Kentucky environmental attorney Sanders says Supreme Court snuffs out Philip Morris appeal of size of punitive damages award in Oregon case.

Altria Group Inc.'s Philip Morris unit lost a final chance today in the U.S. Supreme Court to overturn the amount of a punitive damages award in an Oregon wrongful death case. An Oregon state jury awarded a $79.5 million punitive damages ruling against the cigarette manufacturer in the case involving a smoker's death that occurred in 1997.

The U.S. Supreme remanded the case back to the Oregon Supreme Court to look at the size of the punitive damage award, but the Oregon Supreme Court refused to do so. The state court did so because Philip Morris had failed to comply with state procedural rules on preserving error in a jury instruction.

In its third appeal to the U.S. Supreme Court in the same case, Philip Morris filed a writ to the Supreme Court, but America’s high court dismissed the Philip Morris appeal without issuing an opinion. Instead, the Supreme Court issued a one-sentence order in Philip Morris USA v. Williams saying, "The writ of certiorari is dismissed as improvidently granted." No justices dissented from the dismissal.

The case is Philip Morris USA v. Williams, 07-1216. A final ruling in the case is expected by July 2009.

Kentucky environmental attorney Sanders says EPA fires up first Clean Air Act case against utilties skirting law by using older units without controls

Did you know that in February 2009, the United States filed a complaint against Westar Energy alleging that the company violated the Clean Air Act by making major modifications to the Jeffrey Energy Center, a coal-fired power plant in St. Marys, Kansas without also installing and operating modern pollution control equipment?

The complaint alleges that for more than a decade, the Jeffrey Energy Center has operated without the best available emissions-control technology required by the New Source Review provisions of the Clean Air Act to control emissions of sulfur dioxide, nitrogen oxide and particulate matter, contributing to formation of fine particulate matter, smog and acid rain.

The lawsuit, filed by the Justice Department on behalf of the EPA, asks the district court to order Westar Energy to install and operate appropriate air pollution control technology in order to substantially reduce sulfur dioxide, nitrogen oxide and particulate matter emissions from the Jeffrey Energy Center. The United States also seeks civil penalties up to the maximum amount authorized by law, as well as actions by the energy provider to mitigate the adverse effects alleged to have been caused by the violations.

The suit was filed in the U.S. District Court in Kansas City, Kansas. This lawsuit marks the potential end of utilities skirting various sections of the Clean Air Act by using older units without modern air pollution controls. Instead, of operating old, inefficient units without air pollution control equipment, utilties will soon be forced to upgrade these old units or shut them down.

Kentucky environmental attorney Sanders says EPA to require higher energy efficiency for digital display units to earn Energy Star label.

EPA announced new tougher requirements for computer monitors, digital picture frames and other digital displays to earn the Energy Star label. As a result, Energy Star qualified products will be 20 percent more energy efficient than conventional options on average. If all displays sold in the United States meet this new specification, the energy savings would grow to about $1 billion each year and prevent greenhouse gas emissions equivalent to those from nearly 1.5 million vehicles.

To earn the label, the new specification includes a revision of existing requirements for computer monitors to a more stringent level, the fifth revision since products in this category have been eligible for the Energy Star label. EPA has also expanded the range of display products eligible for the label. In addition to computer monitors, digital picture frames and large commercial displays (up to 60 inches diagonal) can now qualify for the label when demonstrated to meet the energy efficiency requirements.

The specification for displays less than 30 inches diagonal will be effective October 30, 2009. The specification for displays 30-60 inches diagonal will be effective on January 1, 2010. More information on Energy Star: http://www.energystar.gov/

Kentucky environmental lawyer Sanders says U.S. EPA is delaying amended SPCC rule until January 2010 to allow further comment and review of regulation

U.S. EPA is delaying a final rule that amends the Spill Prevention, Control, and Countermeasure (SPCC) regulations, which was published in the Federal Register on Dec. 5, 2008. The delay is in accordance with a memorandum from the Office of Management and Budget entitled, “Implementation of Memorandum Concerning Regulatory Review” (M-09-08, January 21, 2009).

The amended rule will now become effective on January 14, 2010. Additionally, EPA is requesting public comment on whether a further delay of the effective date may be warranted.

The Dec. 5, 2008, amendments to the SPCC rule clarified regulatory requirements, tailored requirements to particular industry sectors, and streamlined certain requirements for facility owners or operators subject to the rule. With these changes, EPA expects to encourage greater compliance with the SPCC regulations, thus resulting in increased protection of human health and the environment.

The amendments did not remove any regulatory requirement for owners or operators of facilities in operation before August 16, 2002, to develop, implement, and maintain an SPCC plan in accordance with the SPCC regulations then in effect. Such facilities are still required to maintain their plans during the interim until the applicable date for revising and implementing their plans under the new amendments.

Information on the SPCC Rule: http://www.epa.gov/emergencies/content/spcc/index.htm

Kentucky environmental lawyer Sanders says Kentucky lacks natural wind resources to develop wind energy, as DOE map clearly shows.

After reaching 1,000 MW of wind energy in 1985, it took more than a decade for wind to reach the 2,000-MW mark in 1999. Since then, installed capacity has grown to 26,274 MW (as of January 31, 2009). Today, U.S. wind energy installations produce enough electricity on a typical day to power the equivalent of more than 6.5 million homes.

Kentucky environmental attorney Sanders says U.S. DOE has a map of Kentucky's wind resources measured 50 meters above the ground.

This resource map shows wind speed estimates at 50 meters above the ground and depicts the resource that could be used for utility-scale wind development. As a renewable resource, wind is classified according to wind power classes, which are based on typical wind speeds. These classes range from Class 1 (the lowest) to Class 7 (the highest).

In general, at 50 meters, wind power Class 4 or higher can be useful for generating wind power with large turbines. Class 4 and above are considered good resources. Particular locations in the Class 3 areas could have higher wind power class values at 80 meters than shown on the 50 meter map because of possible high wind shear. Given the advances in technology, a number of locations in the Class 3 areas may suitable for utility-scale wind development.

This map shows the highest wind resources in Kentucky are found on the ridge crests in the southeastern corner of the state. Class 3 areas are concentrated in the Black Mountain region near the Virginia border.

Kentucky environmental attorney Sanders says Kentucky receives $25 million in energy conservation blockl grants from Obama Administration.

The U.S. Department of Energy plans to invest $3.2 billion in energy efficiency and conservation projects in U.S. cities, counties, states, territories, and Native American tribes. The Energy Efficiency and Conservation Block Grant program, funded by President Obama’s American Recovery and Reinvestment Act, will provide formula grants for projects that reduce total energy use and fossil fuel emissions, and improve energy efficiency nationwide. Kentucky will receive more than $25 million dollars in funds from this project. The link for Kentucky’s funds is at: http://www.energy.gov/media/KENTUCKY.pdf

The funding will support energy audits and energy efficiency retrofits in residential and commercial buildings, the development and implementation of advanced building codes and inspections, and the creation of financial incentive programs for energy efficiency improvements. Other activities eligible for use of grant funds include transportation programs that conserve energy, projects to reduce and capture methane and other greenhouse gas emissions from landfills, renewable energy installations on government buildings, energy efficient traffic signals and street lights, deployment of Combined Heat and Power and district heating and cooling systems, and others.

To ensure accountability, the Department of Energy will provide guidance to and require grant recipients to report on the number of jobs created or retained, energy saved, renewable energy capacity installed, greenhouse gas emissions reduced, and funds leveraged. Funding is based on a formula that accounts for population and energy use.

Kentucky environmental attorney Sanders says Ohio EPA sets March 30 deadline for Brownfields property listed for potential federal stimulus money.

The Urban Development Division of the State of Ohio’s EPA has sent out an important notice to stakeholders of Brownfields property in Ohio. The letter reads,

The American Recovery and Reinvestment Act was signed into law by President Obama on February 17, 2009. The Recovery Act purpose and goal is to “to jumpstart our economy, create or save millions of jobs, and put a down payment on addressing long-neglected challenges so our country can thrive in the 21st century.” (www.Recovery.gov)

The American Recovery and Reinvestment Act allocated $100 million in additional funds to the United States Environmental Protection Agency (EPA) for the Brownfields program. This is a nationally competitive program for the assessment and cleanup of brownfield properties. Government entities and non-profit organizations may apply directly to EPA for these funds.

It is anticipated the EPA will release a notice into the Federal Register detailing guidelines regarding application submittals this week. The timeline for distribution and administration of these dollars is very short. Additional information is available on EPA’s brownfield website: http://www.epa.gov/brownfields/eparecovery/index.htm

The Ohio Department of Development will be applying to the EPA to support brownfield cleanup and redevelopment statewide. Our Urban Development Division has successfully received grants of this type in the past and is well positioned to request significant cleanup dollars and to work in partnership with the communities to have an impact around the state.

