Wednesday, December 29, 2010

PCBs in Light Fixtures - EPA Guidance To Schools

U.S. Environmental Protection Agency (EPA) has released guidance recommending steps schools should take to reduce potential exposures to PCBs from older fluorescent lighting fixtures. The guidance is based on evidence that the older ballasts contain PCBs that can leak when the ballasts fail, leading to elevated levels of PCBs in the air of schools that could pose health concerns if they persist over time.

EPA banned the processing and distribution of PCBs in 1979 under their Toxic Substances Control Act authority. However, uses of older PCB-containing ballasts were allowed to continue, provided that the ballasts had not failed and the PCBs were not leaking. EPA believes many schools built in the U.S. before 1979 have light ballasts containing PCBs. A recent pilot study of three schools in New York City found that many light ballasts in the schools contained PCBs and had also failed, causing the PCBs to leak and contributing to increased levels in the air that school children breathe. EPA is recommending older PCB-containing lighting ballasts be removed, whether as part of a previously scheduled lighting retrofit program or a stand-alone project.

EPA has also developed information on how to properly handle and dispose of PCB-containing fluorescent light ballasts and properly retrofit lighting fixtures to remove potential PCB hazards.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Friday, December 17, 2010

EPA and ECHA Cooperation On Chemical Data, REACH Data

U.S. Environmental Protection Agency (EPA) and the European Chemicals Agency (ECHA) have announced a partnership to promote enhanced technical cooperation on chemical management activities. ECHA is the agency that implements the European Union’s chemical management program known as REACH (Registration, Evaluation, Authorization, and Restriction of Chemicals). The partnership was formalized through a statement of intent at the Transatlantic Economic Council (TEC) meeting in Washington, D.C.

The statement describes a process for cooperating on a range of issues of mutual interests including toxicity testing, the hazard and risk assessment of chemicals, risk management tools, scientific collaboration, and information exchange.

A major area of collaboration will be in the exchange of data and information between ECHA and EPA, including non-confidential information on hazards, uses, and substance identification, and data collected under REACH. The two agencies will also share criteria for managing confidential business information (CBI).

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Sunday, December 5, 2010

National Contingency Plan Subpart J Product Schedule Revisions

EPA is considering proposing revisions to Subpart J of the National Contingency Plan (NCP). The Clean Water Act requires EPA to prepare a schedule of dispersants, other chemicals, and other spill mitigating devices and substances, if any, that may be used in carrying out the NCP.

Under Subpart J, parties wishing to add a product to the Product Schedule must submit technical product data to EPA. EPA is considering revisions to clarify and/or change effectiveness and toxicity testing protocols required for adding a product to the Schedule. EPA believes these changes, if finalized, will help ensure protection of the environment when these products are used to clean up and mitigate oil spills (1) into or upon navigable waters, adjoining shorelines, the waters of the contiguous zone, or (2) which may affect natural resources belonging to or under the exclusive management authority of the United States. The agency is also considering proposed changes to 40 CFR 110.4 regarding the use of dispersants.

At present, EPA anticipates publishing a Notice of Preliminary Rule Making (NPRM) in the Federal Register in December 2011.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Friday, December 3, 2010

Wind Farm Siting Criteria Proposed By WDNR

Wisconsin Department of Natural Resource (WDNR) has issued recommended guidelines for the environmentally-sound siting of utility-scale wind-electric generating facilities. These guidelines are intended to identify and characterize the presence of resources that are considered sensitive to windfarm development in the area under consideration.

Some of the key siting criteria WDNR recommends include:
  1. Wildlife Areas
  2. Migration Corridors
  3. Current or Proposed Major State Ecosystem Acquisition & Restoration Projects
  4. State and Local Parks and Recreation Areas
  5. Active Landfills
  6. Wetlands
  7. Wooded Corridors
  8. Major Tourist/Scenic Areas
  9. Airport/Landing Strip Clear Zones and other lighted facilities

Site Characterization Studies
WDNR belives that a site characterization study is an important step in considering and evaluating potential windfarm locations. A baseline wildlife evaluation should be conducted for each site under serious consideration for windfarm development. To allow comparison with other studies, this evaluation should follow accepted standard protocols for windfarm evaluations.

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WDNR Report On Authorities Needed To Minimize Impacts of Wind Energy Projects

The Wisconsin Department of Natural Resources (WDNR) has submitted a report to the Wisconsin Legislature in November 2010 regarding the agency’s authority to protect wildlife and natural resources from wind project impacts. The WDNR report was submitted in response to 2009 Wisconsin Act 40, which required the agency to determine if its “statutory authority is sufficient to adequately protect wildlife and the environment from any adverse effect from the siting, construction, or operation of wind energy systems.”

WDNR made four recommendations to enhance its current authority to minimize potential impacts from wind projects:

1. Require WDNR to prepare a formal “biological opinion” and require the Public Service Commission of Wisconsin (PSCW) to consider that opinion before PSCW approves a wind project; this opinion would 1) describe the potential impacts of the project to wildlife and natural resources; 2) identify potential conflicts with wildlife protection laws; 3) reach a conclusion as to whether the project has the potential to cause a significant adverse impact to habitat and fish and wildlife resources; and 4) reach a conclusion as to whether mitigation measures can be implemented to substantially reduce those impacts below the level of significance;

2. Require a wind project developer to obtain Incidental Take Permits or Authorizations under the Wisconsin Endangered Species Law before constructing a wind project; currently, developers are encouraged but not required to obtain such authorizations;

3. Expand the Wisconsin Endangered Species Law to protect endangered and threatened species habitat, as currently included the Federal Endangered Species Act; and

4. Require easements for wind facilities to authorize access to those properties for the conduct of biological studies by developers, WDNR personnel and/or authorized agents.


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Tuesday, November 30, 2010

Design For the Environment Evaluation Criteria Proposed

As part of the agency’s Design for the Environment (DfE) program, EPA has unveiled the set of criteria which are being proposed under its DfE Alternatives Assessments for identifying safer alternatives to chemicals that pose a concern to human health and the environment. EPA will be accepting public comment on the DfE criteria through January 31, 2011.

The DfE program works in partnership with industry, environmental groups, and academia to help industry choose safer alternatives to chemicals that may pose a concern to human health or the environment. Information on chemical hazards from DfE Alternatives Assessments is combined with industry data on performance and cost to guide the choice of safer alternatives. To distinguish among alternatives, DfE evaluates data for each chemical and assigns hazard levels of high, moderate, or low for human health and environmental concerns.

