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February-March 2006 -
In This Issue
 From Dust to Just - Testify! OCE Speaks at National EPA Hearings
Oahu? Uh-Oh! Cleaning up Sewers is No Pipe Dream
We Will Not BACT Down: OCE Submits Brief to U.S. Supreme Court
Lights Go Out for Potrero's Power Plant Plans
Membership News
American Lung Association: 2005 Research Highlights
Start of School Causes Shortness of Breath
Thanks to Our Lawyers and Community Partners for Your Help!
From Dust to Just - Testify! OCE Speaks at National EPA Hearings
It's been ten years since the EPA updated its particulate pollution standards. Last December, Stephen Johnson became the first EPA administrator to reject the recommendations of the Clean Air Scientific Advisory Committee, which called for lowering the daily and annual limits of such pollution. In national public hearings held on March 8, hundreds of advocates voiced their criticism against the new proposal to relax current air quality standards in favor of industry practices. OCE was on hand to add its voice to the chorus of dissent. Here's why.
In some 2,000 studies, particulate matter pollution from diesel soot, factory and vehicle emissions, as well as mining and agricultural operations, has been linked to a series of significant health problems, including asthma, reduced lung and heart function, and even early death. Particulate matter is also the main source of visibility impairment and poor air quality in the nation's cities and national parks. While lowering the federal standard for exposure to particulate pollution could save thousands of lives every year - especially among susceptible populations of children and elderly - the Environmental Protection Agency (EPA) has failed to meet its obligations under the Clean Air Act to adequately protect public health. While the EPA is required to update the national ambient air quality standards every five years, it has been 10 years since any such action has taken place. For this reason, the American Lung Association and environmental groups sued the EPA to live up to the requirements of the Clean Air Act. Through a court settlement of the case, the EPA is supposed to set new standards by September of this year. In December 2005, the head of the EPA, Stephen Johnson, made the startling proposal to relax the air quality standards for rural areas, in concert with regulatory exemption of all natural, agricultural and mining sources of fine particles. While ignoring the recommendations of the Clean Air Scientific Advisory Committee, Johnson said his proposal represents President Bush's commitment to improving the nation's air quality.
On March 8, 2006, from 9am to 9pm, in three simultaneous public hearings in San Francisco, Chicago and Philadelphia, federal officials faced a long day of criticism from scientists, environmental defense groups, health advocates, local and state regulators, and private citizens. More than 200 speakers from organizations such as Our Children's Earth, Sierra Club, American Lung Association, American Heart Association, American Academy of Pediatrics, Physicians for Social Responsibility, and the Union of Concerned Scientists, spoke in favor of setting standards that protect all Americans, instead of the proposed rural rollback and industry exemptions that would undermine the health of smaller communities.
Industry representatives from the National Cattlemen's Beef Association, the United Egg Producers Association, the National Mining Association, the Electric Power Association, Southern California Rocks Products, Western States Petroleum Association and the National Petrochemical Association all stood firmly behind the EPA proposal, citing that there is no conclusive evidence that rural particulates (such as dust) are as harmful as urban particulates (such as diesel). Industry representatives and EPA officers suggested that tougher air quality standards would increase costs for businesses and consumers, and that regulations should focus on particulate pollution proven to cause illness.
Residents living in rural areas had a different opinion on the matter, noting that the soil is laced with chemicals such as asbestos and pesticides, posing an unacceptable risk if left unmonitored. Jonah Ramirez, a 10-year-old boy living in San Bernardino near Los Angeles, said that air considered healthful by the current EPA standards is causing unnecessary harm. "I wasn't born with asthma," said Ramirez at the public hearing in San Francisco. "I developed it because I play outside. If this air is so safe, why did it make me sick?"
Because of the strong attendance at the hearings (with environmental advocates outnumbering industry representatives, ten to one), EPA administrator Johnson called a teleconference to offer his perspective on the issue. Apparently on the defensive, he dodged questions from reporters about how many deaths particle pollution causes, and whether his proposal was a cost-benefit analysis.