In preparation, the Department needs to create a pipeline of potential projects given the criteria listed on the enclosed fact sheet. The Department, if awarded, will administer and target the funds for these particular categories of brownfield projects: asbestos abatement, hazardous substance projects in the Ohio Voluntary Action Program and petroleum projects regulated by the Bureau of Underground Storage Tank Regulations.

If you have a viable project in one of these categories, please read the enclosed fact sheet then fill out the web form available at http://development.ohio.gov/recovery/recoveryform/ so we may include your project in our list of projects by Monday, March 30, 2009 at 12 p.m. EDT.

Important Note: Although you may have already submitted a request on recovery.ohio.gov, it is necessary to provide your project information on the web form for the Department’s funding request to US EPA. Submitting information to either the receovery.ohio.gov site or on the web form does not indicate application submittal or funding approval. If the Department receives funding, projects will be prioritized for their readiness to proceed and creation/retention of jobs.

Kentucky environmental attorney Sanders says Pickens plans virtual march on Washington in April to force discussion of new energy policy.

T. Boone Pickens is organizing a Virtual March on Washington to be held April 1-3, 2009. The purpose of the Virtual March is to organize his 1.4 million volunteers in a way that will have an impact on Washington. Between now and the beginning of the Easter recess, Congress will shift its focus to developing energy legislation. Thus Pickens is making a call to action for his army of volunteers.

Pickens wants wind energy and natural gas to be big players in our country’s energy future and therefore key elements in the federal legislation. There are several pillars to the Pickens Plan:

1. Create millions of new jobs by building out the capacity to generate up to 22 percent of our electricity from wind. And adding to that with additional solar capacity;
2. Building a 21st century backbone electrical grid;
3. Providing incentives for homeowners and the owners of commercial buildings to upgrade their insulation and other energy saving options; and
4. Using America’s natural gas to replace imported oil as a transportation fuel.

While dependence on foreign oil is a critical concern, it is not a problem that can be solved in isolation. To keep our great country growing, we must think about energy in the big picture, and that begins by considering our energy alternatives and thinking about how we will fuel our world in the next 10 to 20 years and beyond.

To make sure his Pickens Plan is not forgotten in the current economic turmoil, Pickens is organizing a Virtual March on Washington April 1-3, 2009 with the aim of pushing renewable energy legislation over the goal line.

Pickens also wants his volunteers to take action between now and then through various online and in-district activities to keep pressure on Congress to support the Pickens Plan. I have signed up to electronically march on Washington to keep hope alive that we can free our great country from the bondage of foreign oil.

The link to Picken’s virtual march is http://www.pickensplan.com/virtualmarch/

Kentucky environmental attorney Sanders says unemployment increased in 119 out of 120 Kentucky counties in 2008-9.

Unemployment rates increased in 119 of Kentucky’s 120 counties between January 2008 and January 2009, according to a report issued by the Kentucky Office of Employment and Training. Menifee County had the highest unemployment rate, at 17.7 percent in Kentucky. Fayette County had the lowest, at 6.3 percent in the state.

Kentucky environmental attorney Sanders says gasoline prices above $2 per gallon in Greater Cincinnati area in March 2009.

The average price for a gallon a regular gas in Cincinnati was $2.05 as of Thursday morning, according to the American Automobile Association’s daily Fuel Gauge Report. That compares with $1.74 on the same day in February. In Covington, the price for a gallon of regular was $2.01 versus $1.80 a month ago.

Kentucky environmental attorney Sanders says EPA issues clarification on moutain top removal after firestorm of criticism.

After EPA’s announcement that it was concerned about the adverse water quality impacts from mountain top mining, the agency faced a firestorm of angry criticism from industry and elected officals. EPA then issued this clarification:

The Environmental Protection Agency is not halting, holding or placing a moratorium on any of the mining permit applications. Plain and simple. EPA has issued comments on two pending permit applications to the U.S. Army Corps of Engineers expressing serious concerns about the need to reduce the potential harmful impacts on water quality. EPA will take a close look at other permits that have been held back because of the 4th Circuit litigation. We fully anticipate that the bulk of these pending permit applications will not raise environmental concerns. In cases where a permit does raise environmental concerns, we will work expeditiously with the Army Corps of Engineers to determine how these concerns can be addressed. EPA’s submission of comments to the Corps on draft permits is a well-established procedure under the Clean Water Act to assure that environmental considerations are addressed in the permitting process.

Kentucky environmental lawyer Sanders says Kentucky coal powers electric plants in 30 states and provides 92% of Kentucky's electricity.

According to state government statistics, about 89.3% of all of the coal mined in Kentucky in 2006 was used to make electricity. Kentucky's coal is burned to fire boilers at electric power plants located in 30 different states. Indeed, almost 80% of all the coal mined in Kentucky is sold out-of-state each year.

Here in Kentucky, there are 22 major coal-burning electric generating plants, and 92.2% of Kentucky's electricity is generated from coal.

In simple terms, here is how coal is used to make electricity: coal is burned to create heat. The heat from burning coal boils water to create steam. Steam turns a turbine which spins a copper coil called a generator (or dynamo) which creates a flow of electricity. The electricty is physcially routed to a grid and then into your home or office.

It is a truly fascinating process that uses chemical energy to make mechanical energy that creates electrical energy.

Note that a generator does not truly create electricity, which is already present in the electrons of the copper wire of the generator's windings. A generator forces electrical charges to move from the copper wire windings to an external electrical circuit. It is somewhat analogous to a water pump, which creates a flow of water but does not create the water inside.

Kentucky environmental lawyer Sanders says studies raise question of whether caustic soda from mercury cell plants is safe for use in food products.

The Corn Refiners Association (CRA), the North American manufacturers of high fructose corn syrup (“HFCS”) recently published a study to contradict two recent reports alleging that mercury may be contaminating HFCS, which is an important and highly valuable ($$) food and beverage ingredient in our society.

To counter adverse publicity about mercury in HFCS, CRA hired Eurofins Central Analytical Laboratory to test 119 samples of HFCS and the results were confirmed by a researcher at Duke University Medical Center. According to CRA, Eurofins found no quantifiable mercury in any of the 119 samples when using a detection limit of two parts per billion. However, CRA’s study does not definitively answer the question of whether HFCS made with cautic soda generated in older mercury cell plants may be contaminated with mercury.

Two prior studies, one of which is published in the journal Environmental Health and the other is by the Institute for Agriculture and Trade Policy (IATP) did find mercury in HFCS. According to IATP’s HFCS study, mercury was detected in nearly one-third of 55 brand name food and beverage products, where HFCS is the first or second highest labelled ingredient, including IATP claims products by Quaker, Hershey’s, Kraft and Smucker’s.

One of the authors of IATP’s study explained that HFCS is sometimes manufactured using caustic soda that comes from old chlorine plants using mercury cell technology. Caustic soda from mercury cell chlorine plants may be contaminated with mercury. That conclusion is not difficult to understand if you look at the old mercury cell technology plants used to make caustic soda.

Mercury cell plants produce chlorine by pumping a saltwater solution (brine) through a vat of mercury, or “mercury-cell,” that catalyzes an electrolytic chemical reaction. One of the by-products of making chlorine in this process, which dates back to the 1860s, is caustic soda. Newer technologies that do not use mercury have been developed. Yet a number of plants around the world continue to use the unnecessary outdated technology.



The links to the IATP’s study and the list of products contaminated with mercury is at:

http://www.healthobservatory.org/library.cfm?refid=105026

http://www.healthobservatory.org/library.cfm?refID=105040

Kentucky environmental attorney Sanders says EPA posted results of latest annual acid rain allowances auction.

EPA has posted the results of its annual acid rain auction, held on March 24 on its website. The annual auction gives power plants, brokers, and private citizens the opportunity to buy and sell sulfur dioxide (SO2) allowances as part of EPA’s successful cap and trade program to reduce emissions contributing to acid rain.

The 1990 Clean Air Act (CAA) amendments established this program to cap national SO2 emissions at 50 percent of 1980 levels. Each year, EPA issues allowances to existing sources within that cap. In addition, the CAA mandates that a limited number of those allowances are withheld and auctioned. The auctions help ensure that new electric generating plants have a source of allowances beyond those allocated initially to existing units. Proceeds from the auctions are returned to sources in proportion to the allowances withheld. In addition to allowances offered by EPA, private parties may offer allowances for sale in the auction.

The auction includes two “vintages” of allowances. Vintage describes the earliest year an allowance may be applied against SO2 emissions. In addition to year 2009 allowances, the Clean Air Act mandated that EPA auction additional allowances seven years in advance to help provide stability in planning for capital investment. These advance allowances will be usable first in 2016. No offers from private parties to sell their allowances were received.

More information on the acid rain auction: http://www.epa.gov/airmarkets/auctions/index.html.

Kentucky environmental attorney Sanders says four federal agencies prepare a report on how to manage limited water resources due to climate change.

