"The whole idea behind the Vermont mercury labeling law was to think globally and act locally," say Michael T. Bender, Director of the Mercury Policy Project and an activist who worked on getting the 1998 Vermont mercury law passed. "Mercury pollution is both a local and a global problem, and we aren't going to be able to solve this problem until local communities, governments, and national and multinational companies-one way or the other-work to get this dangerous toxin out of our products and our bodies."
The National Electrical Manufacturers Association, a trade group representing lamp manufacturers, argued in court that the 1998 Vermont mercury labeling law violated the federal Commerce Clause as well as other Constitutional provisions and federal law. While NEMA won the first round in court, it lost in the Second Circuit Court of Appeals and again when the U.S. Supreme Court declined to hear its case.
Although all industries selling fluorescent light bulbs in-state have not yet complied, rules adopted by the State of Vermont required businesses selling mercury-containing lamps to submit final labeling plans by December 15th. After Nov. 30, 2003, all lamps containing mercury sold in Vermont must be labeled, according to the Vermont Agency of Natural Resources. By that time next year, all lamp manufacturers are also required to labeling lamp packaging and provide a website and toll free number for consumers to readily obtain information on recycling and proper management of spend light bulbs.
Lamps sales in Vermont account for less than $2 million worth of fluorescent lamps purchased annually and represent a tiny percentage of lamp sales nationally. All other manufacturers of mercury-containing products-including makers of thermostats, thermometers and switches-accepted the Vermont mercury labeling law.
Mercury is a highly toxic and widespread contaminant that has resulted in fish consumption advisories for mercury in over 40 states. Recent data released by the CDC indicates that 8% of women of childbearing age in the U.S. have mercury levels in their bodies that exceed federal agency guidelines, placing over 300,000 babies at risk each year from mercury exposure. The FDA recently warned pregnant women and young children to not eat certain seafood due to high mercury levels. In mid-December, the United Nations recently released its first-ever Global Mercury Assessment Report.
NINE STATES SUE BUSH ADMINISTRATION FOR GUTTING KEY COMPONENT OF CLEAN AIR ACT
Nine states filed a lawsuit challenging new Bush Administration regulations that gut a key provision of the federal Clean Air Act. The Administration's action represents the first major weakening of the landmark federal environmental law since it was signed into law by President Nixon in 1970.The changes initiated by the Bush Administration would exempt thousands of industrial air pollution sources, including coal-fired power plants, from the New Source Review provision of the Clean Air Act. New Source Review requires power plants and other industrial facilities to add modern air pollution controls to smokestacks when the facilities are upgraded or modified and substantially increase air pollution.
New Source Review is the foundation of a series of lawsuits brought by the states, the federal Environmental Protection Agency and environmental groups in 1999, 2000 and 2001 against dozens of old coal-fired power plants and other industrial sources.
From its first days in office, the Bush Administration has criticized New Source Review and sought to undermine its implementation, despite the prior filing of the clean air lawsuits by the federal government and despite the conclusion of U.S. Attorney General John Ashcroft's Department of Justice that the New Source Review lawsuits are legally sound.
By adopting new regulations that will lead to dirtier air, the Bush Administration is violating the Clean Air Act. Congress passed the Clean Air Act intending that the Environmental Protection Agency use its powers to sharply reduce air pollution across the nation. Since 1970, successive Democratic and Republican administrations have either strengthened the Clean Air Act or left it untouched. The Bush Administration is the first in three decades to attempt deliberately to gut key components of the Clean Air Act.
The changes made are particularly damaging because, unlike the draft version of the regulations, the Bush Administration has made the new rules effectively mandatory for all states, potentially undermining any state's ability to adopt stronger clean air protections. Also, the final regulations give facilities -- including those that EPA and the states accuse of violating the law -- significant unmonitored discretion to determine when the law applies.
The states are united in opposing these changes because they are hard hit by the damaging impacts of smog and acid rain, both caused by nitrogen oxide and sulfur dioxide emissions from coal-burning power plants and other industrial sources.