DfE Alternatives Assessments will be conducted for bisphenol A (BPA), phthalates, decabromodiphenyl ether (decaBDE), hexabromocyclododecane (HBCD) and nonylphenol and nonylphenol ethoxylates (NP and NPEs). Both the BPA and decaBDE efforts are under way and include the use of BPA and its alternatives in thermal paper, such as cash register receipts, and the review of flame retardant alternatives to decaBDE in products such as textiles, plastic palettes, and electronics. Assessments of phthalates, the flame retardant HBCD, and NPEs will begin in 2011.

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Wednesday, November 24, 2010

WaterSense Water Efficiency Certified Homes

EPA has recognized the first WaterSense labeled homes in the country. WaterSense is a partnership program sponsored by EPA that seeks to promote water efficiency. The program helps homebuyers cut water and energy use and reduce utility bills. Four WaterSense labeled new homes have been built by KB Home in Roseville, California, and will save an average of 10,000 gallons of water and at least $100 on utility costs each year.

Since signing on as the first national builder to partner with WaterSense, KB Home has agreed to build three communities of homes that will earn the WaterSense label, which will be the first in the nation to meet WaterSense criteria for newly built homes. Each house includes WaterSense labeled plumbing fixtures, an efficient hot water delivery system, water-efficient landscape design, and other water and energy-efficient features.

Each WaterSense labeled new home is independently inspected and certified to ensure EPA’s criteria are met for both water efficiency and performance. A WaterSense labeled new home is built to use about 20 percent less water than a typical new home.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Sunday, November 21, 2010

Small Business Advocacy Review of Lead Paint Dust Rules

U.S. Environmental Protection Agency (EPA) is inviting small businesses to participate as consultants for a Small Business Advocacy Review (SBAR) panel as the agency considers steps to reduce lead-based paint dust during the renovation, repair, and painting of the exterior of public and commercial buildings.

The SBAR panel will include representatives from the Small Business Administration, the Office of Management and Budget and EPA. The panel will ask a selected group of small entity representatives (SER) to provide advice and recommendations on behalf of their company, community or organization to inform the panel about the impacts of a proposed rule on small entities involved in the renovation, repair, and painting of the exterior of public and commercial buildings. SERs may participate by telephone, webinar or in person.

EPA seeks self-nominations directly from the small businesses, governments and organizations that may be subject to the rule requirements to aid in the selection of SERs. Self-nominations may be submitted through December 3, 2010.

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Environmental Review Guidelines For New School Siting

U.S. EPA has released draft voluntary guidelines to help communities protect the health of students and staff from environmental threats when selecting new locations for schools. The voluntary guidelines also provide tools to help communities ensure that new locations for schools are accessible to the students they are intended to serve.

The new draft voluntary guidelines will give local communities tools to help them consider environmental health issues in establishing school site selection criteria and in conducting effective environmental reviews of potential school sites. The draft guidelines recommend involving the public in the site selection process from the beginning to help ensure community support for these decisions.

The draft school siting guidelines are being made available for public comment for 90 days (through February 18, 2011).

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Tuesday, November 16, 2010

Additional Potential Endocrine Disruptors Identified For Screening

U.S. Environmental Protection Agency (EPA) has identified a list of 134 chemicals that will be screened for their potential to disrupt the endocrine system. Endocrine disruptors are chemicals that interact with and possibly disrupt the hormones produced or secreted by the human or animal endocrine system, which regulates growth, metabolism and reproduction.

The list includes chemicals that have been identified as priorities under the Safe Drinking Water Act (SDWA) and may be found in sources of drinking water. The list also includes pesticide active ingredients that are being evaluated under EPA’s registration review program to ensure they meet current scientific and regulatory standards. The data generated from the screens will provide information to help EPA identify whether additional testing is necessary, or whether other steps are necessary to address potential endocrine disrupting chemicals.

The chemicals listed include those used in products such as solvents, gasoline, plastics, personal care products, pesticides, and pharmaceuticals, including benzene, perchlorate, urethane, ethylene glycol, and erythromycin.

EPA also released draft policies and procedures that EPA will follow to order testing, minimize duplicative testing, promote equitable cost-sharing, and to address issues that are unique to chemicals regulated under the SDWA.

After public comment and review, EPA will issue test orders to pesticide registrants and the manufacturers of these chemicals requiring them to generate data to determine whether their chemicals may disrupt the estrogen, androgen and thyroid pathways of the endocrine system.

EPA is already screening an initial group of 67 pesticide chemicals. In October 2009, the agency issued orders to companies requiring endocrine disruptor screening program data for these chemicals. EPA will begin issuing orders for this second group of 134 chemicals beginning in 2011.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Wednesday, November 10, 2010

Best Practices Guidance for Energy Efficiency Upgrades

U.S. Environmental Protection Agency (EPA) has released for comment today a series of best practice tools to maintain or improve indoor air quality and residents’ health when performing home energy retrofits. These protocols are intended to ensure home energy retrofits include appropriate health protections. EPA’s draft protocols will be available for public comment for 30 days.

The draft “Healthy Indoor Environment Protocols for Home Energy Upgrades” are intended for voluntary adoption by weatherization assistance programs, federally funded housing programs, private sector home performance contractors, and others working on residential retrofit or remodeling efforts of single family and multi-family low-rise residential homes. The protocols include recommended minimum specifications and best practices to be followed during and after home energy retrofits.

The protocols are a companion document to the Department of Energy’s Workforce Guidelines for Home Energy Upgrades. The DOE guidelines are intended to foster the growth of a skilled work force that will increase the homeowner’s confidence in the retrofit industry and increase the demand for home energy retrofits.

Caltha LLP provides certified Commerical Energy Managers (CEM) and Residential Energy Managers (REM) to conduct energy audits.

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EPA Issues Subpoena Regarding Hydraulic Fracturing Study

U.S. Environmental Protection Agency (EPA) has announced that eight out of the nine hydraulic fracturing companies that received voluntary information requests in September have agreed to submit information to help the agency conduct its study on hydraulic fracturing. According to EPA, the ninth company, Halliburton, failed to provide EPA the requested information. As a result, EPA issued a subpoena to the company requiring submission of the requested information.

EPA’s congressionally mandated hydraulic fracturing study will look at the potential adverse impact of the practice on drinking water and public health. The agency is under a deadline to provide initial results by the end of 2012.

On September 9, EPA contatced the nine leading national and regional hydraulic fracturing service providers seeking information on the chemical composition of fluids used in the hydraulic fracturing process, data on the impacts of the chemicals on human health and the environment, standard operating procedures at their hydraulic fracturing sites and the locations of sites where fracturing has been conducted.