Did you know that the U.S. Geological Survey, the National Oceanic and Atmospheric Administration, U.S. Army Corps of Engineers and the U.S. Bureau of Reclamation jointly prepared a report to improve water resource management practices in anticipation of adverse effects from climate change. The report, “Climate change and water resources management: A federal perspective,” can be viewed online at: http://pubs.usgs.gov/circ/1331/.

Apparently someone had their lights on at these four agencies during the dark days of Bush era when absolute denial of global climate change was the mantra of the Whitehouse. Please don’t tell Dick Chaney these agencies now acknowledge that greenhouse gases are causing global warming or he’ll blow a gasket for sure.

Kentucky environmental attorney Sanders says EPA to review mountaintop removal's impact on water quality from overburden.

In a stunning development, U.S. EPA has sent two letters to the U.S. Army Corps of Engineers expressing EPA’s serious concerns about the need to reduce the potential harmful impacts on water quality caused by certain types of coal mining practices, such as mountaintop mining. The letters specifically addressed two new surface coal mining operations in West Virginia and Kentucky. EPA also intends to review other requests for mining permits.

EPA is apparently flatly rejecting the former policy of the Bush Administration of allowing coal companies to bury mountain streams with overburden from coal mining operations in Eastern Kentucky and West Virginia. The overburden is loaded with toxic metals and kills everything in the buried streams, as well as killing flora and fauna in streams downriver of the mountaintop removal.

EPA’s letters, sent to the Corps office in Huntington, W.Va., stated that the coal mines would likely cause water quality problems in streams below the mines, would cause significant degradation to streams buried by mining activities, and that proposed steps to offset these impacts are inadequate. EPA has recommended specific actions be taken to further avoid and reduce these harmful impacts and to improve mitigation.

The letters were sent to the Corps by EPA senior officials in the agency’s Atlanta and Philadelphia offices. Permit applications for such projects are required by the Clean Water Act. EPA also requested the opportunity to meet with the Corps and the mining companies seeking the new permits to discuss alternatives that would better protect streams, wetlands and rivers.

The Corps is responsible for issuing Clean Water Act permits for proposed surface coal mining operations that impact streams, wetlands, and other waters. EPA is required by the act to review proposed permits and provides comments to the Corps where necessary to ensure that proposed permits fully protect water quality.

Because of active litigation in the 4th Circuit challenging the issuance of Corps permits for coal mining, the Corps has been issuing far fewer permits in West Virginia since the litigation began in 2007. As a result, there is a significant backlog of permits under review by the Corps. EPA expects to be actively involved in the review of these permits following issuance of the 4th Circuit decision last month.

EPA is coordinating its action with the White House Council on Environmental Quality and with other agencies including the Corps. More information on wetlands and the letters: http://www.epa.gov/owow/wetlands/

Kentucky environmental attorney Sanders says exposure to beryllium dust is highly toxic cancinogen to humans.

Pure beryllium is a hard, grayish material obtained from the minerals bertrandite and beryl. It is the second lightest metal known to man and is found in over 30 different minerals. Because it is lightweight and has a high melting point, beryllium is commonly used in the aerospace and defense industry.

Beryllium is also used in many other manufacturing industries. For example, beryllium copper is used in many springs. The characteristics peculiar to beryllium copper as a spring material include corrosion resistance, excellent electrical conductivity, and high fatigue strength. In addition they are nonmagnetic.

Unfortunately, exposure to dust from grinding and polishing beryllium or its alloys poses a substantial risk of danger to humans, including lung cancer and death. In short, beryllium dust is highly toxic to humans. Inhaling dust containing metallic beryllium, beryllium oxide, beryllium-copper and other alloys, or beryllium salts are the major exposure risks leading to disease (Martyny et al. 2000; Sawyer et al. 2002; Willis and Florig 2002).

Beryllium disease was first noted in the 1930s in Europe. In the 1940s, reports of disease related to beryllium surfaced among workers exposed to beryllium-containing phosphors in the fluorescent lamp industry and the nuclear weapons industry (Kress and Crispell 1944). Industry standards and environmental controls for beryllium were initially established in the late 1940s.

Lung damage has been observed in people exposed to beryllium dust in the air. Inhalation of beryllium dust particles can lead to beryllium sensitization and chronic beryllium disease (CBD). Beryllium sensitization is a condition in which a person’s immune system becomes highly responsive to the presence of beryllium in the body. CBD is a debilitating and often fatal lung disease characterized by lung-tumor formation.

About 1-15% of all people occupationally-exposed to beryllium in air become sensitive to beryllium and may develop chronic beryllium disease (CBD), an irreversible and sometimes fatal scarring of the lungs. CBD’s symptoms are persistent coughing, difficulty breathing upon physical exertion, fatigue, chest and joint pain, weight loss, and fevers. Beryllium and beryllium compounds are known human carcinogens.

Experts estimate that more than 135,000 U.S. workers are exposed to beryllium in the work place, though precise numbers for the total number of workers exposed to beryllium are publically unavailable (Henneberger et al. 2004). This estimate does not include former workers, contract workers, and construction workers, who were exposed to beryllium dust in plants using beryllium. (Newman et al. 2005; Glazer and Newman 2003). Industries and occupations with potential beryllium exposure include

aerospace,
automotive parts,
computers,
construction trades,
dental supplies and prosthesis manufacture,
electronics,
industrial ceramics,
laboratory workers,
metal recycling,
mining of beryl ore (beryl ore extraction),
nuclear weapons,
precision machine shops,
smelting/foundry,
tool and die manufacture, and
welding.

The greatest human health risk is from breathing in dust containing beryllium or a beryllium alloy. As a general rule, any process or workplace where beryllium can become airborne, in the form of microscopic particles, dust, or fumes, presents a potential serious health hazard for workers. Because of its unique properties, beryllium is commonly used in many high-technology consumer and commercial products. Thus, the most common disease vector for human exposure is through airborne dust particles of beryllium metal, alloys, oxides, and ceramics (Kolanz 2001).

Workers and their families can also be exposed to beryllium dust from hand-to-mouth exposure, dermal contact with ultrafine particles, and handling and washing clothes contaminated with beryllium dust (Kolanz et al. 2001; Deubner et al. 2001; Tinkle et al. 2003).

Chronic beryllium disease (CBD) occurs when people inhale beryllium dust or fume and can take anywhere from a few months to 30 years to develop.

If you suspect that you have a disease or condition caused by exposure to beryllium dust, you should contact us to speak with a qualified attorney to investigate whether you may be entitled to seek compensation for your injuries.






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Kentucky environmental attorney Sanders says Comparable Fuel Emissions Rule is challenged in DC Circuit Court.

Environmental groups filed suit against U.S. EPA in the U.S. Court of Appeals for the D.C. Circuit over a Bush-era rule that exempts some hazardous wastes burned as industrial boiler fuel from Resource Conservation and Recovery Act requirements. The Rule is the Comparable Fuel Exemption and EPA finalized the Rule on December 19, 2008.

The new Rule created a class of RCRA-exempt wastes dubbed “emission-comparable fuel” (“ECF”) that can be burned in industrial boilers if the emissions are comparable to those from burning fuel oil. The rule allows certain facilities to burn hazardous waste without a hazardous waste air permit. Burning the hazardous waste substantially decreases the disposal of costs of such wastes for large facilities, such as oil refineries.

I, for one, do not want to live downwind of a large facility burning hazardous waste as a fuel source for a boiler. Moreover, I can think of no rational, reasonable facility which would be willing to burn hazardous waste as a fuel source for a boiler, if the company had to obtain and comply with a hazardous waste air permit. That result tells you something about this Rule.

EPA justified the Rule by stating that it has discretion to classify such material as a fuel product, and not as a waste. Unlike the Bush-era EPA, I have very serious doubts that this agency action will stand judicial review under the Clean Air Act and RCRA.

Kentucky environmental attorney Sanders says John Hopkins researchers find houseflys from poultry operations with drug resistant bacteria.

Researchers at the Johns Hopkins University found evidence that houseflies collected near broiler poultry operations may contribute to the dispersion of drug-resistant bacteria and thus increase the potential for human exposure to drug-resistant bacteria. This finding is not good news for people living around such poultry operation, who might become infected by drug-resistant bacteria.

The findings demonstrate another potential link between industrial food animal production and exposures to antibiotic resistant pathogens. Previous studies have linked antibiotic use in poultry production to antibiotic resistant bacteria in farm workers, consumer poultry products and the environment surrounding confined poultry operations, as well as releases from poultry transport.

The researchers collected flies and samples of poultry litter from poultry houses along a coastal region shared by Maryland, Delaware and Virginia, which has one of the highest densities of broiler chickens per acre in the United States. The analysis by the research team isolated antibiotic-resistant bacteria from both flies and litter. The bacteria isolated from flies had very similar resistance characteristics and resistance genes to bacteria found in the poultry litter.

Hello Washington? We have a potential problem here that needs some attention from the folks at FDA and Department of Agriculture.

Kentucky environmental lawyer Sanders says Louisville Air Control District announces public comment period for two Title V air permits.

