Environmental Law Prof Blog

Welcome to Environmental Law Prof Blog

WELCOME to Environmental Law Prof Blog.  Please feel free to use this post as an open thread to raise issues relevant to environmental law, policy, science, and ethics.                                                                        

The royalties from this blog and my other professional royalties are devoted to assuring that everyone in the world has clean safe drinking water.  This is my part helping meet the Millenium Development Goals.  Our children's children will thank you if you find a way to achieve the MDGs.  Even now, they are watching....

Find YOUR way to make the Millenium Development Goals reality!

Places to Start:
ONE: www.one.org
MILLENIUM PROMISE: www.millenniumpromise.org
MILLENIUM CAMPAIGN: www.millenniumcampaign.org

No Comment Required

The US blocks a UN resolution deploring the Qana attack, softening the language. The US opposes an immediate, unconditional cease-fire.  Lebanon says thanks, but no thanks to a visit by US Secr. of State Rice. Deadly Israeli Air Strike

Bird Flu Blues: Ain't No Cure, But Perhaps a Vaccine

NYTimes reported today [NYTimes article] that GlaxoSmithKline has developed a more effective bird flu vaccine that works at a far smaller dose, so it might be manufactured rapidly enough to respond to a pandemic.  Sanofi Pasteur's vaccine developed last year and stockpiled by the government requires such large doses (90 v. 4 ugm) that it could not keep up with a pandemic spread of bird flu.  GSK expects to seek approval FDA approval this year.  The vaccine will sell for the same price as a standard flu shot, which is an average of $8 to $12 a shot.  GlaxoSmithKline’s current production capacity for seasonal flu vaccine is 60 million to 70 million doses a year, and that it could make an equal amount of the bird flu vaccine. By 2008, GSK expects to expand its production capacity to 150 million doses a year. 

B

Corporate Social (ir)Responsibility

A study by Clark to be published in Environmental Research in September found that major countries, including India, China and Malaysia, produce and sell consumer paints with dangerously high lead levels.  Clark's study demonstrates that new paint in many unregulated Asian countries greatly exceeds U.S. safety levels.  The study analyzed 80 consumer paint samples from four countries—India, Malaysia, China and Singapore—to determine the amount of lead and compare them with U.S. standards.  About 50 percent of the paint sold in China, India and Malaysia—none of which regulate lead in paint—had lead levels 30 times higher than U.S. regulations.  More than 75 percent of the consumer paint tested from countries without controls had levels exceeding U.S. regulations. Singapore, on the other hand, has well-enforced regulations similar to U.S. standards and only 10 percent of paint samples were above U.S. regulations, with the highest exceedence being six times the U.S. limit.

Clark was quoted by Science Daily as saying: “Paint manufacturers are aggressively marketing lead-based paints in countries without lead content restrictions...In some cases, companies are offering the same or similar products, minus the lead, in a regulated country...There is a clear discrepancy in product safety outside the United States, and in today’s global economy, it would be irresponsible for us to ignore the public health threat for the citizens in the offending countries—as well as the countries they do business with.”
Crumbling lead-based paint on playground equipment in Mangalore, India (photo: University of Cincinnati)

Environmental Case Law Summaries

U.S. 5th Circuit Court of Appeals

Frazier v. Pioneer Ams. LLC (07/06/06 - No. 06-30434)
Plaintiffs have the burden to show the applicability of the Class Action Fairness Act's sections 1332(d)(3)–(5) exceptions when jurisdiction turns on their application. In a case involving alleged seepage of mercury from defendants' facility, denial of putative class plaintiffs' motion to remand to Louisiana state court is affirmed over plaintiffs' claim that the case was not removable under CAFA.
http://caselaw.lp.findlaw.com/data2/circs/5th/0630434cv0p.pdf

U.S. 8th Circuit Court of Appeals

Falk v. US (07/05/06 - No. 05-2566)
Judgment in favor of defendant-agency in a declaratory judgment action challenging decisions made by the United States Fish and Wildlife Service affecting the use of plaintiffs' land for goose hunting is affirmed where defendant's determinations were not arbitrary and capricious, and its interpretation of regulations was not plainly erroneous.
http://caselaw.lp.findlaw.com/data2/circs/8th/052566p.pdf

