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Federal Facilities

Towns Cite Novel EPA Study Of Cleanup's Costs To Seek Compensation

Several western Massachusetts towns are using a novel EPA-commissioned study of the economic impacts of proposed cleanup activities to call for a compensation package as part of a cleanup plan for the Housatonic River contaminated sediment site.

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EPA Urged To Gather More Commercial Building Data For Lead Paint Rule

Industry and public health advocates say EPA needs to collect additional exposure and other data to support its effort to determine whether repairs and renovations on commercial and public buildings pose a sufficient hazard from lead-based paint to warrant regulation, but the two sides are at odds over how the agency should proceed.

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DOJ Leaves Landmark Superfund Settlement Unchanged Despite Criticism

The Justice Department (DOJ) is asking a federal district court to approve a precedent-setting $366 million supplemental cleanup agreement for a Massachusetts Superfund site without including language allowing EPA to reopen the settlement if cleanup costs exceed current estimates, despite pleas from environmentalists and others to do so.

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Industry Lobbies Democrats On TSCA Bill In Bid To 'Push Back' On Boxer

Chemical and other industry groups are lobbying Democratic senators to cosponsor a bipartisan bill reforming the Toxic Substances Control Act (TSCA) in an effort to "push back" on efforts by Senate environment committee Chairwoman Barbara Boxer (D-CA), who has said the bill cannot advance without being significantly strengthened.

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EPA, Utilities Begin Talks On Call For New Terror Decontamination Guidance

EPA, the Department of Homeland Security (DHS) and drinking water utilities have begun a dialogue about providing utilities with better guidance for how to respond to contamination from a terror incident after utilities raised concerns that the agency's current response plans and available resources are inadequate.

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Corps Spurns Calls for Broad Coal Export Analysis Including Global GHGs

The Army Corps of Engineers is rejecting demands by environmentalists and some public officials for a comprehensive "area-wide" environmental impact statement (EIS) that reviews the effects of new coal export terminals in the Pacific Northwest and takes into account the global warming impacts from coal combustion abroad.

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Appropriators Seek To Block Water Act Rules

House appropriators have advanced legislation that blocks the Army Corps of Engineers from implementing or developing any rule or guidance to revise the policies regulators use to determine the reach of the Clean Water Act (CWA) -- the most expansive attempt yet to block the pending joint effort by EPA and the Corps to refine the tests that determine the law's reach over isolated wetlands and other marginal waters.

The House Appropriations Committee's energy and water subcommittee June 18 approved by voice vote legislation funding the Corps and the Department of Energy (DOE) in fiscal year 2014 that bars the Corps from using any funds “to develop, adopt, implement, administer, or enforce any change to the regulations and guidance in effect on October 1, 2012, pertaining to the definition of waters under the jurisdiction” of the CWA.

The proposed language would block controversial guidance that has been under review by the Office of Management & Budget since 2012, as well as a pending rulemaking by the Corps and EPA to clarify when waters are considered “navigable waters” and subject to the law's regulatory requirements.

Jo-Ellen Darcy, assistant secretary of the Army for civil works, said during a hearing before the subcommittee last February that the agencies are preparing a rulemaking on the subject but were still considering whether to finalize the pending guidance -- an interim step that environmentalists are seeking before a rulemaking is completed.

Republicans and industry support codifying any new policy in a regulation but oppose any rulemaking unless EPA pledges to abandon the terms of the draft guidance -- which was first proposed in 2011-- that they say would expand the law's reach in part because it allows regulators to use either of two Supreme Court tests for determining whether waters are subject to regulation.

Republicans in both the Senate and the House have previously proposed legislation to block EPA from finalizing the guidance or using it as the basis for a rulemaking, though they have generally pushed measures that would allow EPA and the Corps to craft a more restrictive guidance, rather than barring any new regulation whatsoever, as is proposed in the appropriations bill.

Most recently, a majority of senators -- including eight Democrats -- voted to back an amendment from Sen. John Barrasso (R-WY) blocking EPA and the Corps from finalizing the guide, though the measure fell short of the 60 votes needed to attach it to underlying legislation authorizing funding for Corps water projects.

Despite the failure to approve the amendment, an industry source says "it is encouraging that there is a majority in the Senate who think EPA had better be careful about overreaching. I think the agency has to be pretty careful about what they propose."

The bill would slightly increase funding for nuclear and other waste cleanup activities at DOE's environmental management program in FY14 but would cut by almost 50 percent the department's funding for clean energy and energy-efficiency programs.

The draft would allocate $5.5 billion for DOE's overall environmental cleanup activities -- a figure $243 million, or 4 percent, below the FY13 enacted level, but $185 million, or 3.5 percent, higher than the programs' funding level after sequestration cuts enacted in March.

Funding for the Defense Environmental Cleanup account, which makes up the lion's share of the program's funds to remediate sites contaminated by previous nuclear weapons production, would be increased from a post-sequestration total of $4.64 billion to $4.75 billion, a $110 million or 2.3 percent rise.

But funding for DOE's renewable energy programs would be reduced from the post-sequester level of $1.73 billion to $1 billion -- a 42 percent cut.

