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September 2010

New Focus On Environmental Justice

Grayson_Lynn_COLORBy E. Lynn Grayson


The Interagency Working Group on Environmental Justice met this week at the White House renewing the federal government's commitment to equal environmental protection for all. The group plans to review and update its strategies for addressing disproportionate environmental impacts on poor, minority or tribal communities consistent with Executive Order 12898 "Federal Actions to Address Environmental Justice in Minority Populations and Low–Income Populations." The Executive Order, issued in 1994, mandates that each agency make environmental justice part of its mission.

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CBA-YLS Environmental Law Committee Meeting Features Robert Kaplan, Regional Counsel, U.S. EPA Region 5

Torrence_Allison_COLORBy Allison A. Torrence


The Chicago Bar Association Young Lawyers Section Environmental Law Committee held its first meeting of the bar season on Thursday, September 23rd. The meeting featured a presentation from Robert Kaplan, Regional Counsel, U.S. EPA Region 5.

Mr. Kaplan spoke about the role of the Office of Regional Counsel in U.S. EPA's environmental enforcement. Mr. Kaplan described U.S. EPA's national enforcement initiatives for fiscal years 2011 – 2013, which include:

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EPA Seeks Data About Hydraulic Fracturing

Grayson_Lynn_COLORBy E. Lynn Grayson


EPA plans to study the potential health concerns associated with the use of hydraulic fracturing to free up natural gas deposits. EPA has sent an information request to the nine leading hydraulic fracturing service providers seeking more detail about their business practices, including the names of the chemicals they use.

The information will be used to finalize a congressionally mandated study of the impact of hydraulic fracturing on drinking water supplies. While the information request is voluntary, EPA has asked the companies to advise the Agency within seven days on whether they intend to cooperate. If so, the response to the information request issued September 9th is due within 30 days of its receipt. 

There are growing health-related concerns over the increased use of hydraulic fracturing – a technique employed by the oil and gas extraction companies to fracture underground rock formations and free up natural gas deposits. In such a process, various materials and hazardous substances are injected under high pressure to improve access to the natural gas deposits. There is evidence that such activities may contaminate drinking wells and other water supplies.

EPA expects to provide preliminary study findings in late 2012. The Agency's information request and additional information about hydraulic fracturing is available at

The U.S. EPA's Review of the Draft 2002 Subsurface Vapor Intrusion Guidance

By James A. Vroman

On August 30, 2010, the U.S. EPA's Office of Solid Waste and Emergency Response ("OSWER") published its "Review of the Draft 2002 Subsurface Vapor Intrusion Guidance."  OSWER's Review of the Draft 2002 Guidance suggests that when OSWER finalizes the Draft 2002 Guidance, which it has promised will be done by November of 2012, the final version of the Guidance will present a more rigorous and comprehensive, and, thus, a more expensive, Soil Vapor Intrusion ("SVI") assessment process than the one presented in the Draft 2002 Guidance.  For example, the Review advised that the EPA plans to include in the final version of the SVI Guidance, in addition to the list of chemicals that will trigger a SVI assessment, "chemical-specific characteristics" that will be used to identify chemicals of concern that may generate vapors.  The EPA will also update the toxicity values of a number of the chemicals listed in Table 1 of the Draft 2002 Guidance.  In addition to these changes to the Draft Guidance, OSWER noted that the SVI assessment process that will be presented in the final version of the SVI Guidance will recommend that the assessment evaluate multiple lines of evidence rather than a single line of external evidence such as soil-gas samples or externally collected groundwater samples.  Consistent with this recommendation, the Review also noted that the final version of the Guidance will provide that the SVI assessment should expand its evaluation of SVI risks beyond single-family residential buildings to include other types of buildings such as non-residential and mixed-use buildings. 

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Tenth Circuit Overturns Rocky Flats Class Action Property Owner Award

By Katherine Rahill

On September 3, 2010, the Tenth Circuit reversed a lower court's decision to award over $926 million to a class of property owners near the former Rocky Flats Nuclear Weapons Plant, a facility that produced nuclear weapon components, northwest of Denver, Colorado. The class of property owners claims that the former plant's operations released plutonium particles onto their property, thereby contaminating their property, endangering their health and lowering their property values. The Tenth Circuit, however, held that the plaintiffs had not adequately established a sufficient level of injury. The federal appellate court has remanded the case to the District Court with instructions to vacate the judgment and conduct further proceedings consistent with the appellate opinion. While the decision clearly has implications for similar types of claims under the Price-Anderson Act, it also speaks to the levels of injury some courts may require in non-nuclear toxic tort actions where plaintiffs allege property damage or loss of use of their property through trespass and nuisance actions.

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EPA's Failure To Regulate Lead Ammunition Challenged

Grayson_Lynn_COLORBy E. Lynn Grayson


The American Bird Conservancy (ABC), the Center for Biological Diversity (CBD) and other members of a diverse coalition of conservation, animal health and hunting groups have challenged the recent EPA decision to deny their petition to ban the use of lead as a component of hunting ammunition. Contrary to EPA's position, the groups contend that EPA has the authority to act under TSCA. EPA believes that the Agency does not have the authority due to an exclusion for such products in TSCA Section 3(2)(B)(v).