U.S. 9th Circuit Court of Appeals

Pakootas v. Teck Cominco Metals, Ltd. (07/03/06 - No. 05-35153)
Denial of defendant's motion to dismiss is affirmed where: 1) because CERCLA liability is triggered by an actual or threatened release of hazardous substances, and because a release of hazardous substances took place within the U.S., the suit at hand involved a domestic application of CERCLA; and 2) defendant-Canadian company's contention that it was not liable under a particular CERCLA provision because it disposed of hazardous substances itself is rejected.
http://caselaw.lp.findlaw.com/data2/circs/9th/0535153p.pdf

Oregon Trollers Ass'n v. Gutierrez (07/06/06 - No. 05-35970)
In an action brought by fishermen and fishing-related businesses and organizations against the National Marine Fisheries Service and other governmental entities challenging certain management measures undertaken to protect a type of salmon, summary judgment for defendants is affirmed over claims that the measures conflicted with a number of substantive and procedural requirements set forth in the Magnuson-Stevens Fishery Conservation and Management Act.
http://caselaw.lp.findlaw.com/data2/circs/9th/0535970p.pdf

New York Court of Appeals

In the Matter of Eadie v. Town Bd. of the Town of N. Greenbush (07/05/06 - No. 99)
In an action arising out of the rezoning of a large area of land to permit retail development: 1) the rezoning did not require a three-fourths majority vote of the Town Board under Town Law section 265; 2) the challenge to the rezoning under the State Environmental Quality Review Act (SEQRA) was timely brought; and 3) the Town complied with SEQRA.
http://caselaw.lp.findlaw.com/data/ny/cases/app/99opn06.pdf

WELCOME

WELCOME to Environmental Law Prof Blog.  Please feel free to use this post as an open thread to raise issues relevant to environmental law, policy, science, and ethics.                                                                           

The royalties from this blog and my other professional royalties are devoted to assuring that everyone in the world has clean safe drinking water.  This is my part helping meet the Millenium Development Goals.  Our children's children will thank you if you find a way to achieve the MDGs.  Even now, they are watching....

Find YOUR way to make the Millenium Development Goals reality.

Places to Start:
ONE: www.one.org
MILLENIUM PROMISE: www.millenniumpromise.org
MILLENIUM CAMPAIGN: www.millenniumcampaign.org

Environmental Case Law Summaries

U.S. 1st Circuit Court of Appeals

EnergyNorth Natural Gas, Inc. v. Century Indem. Co. (06/28/06 - No. 05-2149)
Judgment as a matter of law for plaintiffs in a suit over excess liability coverage for plaintiff's potential liability for environmental contamination is affirmed where the district court did not err in refusing to allow the case to go to the jury, in excluding some evidence, and in ordering defendant to reimburse plaintiff for certain costs and fees.
http://laws.lp.findlaw.com/1st/052149.html

U.S. 6th Circuit Court of Appeals

Save Our Cumberland Mountains v. Kempthorne (06/29/06 - No. 05-5663)
In an action brought by environmental groups challenging an agency's environmental assessment and decision-making in connection with a coal mining permit, summary judgment for the agency is affirmed over claims that: 1) an environmental assessment was deficient in failing to consider sufficient alternatives to a proposal; 2) the agency acted arbitrarily and capriciously in issuing a finding of no significant impact; and 3) the agency should have made the environmental assessment available for public comment 30 days before its final decision.
http://caselaw.lp.findlaw.com/data2/circs/6th/055663p.pdf

U.S. 10th Circuit Court of Appeals

The Ecology Ctr., Inc. v. US Forest Serv. (06/29/06 - No. 05-4101)
Dismissal of a complaint, challenging a project which would allow logging in a certain area and claiming that the project's Record of Decision did not comply with the National Environmental Policy Act (NEPA), the National Forest Management Act, and the APA, is reversed in part as to the National Forest Management Act claim where defendant's "exclusive application of the 1982 Rules and the failure to consider or mention the 'best available science' standard amounted to conduct that is arbitrary and capricious."
http://laws.lp.findlaw.com/10th/054101.html

Supreme Court of California

Big Creek Lumber Co. v. County of Santa Cruz (06/29/06 - No. S123659)
County zoning ordinances relating to the permissible locations for timber operations are not preempted by state forestry statutes.
http://caselaw.findlaw.com/data2/californiastatecases/s123659.doc
http://caselaw.lp.findlaw.com/data2/californiastatecases/s123659.pdf