Except for Halliburton, the companies have either complied with the request or made unconditional commitments to provide all the requested information.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Thursday, November 4, 2010

EPA Denies Petition To Ban Lead In Fishing Gear

On August 3, 2010, the American Bird Conservancy and a number of other groups petitioned EPA under Section 21 of the Toxic Substances Control Act (TSCA) to "prohibit the manufacture, processing, and distribution in commerce of lead for shot, bullets, and fishing sinkers." On August 27, 2010, EPA denied the portion of the petition relating to lead in ammunition because the agency does not have the legal authority to regulate this type of product under TSCA.

EPA has now also denied the petition calling for a ban on the manufacture, use and processing of lead in fishing gear. EPA determined that the petitioners had not demonstrated that the requested rule is necessary to protect against an unreasonable risk of injury to health or the environment, as required by the Toxic Substances Control Act (TSCA). Considering the increasing number of limitations on the use of lead fishing gear on some federal and state lands, as well as various education and outreach activities, EPA questioned whether a national ban on lead in fishing gear would be the least burdensome, adequately protective approach to address the concern, as required under TSCA. EPA also notes that the prevalence of non-lead alternatives in the marketplace continues to increase.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Proposed Rulemaking on BPA Testing and Monitoring

US EPA has announced its intent to publish an advance notice of proposed rulemaking (ANPRM) to request comment on requiring toxicity testing to determine the potential for Bisphenol A (BPA) to cause endocrine-related adverse effects in environmental organisms at low concentrations. The ANPRM will also seek comment on requiring sampling and monitoring of surface water, ground water, drinking water, soil, sediment, sludge, and landfill leachate in the vicinity of expected BPA releases to determine whether potentially sensitive organisms may currently be exposed to concentrations of BPA in the environment that are at or above levels of concern for adverse effects, including endocrine-related effects.

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Monday, October 18, 2010

Updated Groundwater Contaminant Standards in Minnesota

The Minnesota Department of Health (MDH) has proposed some amendments to its Health Risk Limits, or HRLs. The proposed amendments to the Health Risk Limits rules for Groundwater (Minnesota Rules, Chapter 4717) are about health-based guidance called “health risk limits” (or HRLs) for contaminants found in groundwater that may be used for drinking purposes. The proposed rules will insert updated HRL values for groundwater contaminants in Part 4717.7860 and delete outdated HRL values from Part 4717.7500.

The proposed updated HRLs are for the following chemcials:

  • Acetochlor ESA
  • Acetochlor OXA
  • Acetone
  • Dichlorodifluoromethane
  • 1,1‐Dichloroethene
  • Ethylbenzene
  • Ethylene glycol
  • Metolachlor and s‐ metolachlor
  • Metolachlor ESA
  • Metolachlor OXA
  • Perfluorobutane sulfonate (PFBS)
  • Perfluorobutyrate (PFBA)
  • Toluene
  • Xylenes


Based on MDH recent review of HRL values for 27 of the contaminants listed in Minnesota Rules, part 4717.7500, MDH intends to repeal the outdated guidance promulgated in 1993‐1994. Of the 27 contaminants reviewed, updated guidance was promulgated for 15 contaminants in MDH’s 2009 rule revision and the current 2010 proposed rules include updated HRL values for 8 contaminants. MDH has issued alternate public heath‐protective guidance for the remaining 4 contaminants.

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Monday, October 4, 2010

New TSCA Lead Dust Health Risk Standards

EPA has been petitioned under the Administrative Procedures Act (APA) to lower the residential lead dust hazard standards. Pursuant to section 403 of the Toxic Substances Control Act (TSCA), EPA promulgated regulations on 2001 to establish standards for lead-based paint hazards in most pre-1978 housing and child-occupied facilities.

Under these standards, lead is considered a hazard when equal to or exceeding 40 ug/sf of lead in dust on floors, 250 ug/sf of lead in dust on interior window sills, and 400 ppm of lead in bare soil in children's play areas or 1200 ppm average for bare soil in the rest of the yard.

In addition to the petition, the Clean Air Science Advisory Committee (CASAC) has advised EPA that based on recent epidemiological studies the current hazard standards are insufficiently protective. Therefore, based on the APA petition and CASAC recommendation, EPA is currently analyzing current science to determine if new regulatory standards are required under TSCA section 403. EPA expects new standards would be published in 2012.

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Thursday, September 30, 2010

SAB Review of Aquatic Life Benchmark for Conductivity in Central Appalachian Streams

The Science Advisory Board (SAB) has released their first draft review of EPA’s research into the water quality impacts of valley fills associated with mountaintop mining, and their Aquatic Life Benchmark for conductivity. In their draft review, the SAB supports EPA’s scientific research and agrees with EPA’s conclusion that valley fills are associated with increased levels of conductivity in downstream waters, and that these increased levels of conductivity threaten stream life in surface waters.

The SAB reviewed EPA’s draft report “A Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams,” which uses field data to derive an aquatic life benchmark for conductivity. The benchmark is intended to protect 95% of aquatic species in streams in the Appalachian region influenced by mountaintop mining and valley fills. To protect water quality, EPA has identified a range of conductivity (a measure of the level of salt in the water) of 300 to 500 microSiemens per centimeter (uS/cm) that is generally consistent with protecting life in Appalachian streams. The maximum benchmark conductivity of 500 uS/cm is roughly five times above normal levels.

Following the completion of the external peer review and review of public comments, the report will be revised and published as a final report.

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Saturday, September 11, 2010

CEQ FOIA Request Procedures Amended

The Council on Environmental Quality (CEQ) has revised regulations governing the disclosure of information pursuant to the requests made under the Freedom of Information Act (FOIA). The regulations have also been updated to reflect CEQ's policy and practices.

The regulations provide for an online FOIA Requester Service Center and Reading Room; electronic FOIA requests; access to records published or released under FOIA in electronic format, provided the record is readily reproducible in that form or format; designation of a Chief FOIA Officer and FOIA Public Liaison; referral of requests to appropriate Federal agencies or consultation with another agency, if appropriate; review of requests in order of receipt; multi-tacking of FOIA requests based on the amount of time and work involved in processing requests; revision of CEQ's initial determination period from 10 days to 20 days, beginning on the date CEQ receives a written request; assignment of individualized tracking numbers for certain requests; tolling of the time limit for CEQ to act on a request; expedited processing of FOIA requests upon showing a showing of compelling need; CEQ consultations with a requester to determine if a FOIA request may be modified to allow for a more timely response, or to arrange an alternative time frame for a response; informing the requester of the volume of requested material withheld and the extent of deletions in records released in response to a FOIA request; increase in time for appeal from 45 to 60 days from the date of denial of a request; extension of the time limit to respond to a request in “unusual circumstances,” and aggregation of clearly related requests by a single requester or group of requesters.