The Louisville Metro Air Pollution Control District (District) announced its intent to issue a final Title V Operating Permit to Veterans Administration Medical Center (Hospital utilizing fuel oil fired boilers), 800 Zorn Avenue; and to LG&E Company Zorn Generating Station (Electricity Peaking Station), 3001 Upper River Road, in accordance with the District’s regulation 2.16.

Under the District’s rule, a 30 day public comment period starts March 25, 2009 and ends on April 24, 2009 on these two air permits. A public hearing may be scheduled if the District determines that there are germane, unresolved issues or substantial public interest, in accordance with Regulation 2.07.

Drafts of the permits are available at the District office, 850 Barret Ave, Louisville between 8:30 a.m. and 4:30 p.m., Monday through Friday by calling Eva Addison at (502) 574-6005. Written comments will be accepted by Eva Addison, Permitting Engineering Supervisor, at the District office until 5:00 p.m. April 24, 2009.

Kentucky environmental lawyer Sanders says U.S. Sixth Circuit vacates EPA Rule on pesticides in recent decision.

Did you know that the U.S. Court of Appeals for the Sixth Circuit vacated EPA’s rule exempting the application of pesticides from the NPDES permit requirements of the Clean Water Act in National Cotton Council of America et al. v. United States environmental Protection Agency? The Sixth Circuit held that EPA’s regulation exempting pesticides from the Clean Water Act contravene the “clear and unambiguous” language of the statute.

If EPA cannot win an appeal of its action in Cincinnati, the federal agency is in real trouble. The U.S. Sixth Circuit is a very conservative court that is, at times, openly hostile to visiting environmental groups. Thus, the ruling against EPA is an amazing win for environmentalists, who had unsuccessfully attempted to move the appeal to the Ninth Circuit.

The EPA issued the challenged Final Rule on November 27, 2007. EPA attempt to exempt pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) from the Clean Water Act’s permitting requirements. See 71 Fed.Reg. 68,483 (Nov. 27, 2006).

In its appellate briefs, EPA argued that the terms of the Clean Water Act are ambiguous and that the Final Rule is a reasonable construction of the Clean Water Act entitled to deference from the Court. EPA’s legal argument supporting the Rule was succinctly slammed in the opinion by the appellate panel.

Indeed, the three member judicial panel rejected EPA's rather disingenuous argument by writing, "We cannot agree. The Clean Water Act is not ambiguous. Further, it is a fundamental precept of this Court that we interpret unambiguous expressions of Congressional will as written. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Therefore, we hold that the EPA’s Final Rule is not a reasonable interpretation of the Act and vacate the Final Rule."

The opinion is at: http://www.ca6.uscourts.gov/opinions.pdf/09a0004p-06.pdf

Kentucky environmental lawyer Sanders says EPA is lowering allowable level of PFOA in drinking water polluted by Dupont plant in Parkerburg, WV

U.S. EPA has issued a consent order to E.I. du Pont de Nemours and Co. that sets a new action level for PFOA - also known as perfluorooctanoic acid, or C-8 - in drinking water for communities surrounding the company's plant in Parkersburg, W. Va. The order was prompted by a recent EPA Provisional Health Advisory for PFOA.

EPA expects that this change will impact a limited number of residents. Based on current data available to EPA, approximately 14 private residences may need a treatment system or connection to a public water system. Under the new order, DuPont will offer connection to a public water system, treatment, or temporary bottled water to people on public or private water systems if the level of PFOA detected in drinking water is equal to or greater than 0.40 parts per billion.

This action level replaces the 0.50 ppb threshold established under a November 2006 EPA consent order with DuPont. Also, DuPont will take additional samples of private drinking water wells that were installed after 2006 and sample in some previously untested areas. Residents who have questions about this order or PFOA can call EPA's hotline at 866-575-8543.

PFOA is a synthetic chemical that is not currently regulated under federal environmental laws. It is has been used to make fluoropolymers - substances with special properties used in many industrial applications, including the manufacture of consumer products such as non-stick cookware and all-weather clothing. It is very persistent in the environment and is found at low levels both in the environment and in the blood of the general U.S. population.

Studies indicate that PFOA can cause developmental and other adverse health effects in laboratory animals.

The text of the order and a fact sheet is available at: http://www.epa.gov/region5/water/gwdw/dupont/index.htm

Kentucky environmental attorney Sanders says U.S. birth rate hits all time high in 2007; shockenly 40% of births are to unmarried women.

The birth rate for U.S. teens aged 15 to 19 increased by about 1 percent in 2007, from 41.9 births per 1,000 in 2006 to 42.5 in 2007, according to a report released by the Centers for Disease Control and Prevention. This is the second year in a row that teen births have gone up. They increased 3 percent in 2006 following a 14-year decline.


Birth rates also increased for women in their 20s, 30s and early 40s, but remained unchanged for younger teens and pre-teens aged 10-14. Only Hispanic teens noted a decline in the birth rate, which fell 2 percent in 2007 to 81.7 births per 1,000.


One alarming note in the CDC report: unmarried childbearing increased to historic levels in 2007 for women aged 15-44. An estimated 1.7 million babies were born to unmarried women in 2007, accounting for 39.7 percent of all births in the United States – an increase of 4 percent from 2006. Unmarried childbearing has increased 26 percent since 2002 when the recent steep increases began.



Total U.S. births rose in 2007 to over 4, 317,119, the highest number of births ever registered in the United States.

Kentucky environmental lawyer Sanders says EPA's proposed demotion of Greater Cincinnati's air quality ranking for ozone does not bode well for NKY!

The Director of Ohio’s EPA testified at a hearing in Washington, D.C., to express her somber concerns about U.S. EPA proposal to downgrade the air quality classification of two large Ohio metropolitan areas under the 1997 ozone standard. U.S. EPA is proposing to reclassify the Columbus and Cincinnati metropolitan areas to "moderate nonattainment," a lower classification rank that requires additional mandatory air quality controls such as vehicle emissions testing.

The Director of Ohio EPA testified that U.S. EPA's proposal to downgrade the air quality status of two metropolitan areas would impose difficult air quality requirements on the state. Moreover, Ohio EPA’s director complained that EPA gave Ohio insufficient time to comply with the 1997 ozone standard. In her testimony, Ohio’s EPA Director pointed out to the federal agency that:

1. U.S. EPA is basing its proposed action on stale data generated more than six years ago. The Columbus area is meeting the 1997 ozone standard currently and Cincinnati is close to meeting it.

2. This action would require additional, federally mandated air pollution controls without extending the timeframe (2010) Ohio has to implement those controls.

3. There is a newer ozone standard for which U.S. EPA will be classifying nonattainment areas next year.

4. Ohio EPA is concerned with the lack of coordination between the 2008 ozone standard and this proposal. States should be spending their limited resources to comply with the current standard based on current data, not one based on stale data.

No word yet from the Kentucky Division for Air Quality regarding EPA's proposal, but if enacted the demotion of the Cincinnati metropolitan area will have a detrimental effect on Northern Kentucky. Could this proposal from EPA be the firtst signal of a return of mandatory tail pipe exhaust testing for cars and trucks in Northern Kentucky?

Kentucky environmental attorney Sanders explains what is radon gas.

Radon, a colorless, odorless gas, is a decay product of uranium and is found in significant concentrations in some areas. Radon itself does no harm, but its progeny attach to airborne particulates such as cigarette smoke and can be inhaled. During subsequent decay, the progeny emit high-energy alpha particles that may injure adjacent bronchial cells, thereby causing lung cancer.

Five to 10 percent of single-family homes in the U.S. have been estimated to exceed the EPA radon recommended guideline of four picocuries per liter of air. EPA estimates that approximately 14,000 lung cancer deaths per year are attributable to radon (US Environmental Protection Agency and US Consumer Product Safety Commission 1995).

Kentucky environmental attorney Sanders says DOW's acquisition of Rohm and Haas is back on track with new financial arrangement.

The Dow Chemical Company recently announced that it has reached agreements with Rohm and Haas and certain of its shareholders that allow Dow to close the acquisition on substantially altered financial terms by April 1, 2009. The agreement resolves the litigation initiated by Rohm and Haas against Dow on January 26, 2009.

Dow’s acquisition creates the world's leading specialty chemicals and advanced materials company, combining the two organizations' best-in-class technologies, broad geographic reach and strong industry channels to create an outstanding business portfolio with significant long-term growth opportunities.

As part of the agreement, Rohm and Haas's two largest shareholders have agreed to purchase $2.5 billion in face value of perpetual preferred equity issued by Dow. In addition, one of the shareholders, the Haas Family Trusts has agreed that at Dow's option, they will make an investment in an additional $500 million of Dow's equity.

This is a remarkable show of good faith by the Haas Family Trusts in the deal and should be applauded by all investors as a sign that this is a solid transaction. Let's all cross our fingers and hope this result turns out to be the case. May God bless them.