California Appellate Districts

Turlock Irrigation Dist. v. Zanker (06/26/06 - No. F047094)
Judgment partially against a town in litigation concerning the scope of its right to receive treated water for domestic use and other needs of the town is affirmed where the trial court correctly found that the districts must continue to provide water to the town, but the reasonable cost of treating the water to make it suitable for domestic use may be passed through to the consumer.
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2006/f047094.html
http://caselaw.lp.findlaw.com/data2/californiastatecases/f047094.pdf

Save Our Neighborhood v. Lishman (06/28/06 - No. C049525)
In a dispute involving a city's approval of a project for the construction of a hotel, gas station, and convenience store complex, a judgment denying plaintiffs' petition for writ of mandate is reversed where a city's reliance on an addendum to a mitigated negative declaration for the project violated the California Environmental Quality Act (CEQA).
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2006/c049525.html
http://caselaw.lp.findlaw.com/data2/californiastatecases/c049525.pdf

Schneider v. California Coastal Comm'n (06/28/06 - No. B186149)
The Legislature has not recognized an ocean boater's "right to a view" of the coastline as a factor in regulating development.
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2006/b186149.html
http://caselaw.lp.findlaw.com/data2/californiastatecases/b186149.pdf

Geological carbon sequestration and storage: recipe for leaks and toxic contamination?

A great deal of energy is being expended these days to see how close to "business as usual" we can remain and still deal with the climate change crisis.  Ford's decision to abandon hybrids for "flex fuel" cars (i.e. defer reduced emissions another decade or so while ethanol 85 becomes available) and power companies eager embrace of geological carbon storage and sequestration are just a couple of examples. The latter has hit a bit of a bump in the road: a recent study by Kharaka suggests that CO2 increases pH and mobilizes toxic metals creating a potential for contamination of nearby aquifers.  Geology study
Richard Kerr of Science reported:

Scientists testing the deep geologic disposal of the greenhouse gas carbon dioxide are finding that it's staying where they put it, but it's chewing up minerals. The reactions have produced a nasty mix of metals and organic substances in a layer of sandstone 1550 meters down, researchers report this week in Geology. At the same time, the CO₂ is dissolving a surprising amount of the mineral that helps keep the gas where it's put. Nothing is leaking out so far, but the phenomenon will need a closer look before such carbon sequestration can help ameliorate the greenhouse problem, say the researchers.

             Drillers often inject CO₂ into the ground to drive more oil out, but researchers conducting the U.S. Department of Energy-sponsored Frio Brine Pilot Experiment northeast of Houston, Texas, pumped 1600 tons of CO₂ into the Frio Formation to see where the gas went and what it did. "We're the first looking in this huge detail so that we can see what's going on," says geochemist and lead study author Yousif Kharaka of the U.S. Geological Survey in Menlo Park, California. He and colleagues found that the CO₂ dropped the pH of the formation's brine from a near-neutral 6.5 to 3.0, about as acid as vinegar. That change in turn dissolved "many, many minerals," says Kharaka, releasing metals such as iron and manganese. Organic matter entered solution as well, and relatively large amounts of carbonate minerals dissolved.

The loss of carbonates worries Kharaka particularly. These naturally occurring chemicals seal pores and fractures in the rock that, if opened, could release CO₂ as well as fouled brine into overlying aquifers that supply drinking and irrigation water. Perhaps more troubling, says Kharaka, is that the acid mix could attack carbonate in the cement seals plugging abandoned oil or gas wells, 2.5 million of which pepper the United States. The lesson is that "whatever we do [with CO₂], there are environmental implications that we have to deal with," he says.

Geologist Julio Friedmann of Lawrence Livermore National Laboratory is less concerned about corrosion eating away the seals on a sequestration site. "The crust of Earth is well configured to contain CO₂," he says. He points to 80 U.S. oil fields injected with CO₂ for up to 30 years. "We've seen no catastrophic failures." Nevertheless, the Frio results do "suggest an aspect of risk we hadn't considered before," says Friedmann. There is a "new potential risk should CO2 leak into shallow aquifers."

