ENVIRONMENTAL LEGAL BLOGS

"BIOMONITORING"

     The Monterey Herald today carries an AP report that the federal government has offered California $1.7 million for "training, laboratory tests and technical support" to measure the levels of toxic chemicals in California residents (i.e., "biomonitoring").  The report notes:

A link between such a "body burden" and negative health effects has not yet been scientifically proven. But many researchers suspect that pollutants in the blood cause long-term damage, perhaps contributing to a decline in fertility, or quietly lowering the IQs of children....

      The California Legislature is considering the enactment of the State's own "biomonitoring" program.  At a cost estimated by the Assembly Committee on Environmental Safety and Toxic Materials to be about $4 million annually, Senate Bill 600  by Assemblymember Deborah Ortiz (D-Sacramento) would establish the "Healthy Californians Biomonitoring Program" to implement "oversight, monitoring and assessment" of the levels of pollutants in the bodies of California residents.

     It is difficult to believe that this program would end up costing only $4 million annually.  As the bill itself recites, "An estimated 85,000 chemicals are registered for use today in the United States. Another 2,000 chemicals are added each year."    Moreover, the bill goes on to recite that  "The Centers for Disease Control and Prevention has documented the presence of 116 environmental chemicals in the blood and urine of Americans of all ages and races."

     How is a $4 million/year program going to tackle a subject this vast, especially where (as noted earlier) a link between the general levels of pollutants in the body and negative health effects "has not yet been scientifically proven."  As the Assembly Committee analysis referenced above further noted in relating concerns expressed by opponents of the bill:

The scientific basis for studying chemicals in the human, however, faces a number of obstacles.  The basic information concerning the health effects of chemicals is largely absent for many tens of thousands of chemicals.  Accompanying this extensive "data gap" for basic kinds of health effects data (e.g., birth defects, cancer causing) is an even more profound absence of information regarding more subtle health impacts, such as those affecting the nervous or endocrine systems. Further complicating such inquiries is the absence of analytic methods or agreed upon protocols for detecting many chemicals.

     While Proposition 65 is a previous health initiative that potentially tackles a study of the universe of chemicals, the study is at least focused on only two diseases-- cancer and reproductive toxicity.  There is no such limitation in SB 600-- indeed, the bill would authorize the study of tens of thousands of chemicals and presumably then attempt to link those chemicals to any identifiable disease.  This is the type of open-ended, unfocused "study bureaucracy" that could not carry out its mission if the annual funds available were $40 million or $400 million, let alone a measly $4 million.

     The issue for the bill's critics, including me, is not whether it is worthwhile to try to prevent and cure disease.  Of course it is.  The issue is that SB 600 proposes a myopic mission with no contours or specific direction, a feel-good measure that will cost a bunch and likely do little good. 

     The Assembly, however, may be into feel-good measures even more than the Senate (which has already passed the bill); and the Assembly will likely pass this bill on a yet-again party-line vote.  The Governor should have his veto pen ready.

PERCHLORATE MAY BE ADDED TO PROPOSITION 65 LIST AS A REPRODUCTIVE TOXICANT

     According to the May 31, 2005 publication California Environmental Insider  (subscription only access), the California "Development and Reproductive Toxicant Identfication Committee" (or "DART") is considering whether or not to list perchlorate as a reproductive toxicant under  "Proposition 65".  As you may recall, this is the Proposition, passed overwhelmingly by the State's voters in 1986, that  (among other things) mandates a health warning be given in certain circumstances to persons exposed to a carcinogen or reproductive toxicant.  The DART Committee is scheduled to deliberate about perchlorate on August 11, 2005.

     If perchlorate is listed as a Proposition 65 reproductive toxicant, the ramifications of the listing will be highly noticeable to the average consumer.  Since reports of perchlorate contamination in, for example, lettuce and milk have surfaced (see Post of February 24, 2005), these food staples and perhaps others would have to bear health warnings.

     There is some chance that the levels of perchlorate found in lettuce and milk could be exempt from the warning requirement if the Office of Emergency Health Hazard Assessment ("OEHHA") establishes a "No Observable Effect" level covering the amounts of perchlorate found in these staples.   While, as previously covered in this Blog (see Post of April 5, 2005), OEHHA has established a Public Health Goal for perchlorate of 6 ppb in drinking water, technically this standard is irrelevant to establishing an exemption from a duty to warn under Proposition 65.  The exemption standard could be set higher or lower.