Following the denial of its petition, CBD has filed a Freedom of Information Act request with EPA seeking copies of all documents related to EPA's decision and also have requested a meeting with Agency management. ABC had decided to take administrative action to challenge the petition denial and also is considering other legal challenges.

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EPA Selects Five State Capitals For Greening America’s Capitals’ Project

Grayson_Lynn_COLORBy E. Lynn Grayson


On September 8, 2010, EPA announced that the Greening America's Capitals' program would provide sustainable design assistance to: Boston, MA; Jefferson City, MO; Hartford, CT; Charleston, WV; and, Little Rock, AR. Greening America's Capitals is a project of Partnerships for Sustainable Communities between EPA, HUD and DOT to help state capitals develop implementable vision of distinctive, environmentally friendly neighborhoods that incorporate green building and green infrastructure strategies.

The five state capitals were selected from a total of 38 cities that responded to a solicitation of interest by EPA in June 2010. The agency will organize teams of urban planners and landscape architects to provide direct, customized technical assistance as requested by each community.

Greening America's Capitals is not a grant program, but provides direct technical assistance to communities by working with private sector experts and leveraging partnerships, such as with HUD and DOT, to help communities consider development options. In addition to helping the selected state capitals build civic pride and a greener future, this assistance will help create models that other cities can look to in creating their own sustainable designs.

The program will assist three to five communities per year with the first projects beginning in late 2010. More information about the Greening America's Capitals' program is available at

National Conversation On Public Health And Chemical Exposures

Grayson_Lynn_COLORBy E. Lynn Grayson


The National Conversation on Public Health and Chemical Exposures is a collaborative project between the Centers for Disease Control (CDC) and the Agency for Toxic Substances and Disease Registry (ATSDR). The project's goal is to develop an action agenda with clear, achievable recommendations that can help government agencies and other organizations strengthen their efforts to protect the public from harmful chemical exposures.

The project's work is divided into six groups formed to research and make recommendations on cross-cutting public health and chemical exposure issues:

  1. Monitoring
  2. Scientific Understanding
  3. Policies and Practices
  4. Chemical Emergencies
  5. Serving Communities
  6. Education and Communication

Draft work group reports now are available at and comments will be accepted through September 20, 2010.

RESOLVE, a non-profit organization dedicated to advancing effective use of consensus building in public decision making, is collecting all comments. The work groups will consider all comments submitted in finalizing their reports. The National Conversation's Leadership Council will use the work group reports in developing the action agenda scheduled to be available for public review and comments in December, 2010.

September 21, 2010 Webinar—How Low Can the Regulators Make You Go: The Dilemma Posed by Cleanup Standards that are Lower Than "Background"

Siros_Steven_COLORBy Steven M. Siros


Steven Siros will be one of two presenters at a September 21, 2010 webinar titled:  How Low Can the Regulators Make You Go: The Dilemma Posed by Cleanup Standards that are Lower Than "Background".  When remediating contaminated properties, responsible parties are often faced with the dilemma of deciding how clean is clean. For some chemicals, the new, conservative, risk-based standards result in clean-up criteria that can actually be lower than "background" levels. As a result, sometimes responsible parties are expected to clean up contamination that may not have been caused by industrial operations on a property. This continual lowering of the regulatory clean-up floor has significant ramifications in a variety of contexts, including property transactions, site remediation, toxic tort cases and natural resource damage assessments. The webinar will focus on three specific contaminants: dioxin, arsenic and TCE, each of which has been the subject of recent regulatory actions to lower the applicable cleanup/screening level. Examples of what happens when regulators try to force parties to clean up contaminated sites to below background and practical solutions will be discussed. The webinar is September 21, 2010 from 12:00 to 1:30 CST. To sign-up for the webinar, click here.

A Book Review: Power Hungry by Robert Bruce

Grayson_Lynn_COLORBy E. Lynn Grayson


Recently published, this book takes a critical look at whether or not "green" forms of energy can really work for this country. Mr. Bruce takes aim at those promoting greener energy by disclosing the environmental costs of such "green" energy and disclosing that reliance on such forms of energy are impossible long term. Armed with energy-related facts and figures as well as some basic math and physics skills, he examines the U.S. energy needs and concludes for a host of reasons that wind and solar options cannot reliably provide what is needed. He methodically details how the U.S. can lead a global transition to a cleaner, lower-carbon future by embracing the fuels of the future, a future that he summarizes as N2N: natural gas to nuclear. According to Mr. Bruce, N2N are fuels of the future because they have high power density, are relatively low in cost and can provide enormous quantities of energy we need. In addition, the same produce lower carbon dioxide emissions than oil or gas. His theory of N2N is to use natural gas now and in the near term as we transition to nuclear power over the long term.

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