ABA SEER teleconference on natural resources damages at Hanford

If you are interested in the results of federal facility pollution, you might want to tune into this ABA SEER teleconference:

American Bar Association Section of Environment, Energy, and Resources   Superfund and Natural Resource Damages Litigation Committee Presents a “Quick Teleconference” program Natural Resource Damages in the Pacific Northwest Tuesday, July 25, 2006   2:00 p.m. – 3:00 p.m. Eastern Time / 1:00 p.m. – 2:00 p.m. Central Time   12:00 p.m. – 1:00 p.m. Mountain Time / 11:00 a.m. – 12:00 p.m. Pacific Time Program Overview: An update on the latest developments in the Natural Resource Damages claims arising from the Hanford Nuclear Reservation Site and the Commencement Bay Nearshore/Tideflats Site. The State of Washington has intervened in the Natural Resource Damages lawsuit over the Hanford Nuclear Reservation Site. This program will look at the State’s anticipated role in this litigation and the path forward. At Commencement Bay, the Trustees have entered several significant settlements relating to the Hylebos Waterway Problem Area. The program will look at the innovative approach used by the Trustees to reach these settlement agreements, and anticipated future actions regarding the remaining claims at the overall Site.   Click here to Register

Oregon State Rules!

In case any of you have been out of the loop or failed to watch the big game, humble Oregon State just won the College World Series!!!  Go Beavs!

WHO links 25% of all disease to environmental degradation

WHO reports that 13 million deaths annually and nearly a quarter of all disease worldwide—including 33 percent of illnesses in children under age five—are due to environmental causes that could be avoided or prevented.  The four main diseases caused by environmental factors are diarrhea, lower respiratory infections, various forms of unintentional injuries, and malaria. These disease could be prevented by providing safe drinking and domestic water supplies, promoting better hygiene, using cleaner and safer fuels, reduced use and better management of use of toxic substances, and better water resource management.  The report
"shows very clearly the gains that would accrue both to public health and to the general environment by a series of straightforward, coordinated investments. We call on ministries of health, environment and other partners to work together to ensure that these environmental and public health gains become a reality." Video message by Dr. Maria Neira, Director, Public Health and Environment, World Health Organization

WHO report - Preventing disease through healthy environments: Towards an estimate of the environmental burden of disease

Nanotechnology and Nanotoxicity

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Nanotoxicology is back in the news.  For background on nanotoxicology, see Nanotoxicology Review.  Nanotechnology has been widely dispersed without much understanding of the biological effects of nanoparticles.  An animal study by Veronesi published June 7 in Environmental Science and Technology on biological effects of titanium dioxide nanoparticles suggests that some nanoparticles cause substantial neurological damage.  Given the widespread use of such nanoparticles, some quick research to confirm these findings is in order.  Link: ScienceNOW

Hundreds of tons of engineered, microscopic particles enter the environment every year, yet little is known of their biological effects. Now, a study of ultrafine particles of titanium dioxide (TiO2)--used in manufacturing, personal care and food products, and as drug carriers--indicates that even low concentrations can produce harmful "free radicals" in brain cells. The findings underscore the need to learn more about how such tiny particles interact with living tissues, the researchers say.

Previous studies have revealed that many nontoxic materials become harmful at particle sizes of less than 100 nanometers. Specifically, they can trigger the production of biologically reactive, oxygen-containing molecules such as free radicals. In addition, some types of particulate matter can enter the brain once they get into the bloodstream. Little is known about the biological effects of TiO2, but its widespread use and distribution means that humans and other animals could be widely exposed.

To investigate the biological effects of TiO2, Bellina Veronesi, a neurotoxicologist with the U.S. Environmental Protection Agency in Research Triangle Park, North Carolina, and her colleagues exposed mouse microglia--cells that protect the brain from invaders such as viruses and foreign chemicals--to a solution containing minute concentrations of TiO2. The microglia engulfed the particles and released bursts of reactive oxygen molecules for 2 hours. This didn't damage the microglia, but Veronesi says prolonged exposure to these compounds can damage neurons. In fact, a similar mechanism is thought to underlie some cardiovascular and neurodegenerative diseases, including Parkinson's and Alzheimer's.