     California Environmental Insider reports that comments to the DART Committee on whether or not to list perchlorate can be submitted until a deadline of July 19, 2005.  For further information, go to OEHHA's webpage discussing perchlorate.

     Frankly, it is strongly arguable that the major beneficiaries of any perchlorate warning requirement would be lawyers, not consumers.  As has happened with Proposition 65 listings in the past, the plaintiffs' bar will benefit from bringing suits alleging failure-to-warn and the defense bar will benefit from defending those suits.

     However, as detailed on this Blog (Post of March 9, 2005), it is unlikely that perchlorate contamination of foodstuffs is having any impact on health in the United States.  While perchlorate inhibits iodine uptake and thus in theory can lead to iodine deficiency, in fact consumers in this country (whether meat-eaters or vegetarians) appear to take in enough iodine from non-perchlorate impacted food to offset any iodine uptake inhibited by the chemical's presence in such things as lettuce and milk.  Query whether society shouldn't expend its resources on higher health priorities?

    

EVEN ETHANOL ISN'T SACRED

  One of the fascinating characteristics of a free society is that there seems to be no subject whose merits are free from debate. Even the virtues of motherhood and apple pie (well, at least apple pie--sugar, cholesterol) today do not go unchallenged.

     So it is with the once universally-acclaimed "miracle fuel", ethanol.  As Congress moves closer to enacting a long-debated comprehensive energy bill requiring the use of ethanol in gasoline, claims of alleged flaws in using ethanol have begun to echo through political and scientific chambers.

      Senator Chuck Schumer (D-NY), for instance, has decried the proposed required use of ethanol.  In a press release on his website, the Senator argues:

US Senator Charles E. Schumer has taken on the powerful ethanol lobby in Washington in an effort to kill a provision in the Senate Energy Bill that would send New York's gas prices skyrocketing, cut almost $500 million in highway and mass transit funding for the state, and exempt the makers and distributors of gasoline additives from lawsuits if their product turns out to be defective. The provision would require gas refiners throughout the country to use ethanol in reformulating their gasoline and would extend a number of liability protections to the makers and distributors of gasoline additives.

"The ethanol tax is an astonishing, anti-consumer requirement that would force every refiner in the country to use an ever-increasing amount of ethanol or pay a penalty," Schumer said. "But guess who really gets stuck with paying that fine – you, me, and anyone else who drives and pays for gas."

***

Using Energy Department figures, Hart/IRI Fuels Information Services (an independent consultant) projected that gas prices throughout the country would increase by a staggering 4 to 9.7 cents per gallon as a result of the ethanol mandate. In New York, prices would shoot up by an average of 7 cents a gallon starting in 2003 if the bill becomes law. In 2012, those prices would rise even higher since the bill requires ethanol to be used by a percentage equivalent to the proportion of ethanol in the entire US gas supply.

"In other words, as more and more ethanol is used and gasoline consumption grows, the nation's ethanol producers will be hitting the lottery while the nation's drivers will be losing their shirts every time they fill up their tanks," Schumer said. "Maybe they have a different name for it in the Corn Belt, but in my neighborhood that's called highway robbery."

     The Atlanta Chronicle has recently published a column by a senior fellow at the National Center for Policy Analysis which jumps on the anti-ethanol bandwagon:

Because it absorbs water, ethanol cannot be shipped through existing pipelines used to transport unblended gasoline - the water it absorbs could separate, causing pipelines and fuel lines to freeze, and perhaps burst, during cold weather. The same problem will make engines run less efficiently in cold-climate areas.

Worse, most studies show that it takes more energy to produce and deliver a gallon of ethanol than the energy it produces - a net loss of energy. Imported fossil fuels are used to produce, distill and transport ethanol.

Thus requiring that the United States use five to 8 billion gallons of ethanol - a mandate that Congress is currently considering - means burning more, not less, imported oil and natural gas.

WHILE ETHANOL reduces carbon monoxide, it increases the emissions of volatile organic compounds that are a prime component of the smog, which plagues many U.S. cities.

Worse, when ethanol is burned, it emits acetaldehide - considered a probable human carcinogen by the EPA - and peroxyacetyl nitrate, which damages plants.

Ethanol would likely disappear from the marketplace absent federal subsidies and mandates. Like so much of the pork Congress bestows upon special interests, ethanol is bad for the economy, bad for consumers and bad for the environment.

