Catherine O'Neill on CPRBlog {Bio}
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New EPA Guidance Will Bring Some Needed Scrutiny of Institutional Controls at Toxic Sites, But Still Doesn't Require Checking That People are Actually Protected

At a growing number of contaminated sites across the nation, “cleanup” means that toxic contaminants are left in place while environmental agencies look to institutional controls (ICs) to limit human contact with these contaminants. Agencies hope that ICs such as deed restrictions or advisory signs will inform people about the continued presence of contaminants at a site and help them steer clear, thus avoiding exposure. Yet agencies have done little to ascertain whether these hopes are well-founded, particularly over the long term. Against this backdrop, EPA released guidance last month that for the first time seeks to systematize its evaluation of ICs. The guidance directs EPA investigators conducting five-year reviews to determine whether ICs called for as part of site cleanups have actually been implemented and maintained. This guidance is a welcome first step. But larger questions remain about agencies’ increased reliance on ICs and other forms of “risk avoidance.”  

Contaminated site cleanup tends to conjure images of so-called engineering measures such as dredging or excavation. These measures actually remove contaminated substances from the site or treat them so that they become less toxic. With toxic contaminants no longer present, risks to humans and the environment are reduced. Institutional controls, by contrast, are administrative or legal measures intended to address those instances in which toxic contaminants have been permitted to linger at a site, such that risks to humans and the environment remain. According to EPA, “ICs typically work by limiting land or resource use and/or by providing information that helps modify or guide human behavior at the site.”  Institutional controls include proprietary controls, such as restrictive covenants or easements; government controls, such as zoning ordinances or ground water use regulations; legal tools such as consent decrees that limit permitted activities at a site; and informational measures, such as state registries of contaminated sites, posted signage, and fish and wildlife consumption advisories.

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EPA's Apparent Effort to Appease Environmentalists over the Boiler MACT Rule Not Very Appeasing

The EPA has developed an inexplicable penchant for making decisions that please no one. So, it should come as no surprise that its announcement today regarding the ongoing, will-they-won’t-they Boiler MACT saga falls into this category too. The agency traded in the indefinite delay it gave itself last month to “reconsider” the final Boiler MACT standards it issued in February for a firm deadline:  The EPA now promises to complete the reconsidered final standard by the end of April of 2012.

Environmentalists responded to the EPA’s earlier announcement that it would indefinitely delay the reconsidered final standard with equal parts anger and shock. (See here and here) To allow this indefinite delay, the agency exploited a loophole in the Administrative Procedure Act, crafting a one-sided “justice” analysis that considered only industry’s interests while completely ignoring those of the public and the environment.

It’s good that EPA has given itself an actual deadline. But let’s be clear on the cost of the ten-month delay in finalizing the regulation. Because EPA failed to finish the regulation on the original deadline, mandated by statute, Americans will suffer:

  • Up to 5,500 premature deaths;

  • Up to 3,300 non-fatal heart attacks; and

  • Up to 1,300 cases of acute bronchitis

Truly, the price is too high. But it’s apparently not high enough for industry and its supporters in Congress. A bill to delay and dilute the Boiler MACT rule is pending in the House. Meanwhile, anti-regulatory voices continue to attack the rule, despite the delay.

It’s not clear what the EPA hoped to gain from this delay. But, if the agency actually follows through with the April 2012 deadline, at least the rule will be firmly in place in case a President even less friendly to public health and the environment should be elected in November 2012. That’s a small victory, to be sure, but one that may become more familiar as the elections start to kick into full gear.

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In Coming Utility MACT, EPA Has Clean Air Act Authority to Make Big Strides in Protecting Americans from Mercury Pollution

By Wednesday of next week, EPA is due to publish its long-anticipated rule controlling mercury emissions from coal-fired utilities.  This is how we ought to judge the rule: does it follow the mandate of the Clean Air Act (CAA)? For too long, utilities have managed by various means to fend off regulation required by the CAA. Assuming EPA’s rule at long last complies with Congress’s directives, Americans may look forward to a day when they can again eat fish without serving their families a side of methylmercury. 