EU Soil Strategy Redux

SOIL strategy update 6/13/06

The EU delayed release of the soil strategy last week due to objections by the EU Enterprise Commissioner.  He seeks to limit contaminated site inventories to transboundary sites and to restrict public access to the inventories.   The draft had required member states to identify areas at risk of degradation within five years based on common criteria. Member states would have two years to adopt an action plan with targets to reduce risks.  The draft required

national inventories of contaminated sites and remediation strategies, to be made publicly available and reviewed regularly. According to the EU consultation survey of organizations and citizens, contamination is seen as the greatest threat to soil. 

original post 6/1/06

On June 7, the European Commission is scheduled to adopt the thematic strategy on soil protection.  The strategy calls for creating a framework directive requiring the 25 EU member states to meet soil remediation targets. The framework directive also would require sellers of contaminated land to provide soil reports to potential buyers. The thematic strategy for soil protection includes targets for other threats to soil such as compaction, decline in organic matter, declining biodiversity, erosion, landslides, salinization, and sealing. The strategy calls on member states to create stabilization strategies and action plans. EU link

Alaska and US Exercise Exxon Valdez Reopener Provision

The United States and the State of Alaska today submitted to ExxonMobil Corporation a detailed plan for a proposed restoration project to restore habitat in the area affected by the 1989 Exxon Valdez oil spill. The restoration plan was submitted in accord with the "Reopener for Unknown Injury" in the consent decree which settled the governments' civil claims against Exxon Corporation (now ExxonMobil), the Exxon Shipping Company and the Exxon Pipeline Company arising from the spill.  Today's submission of a plan to ExxonMobil is the first step in exercising the Reopener provision of the consent decree.  The Reopener allows ExxonMobil 90 days after submission of the proposed restoration plan before it is required to pay or respond -- this provision allows negotiations to settle a Reopener claim without litigation.

The proposed restoration project focuses on removing much of the oil that remains in the environment in a form that is potentially harmful to natural resources and disruptive of human activities.  The proposed project has two major objectives: (1) to determine the locations, approximate amounts, and chemical states of all significant residual deposits of oil from the spill in the spill area; (2) to accelerate the natural processes of degradation and dispersal of the lingering oil, or otherwise restore the oiled sites, to the greatest extent scientifically appropriate taking into account such factors as the size and distribution of lingering oil patches, conditions at the oiled sites, affected natural resources or human uses, and the relative benefits and costs (including potential adverse effects) of active remediation.The ultimate cost of the project depends upon such factors as how many oiled sites require remediation and the remediation approach selected. It is currently estimated to cost approximately $92 million. 

At the time of the settlement, Exxon agreed to pay the governments $900 million in installments for costs and for natural resource damages known or reasonably anticipated at the time of the settlement.  The settlement also included a unique provision allowing the federal and state
trustees to seek up to $100 million in additional monies for damages where a substantial loss or decline in one or more populations, habitats, or species in the area of the spill, (1) resulted from the spill; (2) the loss or decline was unknown and could not reasonably have
been anticipated by the governments; (3) one or more projects that would help restore the injured
population, habitat or species; and (4) the project costs are not grossly disproportionate to benefits.   

From Exxon Valdez Reopener Factsheet
               

The Exxon Valdez oil tanker ran aground on Bligh Reef in Prince William Sound, Alaska in the early morning hours of March 24, 1989.  An estimated eleven million gallons of crude oil were spilled and ultimately oiled approximately 1,750 kilometers of shoreline within the Gulf of Alaska.  The oil had devastating effects on marine wildlife and other natural resources in the spill area and disrupted the lives of residents of the spill area for many years.   

        The harm caused by the spill was extensive.  According to government scientist estimates, approximately 250,000 marine birds died from direct exposure to the oil, along with approximately 2,800 sea otters and numerous harbor seals.  Shellfish such as clams and mussels and the other animals and plants that make up intertidal communities suffered heavily both from the spill and from some of the cleanup measures.  Two pods of killer whales had extraordinarily high losses in the two years after the Spill, with oil exposure a strongly suspect factor.  Studies regarding the effects of the spill on many of these species have been and continue to be conducted under the original agreement.   

        On Oct. 8, 1991, the U.S. District Court in Anchorage accepted guilty pleas by Exxon Corporation and Exxon Shipping Company to federal environmental crimes and also approved a civil settlement resolving claims for past cleanup costs and natural resources damages with the federal
government and Alaska.  The criminal plea agreement called for a $150 million fine, of which $125 million was remitted, and the payment of $100 million in restitution, divided equally between the United States and the State. The civil settlement required Exxon to pay $900 million to both
governments over ten years.  That money has been and continues to be used for both short-term and long-term restoration projects in Prince William Sound and the Gulf of Alaska, as well as extensive research on the resources.  The purpose of those monies is to rehabilitate and restore the
resources known at the time of the settlements to have been injured. 