While state and district regulatory rules would still apply under the new EPA proposal, they would lack the persuasive financial sanctions that federal rules have, such as withholding billions of dollars in road-building funds, for example. In her testimony at the San Francisco public hearing, OCE staff attorney Marcie Keever asked the EPA to err on the side of protecting public health and the 30-year environmental gains of the Clean Air Act when it makes its final decision in September. In strengthening the call to adopt more protective particulate pollution standards, written comments can be submitted to the EPA through April 17.
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Oahu? Uh-Oh! Cleaning up Sewers is No Pipe Dream
On the Hawaiian island of Oahu, heavy rains at the end of March have caused a sewer line break resulting in 48 million gallons of raw sewage flowing into the harbor adjoining Waikiki and from there into the ocean and surf spots fronting world famous Waikiki Beach. The city's mayor said that diverting the sewage into the waterways was unavoidable, given the unacceptable alternative of wastewater backing up in the area's public streets, homes and businesses. As untreated sludge and debris floated out to sea, the city temporarily patched the rupture that caused the six-day spill. Unfortunately, it is not an isolated incident for there to be line breaks or overflows from pump station holding wells, affecting the island community's clean water and quality of life, not to mention its economic mainstay of tourism. There have been several other recent million-gallon-plus spills, including one incident two years ago when the main line pumping sewage to the city's largest treatment plant ruptured, pouring 2 million gallons of raw sewage into Honolulu Harbor and thereby closing local beaches.
The ongoing problem has been years in the making - the result of poor maintenance, neglect and misuse of the city's sewer funds. In 2004, the Sierra Club Hawaii Chapter, Hawaii's Thousand Friends and Our Children's Earth filed a lawsuit to address these spills and other Clean Water Act violations relating to the city's sewer and wastewater treatment systems. In 2005, the courts held that the citizens' sewage spill claims should be litigated as part of another case - one brought by the U.S. Environmental Protection Agency (EPA) and the Hawaii Department of Health (DOH) in 1994 against the city for similar past violations.
City and state officials met in San Francisco last week for scheduled meetings to discuss Honolulu's compliance with EPA rules. While environmental groups continue to press for a proactive solution with citizen participation and support, the city has opposed their recent motion to become parties to the EPA/DOH lawsuit. With the city denying responsibility and spending millions of dollars on its legal defense, rather than fixing the underlying problem, continued public scrutiny and vigilant citizen involvement will hopefully prompt action in protecting the community's families and environment.
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We Will Not BACT Down: OCE Submits Brief to U.S. Supreme Court
OCE and the National Parks Conservation Association have filed an Amicus Brief urging the Supreme Court to review a lower-court decision for a case against Duke Energy Corp., an electric utility company based in North Carolina. This case and others, filed by the Department of Justice and citizens, seek to bring into compliance power plants that have attempted to evade Clean Air Act requirements on a massive scale.
In 1999, the Department of Justice (DOJ) and the Environmental Protection Agency (EPA) filed suits against several electric utility companies, covering 17 power plants, in an unprecedented action to enforce the Clean Air Act. At that time, the DOJ and EPA estimated that failure of the identified utilities to comply with the New Source Review regulations had resulted in tens of millions of tons of sulfur dioxide, nitrogen oxides and particulate matter illegally emitted into the air.
Although the Bush Administration has since dropped out of the case as the lead plaintiff, environmental groups have carried the allegations forward on their own. In today's political climate, the EPA now finds itself on the other end of the legal battle, contending that environmental groups' pursuit of a Clean Air Act enforcement case against one North Carolina-based electric utility company, Duke Energy Corp., should not be brought before the Supreme Court.