The mercury that coal-fired utilities emit is highly toxic to humans. Exposure to even small amounts of methylmercury can lead to irreversible neurological damage. Methylmercury's neurodevelopmental effects place the developing fetus, children, and adults up to age 20 at particular risk. The most recent data also suggest adverse effects on the cardiovascular systems of adults. Mercury emitted to the air from coal plants and other sources gets deposited to surrounding land and waters; it makes its way into fish tissue in the form of methylmercury. The primary route of human exposure to methylmercury is through consumption of fish. 

The saga of federal regulation of mercury emissions from coal-fired utilities is long and lamentable. Although the CAA Amendments of 1990 seemed to portend more determined efforts to reduce emissions of this potent neurodevelopmental toxin, utilities have successfully forestalled any federal requirements that they reduce their mercury pollution. The Bush Administration even attempted to remove utilities from the list of sources whose toxics emissions are to be regulated under section 112 of the CAA – an attempt the D.C. Circuit threw out in 2008. Utilities remain the single largest unregulated source of mercury emissions in the United States today; they contribute some 40% of U.S. mercury emissions.

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EPA's New Boiler Rule Will Deliver Reduced -- But Still Huge -- Health Benefits

This post was written by CPR Member Scholar Catherine O'Neill and Communications Specialist Ben Somberg.

The announcement from EPA Wednesday creating final standards for pollution from industrial boilers is being described by the press as “scale[d] back,” and “half the cost of an earlier proposal.” Those things are true, but the new regulation is no small matter. It will have a significant and positive effect on the health of people across the country and beyond.

Says the Sierra Club: "Though the announcement today is modest by comparison to the proposals put forth by the EPA last June, we urge Administrator Lisa Jackson to forge ahead to protect our children and families’ health." NRDC says: "EPA could have done more, but these standards accomplish long overdue, needed cuts in mercury, benzene, heavy metal and acid gas pollution from industrial plants. While the final biomass standards are notably relaxed in response to industry complaints, overall the safeguards still will save up to 6,500 lives, avoid 4,000 heart attacks, and prevent more than 46,000 cases of aggravated asthma and bronchitis every year. Americans deserve these tremendous health benefits without political interference by Congress."

"It appears that EPA has addressed many of the industry complaints while still putting out standards that would bring significant public health benefits," Frank O'Donnell of Clean Air Watch told Greenwire. "Let's hope that EPA stands its ground when industries argue for further changes."

The rule is long overdue. There are several air pollutants at play here, but let me focus on mercury for a moment. Industrial boilers as a category are the second largest domestic source of mercury, after coal-fired power plants. Mercury emitted to the air from boilers and other sources gets deposited to surrounding land and waters; ultimately, it makes its way into fish tissue in the form of methylmercury – a potent neurotoxin to humans. In fact, exposure to even small amounts of methylmercury in utero or during childhood can lead to irreversible neurological damage, placing the developing fetus and children at particular risk. Fish, in many areas a low-cost source of food, is being poisoned by mercury, and advisories suggest reducing or removing it from families' dinner plates as a consequence.

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Environmental Regulation, Jobs, and Human Health: Industry Estimates on Boiler Rule Flunk Economics 101

Economics professors at two major universities just issued their reviews of industry-funded assessments of the costs of EPA’s proposed boiler rule (via NRDC). The professors’ conclusions: “the methodology is fundamentally flawed;” “the resulting estimates of job losses are completely invalid;” “the results reported are useless;” “if I were grading this, I would give it an F.” These strongly-worded indictments should make us sit up and take note. 

Professors Charles Kolstad and Jason Shogren were asked to review industry-funded estimates of the costs of EPA’s proposed boiler MACT rule. These estimates have been cited in support of recent industry claims that it would be too costly and result in a large loss of jobs. The professors’ reviews usefully reveal the serious flaws in the “evidence” around which industry has been spinning its anti-regulatory story. In an earlier post, I examined another aspect of the industry story, showing how it neglected to mention that the estimated benefits of regulating particulates, heavy metals, and dioxins would dwarf the estimated costs (and that's without even counting benefits for mercury reductions). With the assistance of Kolstad and Shogren, we can see how, in addition to belittling the benefits, the industry story has attempted to exaggerate the costs.