These equity investments substantially reduce the debt financing required to fund the acquisition, Dow has restructured the transaction to essentially pay the equivalent of $63 per share in cash, and $15 per share in face value of preferred equity securities.

Dow plans to divest a number of Dow and Rohm and Haas business units. DOW plans to sell:

1. Dow's 45 percent stake in Total Raffinaderij Nederland NV (TRN), the Dutch petroleum refining partnership with Total Group. The sale process is underway;
2. Some of Dow's equity stakes in its olefins and derivatives business in SE Asia. Preliminary discussions with the relevant parties have already begun;
3. Morton Salt, a division of Rohm and Haas, contingent upon the closing of the proposed acquisition of Rohm and Haas by Dow. Interested parties have submitted bids, and Dow will evaluate these bids as appropriate over the course of the coming weeks to determine timing of the sale process.

Kentucky environmental attorney Sanders says PPG historical dump site is releasing alkaline wastewater into Allegheny River.

The Pennsylvania Department of Environmental Protection issued an administrative order to PPG Industries, requiring it to collect and treat contaminated water discharging unabated from the site containing decades-old waste from its former Ford City plant, and to restrict access to the site and to the section of the Allegheny River impacted by the discharge. DEP staff was contacted by Allegheny River Stewards to discuss the results of analytical field tests showed that the discharge from PPG dump site was raising the pH of the Allegheny River to unacceptably high levels.

The Allegheny River flows into the Ohio River. The Ohio River provides drinking water to most Kentuckians residing in Northern Kentucky and Louisville. So, we are not happy about this latest discharge of alkaline wastewater from a historic dumpsite upsteam of us.

The site was used from 1949 through 1970 as a disposal area for glass polishing waste slurry produced by its former Ford City facility. PPG created a 77-acre slurry lagoon area, 90 percent of which has a vegetated cover. In the 1920s, PPG established a solid waste disposal area on the site to dispose off-spec glass and other solid wastes until 1967.

Kentucky environmental attorney Sanders says the Cherry Blossom Festival in Washington DC is a national treasure for all Americans to behold.

For anyone who has traveled to Washington D.C. in the spring, there is nothing so utterly spectacular and beautiful as the blooming of the cherry trees around the Tidal Basin. The famous trees, a gift from Japan in 1912, signal Washington’s rite of spring with an explosion of life and color that surrounds the Tidal Basin in a sea of pale pink and white blossoms. The natural beauty of the flowering cherry trees is something to truly cherish and behold.

Exactly when the buds will open is not an easy question to answer. It is pretty much impossible to give an accurate forecast much more than 10 days before the peak bloom. National Park Service Horticulturists monitor 5 distinct stages of bud development and provide forecasts and updates as needed. The National Cherry Blossom Festival kicks off March 28.

I also highly recommend a drive down the Western Kentucky Parkway in early spring to see the Dogwoods and Redbuds in bloom.

Kentucky environmental attorney Sanders says U.S. Attorney General issues new guidelines to federal agencies responding to FOIA requests.

U.S. Attorney General Eric Holder issued comprehensive new Freedom of Information Act (FOIA) guidelines today that direct all executive branch departments and agencies to apply a presumption of openness when administering the FOIA.

The new guidelines, announced in a memo to heads of executive departments and agencies, build on the principles announced by President Obama on his first full day in office when he issued a presidential memorandum on the FOIA that called on agencies to "usher in a new era of open government." At that time, President Obama also instructed Attorney General Holder to issue new FOIA guidelines that reaffirm the government’s commitment to accountability and transparency. The memo rescinds the guidelines issued by the previous administration.

The new FOIA guidelines address both application of the presumption of disclosure and the effective administration of the FOIA across the government. As to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so. In his memo, the Attorney General encourages agencies to make discretionary disclosures of records and to release records in part whenever they cannot be released in full.

The Attorney General also establishes a new standard for the defense of agency decisions to withhold records in response to a FOIA request. Now, the Department will defend a denial only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law. Under the previous defensibility standard of the rules rescinded today, the Department had said it would defend a denial if the agency had a "sound legal basis" for its decision to withhold.

In addition to establishing criteria governing the presumption of disclosure, the Attorney General’s FOIA guidelines emphasize that agencies must be sure to have in place effective systems for responding to requests. In the memo, the Attorney General calls on each agency to be fully accountable for its administration of the FOIA.

Today’s memo rescinds the guidelines issued on Oct. 12, 2001, by former Attorney General John Ashcroft. Attorney General's Memo on FOIA Guidelines is at http://www.usdoj.gov/ag/foia-memo-march2009.pdf

Kentucky environmental attorney Sanders predicts CAFO Rule will be the next major environmental rule to fall at federal court level.

Animal feeding operations (AFOs) are agricultural enterprises where animals are kept and raised in confined situations. AFOs congregate animals, feed, manure and urine, dead animals, and production operations on a small land area. Feed is brought to the animals rather than the animals grazing or otherwise seeking feed in pastures, fields, or on rangeland. There are approximately 450,000 AFOs in the United States. Concentrated animal feeding operations (CAFOs) are a relatively small number of AFOs that are regulated by the EPA.

EPA promulgated revised regulations for CAFOs on February 12, 2003. The 2003 regulations expanded the number of operations covered by the CAFO regulations and included requirements to address the land application of manure from CAFOs. The rule became effective on April 14, 2003 and authorized NPDES states were required to modify their programs by February 2005 and develop state technical standards.

Revised regulations that address the Second Circuit court’s 2005 decision in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486, were signed on October 31, 2008 and were published in the Federal Register on November 20, 2008. These regulations are effective on December 22, 2008. The 2008 final rule revises the 2003 regulations.

A complete history of EPA’s CAFO rulemaking activities is provided on the CAFO Rule History page at http://cfpub.epa.gov/npdes/afo/aforule.cfm. Anyway you cut it, CAFOs are huge sources of water pollution.

Manure and wastewater from AFOs have the potential to contribute pollutants such as nitrogen and phosphorus, organic matter, sediments, pathogens, heavy metals, hormones, antibiotics, and ammonia to the environment. Excess nutrients in water (i.e., nitrogen and phosphorus) can result in or contribute to low levels of dissolved oxygen (anoxia), eutrophication, and toxic algal blooms.

If not properly controlled and proeprly treated, runoff from CAFOs is harmful to human health and, in combination with other circumstances, have been associated with outbreaks of microbes such as Pfiesteria piscicida. Decomposing organic matter (i.e., animal waste) can reduce oxygen levels and cause fish kills. Pathogens, such as Cryptosporidium, have been linked to impairments in drinking water supplies and threats to human health. Pathogens in manure can also create a food safety concern if manure is applied directly to crops at inappropriate times. In addition, pathogens are responsible for some shellfish bed closures. Nitrogen in the form of nitrate, can contaminate drinking water supplies drawn from ground water.

For reasons that I will not go into yet, I predict that EPA’s revised CAFO Rule will be the next major Bush-era environmental regulation to be remanded back to EPA by a federal appellate court.

Kentucky environmental attorney Sanders says EPA to stay NSR Aggregation Amendments for 90 days to allow Administrator to reconsider the new Rule.

On January 15, 2009, the EPA issued a final rule amending the PSD and nonattainment NSR regulations that implement the definition of “modification” in the Clean Air Act (CAA) section 111(a)(4). The new rule addressed when a source must combine (“aggregate”) nominally-separate physical changes and changes in the method of operation for the purpose of determining whether they are a single change under NSR and result in a significant emissions increase.

The amendments retained the existing rule language for aggregation but interpreted that rule text to mean that sources and permitting authorities should combine emissions when activities are “substantially related.” This point is the apparently sticking point with the new Adminstrator of EPA and the folks in the air branch.

The new Rule adopted a rebuttable presumption that activities at a plant can be presumed not to be substantially related if they occur three or more years apart. The Rule is commonly known as the “NSR Aggregation Amendments.” For further information on the NSR Aggregation Amendments, see 74 FR 2376 (January 15, 2009). The Federal Register from January 15, 2009 is at: http://www.epa.gov/fedrgstr/EPA-AIR/2009/January/Day-15/a815.pdf

On January 30, 2009, the Natural Resources Defense Council submitted a petition for reconsideration of the NSR Aggregation Amendments as provided for in CAA section 307(d)(7)(B). Under that provision of the CAA, EPA’s Administrator may commence a reconsideration proceeding if the petitioner raises an objection to a rule that was impracticable to raise during the comment period, or if the grounds for the objection arose after the comment period. In either case, the objection must be of central relevance to the outcome of the rule. The Administrator may stay the effectiveness of the rule for up to three months during such reconsideration.

On February 9, 2009, EPA issued a three-month (90-day) administrative stay of the effectiveness of the NSR Aggregation Amendments. EPA will follow the notice and comment procedures under CAA 307(d), including providing an opportunity for a hearing, and will take appropriate action thereafter. To implement this administrative stay, we are delaying the effective date of FR Doc. E9-815, published in the Federal Register on January 15, 2009 (74 FR 2376), to May 18, 2009.