Our Children's Earth, in collaboration with the National Parks Conservation Association, filed an Amicus Brief (a "Friend of the Court Brief") urging the Supreme Court to review an earlier opinion of the 4th U.S. Circuit Court of Appeals in favor of Duke Energy. The environmental groups allege that the company made major upgrades at eights of its coal-fired power plants, between 1988 and 2000, without also installing modern pollution controls. Under the Clean Air Act's Prevention of Significant Deterioration program, modifications to power plant facilities necessitate more stringent emission limits known as Best Available Control Technology (BACT), which Duke Energy is allegedly avoiding.
Implementation of the BACT emission limits will undoubtedly prove inconvenient and costly to affected industries, but the clear language of the statute unavoidably imposes these costs as older power plants are upgraded. When Congress was debating amendments to the Clean Air Act during the late 1970s, it was understood that the 200 coal-fired power plants in operation at the time were running at less than 50% of their stated capacity, and it was assumed that the majority of them would be phased out over the ensuing 5 to 20 years. With upgrades, however, these old power plants are now available to generate electricity (and thus emissions) for greater parts of the year.
Environmentalists have made their Supreme Court pitch in the Duke case on grounds that the 4th Circuit's opinion, if left intact, would give industry the ability to undermine other environmental regulations, including the Clean Water Act, Safe Drinking Water Act and Toxic Substances Control Act.
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Lights Go Out for Potrero's Power Plant Plans
Thanks in part to the jointly filed opposition of OCE and other area environmental groups, the California Energy Commission unanimously approved the denial of Mirant Potrero's application to expand its power plant operations in a neighborhood of San Francisco. Over the next couple of years, in its stead, better technological controls in generating electricity will put the city on a path of cleaner energy production.
The California Energy Commission (CEC) has upheld the decision of its Standing Siting committee to terminate Mirant Potrero LLC's application to license a 540-megawatt power plant in a southeast neighborhood of San Francisco. For the last five years, Potrero has had plans to expand its current power plant capacity at the site, expecting for the project to be completed in 2003. In 2002, the CEC staff recommended that the license for the Potrero project should be issued with mitigation measures, including the replacement of Potrero's proposed cooling system for the site. Originally, Potrero planned to circulate water from San Francisco Bay (228 million gallons per day) to cool the expanded power plant, and discharge the water back into the Bay offshore. The CEC's recommended mitigation measures were meant to reduce or avoid impacts to local and regional air quality, aquatic biology and historical structures at the Potrero site.
For the last two years, Potrero has successfully sought the suspension of CEC proceedings on its power plant expansion proposal. In November 2005, Potrero requested yet another year to delay the decision on its application. Less than a week later, however, Our Children's Earth - in conjunction with Southeast Alliance for Environmental Justice, and Communities for a Better Environment - formal Interveners in the CEC proceedings - opposed Potrero's request for continued suspension. The following day, the City and County of San Francisco also asked the CEC to terminate Potrero's attempts to keep the expansion project alive. On March 1, given Potrero's failure to pursue its application with due diligence, the CEC voted unanimously to terminate the Potrero power plant project.
Neighborhood residents have been concerned about the existing Potrero plant's impact on their health for years, and environmental groups have been advocating on their behalf for the best possible alternative sources of energy - not an expansion of the existing power plant. Potrero is scheduled to lose its state contract for electricity in 2007, as it will no longer be required when a new, more modest city-owned power plant with state-of-the-art pollution controls is put into operation. From the perspective of the community and environmental law insiders, it's a step in the right direction towards a cleaner city.
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Membership News
OCE continues to be grateful to our broad base of support from our members. You help make our important work possible. We would especially like to acknowledge Kay Hefferlin, Susan and Paul Holmes, Sherman Lewis, and Robin and Vernon McDermott for their financial support!
There are many ways you can support our work. We are currently looking for a volunteer in our San Francisco Office to help with our eBay fundraising effort. If you or someone you know loves eBay and the environment, please contact Charlene Schachter, Managing Director at cschachter@ocefoundation.org.