Here is some background reading for this assignment:

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Boiler MACT Rule Would Have Enormous Health Benefits from Air Pollutant Reductions -- And That's Not Even Accounting for the Reduced Mercury Emissions

EPA’s proposal to curb emissions from the second largest source of mercury in the United States – industrial boilers and process heaters – has come under fire in recent weeks.  Those industries that would be subject to the “boiler rule” have objected to its costs, and some senators have embraced their claims (see also Lisa Jackson's response). The industry story, however, leaves out important facts.

The industry story does not mention that, on balance, the estimated costs of the rule are dwarfed by the benefits it would deliver in terms of human health. According to the Regulatory Impact Analysis (RIA) for the rule, regulating boilers would result in societal benefits ranging from $18 billion to $45 billion, at a cost of $3.4 billion. Thus, the rule is estimated to deliver net benefits in the neighborhood of $15 billion to $41 billion. To put it another way, these estimates mean that Americans would receive five to twelve dollars in health benefits for every dollar spent to meet the proposed standards.

The benefits accounted for by these numbers reflect real impacts for real people – including some 2,000 to 5,100 fewer premature deaths among us each year; 1,400 fewer people suffering from cases of chronic bronchitis; and 35,000 cases of aggravated asthma prevented.

These figures, moreover, do not even attempt to account for a whole host of the boiler rule’s benefits.  Importantly, while the proposed rule would cut mercury emissions from these sources in half – eliminating 8.3 tons of mercury emissions annually – the resulting benefits aren’t included at all in the RIA’s cost-benefit calculus. In fact, the RIA does not attempt to include the benefits from reducing any of the numerous toxic air pollutants that would be reduced by the rule – it excludes not only mercury, but also other heavy metals and dioxins from its accounting. Were the figures to reflect the considerable benefits of reducing these notoriously toxic pollutants, the cost-benefit tally would even more strongly favor regulating boiler emissions.

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Egg Industry's Effort to Push Salmonella Problem as Consumers' Fault A Worrying Example of "Risk Avoidance" Policy Approaches to Health and Safety Regulation

According to the egg industry, the thousands of people sickened by eggs contaminated with Salmonella enteritidis have only themselves to blame. As USA Today reported:

"Consumers that were sickened reportedly all ate eggs that were not properly or thoroughly cooked. Eggs need to be cooked so that the whites and yolks are firm (not runny) which should kill any bacteria," says Mitch Head, spokesperson for the United Egg Producers.

"Some people may not think of an egg as you would ground beef, but they need to start," says Krista Eberle of the United Egg Producers' Egg Safety Center. "It may sound harsh and I don't mean it to sound that way. But all the responsibility cannot be placed on the farmer. Somewhere along the line consumers have to be responsible for what they put in their bodies."

With more than 500 million eggs to date subject to recall for contamination, this effort to shift the focus to consumers’ behavior deserves scrutiny. Implicit in this shift is an attempt to absolve producers – and the government agencies charged with overseeing these producers and ensuring the health of our food supply – of responsibility. But there are many good reasons for our government to ensure the safety and security of the food we eat. Indeed, Congress has assigned this task to protector agencies such as the Food and Drug Administration precisely because most Americans want to go to their local grocery stores and know that the food sold there will be fit for human consumption.


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EPA's New Guidance on Considering Environmental Justice in Rulemaking a Welcome First Step

The EPA released a guidance document on Monday that promises to integrate environmental justice considerations into the fabric of its rulemaking efforts. Titled the Interim Guidance on Considering Environmental Justice During the Development of an Action, EPA’s Guidance sets forth concrete steps meant to flag those instances in which its rules or similar actions raise environmental justice concerns. Specifically, the Guidance directs agency staff involved in rulemaking to “meaningfully engage with and consider the impacts on” communities of color, low-income communities, indigenous populations, and tribes.

EPA’s Guidance responds to an issue raised by CPR Member Scholars at the dawn of the Obama Administration. In our 2008 report, Protecting Public Health and the Environment by the Stroke of a Presidential Pen, we observed that efforts to address environmental injustice had languished in the 15 years since President Clinton issued the Environmental Justice Executive Order (Executive Order 12898). We urged the new president to use his authority to, among other things, alter a status quo in which agencies too often simply failed to see that their actions had environmental justice implications: 

Agencies issue scores of regulations each year that have environmental justice implications.  But these agencies often fail to ask who will bear the burdens and who will reap the benefits of a regulation, or to consider whether the regulation ameliorates or exacerbates current inequities. As a result, environmental justice often fails to make it onto agencies' radar screens.