I predict this new Rule will be revised by EPA to make it more difficult for certain facilities to avoid PSD review of certain air emission sources. In short, another Bush-era EPA air regulation is going to bite the dust.

Kentucky environmental lawyer Sanders says cut out needless energy waste in your home and office.

Here's some easy ways to cut standby energy losses in your home and stop the energy vampires in your house and office:

Unplug products that are rarely used. The best example is the television and VCR in the second guest room.

Use a power strip with a switch to control clusters of products. Turn off the power strip when the equipment is not being used. The most likely targets are computer clusters (PC, display, printer, scanner, speakers, wireless transmitter, etc.), video clusters (TV, DVD player, powered speakers, game consoles, etc.), audio clusters (receiver, amplifier, CD players, etc.).

Be sure to keep the set-top box and modem on a separate circuit to avoid loss of connection.

Buy low-standby products. This sounds like reasonable advice but it's nearly impossible to follow because few products list their standby power use.

Most Energy Star endorsed products have lower standby energy usage.

Kentucky environmental attorney Sanders says energy vampires are stealing your money and wasting out national energy supply.

Most experts agree that standby power is electricity used by appliances and equipment while they are switched off or not performing their primary function. That power is consumed by power supplies (the black cubes—sometimes called "vampires"—converting AC into DC), the circuits and sensors needed to receive a remote signal, soft keypads and displays including miscellaneous LED status lights. Standby power use is also caused by circuits that continue to be energized even when the device is "off".

Sometimes, appliances in stand-by mode use as much power off as when they are turned on! For example, computer printers are one of the big energy wasters, some of them drawing 11.5 watts when idling. Some TVs and video cassette recorders draw almost as much, while set-top cable boxes can draw twice that many watts when the box is turned off. Such appliances are energy vampires that are stealing your money.

A large number of electrical products - from air conditioners to VCRs - cannot be switched completely off without unplugging the device or turning it off at a power strip. These products draw power 24 hours a day, often without the knowledge of the consumer. This mode is called “stand-by power,” but it makes these products “energy vampires.”

According to Lawrence Berkeley National Laboratory, in particularly inefficient designs, the stand-by power use can be as high as 15 or 30 watts. For a single appliance, this may not seem like much, but when we add up the power use of the billions of appliances in the United States, the power consumption of appliances that are not being used is substantial.

The study found that the average California home pays between $50 and $70 every year to keep those little red lights burning, the clocks ticking and the electronics humming while the appliances go unused. Eliminating this standby or “leaking” electricity could save households between six and 26 percent on an average monthly electricity bill.

The federal government’s webpage on this topic is http://standby.lbl.gov/

I suggest you call or write your Congressman and the Whitehouse and demand an end to these energy vampires that are stealing your money.

Kentucky environmental lawyer Sanders says NASA paying for water treatment plant to remove perchlorate from Pasadena's drinking water supply.

EPA announced groundbreaking for a water treatment facility that will remove perchlorate and other chemicals from groundwater near NASA’s Jet Propulsion Laboratory Superfund site. Approximately 7,000 gallons per minute of perchlorate and volatile organic compounds will be removed from groundwater wells. The treated groundwater will serve as drinking water for area residents.

Paying for the plant is quite a turnabout for NASA. Three years ago, NASA released an environmental study which concluded that the dumping of rocket fuel by the US Army some 50 years ago at the Jet Propulsion Laboratory (JPL) did not cause pollution now making much of the city’s groundwater undrinkable. Apparently NASA’s earlier study was erroneous or fatally flawed because NASA is funding construction and operating costs of the treatment plant which NASA hopes to complete by 2010. The City of Pasadena will own and operate the plant.

Approximately 120,840 people live within four miles of the site, and an estimated 68,000 people obtain drinking water from municipal wells within that area. Surrounding Pasadena water wells have been shut down due to perchlorate and volatile organic compounds contamination.

Perchlorate is a component of solid rocket fuel and certain types of fertilizers, and can affect the thyroid gland. Volatile organic compounds are used decades as industrial cleaning solvents, and can cause nose and throat discomfort, headache, allergic skin reaction, and liver, kidney, and central nervous system damage.

Perchlorate, a rocket fuel component pollutes nine of Pasadena’s 16 underground drinking wells, can affect function of the hormone-producing thyroid gland — important for a healthy metabolism in adults and essential to skeletal and nervous system development in infants and fetuses.

Kentucky environmental lawyer Sanders says EPA to inspect fly ash ponds at coal-fired utility plants across the U.S. due to massive TVA sludge release

Responding to a massive coal ash spill at a TVA facility in Kingston, Tennessee in December 2008, EPA plans to gather critical coal ash impoundment information from electrical utilities nationwide, conduct on-site assessments to determine structural integrity and vulnerabilities, order cleanup and repairs where needed, and develop new regulations for future safety.

TVA’s sludge release flooded more than 300 acres of land, damaging homes and property. Coal ash from the release flowed into the Emory and Clinch rivers, filling large areas of the rivers and killing fish. TVA cost estimates for the clean-up range between $525 million and $825 million, which does not include long-term cleanup costs.

EPA formally requested that electric utilities that have surface impoundments or similar units provide information about the structural integrity of their units. EPA estimates there may be as many as 300 such units. These information requests are legally enforceable and must be responded to fully.

Working closely with other federal agencies and the states, EPA will review the information provided by the facilities to identify impoundments or similar units that need priority attention. EPA also will visit many of these facilities to see first-hand if the management units are structurally sound. The agency will require appropriate remedial action at any facility that is found to pose a risk for potential failure.

The assessment and analysis of all such units located at electric utilities in the U.S. will be compiled in a report and made available to the public. Faced with growing public criticism, EPA plans to develop regulations on fly ash ponds. EPA anticipates having a proposed rule ready for public comment by the end of 2008. EPA’s letter to electric utilities: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/coalashletter.htm

Environmental lawyer Sanders says congratulations to GrafTech for reducing PAH emissions related during manufacturing process as part of NPEP program.

GrafTech International Holdings facility in Clarksburg, W. Va., joined EPA’s National Partnership for Environmental Priorities (NPEP) in 2008. The NPEP program encourages public and private organizations to form partnerships with EPA and to commit to reduce the use or release of any of 31 priority chemicals.

Recently, GrafTech installed new pollution control equipment at the Clarksburg facility to reduce the total emissions released during the manufacturing process. The equipment removes petroleum coke from the manufacturing process, which prevents 1,600 pounds of polycyclic aromatic compounds (PACs) and benzo(g,h,i)perylene from being discharged into the environment. PACs and benzo(g,h,i)perylene are priority chemicals targeted by the NPEP program.

Both chemicals are polycyclic aromatic hydrocarbons (PAHs). PAHs are created through the incomplete burning of products like coal, oil, gas and garbage. They can stay in the environment for extended periods of time and are not easily destroyed. PAHs can enter the human body by inhaling contaminated air. Other ways one could be exposed is through ingestion and skin contact.

GrafTech International is a global company with more than 120 years of experience in the carbon and graphite industry.

Environmental lawyer Sanders says EPA plans to proposes new requirements for reporting greenhouse gases from major sources under the Clean Air Act.

On March 10th EPA announced that it is proposing a comprehensive national system for reporting emissions of carbon dioxide and other greenhouse gases produced by major sources in the United States. In developing the reporting requirements, EPA considered the substantial amount of work already completed and underway in many states, regions and voluntary programs.

The new reporting requirements would apply to suppliers of fossil fuel and industrial chemicals, manufacturers of motor vehicles and engines, as well as large direct emitters of greenhouse gases with emissions equal to or greater than a threshold of 25,000 metric tons per year. This threshold is roughly equivalent to the annual greenhouse gas emissions from just over 4,500 passenger vehicles. The vast majority of small businesses would not be required to report their emissions because their emissions fall well below the threshold.

Greenhouse gases, like carbon dioxide, are produced by the burning of fossil fuels and through industrial and biological processes. Approximately 13,000 facilities, accounting for about 85 percent to 90 percent of greenhouse gases emitted in the United States, would be covered under the proposal. The emission sources covered under the reporting requirement would include energy intensive sectors such as cement production, iron and steel production, and electricity generation, among others.

The first annual report would be submitted to EPA in 2011 for the calendar year 2010, except for vehicle and engine manufacturers, which would begin reporting for model year 2011.

EPA estimates that the expected cost to comply with the reporting requirements to the private sector would be $160 million for the first year. In subsequent years, the annualized costs for the private sector would be $127 million.

Environmental attorney Sanders says Rohm & Haas settle EPA violations uncovered at multi-media audit at Louisville facility

Were you aware that on June 12, 2008, Judge Thomas B. Russell of the Western District of Kentucky entered the Consent Decree in United States v. Rohm and Haas Chemicals, LLC? The Consent Decree resolves violations of the Clean Air Act, Resource Conservation and Recovery Act, Emergency Planning and Community Right-to-Know Act, and the Comprehensive Environmental Response, Compensation and Liability Act, at the Company’s Louisville facility.