CEQ's fee structure is also revised to include a method for computing fees based upon the classification of the requester and the base pay of the employee making the search, an increase of copying costs from $0.10 to $0.15 per page, and a provision for waiving fees.

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Friday, September 10, 2010

Hydraulic Fracturing Information Requests Issued

U.S. Environmental Protection Agency (EPA) has issued voluntary information requests to nine natural gas service companies regarding the process known as hydraulic fracturing. The data requested part of a broad scientific study now underway by EPA, which Congress in 2009 directed the agency to conduct to determine whether hydraulic fracturing has an impact on drinking water and the public health of persons living in the vicinity of hydraulic fracturing wells.
EPA is seeking information on the chemical composition of fluids used in the hydraulic fracturing process, data on the impacts of the chemicals on human health and the environment, standard operating procedures at their hydraulic fracturing sites and the locations of sites where fracturing has been conducted. EPA has requested the information be provided on a voluntary basis within 30 days, and has asked the companies to respond within seven days to inform the agency whether they will provide all of the information sought.

Hydraulic fracturing is a process in which water, sand and chemicals are injected at high pressure to extract oil and natural gas from underground rock formations. The process creates fractures in formations such as shale rock, allowing natural gas or oil to escape into the well and be recovered. During the past few years, the use of hydraulic fracturing has expanded across much of the country.

EPA announced in March that it will study the potential adverse impact that hydraulic fracturing may have on drinking water. The initial results of the study will be announced in late 2012.

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Wednesday, September 8, 2010

Categorical Exclusions for Offshore Drilling Restricted

The Department of the Interior and Bureau of Ocean Energy Management, Regulation and Enforcement (BOEM) announced that the department will restrict its use of categorical exclusions for offshore oil and gas development to activities involving limited environmental risk, while it undertakes a comprehensive review of its National Environmental Protection Act (NEPA) process and the use of categorical exclusions for exploration and drilling on the Outer Continental Shelf.

Department of the Interior intends to conduct a new environmental analysis in the Gulf of Mexico that will help provide information to guide future leasing and development decisions. BOEM intents to complete a supplemental environmental impact statement for the Gulf.

The announcements follow the release of the Council on Environmental Quality’s (CEQ) report on the former Minerals Management Service’s NEPA program. The report was done in close consultation with Interior and BOEM which replaced the Minerals Management Service.

BOEM will issue a Federal Register notice announcing a formal process for the comprehensive review and evaluation of its use of categorical exclusions in relation to offshore oil and gas exploration and drilling activities. While this review is underway, BOEM will be using categorical exclusions on a more limited basis. For actions that potentially involve more significant environmental risk, Department of Interior officials intend to subject more decisions to environmental assessments.

When the review is completed, BOEM will announce a new approach to NEPA compliance that takes into account the joint recommendations included in CEQ‘s report, statutory and/or regulatory constraints, and other appropriate factors. This is consistent with the Council’s regulations directing all federal agencies to periodically review their NEPA policies and procedures.

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Dredging EIS On Missouri River Rejected By EPA

EPA has determined that the U.S. Army Corps of Engineers (USACE) Draft Environmental Impact Statement presents insufficient scientific information to support dredging permits allowing sand and gravel removal from the Missouri River. The USACE proposal would allow the removal of 11,615,000 tons per year of main channel river bottom material.

Under the National Environmental Policy Act and Clean Air Act, EPA is required to review the environmental impact of federal proposals. The Corps of Engineers will consider EPA’s comments as it prepares a final Environmental Impact Statement (EIS). The final EIS will contain the Corps’ preferred dredging amount.

According to EPA, dredging is one of several factors contributing to riverbed degradation. Riverbed degradation can threaten bank stability, erode levee foundations and eliminate adjacent wetlands. Dredging usually occurs in close geographic proximity to locations where the construction need is greatest, such as cities along the Missouri River including Jefferson City, Kansas City, St. Charles and St. Joseph, MO. Active commercial sand and gravel dredging in the lower Missouri River began in the 1930s largely to support construction and road building. Sand and gravel dredging removal has increased from 250,000 tons per year in 1935 to about seven million tons in recent years.

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Wednesday, August 25, 2010

EPA Action Plan For HBCD, NPE Under TSCA and EPCRA

U.S. Environmental Protection Agency (EPA) released action plans to address the potential health risks of benzidine dyes, hexabromocyclododecane (HBCD) and nonylphenol (NP)/nonylphenol ethoxylates (NPEs). The chemicals are widely used in both consumer and industrial applications, including dyes, flame retardants, and industrial laundry detergents. The plans identify a range of actions the agency is considering under the Toxic Substances Control Act (TSCA).

The range of actions on these chemicals include adding HBCD and NP/NPE to EPA’s new Chemicals of Concern list, issuing significant new use rules for all three chemicals, and, for HBCD and benzidine dyes, imposing new reporting requirements on EPA’s Toxic Release Inventory and potentially banning or limiting the manufacture or use of the chemicals.

In addition to EPA actions, the Textile Rental Services Association has committed to voluntarily phase out the use of NPEs in industrial liquid detergents by Dec. 31, 2013 and industrial powder detergents by the end of 2014.

EPA first announced that it planned to develop the Chemicals of Concern list last December, which indicates that the chemicals may present an unreasonable risk of injury to health and the environment, under a previously unused TSCA authority.

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Tuesday, August 17, 2010

Aldicarb Phase Out Agreement

The U.S. Environmental Protection Agency and Bayer CropScience, the manufacturer, have reached an agreement to end use of the pesticide aldicarb in the United States. A new risk assessment conducted by EPA based on recently submitted toxicity data indicates that aldicarb, an N-methyl carbamate insecticide, no longer meets the agency’s food safety standards and may pose unacceptable dietary risks.

To address the most significant risks, Bayer has agreed first to end aldicarb use on citrus and potatoes and will adopt risk mitigation measures for other uses to protect groundwater resources. New measures to protect shallow drinking water wells in vulnerable areas of the southeastern U.S. coastal plain and lower application rates will be immediately added to product labels for use on cotton, soybeans, and peanuts.

The company will voluntarily phase out production of aldicarb by December 31, 2014. All remaining aldicarb uses will end no later than August 2018. Additionally, EPA plans to revoke the tolerances associated with these commodities.