When agencies do identify environmental justice as a potential concern during the rulemaking process, their responses often indicate a misunderstanding of the relevant issues.  For example, when EPA purported to assess the environmental justice impacts of its final “Clean Air Mercury Rule,” which would have postponed and weakened reductions in mercury emissions, EPA observed that Native Americans, Southeast Asian Americans, and others would be better off with the rule's meager reductions than with nothing.  Indeed, in a particularly callous twist, EPA asked “whether high fish-consuming (subsistence) populations would be disproportionately benefited by the final rule,” despite EPA's own data showing that many in these groups would be left exposed to unsafe levels of mercury in fish.

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EPA Chides Polluters for Downplaying Risk From Portland Harbor Superfund Site; Still, Must Honor Fishing Tribes' Rights

In a welcome move, EPA recently took polluters to task for their attempt to downplay the risks to human health and the environment from the Portland Harbor superfund site along the Willamette River in Portland, Oregon (h/t Oregonian for noting the EPA action). As part of the cleanup effort for the site, the polluters, known as the Lower Willamette Group (LWG), had agreed to conduct an assessment of the risks posed by the contaminants there. This risk assessment will serve as the basis for determining vital questions about cleanup at the site, including the degree to which the contaminants will be remediated and the extent to which health risks will actually be reduced. Because the members of the LWG will likely have to foot much of the cleanup bill, it's unsurprising that they sought to lowball the risks to humans and the environment: the lower the risks at a site, the less expansive – and less expensive – a cleanup is likely to be. Any such tendencies are meant to be kept in check by the EPA however, which oversees LWG’s risk assessment and, in the end, sets the standards for the Portland Harbor site. To its credit, EPA’s preliminary comments raise several pointed objections to the LWG risk assessment, ultimately concluding that it improperly “minimize[s] the risk to human health and the environment.”

Consider one example of LWG’s efforts to belittle the risks from the site. Portland Harbor is contaminated with polychlorinated biphenyls (PCBs), dioxins, mercury, polycyclic aromatic hydrocarbons (PAHs), and other toxic pollutants known to cause cancer and harm human health. Many of these contaminants bioaccumulate in fish tissue; humans are exposed when we eat these fish. In fact, for many of these pollutants, fish consumption is the primary route of human exposure. As a consequence, a crucial variable for assessing the risks posed by the site is the answer to the question: how much fish do people consume?

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Reducing Mercury Emissions From Coal-Fired Power Plants: Yes We Can (And Could Have, Years Ago)

Three recent developments in the saga of efforts to regulate mercury emissions from coal-fired utilities are significant. Early last week, Michigan became the twenty-third state to require coal-fired utilities within its jurisdiction to reduce their mercury emissions. Michigan’s regulation requires these sources to cut mercury emissions by 90% by 2015. Then, on Thursday, the EPA reached a settlement with environmental groups who had sued the agency for failing to act to regulate mercury emissions. In the agreement (see NYTimes also), the EPA pledged to set standards for mercury and a number of other toxics by late 2011.

The EPA and Michigan announcements come on the heels of a Government Accountability Office (GAO) report released early this month indicating that coal-fired power plants across the nation have achieved substantial reductions in emissions of this toxic air pollutant. The GAO report, Clean Air Act: Mercury Control Technologies at Coal-Fired Power Plants Have Achieved Substantial Emissions Reductions, found that these sources were able to reduce mercury emissions by as much as 99% using currently available technologies. It found, moreover, that these reductions “have been achieved at a relatively low cost.”

But wait – didn’t we hear from the Bush Administration and the utilities that control technologies capable of reducing mercury emissions on this order were still years away from commercial viability? And that this reality warranted a federal regulation that sought only modest emissions reductions (70%) and delayed for years the date by which these reductions would be achieved? (The Bush Administration's regulation, never implemented, would have set the deadline for 2018 – although structural features of the program meant that actual reductions wouldn’t approach 70% until some time in the 2020s or even the 2030s).

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