Rohm and Haas' multiple violations of environmental law were identified in an EPA and National Enforcement Investigations Center inspection at the facility in 2005. As part of the Consent Decree, the company will pay a civil penalty of $35,975 and perform two supplemental environmental projects (SEPs) costing at least $133,671. One project is a pollution reduction project and the other is an emergency planning and preparedness SEP.

Kentucky environmental attorney Sanders says Louisville Air Pollution Control Board will meet on March 18, 2009

The Louisville Metro Air Pollution Control Board will hold its regular monthly meeting at 10:00 a.m. on Wednesday, March18, 2009, in the Board Room, 850 Barret Avenue, Louisville. The Board invites the public to attend.

Documents for this meeting that are available electronically may be found on the District’s web page at the following URL: http://www.louisvilleky.gov/APCD/Calendar/20090318BoardMeeting.htm

Kentucky environmental attorney Sanders says Kentucky is No. 1 in cigarette smoking

In the current issue of the Centers for Disease Control and Prevention's Morbidity and Mortality Weekly Report, are the most recent state rankings of prevalance and trends in cigarette smoking. The study looks at smoking habits in the United States from 1998 through 2007. Of the 50 states in 2007, Kentucky had the highest number of current smokers: 28.3 percent of the population over the age of 18. During the same year, an estimated 19.8 percent of adults in the United States were current smokers.

Tobacco is one of the strongest cancer-causing agents. Tobacco use is associated with a number of different cancers, including lung cancer, as well as with chronic lung diseases and cardiovascular diseases. Cigarette smoking remains the leading preventable cause of death in the United States, causing an estimated 438,000 deaths - or about 1 out of every 5 - each year

When people inhale cigarette smoke, they bring into their lungs tar that includes over 4,000 chemicals, some of which are carcinogenic (cancer-causing). Other inhaled chemicals in cigarette smoke that may increase the risk for cancer include cyanide, benzene, formaldehyde, methanol (wood alcohol), acetylene (the fuel used in torches), and ammonia. Smoke also contains nitrogen oxide and carbon monoxide, both harmful gases.

Environmental attorney Sanders says stem cells are key to opening medical cures to human diseases in the future.

Once a stem cell line is established from a cell in the body, it is essentially immortal, no matter how it was derived. That is, the researcher using the line will not have to go through the rigorous procedure necessary to isolate stem cells again. Once established, a cell line can be grown in the laboratory indefinitely and cells may be frozen for storage or distribution to other researchers.

Stem cell lines grown in the lab provide scientists with the opportunity to "engineer" them for use in transplantation or treatment of diseases. For example, before scientists can use any type of tissue, organ, or cell for transplantation, they must overcome attempts by a patient's immune system to reject the transplant.

In the future, scientists may be able to modify human stem cell lines in the laboratory by using gene therapy or other techniques to overcome this immune rejection. Scientists might also be able to replace damaged genes or add new genes to stem cells in order to give them characteristics that can ultimately treat diseases.

Stem cells have potential in many different areas of health and medical research. To start with, studying stem cells will help us to understand how they transform into the dazzling array of specialized cells that make us what we are. Some of the most serious medical conditions, such as cancer and birth defects, are due to problems that occur somewhere in this process. A better understanding of normal cell development will allow us to understand and perhaps correct the errors that cause these medical conditions.

Another potential application of stem cells is making cells and tissues for medical therapies. Today, donated organs and tissues are often used to replace those that are diseased or destroyed. Unfortunately, the number of people needing a transplant far exceeds the number of organs available for transplantation.

Pluripotent stem cells offer the possibility of a renewable source of replacement cells and tissues to treat a myriad of diseases, conditions, and disabilities including Parkinson's and Alzheimer's diseases, spinal cord injury, stroke, burns, heart disease, diabetes, osteoarthritis and rheumatoid arthritis.

Environmental lawyer Sanders offers a stem cell primer.

What are Stem Cells?
Stem cells are cells that have the remarkable potential to develop into many different cell types in the body. Serving as a sort of repair system for the body, they can theoretically divide without limit to replenish other cells for as long as the person or animal is still alive. When a stem cell divides, each "daughter" cell has the potential to either remain a stem cell or become another type of cell with a more specialized function, such as a muscle cell, a red blood cell, or a brain cell.

What classes of stem cells are there?
There are three classes of stem cells: totipotent, multipotent, and pluripotent.
1. A fertilized egg is considered totipotent, meaning that its potential is total; it gives rise to all the different types of cells in the body.
2. Stem cells that can give rise to a small number of different cell types are generally called multipotent.
3. Pluripotent stem cells can give rise to any type of cell in the body except those needed to develop a fetus.

Where do stem cells come from?
Pluripotent stem cells are isolated from human embryos that are a few days old. Cells from these embryos can be used to create pluripotent stem cell "lines" —cell cultures that can be grown indefinitely in the laboratory. Pluripotent stem cell lines have also been developed from fetal tissue obtained from fetal tissue (older than 8 weeks of development).

Environmental lawyer Sanders says stem cell research holds key to medical miracles in future.

Stem cells have the remarkable potential to develop into many different cell types in the body. Serving as a sort of repair system for the body, they can theoretically divide without limit to replenish other cells as long as the person or animal is still alive. When a stem cell divides, each new cell has the potential to either remain a stem cell or become another type of cell with a more specialized function, such as a muscle cell, a red blood cell, or a brain cell.

Stem cells have potential in many different areas of health and medical research. To start with, studying stem cells will help us to understand how they transform into the dazzling array of specialized cells that make us what we are. Some of the most serious medical conditions, such as cancer and birth defects, are due to problems that occur somewhere in this process. A better understanding of normal cell development will allow us to understand and perhaps correct the errors that cause these medical conditions.

Another potential application of stem cells is making cells and tissues for medical therapies. Today, donated organs and tissues are often used to replace those that are diseased or destroyed. Unfortunately, the number of people needing a transplant far exceeds the number of organs available for transplantation. Pluripotent stem cells offer the possibility of a renewable source of replacement cells and tissues to treat a myriad of diseases, conditions, and disabilities including Parkinson's and Alzheimer's diseases, spinal cord injury, stroke, burns, heart disease, diabetes, osteoarthritis and rheumatoid arthritis.

Environmental lawyer Sanders says President Obama lifts Bush's ban on stem cell research.

THE WHITE HOUSE

Office of the Press Secretary
_________________________________________
For Immediate Release March 9, 2009

EXECUTIVE ORDER

- - - - - - -

REMOVING BARRIERS TO RESPONSIBLE SCIENTIFIC
RESEARCH INVOLVING HUMAN STEM CELLS

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. Research involving human embryonic stem cells and human non-embryonic stem cells has the potential to lead to better understanding and treatment of many disabling diseases and conditions. Advances over the past decade in this promising scientific field have been encouraging, leading to broad agreement in the scientific community that the research should be supported by Federal funds.

For the past 8 years, the authority of the Department of Health and Human Services, including the National Institutes of Health (NIH), to fund and conduct human embryonic stem cell research has been limited by Presidential actions. The purpose of this order is to remove these limitations on scientific inquiry, to expand NIH support for the exploration of human stem cell research, and in so doing to enhance the contribution of America's scientists to important new discoveries and new therapies for the benefit of humankind.

Sec. 2. Research. The Secretary of Health and Human Services (Secretary), through the Director of NIH, may support and conduct responsible, scientifically worthy human stem cell research, including human embryonic stem cell research, to the extent permitted by law.

Sec. 3. Guidance. Within 120 days from the date of this order, the Secretary, through the Director of NIH, shall review existing NIH guidance and other widely recognized guidelines on human stem cell research, including provisions establishing appropriate safeguards, and issue new NIH guidance on such research that is consistent with this order. The Secretary, through NIH, shall review and update such guidance periodically, as appropriate.

Sec. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to an executive department, agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 5. Revocations. (a) The Presidential statement of August 9, 2001, limiting Federal funding for research involving human embryonic stem cells, shall have no further effect as a statement of governmental policy.

(b) Executive Order 13435 of June 20, 2007, which supplements the August 9, 2001, statement on human embryonic stem cell research, is revoked.


BARACK OBAMA


THE WHITE HOUSE,
March 9, 2009.

Environmental attorney Sanders says BP Products to pay $785,662 to resolve serious EPCRA violations in Texas.

BP Products North America Inc. has agreed to pay $785,662 to resolve Emergency Planning and Community Right-to-Know Act (EPCRA) violations at its Texas City, Texas, refinery, the Environmental Protection Agency announced today. BP Products will pay a $420,662 civil penalty and spend $365,000 on supplemental environmental projects in Texas City.