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Formaldehyde Standards for Composite Wood Products Act

The Formaldehyde Standards for Composite Wood Products Act became effective July 7, 2010. It amended the Toxic Substances Control Act (TSCA) to make the formaldehyde emission standard contained in the California Code of Regulations applicable to hardwood plywood, medium-density fiberboard, and particleboard sold, supplied, offered for sale, or manufactured in the US. The Act directed the Environmental Protection Agency (EPA) to promulgate implementing regulations that ensure compliance equivalent to compliance with the California standard, including provisions relating to labeling, chain of custody requirements, sell-through provisions, ultra low-emitting formaldehyde resins, no-added formaldehyde-based resins, finished goods, third-party testing and certification, auditing and reporting of third-party certifiers, recordkeeping, and enforcement.

The Act also requires the EPA, by July 1, 2011, in coordination with Customs and Border Protection (CBP), to revise regulations promulgated under TSCA concerning import certification of any chemical substance, mixture, or article containing a chemical substance or mixture as necessary to ensure compliance with this Act.

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Wednesday, August 4, 2010

Safe Chemicals Act of 2010 - Overview

The Safe Chemicals Act has been introduced by Senator Lautenberg, chair of the Subcommittee on Superfund, Toxics, and Environmental Health, which would amend the existing Toxic Substances Control Act (TSCA). Some of the key provisions of the proposed law include:
  • Requires manufacturers to develop and submit a minimum data set for each chemical they produce, and provides EPA with authority to require any data beyond the minimum data set needed to determine safety of a chemical.
  • Requires EPA to categorize and prioritize chemicals, based on their hazard and exposure characteristics. EPA would identify and prioritize chemicals by their likely risk, based on anticipated use, production volume, toxicity, persistence, bioaccumulation, and other properties that indicate risk.
  • Requires expedited action to reduce the use of or exposures to chemicals of highest concern.
  • Requiring all chemicals to be shown to be safe in order to remain in or enter commerce, with the burden of proof safety resting on chemical manufacturers and users.
  • Establishes a public database that will house both chemical information submitted to EPA and decisions made by EPA about chemicals, and narrows the conditions under which data submitted by industry can be claimed to be confidential business information (CBI).
  • Requires EPA to establish a program to develop market and other incentives for safer alternatives, and a research grant program targeted at priority hazardous chemicals for which alternatives do not presently exist.

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Monday, July 26, 2010

Environmental Justice Guidance Document

U.S. Environmental Protection Agency (EPA) released interim guidance to help agency staff incorporate environmental justice into the agency’s rulemaking process.

The guidance document, “Interim Guidance on Considering Environmental Justice During the Development of an Action”, seeks to advance environmental justice for low-income, minority and indigenous communities and tribal governments who have been historically underrepresented in the regulatory decision-making process. The guidance also outlines the multiple steps that EPA program offices can take to incorporate the needs of overburdened neighborhoods into the agency’s decision-making, scientific analysis, and rule development.

EPA is also seeking public feedback on how to best implement and improve the guide for agency staff to further advance efforts toward environmental justice.

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Thursday, July 22, 2010

TSCA Amendment proposed - Compound 1080 and Sodium Cyanide Elimination Act

A bill has been introduced in the US House of Representatives to amend the Toxic Substances Control Act (TSCA)to prohibit the use, production, sale, importation or exportation of the poison sodium fluoroacetate (known as "Compound 1080") and to prohibit the use of sodium cyanide for predator control.

This bill would add sodium fluoroacetate to polychlorinated biphenyls and mercury as substances banned by Section 6 of the Toxic Substances Control Act, 15 U.S.C. § 2605. In addition, the bill would prohibit the use of sodium cyanide in a predator control device, a defined term in the bill.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Chemicals of High Concern List Under Toxic Free Kids Act

The Minnesota Department of Health (MDH) has published a list of almost 1,800 chemicals, and materials, such as diesel engine exhaust, soots, tars, and mineral oils, it has determined to be Chemicals of High Concern.

The Minnesota Toxic Free Kids Act of 2009 required that the MDH, after consultation with the Minnesota Pollution Control Agency (MPCA), generate a list of Chemicals of High Concern by July 1, 2010. The chemicals on the list must meet these criteria identified in Minn. Stat. 2009 116.9401:

"Chemical of high concern" means a chemical identified on the basis of credible
scientific evidence by a state, federal, or international agency as being known or suspected with a high degree of probability to:
  • harm the normal development of a fetus or child or cause other developmental
    toxicity;
  • cause cancer, genetic damage, or reproductive harm;
  • disrupt the endocrine or hormone system;
  • damage the nervous system, immune system, or organs, or cause other systemic toxicity;
  • be persistent, bioaccumulative, and toxic; or
  • be very persistent and very bioaccumulative

The law also instructed MDH to “consider chemicals listed as a suspected carcinogen, reproductive or developmental toxicant, or as being persistent, bioaccumulative, and toxic, or very persistent and very bioaccumulative by a state, federal, or international agency. These agencies included the California Environmental Protection Agency, the Washington Department of Ecology, US Department of Health, the US Environmental Protection Agency, the United Nation's World Health Organization, and European Parliament Annex XIV concerning the Registration, Evaluation, Authorisation, and Restriction of Chemicals (REACH)

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Wednesday, July 14, 2010

Revised BLM NEPA Handbook

The US Department of the Interior – Bureau of Land Management (BLM) has released a revised BLM NEPA Handbook for use by BLM personnel in the field. The handbook provides supplemental information, guidance, and examples to assure consistency with the Department of the Interior’s Departmental Manual (DOI DM) and the Council on Environmental Quality (CEQ) NEPA regulations. The BLM NEPA Handbook (H–1790–1) was last updated in 1988 and revisions are necessary to update the information and to reflect current NEPA guidance.

The handbook revisions focus on helping the BLM improve analysis to support decision making. The revisions to the NEPA Handbook are also designed to make the NEPA process more efficient, avoiding redundant or unnecessary documentation. The revisions include updates to clarify definitions and incorporate new Departmental requirements.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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ASTM Guide for Green and Sustainable Site Assessment and Cleanup

ASTM International Committee E50 on Environmental Assessment, Risk Management and Corrective Action is developing a proposed standard guide in response to requests to minimize greenhouse gases and resource use during site cleanup. Proposed standard WK23495, Guide for Green and Sustainable Site Assessment and Cleanup, is an effort to help the regulated community to develop more sustainable ways to balance the social, environmental and economic aspects of a cleanup operation. Work on the new standard is being guided by a task group on green and sustainable corrective action within Subcommittee E50.04 on Corrective Action, a part of ASTM International Committee E50 on Environmental Assessment, Risk Management and Corrective Action.

The effort to develop a new standard began in 2009 when the U.S. EPA requested a guide incorporating best management practices that minimize energy and water usage, the consumption of materials that emit greenhouse gases, waste generation and impacts on water resources, land and ecosystems.