Corn deserves a place on the nation's dinner table for its nutritional value, but it doesn't belong in the gas tanks of millions of U.S. motor vehicles.

     For the complete column, go here.

     My perception is that, because (among possibly other reasons) an ethanol mandate would be such a boon to various Midwestern/agricultural States' economies, the mandate will survive in some form.  Nevertheless, it is obvious ethanol is not about to join motherhood as an object of universal acclaim.

NEXT CALIFORNIA REGULATORY TARGET: INDOOR AIR POLLUTION

     In 2002, the California Legislature required the Air Resources Board (ARB) to study and report on the health effects of indoor air pollution and to propose options for countering such effects.  The ARB has now produced its report, which can be found here.

     Rushing in to fill what she perceives as a regulatory gap, Assemblymember Sally Lieber (D-Mountain View) has issued a press release entitled Indoor Air Just as Dirty as Outdoor Air Indoor/air pollution costs the State billions; yet remains largely unregulated.  Ms. Lieber states:

Sources of indoor air pollution include mold, pollen, chemical-laden building materials and consumer products, combustion appliances, tobacco smoke and pesticides. According to the report, people are more likely to be exposed to indoor air pollutants than those emitted outdoors. Indoor air pollution is a serious problem that is largely unregulated and threatens public health in homes, schools, and the workplace.

     Look for proposed legislation in the next Legislative session (i.e., later this year or early next year).

PERCHLORATE: SEN. FEINSTEIN JOINS CRITICS OF NAS REPORT AND EPA REFERENCE DOSE

     As previously reported on this blog (Posts of January 22 and February 18, 2005), the National Academies of Science report on perchlorate convinced federal EPA to set a drinking-water "reference dose" of 24 ppb; but the report did nothing to quell critics who argue for standards as low as 1 ppb.

     Sen. Diane Feinstein (D-California) has now expressly joined those critics, firing off a letter yesterday (June 8) to EPA Administrator Stephen Johnson stating in part:

In February 2005 the EPA announced that it was adopting the NAS recommended RfD. This value was adopted and placed on the EPA’s Integrated Risk Information System (IRIS) database rather quickly with no further public review.

I am always delighted when a government agency moves quickly, however I have a few questions regarding how the process to establish the reference dose proceeded:

• How did the EPA come to the decision to endorse the NAS-derived RfD?

• How did the EPA determine that this level would protect public health with a reasonable margin of safety?

• Why did the EPA decide not to allow for public comment on this decision?

• Will the EPA be re-evaluating this reference dose in light of the concerns regarding the [NAS] perchlorate study?

     The full text of Sen. Feinstein's letter can be found at the link above.

     Ironically, Sen. Feinstein's implicit criticism of EPA's perchlorate standard would seem to lend credence to the U.S. Chamber of Commerce's dissatisfaction (see Post of yesterday, June 8, 2005) with EPA's methodology in setting regulatory standards.  I say "ironically", because Sen. Feinstein on the one hand is concerned EPA's perchlorate standard is too liberal, while the Chamber on the other hand is concerned EPA's various standards are too strict.  Nonetheless, both the Senator and the Chamber strike a common chord of dissatisfaction with EPA's data analysis methodologies.

US CHAMBER OF COMMERCE TAKES EPA TO TASK ON DATA RELIABILITY

  In yesterday's Washington Post, columnist/reporter (or both, I'm not sure) Cyndy Skrzycki advises that the Unites States Chamber of Commerce is pressing an administrative appeal that contends 16 EPA databases contain errors.  The Chamber contends that these data bases, which are, among other things, used to set chemical clean-up standards, are resulting in businesses expending unnecessary resources to meet erroneous environmental standards.

     Ms. Skrzycki's Washington Post article contains competing quotes from the Chamber on the one hand and from the environmentalist lobby on the other hand:

"We aren't trying to force withdrawal, but to get the numbers right," said William Kovacs , chamber vice president of environment, technology and regulatory affairs. "We want them to 'fess up and get it right. Our contention is if they disseminate this data, they are responsible for its correctness."

...

The Center for Progressive Regulation , a liberal think tank, said in a March paper that "disgruntled industries [are trying] an end-run around well-established procedures for promulgating rules to improve air quality, clean up toxic waste sites, and protect children and wildlife from pesticide residues."