The Trustee Council (formed by the Departments of the Interior, Agriculture, the National Oceanic and Atmospheric Administration and the state of Alaska) adopted a formal Restoration Plan for the civil settlement proceeds in 1994, after an extensive public process.  As of 2004, the Trustee Council has remaining $145 million after expenditures for a wide variety of restoration activities, research and monitoring of injured resources, and acquisition and protection of habitat, and damage assessment activities.   Fact Sheet

Press Release

In accordance with the "Reopener" provision of the 1991
civil settlement with the Exxon Corporation, the U.S. Department of Justice
and the Alaska Department of Law today presented the company with a
proposed plan to restore shorelines in Prince William Sound and the Gulf of
Alaska that still contain oil from the 1989 Exxon Valdez oil spill.  The
State of Alaska and three federal agencies whose trust resources were
injured by the spill-the U.S. Departments of Agriculture, Commerce, and the
Interior-have estimated the project to cost approximately $92 million over
the course of several years.  The additional funding is being sought under
the "Reopener for Unknown Injury" provision of the 1991 civil settlement
which required Exxon to pay $900 million in damages at the time.   

The need for this project arises from a series of studies undertaken since
2001 that document the presence of residual oil from the 1989 spill within
the intertidal zone of beaches in the oil spill area.  At the time of the
settlement, it was not anticipated that this oil would remain toxic and
continue to impact natural resources in the oil spill area.  The proposed
project includes identifying all locations with significant amounts of
lingering oil and using advanced bioremediation techniques and other
technologies to remove the larger patches.  The governments are inviting
ExxonMobil to work with them cooperatively to develop and implement this
comprehensive project to remove the oil.   

 
"By sending our plan in accordance with the Reopener provision, we are
aggressively seeking to restore natural resource damages unforeseen at the
time of the 1991 settlement," said Sue Ellen Wooldridge, Assistant Attorney
General for the Justice Department's Environment and Natural Resources
Division.  "Our goal throughout this process has been to pursue all
scientifically and legally appropriate means of restoration.  Our proposed
plan is grounded in the best and most current science available, while
steadfastly adhering to the requirements of the consent decree." 

Alaska Attorney General David Marquez said, "The State of Alaska has been
engaged in a thorough analysis of potential claims under the Reopener
provision for the last seven years.  In exercising the Reopener we have
been bound by the terms of the consent decree and the

application of sound science.  After extensive review it is clear that
populations and habitat within the oil spill area have suffered substantial
and unanticipated injuries that are attributable to the Exxon Valdez oil
spill."  Attorney General Marquez added, "A couple of months ago we held a
series of public meetings in oil spill area communities to talk to the
public about the Reopener and ask for their ideas on unanticipated injuries
and how to address them.  We received many thoughtful responses.  To the
extent those ideas do not appear in the restoration plan presented to
ExxonMobil today, it is my intention to be guided by this information in
making decisions in my capacity as a trustee on the Exxon Valdez Oil Spill
Trustee Council."   

"The historic 1991 settlement provided much-needed funding to Alaska and to
the federal government for restoration, and we have made significant
progress in that effort," said Lynn Scarlett, Deputy Secretary of the
Department of the Interior.  "But we have also discovered additional
injuries caused by the spill that were not apparent at the time the case
was first settled, and these problems must be addressed.  The Department of
the Interior strongly supports today's efforts so that we can restore
injured resources in Prince William Sound and the Gulf of Alaska."   

"Natural resources of Prince William Sound, located within the Chugach
National Forest, sustained heavy impacts from the Exxon Valdez spill.  An
ongoing commitment to restore these injured lands and resources will
greatly benefit the ecosystem and marine life they support,"

said Mark Rey, Undersecretary of the Department of Agriculture.  "Both
Alaska residents and nonresidents use this area extensively for
subsistence, recreation, sport hunting and fishing activities.  Removal of
lingering subsurface oil, which remains bioavailable and toxic seventeen
years after the spill, is a necessary step in the effort to restore this
environment."   