The Standard is expected to include sections covering planning and scoping requirements for green and sustainable corrective actions, as well as elements that characterize greener, more sustainable approaches to remediation; the proposed standard includes a scalable, three-tiered decision process similar to ASTM’s risk-based corrective action guides.

The three-tiered process consists of a matrix where users can choose from screening, qualitative and quantitative evaluations, or tiers, and environmental, societal and economic categories. The proposed standard will also describe processes for monitoring, tracking and documentation. Finally, the proposed standard will include appendices with examples of the decision-making process, information about off-the-shelf technologies for green cleanup and references, and information from state programs about green and sustainable processes.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Tuesday, July 6, 2010

Review of Pulp - Paper Industry NESHAP and NSPS

EPA's Office of Air Quality Planning and Standards (OAQPS) has initiated an integrated NESHAP Risk and Technology Review for Pulp and Paper Industry and Chemical Recovery Combustion Sources, and a NSPS review for Kraft Pulp Mills. Section 112(f)(2) of the Clean Air Act directs EPA to conduct risk assessments on each source category subject to maximum achievable control technology (MACT) standards, and to determine if additional standards are needed to reduce residual risks, to be completed 8 years after promulgation. Section 112(d)(6) of the CAA requires EPA to review and revise the MACT standards, as necessary, taking into account developments in practices, processes and control technologies, to be done at least every 8 years.

The NESHAP for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills (Subpart MM) was promulgated in 2001 and has not been reviewed. Similarly, the NESHAP for the Pulp and Paper Industry (Subpart S) was promulgated in 1998 and also has not been reviewed. Section 111(b)(1)(B) of the Clean Air Act mandates that EPA review and, if appropriate, revise existing NSPS at least every 8 years. The Kraft Pulp Mill NSPS was promulgated in 1978 and is in need of review. This NSPS component of the review will include evaluating existing emission limits for particulate matter, total reduced sulfur, and opacity and evaluating the appropriateness of developing emission limits for other pollutants such as sulfur oxides, nitrogen oxide, and carbon dioxide.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Tuesday, June 22, 2010

HUD Section 50 Section 58 Environmental Review & Environmental Assessment

The U.S. Department of Housing and Urban Development (HUD) requires environmental reviews for housing projects to be completed prior to approval of financial assistance. The objective of the review process is to ensure that due diligence has been undertaken in identifying potential impacts, including both environmental and non-environmental impacts, associated with projects that use HUD funds. An Environmental Review required by HUD is not equivalent to a Phase I Environmental Site Assessment.

The HUD Environmental Review process is driven by two regulations: 24 CFR Part 50 and 24 CFR Part 58. Part 50 pertains to the Department of Housing and Urban Development and those entities that have legal responsibilities to the Secretary of the Interior. In most cases this is HUD itself and state/city housing authorities. Part 58 pertains to those entities that do not have legal responsibilities to the Secretary (e.g., community housing and “faith-based” organizations).

The level or extent of the HUD Environmental Review is dependant on the type of proposed work, the number of units, or a percentage of total area can be a threshold. Under both Part 50 and Part 58, exemptions, categorical exclusions, documented categorical exclusions exist.

Caltha LLP provides expert consulting services to public sector and non-profit sector clients around the county to address HUD Environmental Review and HUD Environmental Assessment requirements.

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Endosulfan Uses To Be Ended Under FIFRA

U.S. Environmental Protection Agency (EPA) is taking action to end all uses of the insecticide endosulfan in the United States. Endosulfan, which is used on vegetables, fruits, and cotton, was determined to pose unacceptable neurological and reproductive risks to farmworkers and wildlife and can persist in the environment. EPA is currently working out the details of the decision that will eliminate all endosulfan uses, while incorporating consideration of the needs for growers to timely move to lower-risk pest control practices.

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA must consider endosulfan’s risks and benefits. While EPA implemented various restrictions in a 2002 re-registration decision, EPA’s phaseout is based on new data and scientific peer review, which have improved EPA’s assessment of the ecological and worker risks from endosulfan. EPA’s 2010 revised ecological risk assessment reflects a comprehensive review of all available exposure and ecological effects information for endosulfan, including independent external peer-reviewed recommendations made by the endosulfan Scientific Advisory Panel.

Caltha LLP provides expert environmental review consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Chemical Assessments On Hold Pending Review

US Environmental Protection Agency (EPA) is putting on hold four of its ongoing IRIS (Integrated Risk Information System) assessments pending a review of some of the underlying studies used in the assessments. EPA is holding these assessments due to a report from the National Toxicology Program (NTP) that outlines a recent review of a research study completed by the Ramazzini Institute, a lab in Italy that conducts animal testing to evaluate the potential cancer-causing effects of chemicals.

To ensure the agency’s chemical assessments are grounded in the soundest possible science, EPA undertook a thorough review of all ongoing and previous chemical assessments to determine which, if any, relied substantially on cancer testing from the Ramazzini Institute. EPA found six assessments that significantly rely on data from Ramazzini cancer studies: ongoing chemical assessments for methanol, MTBE, ETBE and acrylonitrile, and previously completed assessments for vinyl chloride and 1,1- dichloroethylene. EPA plans to continue its review to determine if any other assessments are significantly impacted.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Friday, June 4, 2010

Revised Health Standard For Sulfur Dioxide - SO2

USEPA has issued a final new health standard for sulfur dioxide (SO2). EPA sets the one-hour SO2 health standard at 75 parts per billion (ppb), a level designed to protect against short-term exposures ranging from five minutes to 24 hours. EPA is also revoking the current 24-hour and annual SO2 health standards because the science indicates that short-term exposures are of greatest concern and the existing standards would not provide additional health benefits.

EPA is also changing the monitoring requirements for SO2. The new requirements assure that monitors will be placed where SO2 emissions impact populated areas. Any new monitors required by this rule must begin operating no later than Jan. 1, 2013. EPA is expecting to use modeling as well as monitoring to determine compliance with the new standard. The final rule also changes the Air Quality Index to reflect the revised SO2 standard.

The final rule addresses only the SO2 primary standards, which are designed to protect public health. EPA will address the secondary standard, designed to protect the public welfare including the environment, as part of a separate review to be completed in 2012.

EPA expects to identify or designate areas not meeting the new standard by June 2012.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Thursday, May 27, 2010

Proposed Minnesota Waste Injection Well

U.S. Environmental Protection Agency Region 5 has invited residents of Crow Wing County, Minnesota and surrounding area to comment on a proposed permit for a waste injection well. EPA has proposed issuing an injection well permit to Cooperative Mineral Resources of Brainerd, Minnesota so that it can test the feasibility of injecting water underground to mine iron-manganese ore. EPA seeks comments from the public before making a final decision on the permit.

