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Government Concentrates

January 26, 2004 | A version of this story appeared in Volume 82, Issue 4

Court upholds EPA's power to overrule states on air permits

EPA can prevent construction of a major industrial facility even if the firm has received a Clean Air Act permit from a state, the U.S. Supreme Court said on Jan. 21. The justices ruled 5 to 4 that Congress gave EPA authority in the Clean Air Act to stop construction of state-permitted facilities in certain circumstances. This power, in part, is to prevent a state from losing industrial plants to other states with less stringent air pollution rules. The high court said EPA may halt construction only if a state was "not reasonable" in selecting the appropriate air pollution controls for the new facility. Under the Clean Air Act, pollution permits for new plants in areas with relatively pristine air quality must require installation of "best available control technology." Most air permits are issued by states, which determine what constitutes the best available technology for the pollutants emitted by the new facility. The Supreme Court's ruling came in a case involving an air pollution permit granted by Alaska for a diesel-powered generator at a zinc mine. EPA determined that the pollution reduction equipment required in the permit was not what the state had identified as best available control technology for this generator. EPA stopped construction because Alaska did not offer reasonable evidence for its selection of pollution control equipment required by the permit.

EPA sued over pesticides

Several groups sued EPA this month over its handling of pesticide regulations. A coalition of conservation and pesticide watchdog groups, represented by Earthjustice, alleges that EPA is violating the Federal Advisory Committee Act (FACA) by giving illegal access to a group of chemical corporations to meetings of the agency's Endangered Species Task Force. The lawsuit contends that a corporate insider group has held several secret meetings with the task force in an attempt to weaken pesticide regulations protecting endangered species. FACA requires that advisory group meetings be open to the public. In addition, farmworker organizations filed a lawsuit over EPA's reregistrations of the insecticides azinphos methyl and phosmet. EPA's approval of these pesticides violates the pesticides law by ignoring language that says pesticide use "will not generally cause unreasonable adverse effects on the environment," the lawsuit charges. "EPA accounted for the economic benefit of the pesticides to the growers, but failed to take into account the social and environmental costs," the lawsuit says.

New safety assessment process sought for WIPP

Before changing how radioactive waste headed for the New Mexico Waste Isolation Pilot Plant (WIPP) is handled, the Department of Energy should develop a systematic and quantitative assessment procedure to protect workers, the public, and the environment, says the National Research Council in a new report. DOE sought and was granted by Congress the ability to change how it "characterizes" and prepares waste destined for WIPP, the nation's first underground repository for radioactive waste--in this case, transuranic waste. DOE has said assessment and preparation of waste for shipping and placing at the repository costs about $3.1 billion annually, 16% of the total transuranic waste program budget. With four years of experience and the receipt of more than 2,000 waste shipments, WIPP modifications may be justified for a host of reasons, the report says. However, it warns that DOE should prepare a clear process to study and explain its proposed modifications to state and federal regulators as well as the public before moving ahead. The report is available at

DOD medical biodefense agency urged

A just-released, congressionally mandated Institute of Medicine/National Research Council report calls on Congress to create a new Pentagon agency to consolidate all existing medical biodefense programs within the Office of the Secretary of Defense. Components of this new agency would include the medical biodefense activities of the U.S. Army Medical Research Institute of Infectious Diseases and some of the biodefense programs of the Defense Advanced Research Projects Agency. Congress and the White House believe that biowarfare poses a significant threat to U.S. troops, yet the Pentagon's scattered programs have not fielded a new vaccine since the 1990–91 Gulf War. So, the report authors assert, the new Medical Biodefense Agency should be charged with developing new medical countermeasures within three years. If the agency fails to do so, then all or part of its responsibilities should be shifted out of the Pentagon, perhaps to NIH, they state. The report authors recommend that Congress set up an external committee to annually assess the progress of the Pentagon's biodefense agency. They also recommend the agency's director have expertise in vaccine and drug research, development, and manufacturing. They cite the agency's baseline budget of $322 million as inadequate to the task and recommend increasing it by $300 million at the end of five years.

Manufacturers get a hand

In an effort to help U.S. manufacturers maximize their competitiveness, the Department of Commerce released "Manufacturing in America," a report providing an overview of the current economic environment facing the industry. The report, released on Jan. 16, cites the costs of regulatory compliance and the impact of these costs on the competitiveness of U.S. manufacturers. It also outlines a series of recommendations to ensure that government agencies are doing all they can to encourage the manufacturing industry. The recommendations include creating an Office of Industry Analysis to gather key data necessary to evaluate the health of the industry, improving the coordination of economic development programs to help manufacturing-dependent communities, studying ways to lower manufacturing tax compliance costs, and conducting a regulatory review. The report also recommends that a "President's Manufacturing Council" be set up to give manufacturers a continued voice in this area.



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