“In these tight budget times, sacrifices must be made to safeguard programs critical to the nation’s security and well-being. This bill reflects these hard choices, prioritizing funding to maintain our nuclear weapons and ensure the safety and readiness of the nation’s nuclear stockpile, and to invest in essential infrastructure projects to enhance safety and encourage commerce. This is a good bill that guarantees these programs are maintained, while recognizing current budget constraints,” appropriations committee Chair Hal Rogers (R-KY) said in a June 17 press release.

In a statement during the markup, Rep. Nita Lowey (D-NY), ranking Democrat on the appropriations subcommittee, pushed for the energy cuts to be reinstated. “With global carbon emissions at record highs and extreme weather events caused by global warming happening with increased frequency and deadly force, I see no justification for such drastic cuts to investments in renewable energy that decrease our carbon footprint. I’m also certainly not aware of any drastic decline in the call [for] investments in reliable energy delivery,” she said.

Lowey added that cutting research on renewable energy in the United States could jeopardize the county's leadership in that area, “ceding breakthroughs in areas like clean energy to China.”

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House Revives TSCA Lead Bullet Waiver

The House has approved legislative language in a defense authorization bill that would bar the regulation of lead bullets and shot under the Toxic Substances Control Act (TSCA) and could limit EPA’s ability to regulate other substances such as perchlorate found in projectiles, critics say.

The measure, the latest in a series of such attempts, is intended to head off so-far unsuccessful litigation filed by environmentalists seeking to force EPA to regulate lead bullets and shot under TSCA. A federal judge in May dismissed environmentalists' suit but appeared to lay out a road map for groups other than those who have previously petitioned EPA to try again to force the agency to regulate the items .

But environmentalists and Sen. Barbara Boxer (D-CA) oppose the legislative exemption for the items, saying it is overly broad and could prevent EPA from regulating some toxics, like perchlorate, that is found in ammunition at Superfund sites.

At issue is language included in the fiscal year 2014 defense authorization bill during a House Armed Services readiness subcommittee markup May 23. The measure would amend TSCA section 2602(2)(B) to exclude from the law’s “chemical substance” definition “any component of any article including shot, bullets and other projectiles, propellants when manufactured for or used in such an article, and primers.” The House passed the bill June 14. No amendments were filed on the bill to alter the TSCA provision. The full Senate has not yet taken up its version of the defense authorization bill.

According to an environmentalist attorney, the provision replicates language that was included in the FY13 defense authorization bill. That language was removed before the final bill was approved by Congress and signed into law earlier this year. “The House Republicans keep trying to pass this,” the environmentalist attorney says of the amendment. “This is ‘Groundhog Day,’” the attorney says, referring to the 1993 movie in which the characters are in a time loop repeating the day’s events.

Senators have also pushed the waiver. Sen. Jon Tester (D-MT) attached the legislative exemption to a sportsmen's rights bill that failed to advance in the 112th Congress.

Environmentalists argue that regulation of lead bullets and shot is necessary to prevent exposure to humans and wildlife that consume the meat killed with lead bullets and tackle, and say there are inexpensive alternatives to lead-based bullets such as copper-based ones. Lead is a known neurotoxin that the Centers for Disease Control & Prevention says has no safe level of exposure.

But sportsmen's rights proponents say the alternatives are prohibitively expensive and that the effort for regulation is an affront to hunting itself.

The environmentalist attorney does not believe the amendment would affect the military’s use of lead bullets. “This is all about sportsman hunting,” the source says.

One informed source says while some say the language would affect perchlorate, others believe it would not affect the way perchlorate is used by the military. Under this interpretation, the language only address items like rifles and the components of a rifle cartridge, which could include perchlorate but is not the way the military uses perchlorate, the source says. Perchlorate is used in rocket fuel, munitions and some fertilizers and is found as a contaminant in drinking water sources in dozens of states.

But regardless of whether it affects the military, there is a fear that the amendment could be used to argue that regulators would be barred from using the Superfund law to require cleanup of chemicals such as Royal Demolition Explosive (RDX), perchlorate or other components of ammunition, according to the source. This is because, currently, when a substance is not regulated under other laws but is defined under TSCA as a chemical substance, it can be regulated as part of a Superfund cleanup, according to the source. This is the case for RDX, which has no drinking water cleanup level but can be regulated as a hazardous substance under the Superfund law because of its designation under TSCA, according to the source.

The source says the lead shot language in the defense bill is ambiguous and vague and raises the prospect of much unnecessary litigation because it is not well-crafted.

Boxer in a floor statement last November warned against the breadth of such an exemption. “The federal government must be able to use all of the tools at its disposal to protect American families from consuming contaminated food. Therefore, we should not create unneeded exemptions that apply to lead and an unknown number of other contaminants,” she said.

Boxer continues to oppose the provisions, a source with her office says.

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EPA Agrees To Assess Need For IRIS Reviews After Critical GAO Report

EPA plans to reevaluate the need for its Integrated Risk Information System's (IRIS) chemical hazard assessments and better document how it selects chemicals for review after the Government Accountability Office (GAO) questioned how the agency measures the program's performance since EPA has not studied demand for assessments in a decade.

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Novel EPA Toxicity Value For DNT Likely To Drive Munitions Cleanups

EPA has issued a first-time toxicity value for technical grade dinitrotoluene (DNT) that covers all six forms of the chemical used in explosives and polyurethanes, a move environmentalists have been seeking for years and which is expected to provide regulators leverage to require testing and cleanup at military sites around the country.

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