     One apparently knowledgeable observer takes the view that, while the Chamber's position may have merit, "the changes [the Chamber] seeks are unrealistic because the agency can't afford the time or expense of revamping the databases. Correcting the errors would take EPA away from other priorities...." (!) 

     If this observer is correct, then the situation has become Kafkaesque ("[m]arked by surreal distortion"; The American Heritage® Dictionary of the English Language: Fourth Edition.  2000).  The EPA does not promote good science by ignoring past regulatory flaws because addressing them would take time and effort away from launching new regulatory initiatives which may themselves be based on the original flawed data. 

EXCELLENT OVERVIEW OF CERCLA (SUPERFUND) LAW AND POTENTIAL LOOPHOLE IN CONTRIBUTION PROTECTION

     I just read an article in the latest edition of Los Angeles Lawyer magazine by attorney Brian D. Langa.  The article, Taken to the Cleaners Potentially Responsible Parties That Sign CERCLA Consent Decrees May Face Unexpected Claims From Non-PRPs, provides an excellent discussion for the practitioner on two levels.

     First, for those lawyers who are in the category of novice when it comes to understanding the basic structure of CERCLA liability, the article provides a concise overview of the basic liability scheme, including the traditional (limited) defenses to liability and the creation of some new defenses by recent amendments (2002) to CERCLA.

     Second, even for the seasoned CERCLA practitioner, the article provides a thought-provoking discussion about a potential loophole in the CERCLA contribution-protection scheme.  The loophole could leave Potentially Responsible Parties  ("PRPs") who settle their liability with the government in exchange for Section 113 contribution protection still facing liability to persons never designated as PRP's.

     To my knowledge, this potential residual liability has been little discussed; and the CERCLA practitioner should be grateful to Mr. Langa for pointing out an issue that, in appropriate circumstances, should be brought to the settling client's attention lest the client after settlement encounter a nasty surprise. 

MICHIGAN JURY RETURNS $925,000 AWARD FOR PLAINTIFF IN TOXIC-MOLD SUIT

     In a press release (note: story at link no longer available as of July 22, 2005), plaintiff's lawyers have announced their firm has obtained a $925,000 verdict on behalf of a Michigan apartment renter who suffered severe asthma attacks as a result of her exposure to toxic mold.

     The jury hearing the case received evidence that there was ongoing water leakage in the apartment, with mold persisting on walls and ceilings.  The evidence apparently indicated that the situation was aggravated by the landlord's cavalier attitude in dealing with the renter's complaints.

     Recent scientific commentary has, rightly or wrongly, questioned whether mold causes debilitating disease.  Even such commentary, however, has generally acknowledged that exposure to certain types of mold can cause allergic reactions, including asthma.

     This Michigan case is interesting, because the case suggests that a plaintiff can mount a successful claim based on the presence of an allergic reaction without wading into the more muddled science surrounding allegedly mold-caused debilitating diseases.

AB 492-PERCHLORATE REPORTING-HAS PASSED THE CALIFORNIA ASSEMBLY

  Yesterday, the proposed legislation passed the Assembly on a vote of 57-20.  For who voted how, see this link.   The bill now goes to the State Senate.

ILLINOIS COURT CONSIDERS RESCISSION AS A REMEDY FOR TOXIC-MOLD CONTAMINATED HOUSE DEAL

     According to the central Illinois publication Journal Star Online, there may be recourse even for a mold claim that has failed before a jury.

     Gerald and Caroline Stoddart bought a mold-contaminated house, had to move out, and then sued the seller and the broker for fraud.  The jury rejected the fraud claim.

     There appears to be no dispute that the house is uninhabitable due to the presence of mold. Given this fact, the Illinois State Court Judge presiding over the case has announced he will consider rescinding the original house purchase (made in 1999--six years ago).

     If the Judge does rescind the deal and gives the Stoddarts' back their 1999 purchase price ($68,500), both sides can be equally unhappy.  Rescission would not enable the Stoddarts' to recover on their claim of $114,000 for rent and living expenses associated with alternative housing over the years; and the seller would be getting back a deteriorating and mold-infested house which was abandoned years ago.

     Nonetheless, for the Stoddarts' rescission would be better than nothing-- which is what they have now.  The case provides a lesson in pleading a toxic-mold case--in addition to damage claims, counsel should consider asserting an equitable claim for rescission.

       The complete online article can be found at the link mentioned in the opening sentence above.