The lawsuit challenges the "clean unit" exclusion, the new emissions test, the revised approach for calculating baseline emissions, and the plant-wide applicability limits. The Attorneys General believe that these changes are so sweeping and damaging that the Environmental Protection Agency cannot make them without Congressional approval. The rollbacks violate both the Clean Air Act itself and the Administrative Procedure Act, which sets forth the process government agencies must follow to promulgate regulations.
The following elements of the new rules are being challenged by the states' lawsuit:
"Clean unit" exclusion. This rule creates an exemption from New Source Review for facilities that install the equivalent of what was considered to be "Best Available Control Technology" at the time. Such "clean units" would then be exempt for up to ten years from New Source Review. As a result, these facilities could undertake projects that would increase emissions without having to install newer, more effective, pollution devices on their smokestacks.
New Emissions Test. Under the new rule, facilities will be able to exclude from the test for new pollution controls those emission increases that they attribute to increased demand for their products. The new rule provides for little independent oversight by the government of this determination by the polluter.
Revised approach for calculating baseline emissions. EPA would allow facilities (other than power plants) to set their "baseline" emission levels at the highest polluting level of any two consecutive years out of the last ten years. Thus, polluters could significantly increase their air pollution over current levels without installing pollution controls.
Plant-wide applicability limits. EPA will exempt polluters from New Source Review if they agree to a cap on their air pollution. The cap on a given facility could be set far higher than the facility's current emissions, allowing pollution to increase far above current levels and remain uncontrolled even though the Clean Air Act intended air pollution to decrease over time.
The regulatory changes, which were threatened for months, were announced by Environmental Protection Agency Administrator Christine Todd Whitman on November 22, 2002 the Friday before Thanksgiving and were published in the Federal Register on New Years Eve. The lawsuit was filed in federal court in the U.S. Court of Appeals for the District of Columbia Circuit.
DOT PROPOSES SIGNIFICANT CHANGES TO HAZARDOUS MATERIALS REGULATIONS
DOT published a Notice of Proposed Rulemaking (NPRM) on December 3, 2003 to maintain alignment with the international standards for transportation of hazardous materials.The proposed changes include:
- Amendments to the Hazardous Materials Table (HMT) which would add, revise or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, passenger and cargo aircraft maximum quantity limitations and vessel stowage provisions
- Amendments to the List of Marine Pollutants
- Revisions and additions of special provisions. Included is the addition of a special provision for assignment to aerosol entries setting forth the criteria for classifying aerosols.
- Addition of a requirement to enter the subsidiary hazard class or subsidiary division number on shipping papers
- Addition of a requirement to indicate types of packagings on shipping papers
- Addition of an alternative basic description sequence on shipping papers
- Revision of marking requirements for limited quantities
- Addition of an air eligibility marking requirement
- Revision of requirements in 49 CFR 173.27 for packagings intended for transportation by aircraft, including revision of requirements for use of absorbent material for such packagings
- Revision of classification of air bag modules, air bag inflators and seat-belt pretensioners from Division 2.2 to Class 9
- Revision of the non-liquefied and liquefied compressed gases descriptions, and the addition of high pressure and low pressure liquefied gases categories
- Revisions and additions to the Self-Reactive Materials Table
- Revisions and additions to the Organic Peroxide Table
- Revision of the net weight restrictions for explosives in freight containers exceeding 20 feet (6 m) in length
Because these changes were recently incorporated into the international air and/or vessel transportation regulations, they are necessary in the DOT Hazardous Materials Regulations to facilitate the transportation of hazardous materials internationally. The NPRM in its entirety is available for review on the DOT's hazardous materials website at http://hazmat.dot.gov/whatsnew.htm#dec4
To learn more about this proposal and how to comply with current DOT regulations, attend any of Environmental Resource Center's Hazardous Materials training programs. For details, see http://www.ercweb.com/train/train2.asp#DOT