"NOAA is particularly concerned with the quantity and toxicity of the
residual oil, its impact upon intertidal communities, and its significance
for future spill response actions in sub-arctic environments," said Jim
Walpole, NOAA General Counsel.   

The proposed project focuses on determining the locations, approximate
amounts, and chemical states of all significant residual deposits of oil
from the spill in the spill area, and upon seeking to accelerate the
natural processes of degradation and dispersal of the lingering oil. 

The governments are asserting that there is a substantial loss of habitat
from relatively fresh oil that has persisted in the subsurface of certain
intertidal areas since the spill.  This loss manifests itself in two
principal ways: (1) Predators that feed in the intertidal, primarily
harlequin ducks and sea otters, show reduced survival rates in oiled versus
unoiled areas or appear to be avoiding certain locations with relatively
extensive lingering oil; (2) Subsistence users reasonably avoid harvesting
in oiled areas (and in areas they believe may be oiled) because of concerns
over contamination of shellfish or gear.  The governments assert that the
current science supports the position that the continuing bioavailability
and toxicity of the lingering oil could not reasonably have been
anticipated.

In further developing and implementing the restoration plan, the
governments will continue to be committed to providing public review and
allowing participation to ensure that the public is fully informed and that
its concerns are taken into account.

Nanotechnology - nanotoxicity

DuPont scientists published a study recently indicating that inhalation of nanoparticles were not more toxic than larger fine sized particles. DuPont nanoparticle study  Other pulmonary toxicology studies demonstrate that nanoparticles administered to the lung are more toxic than larger, fine-sized particles of similar chemistry at identical mass concentrations.  As the scientists indicated,

The results described herein provide the first example of nanoscale particle-types which are not more cytotoxic or inflammogenic to the lung compared to larger-sized particles of similar composition. Furthermore, these findings run counter to the postulation that surface area is a major factor associated with the pulmonary toxicity of nanoscale particle-types.

Congratulations !!!

Congratulations !!!
to all of the teams who participated in the Pace University National Environmental Law Moot Court competition last week.  As usual, the competition used a knotty problem written by Jeff Miller, exploring non-point source regulation and state water quality standards under the Clean Water Act, the interaction of the CWA with state and federal common law, and jurisdictional and NCP consistency issues under CERCLA.  LSU won the final round, competing against University of Detroit and Washington University of St.  NELMCC Winners 

Rocky Flats jury verdict - $554 million against Rockwell and Dow

The federal jury in the Rocky Flats class action awarded $ 554 million in compensatory and punitive damages against Rockwell and Dow for negligently contaminating the property of 12,000 plaintiffs with plutonium.  I wonder if Rockwell and Dow have an indemnity agreement with the US.

NY Times article on Rocky Flats verdict

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Nanotoxicology

Science published an interesting review today, arguing that the nature of nanomaterials requires a different toxicology and that research concerning the toxicity of nanotechnology is urgently needed. Abstract  Nanotoxicity Full Article

Environmental Appeals Board Approves Animal Feeding Operation Consent Agreements

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EPA's Environmental Appeal Board has approved the first batch of consent agreements between animal feeding operations and the Agency concerning CAA and CERCLA 103 violations.   The consent agreements are a small portion of the consent agreements that will  cover more than 6,700 farms in 42 states,ranging from small dairy operations with perhaps five dozen cows to huge hog and dairy operations with tens of thousands of animals.  The farms will monitor soot and volatile organic compounds, under the Clean Air Act, and ammonia and hydrogen sulfide under the CERCLA 103 emergency reporting provision.  The data will be used to tailor

clean air, hazardous waste and emergency reporting laws for the operations and the farms agree to follow those laws after the data are collected. Each operation pays $2,500 into an E.P.A. fund, which will pay for two years of air monitoring at 28 to 30 farms nationwide. 

Companies also would have to agree to pay civil penalties of $200 to $100,000, depending on the size and number of farms they operate. Those fines would cover presumed violations, past and present.

  New Deal Eases Fines for Farms That Pollute - New York Times.

ABA Teleconference: EPA’s Rule on Protections for Subjects in Human Testing

The EPA Rule issued last week on human testing will be the subject of an ABA SEER teleconference.   EPA’s Rule on Protections for Subjects in Human Testing.