The law requires that certain facilities that manufacture, process or use certain toxic chemicals report releases annually by July 1, for the preceding calendar year. This settlement addresses the company’s noncompliance with EPCRA reporting requirements by failing to complete and submit toxic chemical release inventory information to EPA and the State of Texas for the period 2002-2005, and failure to maintain reporting records for calendar year 2004.

The toxic chemicals subject to reporting requirements included anthracene, cobalt compounds, dioxin and dioxin-like compounds, formaldehyde, lead compounds, methanol, nickel compounds, phenanthrene, and vanadium. Thus, PB Products failed to report some very serious toxic chemicals to EPA.

BP’s payment of $365,000 in supplemental environmental projects are intended to improve Texas City’s ability to respond to emergency releases that threaten human health or the environment and include an ambulance, upgrade of the city’s computer system, communications equipment and an Optigon system to assist with traffic control during emergencies. Also included in the projects are funds to improve the city’s Emergency Operations Center and upgrade the city’s mobile command post.

Environmental attorney Sanders says every American should read President Obama's Memorandum promising scientific integrity in making policy decisions.

THE WHITE HOUSE

Office of the Press Secretary
_________________________________________
For Immediate Release March 9, 2009

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES


SUBJECT: Scientific Integrity

Science and the scientific process must inform and guide decisions of my Administration on a wide range of issues, including improvement of public health, protection of the environment, increased efficiency in the use of energy and other resources, mitigation of the threat of climate change, and protection of national security.

The public must be able to trust the science and scientific process informing public policy decisions. Political officials should not suppress or alter scientific or technological findings and conclusions. If scientific and technological information is developed and used by the Federal Government, it should ordinarily be made available to the public. To the extent permitted by law, there should be transparency in the preparation, identification, and use of scientific and technological information in policymaking. The selection of scientists and technology professionals for positions in the executive branch should be based on their scientific and technological knowledge, credentials, experience, and integrity.

By this memorandum, I assign to the Director of the Office of Science and Technology Policy (Director) the responsibility for ensuring the highest level of integrity in all aspects of the executive branch’s involvement with scientific and technological processes. The Director shall confer, as appropriate, with the heads of executive departments and agencies, including the Office of Management and Budget and offices and agencies within the Executive Office of the President (collectively, the "agencies"), and recommend a plan to achieve that goal throughout the executive branch.

Specifically, I direct the following:

1. Within 120 days from the date of this memorandum, the Director shall develop recommendations for Presidential action designed to guarantee scientific integrity throughout the executive branch, based on the following principles:

(a) The selection and retention of candidates for science and technology positions in the executive branch should be based on the candidate’s knowledge, credentials, experience, and integrity;

(b) Each agency should have appropriate rules and procedures to ensure the integrity of the scientific process within the agency;

(c) When scientific or technological information is considered in policy decisions, the information should be subject to well-established scientific processes, including peer review where appropriate, and each agency should appropriately and accurately reflect that information in complying with and applying relevant statutory standards;

(d) Except for information that is properly restricted from disclosure under procedures established in accordance with statute, regulation, Executive Order, or Presidential Memorandum, each agency should make available to the public the scientific or technological findings or conclusions considered or relied on in policy decisions;

(e) Each agency should have in place procedures to identify and address instances in which the scientific process or the integrity of scientific and technological information may be compromised; and

(f) Each agency should adopt such additional procedures, including any appropriate whistleblower protections, as are necessary to ensure the integrity of scientific and technological information and processes on which the agency relies in its decisionmaking or otherwise uses or prepares.

2. Each agency shall make available any and all information deemed by the Director to be necessary to inform the Director in making recommendations to the President as requested by this memorandum. Each agency shall coordinate with the Director in the development of any interim procedures deemed necessary to ensure the integrity of scientific decisionmaking pending the Director’s recommendations called for by this memorandum.

3. (a) Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory and regulatory authorities and their enforcement mechanisms.

(b) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) authority granted by law to an executive department, agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

4. The Director is hereby authorized and directed to publish this memorandum in the Federal Register.


BARACK OBAMA

Environmental lawyer Sanders says vote on the name of the Banks Project in Cincinnati, Ohio.

Anyone who has looked over the Ohio River and stared at the large empty space in downtown Cincinnati where Riverfront Stadium formerly sat is mystified at the lack of tangible progress on the Banks project.

The empty space next to the Ohio River is seen by many as a perfect symbol of the manic and oftentimes inept city leadership in Cincinnati. God love them, but Cincinnati’s city council and Mike Brown share far more in common that the location of their offices on the west side of downtown.

Lack of progress on the project is apparently causing negative feelings about the multimillion dollar plan, which should be the absolute shining crown jewel of the Queen City. To deflect the criticism, Master Development Team of Carter and the Dawson Company recently announced they want to rename the city’s most important development project.

You can vote at www.carterdawson.com. Voters will be able to choose their favorite name from the following list and view real-time results.

1. Riverfront District
2. Park District
3. Parkside
4. The Banks
5. Failed Banks
6. Nationalized Banks
7. 5/3 Banks
8. Kentucky Banks
9. River Banks
10. Ernie Banks

The Carter-Dawson Web site will activate the survey on March 4th at 12:01 a.m. Votes will be collected for two weeks with voting ending on March 17th at 11:59 p.m.

Environmental attorney Sanders says ancient groundwater source in Jordan contains high levels of radioactive substances.

Ancient groundwater being tapped by the country of Jordan, one of the 10 most water-deprived nations in the world, has been found to contain 20 times the radiation considered safe for drinking water in a new study by an international team of researchers. The radioactivity is primarily due to 228 radium and 226 radium - the two long-lived isotopes of radium. The scholarly paper is published in a peer-reviewed journal, Environmental Science & Technology.

The paper is online at http://pubs.acs.org/doi/abs/10.1021/es802969r.

The finding is quite a blow to the hopes of Jordanians, who desperately need a new water supply. Water experts say the minimum needed to meet the basic human needs of drinking, cooking and hygiene is 20 liters (five gallons) of clean water per person per day. It's far from enough to ensure health and well-being-just enough to get by. For comparison, that's about the contents of an average water cooler.

Yet even that that amount would seem like an abundance to the many people on Earth living under conditions of extreme water scarcity. Those people routinely have less than five liters (1.3 gallons) a day available for use. How much is that? Less than one flush of a low-flush toilet. Let's hope a solution to this problem can be made.

Environmental lawyer Sanders says EPA and Bayer CropScience reach $1,012,500 settlement of environmental violations at Institute, WV plant.

Bayer CropScience agreed to pay a $112,500 civil penalty and spend more than $900,000for environmental projects to settle a wide range of federal environmental violations at its chemical manufacturing plant located in Institute, W.Va. EPA discovered the violations stem from a series of EPA inspections in 2001, when the facility was owned by Aventis CropScience USA. The violations are not related to the explosion and fire at the facility in August 2008.

EPA inspectors identified violations of five different environmental laws designed to limit air and water pollution and protect the public from hazardous chemical leaks and spills. These violations included 35 instances between 1999 and 2001 when chemicals discharged violated the company’s permitted limits. The company also failed to properly monitor water discharges and failed to update equipment in accordance with best management practices.

Other violations included: not properly labeling chemical storage containers; not properly disposing of wastewater sludge; not maintaining records associated with the use of oil; and not properly following the plant's own waste analysis plan. The facility was also cited for not properly notifying the National Response Center as soon as it had knowledge of the release of carbosulfan on Feb. 5, 2001.

Part of the $900,000 set aside for environmental projects requires Bayer CropScience to donate equipment and funding to the Kanawha Valley Emergency Preparedness Center and three local fire departments to support training and emergency response. The agreement also requires Bayer CropScience to upgrade its wastewater treatment facilities to improve monitoring and reduce pollution discharges. In exchange for a $1,012,500 settlement, EPA agreed to allow Bayer CropScience to neither admits nor denies the charges levied against it.

Environmental attorney Sanders says GAO's latest report hammers FDA's inept handling of dietary supplements; FDA needs strong reform measures.

Add dietary supplements to the growing list of products the struggling Food and Drug Administration is failing to regulate. The Government Accountability Office reported to Congress that the FDA does not have even the most fundamental information to protect the public from hazardous supplements.

The factual bases for GAO’s report against FDA on this subject matter are simply astonishing to the reader. For example, the FDA does not have an accurate inventory of the supplement ingredients on store shelves. FDA doesn't have information on the potential serious adverse reactions to dietary supplements.

More appalling, the GAO found that the FDA does not have a list of the names and locations of herbal supplement manufacturers. And several substances banned overseas are readily available on the Internet and in retail stores all over the U.S. even though the supplements are variously linked to kidney damage, liver damage, seizures, and death.

It is well past time to reform the FDA. Its mission is apparently too complex and too burdensome for the agency to handle. Perhaps more concerning to us is FDA’s openly cozy relationship with the regulated community. In short, FDA is not competently carrying out its true mission of protecting the American public. Hello Washington, we have a problem.

GAO's report can be read at http://cspinet.org/new/pdf/final_gao_dietary_supplements_report.pdf.