The public comment period will run through June 25, 2010.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Tuesday, May 25, 2010

Smart Growth Workshop in Iowa

The City of Waverly, Iowa, will host a workshop and open house on May 26-27, to solicit input from residents on how the community should determine future growth. The events are designed to explore “Smart Growth” solutions for future community planning efforts.

“Smart Growth” planning is a concept that guides future development decision-making in ways that enhance economic opportunity, protect environmental resources and public health, and enhance the quality of life for citizens. For Waverly, “Smart Growth” will also examine how the community can become better prepared to withstand flooding.

Through such events, the Federal Emergency Management Agency, U.S. Department of Agriculture - Office of Rural Development, the Rebuild Iowa Office and the Iowa Department of Economic Development are cooperating to assist flood-impacted Iowa communities that have expressed the desire to rebuild using the EPA Smart Growth Planning Program.

The workshop will allow participants to hear from national experts about preliminary design recommendations for neighborhoods around Waverly. Participants will be able to make comments and provide feedback on the designs. There will also be a discussion about Iowa’s Smart Planning Principles and how they can be applied in Waverly.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Friday, May 21, 2010

EPA Dioxin Toxicity Report Released For Review

U.S. Environmental Protection Agency (EPA) has released its draft scientific report, “Reanalysis of Key Issues Related to Dioxin Toxicity and Response to NAS Comments”. The draft dioxin report is EPA’s response to key comments and recommendations made by the National Academy of Sciences on the agency’s draft dioxin reassessment. The draft report will now undergo scientific peer review by independent, external experts as well as public review and comment.

EPA previously asked the National Academy of Sciences (NAS) to review EPA’s 2003 draft dioxin reassessment. The NAS completed its review in 2006. The draft report contains the agency’s response to key comments and recommendations in the NAS’s 2006 report. EPA’s draft report also includes significant new analyses that relate to potential cancer and non-cancer human health effects that may result from exposures to dioxins. This draft dioxin report includes an oral reference dose (RfD) for TCDD -- the most well-studied and considered to be among the most toxic of the dioxin-like compounds. An RfD was not in the 2003 draft dioxin reassessment.

EPA’s draft scientific report will now undergo external peer review by an expert panel of scientists convened by EPA’s Science Advisory Board (SAB) in July 2010. Public comments on this draft report are being requested, and the Federal Register Notice provides details on how to submit comments.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Tuesday, May 4, 2010

Minnesota EQB 60 Day Rule

With some exceptions, Minnesota Statute 15.99 requires that an agency must approve or deny within 60 days a written request relating to some specific types petitions. Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

The “sixty day rule” (MN Statute 15.99) does not apply to projects that are going through the environmental review process. Because environmental review decisions can often take months (and in some cases years) to be reached, environmental review is one of the exceptions to the rule. The clock stops ticking on the “sixty day rule” until environmental review has been completed and, once environmental review has been completed, the clock is reset at 60 days.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Friday, April 30, 2010

Toxicity Database ToxRedDB Released To Public

U.S. Environmental Protection Agency (EPA) has announced that it is releasing a database, called ToxRefDB, which allows scientists and the interested public to search and download thousands of toxicity testing results on hundreds of chemicals. ToxRefDB incorporates over 30 years of testing results.

ToxRefDB provides detailed chemical toxicity data in an accessible format. It is a part of ACToR (Aggregated Computational Toxicology Resource), an online data warehouse that collects data from about 500 public sources on tens of thousands of environmentally relevant chemicals, including several hundred in ToxRefDB. Users can query a specific chemical and find all available public hazard, exposure, and risk-assessment data, as well as previously unpublished studies related to cancer, reproductive, and developmental toxicity.

ToxRefDB also connects to an EPA chemical screening tool called ToxCast. ToxRefDB contains toxicity information that forms the basis for pesticide risk assessments when combined with other sources of information, such as those on exposure and metabolism.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Monday, April 26, 2010

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Thursday, April 22, 2010

Energy Star Qualified Building - New EPA Guidelines

The U.S. Environmental Protection Agency (EPA) has announced new, more rigorous guidelines for new homes that earn the Energy Star label. Compared to the current Energy Star guidelines, the new requirements will make qualified new homes at least 20 percent more efficient than homes built to the 2009 International Energy Conservation Code (IECC). These guidelines will go into effect in January 2011, although some builders may choose to adopt the new requirements earlier.

Key elements of the new guidelines for Energy Star qualified homes include:
  • A Complete Thermal Enclosure System: Comprehensive air sealing, properly insulated assemblies and high-performance windows enhance comfort, improve durability and reduce utility bills.
  • Quality Installed Complete Heating and Cooling Systems: High-efficiency heating and cooling systems engineered to deliver more comfort, moisture control and quiet operation, and equipped with fresh-air ventilation to improve air quality.
  • A Complete Water Management System: Because Energy Star homes offer a tightly-sealed and insulated building envelope, a comprehensive package of flashing, moisture barriers, and heavy-duty membrane details is critical to help keep water from roofs, walls, and foundations for improved durability and indoor air quality.
  • Efficient Lighting and Appliances: Look for Energy Star qualified lighting, appliances and fans helping to further reduce monthly utility bills and provide high-quality performance.
  • Third-Party Verification: Energy Star qualified homes require verification by independent Home Energy Raters who conduct a comprehensive series of detailed inspections and use specialized diagnostic equipment to test system performance.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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EPA Hazardous Substance - Hazardous Waste List - Removal of Saccharin

EPA has proposed amending its regulations under the Resource Conservation and Recovery Act (RCRA) to remove saccharin and its salts from the lists of hazardous constituents and commercial chemical products which are hazardous wastes when discarded or intended to be discarded. EPA also proposed amending the regulations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to remove saccharin and its salts from the list of hazardous substances.

This proposed rule responds to a petition submitted to EPA by the Calorie Control Council (CCC), to remove saccharin and its salts from RCRA and CERCLA. EPA proposed granting the petition based on a review of the evaluations conducted by key public health agencies concerning the carcinogenic and other potential toxicological effects of saccharin and its salts, as well as EPA’s own assessment of the waste generation and management information for saccharin and its salts, which demonstrate that saccharin and its salts do not meet the criteria in the hazardous waste regulations for remaining on EPA’s lists of hazardous constituents, hazardous wastes, and hazardous substances.

The public comment period will be open for 60 days after the proposal is published in the Federal Register.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Tuesday, March 30, 2010

EPA Bisphenol A BPA Action Plan

The U.S. Environmental Protection Agency (EPA) recently announced a number of actions to address the potential effects of bisphenol A (BPA), a chemical used in the manufacture of a wide range of consumer and industrial products. The BPA action plan focuses on the environmental impacts of BPA and will look to add BPA to EPA’s list of chemicals of concern and require testing related to environmental effects.

