unnecessary paperwork while maintaining or improving environmental protection."

However, U.S. PIRG staff attorney Alex Fidis said that the changes "take us back to the dark ages when the public knew nothing about toxic releases and when companies couldn't be held accountable for pollution that threatened public health."

According to U.S. PIRG, the final rule is opposed by public health and environmental organizations, governmental agencies in 23 states, the U.S. Conference of Mayors and more than 122,000 individual public commentors.

Additional information on the final rule can be found at http://www.epa.gov/tri/tridata/modrule/phase2/forma.htm.

This article originally appeared in the 01/01/2007 issue of Environmental Protection.

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