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American Lung Association: 2005 Research Highlights
Now available: The American Lung Association has put out its annual compilation of scientific studies on the health effects of particulate matter and ozone air pollution. The 19-page annotated bibliography presents brief summaries of selected research papers published in 2005, or in press as of January 2006.
Every year, the American Lung Association compiles a list of recent studies regarding the ill effects of particulate matter and ozone air pollution on human health. Some of the "highlights" of the 2005 annotated bibliography (with links to the original papers) include:
A long-term study showing risk of premature death attributable to particulate matter is three times greater than previously reported;
Studies linking daily exposures to particulate matter with increased hospital admissions for strokes, congestive heart failure, heart attacks, chronic obstructive pulmonary disease and other respiratory problems;
A toxicology study showing links between particulate matter exposure at levels near or below the current standards and development of atherosclerotic plaques;
Studies linking prenatal exposure to air pollution with increased risk of low birth weight, preterm birth, infant mortality, and cancer;
Intervention studies showing that reductions in air pollution yield measurable improvement in children's respiratory health and reduction in premature deaths; and
Policy analyses showing the need for strong annual and daily fine particle standards to protect susceptible populations and provide equivalent levels of protection to different regions of the country.
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Start of School Causes Shortness of Breath
The spike in asthma exacerbations and hospitalizations in the fall is precisely related to the start of school and a subsequent increase in viral infections among children. New research suggests that attempting to improve asthma control and reduce the transmission of infections as school starts could reduce the annual September asthma epidemic.
As discussed in the March 2006 issue of the Journal of Allergy and Clinical Immunology , Neil Johnston of St. Joseph's Healthcare and McMaster University (Hamilton, Ontario, Canada) and colleagues investigated the sequence of timing for September asthma hospitalization epidemics in children and adults to determine whether school-age children transmit the viral infections that often lead to asthma attacks in adults.
Rhinovirus infections (i.e., the common cold) are the leading cause of respiratory infections for children in the early fall. Between 80-85% of children with wheezing episodes test positive; half the adults with a wheezing episode also have rhinovirus infections.
The researchers found that, on average, the epidemic peak for school-age children was 17.7 days after Labor Day (the school year traditionally begins the day after the holiday), 19.4 days after Labor Day for preschool children and 24 days after Labor Day for adults. The sequence of the epidemic remained consistent across the study, suggesting school-age children were the starting point for the viruses, with children ages 5-7 the leading group affected by the asthma epidemic. The researchers concluded that finding ways to prevent respiratory infections in children is a key component to lessening the annual asthma outbreak for all ages.
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Thanks to Our Lawyers and Community Partners for Your Help!
Altshuler, Berzon, Nussbaum, Rubin & Demain
American Lung Association
A Walk in the Woods
Bay Area Clean Air Task Force
Bayveiw Hunters Point Community Advocates
Bushnell, Caplan, & Fielding
Center for Public Environmental Oversight
Marc S. Chytilo
Clean Air Council
Clean Water Action
Coalition for Mercury-Free Dentistry
Communities for a Better Environment
Earth justice Legal Defense Fund
Ecological Rights Foundation
Environmental Advocates
Environmental Defense
Environmental Integrity Project
Environmental Law Foundation
Environmental Working Group
Get Oil Out
Golden Gate University Environmental Law & Justice Clinic
Matthew Hagemann
George Hays
Hilton Kelley
Latino Issues Forum
Planning and Conservation League
Montana Environmental Information Center
William Moore
National Parks Conservation Association
Natural Resources Defense Council
Nevada Environmental Coalition, Inc.
Northwest Environmental Defense Center
Physicians for Social Responsibility
Physicians for Social Responsibility-Los Angeles
Santa Barbara ChannelKeeper
Sierra Club
Chris Sproul
Transportation Solutions Defense and Education Fund
Union of Concerned Scientists
Urban Habitat, a project of the Tides Center
Reed Zars
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