In January 2010, the U.S. Food and Drug Administration (FDA) announced that it had some concerns about the potential human health impacts of BPA and it would study the potential effects and ways to reduce exposure to BPA in food packaging. Food packaging represents the most obvious exposure pathway of BPA exposure to people and is regulated by FDA.

The EPA action plan on the environmental impacts of BPA includes:

  • Adding BPA to the chemical concern list on the basis of potential environmental effects.
    Requiring information on concentrations of BPA in surface water, ground water, and drinking water to determine if BPA may be present at levels of potential concern.
  • Requiring manufacturers to provide test data to assist the agency in evaluating its possible impacts, including long-term effects on growth, reproduction, and development in aquatic organisms and wildlife.
  • Using EPA’s Design for the Environment (DfE) program to look for ways to reduce unnecessary exposures, including assessing substitutes, while additional studies continue, and.
  • Continuing to evaluate the potential disproportionate impact on children and other sub-populations through exposure from non-food packaging uses.

In December, EPA announced that it will, for the first time, use its authority under the Toxic Substances Control Act (TSCA) to list chemicals that may present an unreasonable risk of injury to health or the environment. These actions are part of the agency’s efforts to strengthen EPA’s chemical management program, utilizing current authorities to the fullest extent possible, while continuing to encourage legislative reform of TSCA, which has not been updated since 1976.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Friday, March 5, 2010

Draft Mitigation Requirements Under NEPA

The Council on Environmental Quality (“CEQ”) has issued its “Draft Mitigation Guidance” outlining requirements for monitoring and reporting the status of substantive mitigation of impacts identified following NEPA reviews. CEQ will accept public comments on the Draft Mitigation Guidance until May 24, 2010.


CEQ’s Draft Mitigation Guidance directs federal agencies, during the environmental review process to:

  • Establish binding commitments for mitigating adverse environmental impacts identified by the reviewing agencies, and to enforce those commitments through their existing legal authorities;
  • Monitor (or require monitoring of) the implementation and effectiveness of mitigation measures; and
  • Make the results of their monitoring available to the public, preferably through the lead agency’s web site.

NEPA regulations define “mitigation” as measures to avoid, minimize, rectify, reduce, or compensate for environmental impacts. The regulations require that a federal agency discuss possible mitigation measures in defining the scope of an EIS, in discussing alternatives to the proposed action and the consequences of the proposed action and its alternatives, and in explaining its ultimate decision.

The Draft Mitigation Guidance would direct agencies to create, as part of their NEPA implementing procedures, processes to ensure that mitigation actions relied upon in a mitigated FONSI (“Finding of No Significant Impact”) or that are part of the proposed action in an EIS are documented, and that implementation plans are created to ensure the mitigation is carried out. The guidance directs that the mitigation commitment be clearly documented in NEPA documents and in decision documents such as the Record of Decision. The guidance also suggests methods for ensuring that mitigation is implemented, such as attaching conditions to financial agreements, grants, permits, or other approvals, or conditioning federal funding on implementing mitigation.

The draft guidance also calls for inclusion of adaptive management as part of the agency’s action, so that some response may be required if mitigation fails. It suggests that if mitigation supporting a mitigated FONSI fails, then an EIS may be required. It concludes that the agency decision should be structured so that a substantial mitigation failure triggers further action by the agency.

The existing NEPA regulations require agencies may provide for monitoring to assure that their decisions are carried out and should do so in important cases. The Draft Mitigation Guidance identifies two forms of monitoring: implementation and effectiveness. The objective of implementation monitoring is to document that promised mitigation is actually carried out. Effectiveness monitoring is more qualitative: it should evaluate whether the mitigation achieves its objectives.

The existing NEPA regulations also indicate that “upon request” lead agencies should make available to the public the results of relevant monitoring. The Draft Mitigation Guidance seeks to convert this duty to respond into an affirmative obligation to push information on mitigation monitoring out to the public.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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CEQ Guidance on NEPA Requirements for Climate Change

The Council on Environmental Quality (CEQ), has issued three draft guidance documents related to the implementation of the National Environmental Policy Act (NEPA),. The new guidance, issued in draft for public comment, directs how federal agencies are to:

  • Consider the effects of climate change and greenhouse gas emissions (GHGs) in agency decision-making;
  • Use mitigation to reduce or avoid impacts, and monitoring their effectiveness; and
  • Establish and apply categorical exclusions.

Public comments on the proposed GHG and mitigation guidance documents will be accepted for 90 days after they are printed in the Federal Register, and comments on the categorical exclusion guidance will be accepted for 45 days.

NEPA requires federal agencies to publicly disclose and consider the environmental consequences of their actions and of private actions requiring federal permits or approvals. It is a process-oriented statute and is not prescriptive in nature. NEPA does not mandate specific environmental results and grants federal agencies broad discretion to determine the extent of environmental protection required for proposed actions.

In the draft GHG guidance, CEQ proposes a framework on when and how to evaluate GHG emissions, and how to evaluate the effect of climate change on the project. The GHG guidance indicates that as part of the initial scoping process, agencies should determine whether a project requiring federal approval will result in “meaningful” GHG emissions, and suggests that emissions greater than 25,000 metric tons may meet this test. Emissions above this level would warrant at least some qualitative or quantitative discussion in NEPA documents.

The GHG guidance also recognizes that there are no existing federal protocols for estimating emissions associated with land use and land management decisions. It also recognizes that determining the reasonably foreseeable impacts of land management decisions on GHG emissions may be difficult.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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Tuesday, March 2, 2010

Final Rule on NRCS Categorical Exclusions Under NEPA

The Natural Resources Conservation Service (NRCS) published an interim final rule on July 13, 2009, that identified additional categorical exclusions, which are actions that NRCS has determined do not individually or cumulatively have a significant effect on the human environment. Therefore, these actions should not require preparation of an environmental assessment (EA) or environmental impact statement (EIS) under the National Environmental Policy Act (NEPA).

The final rule, effective February 10, 2010, makes final the provisions set forth in the interim final rule. NRCS' categorical exclusions encompass actions that promote restoration and conservation activities related to past natural or human induced damage, or alteration of floodplains and watershed areas. For projects being funded under the American Recovery and Reinvestment Act of 2009 (ARRA), NRCS believes the final rule will assist the Service in meeting mandates set forth in ARRA for undertaking actions in the most expeditious manner and in compliance with NEPA.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address Environmental Review and Environmental Impact Assessment.

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