A Comment on Metzger and Zaring: The Quicksilver Problem

DOCUMERICA and the Power of Environmental History

Summary U. S. Environmental Protection Agency (EPA) Region 11 granted the first offshore drilling National Pollution Discharge Elimination System (NPDES) permits to the Mid-Atlantic operators in 1978. The generic or standard mud concept was developed by the Offshore Operators Committee with EPA Region 11 to provide the agency with an understanding of and control over mud components and discharges without requiring the operators to perform redundant bioassay and chemical tests every time mud was discharged. The generic mud concept subsequently has been incorporated into permits issued by EPA Regions I, III, IV, VI, IX, and X. Eight basic mud types were defined that encompassed virtually all water-based muds used on the outer continental shelf (OCS). A bioassay test procedure, adapted from the EPA/U.S. Army Corps of Engineers' procedure for dredged material, was developed, and a test program was conducted on field mud samples representing each of the eight basic types. Operators were allowed to discharge muds of the eight types without conducting additional bioassays. Results of the test program indicate that all eight generic muds demonstrated low toxicity. The eight generic muds contain primarily major components and do not include specially chemicals sometimes required to remedy special drilling problems (e.g., lost-returns material, lubricants, and defoamers). This situation is being handled by using an "approved additive list" that names additives that do not affect mud toxicity significantly. The API is developing a standard bioassay procedure based on the Region II protocol for testing specialty chemicals in standard muds, and service companies already are using parts of this procedure to gain approval for use of their products. Introduction In 1978, EPA Region II granted the first offshore drilling NPDES permits to operators drilling on leases in the Baltimore Canyon. As a permit condition, the operators were required to perform a jointly funded drilling-mud bioassay program. Before initiating the test program, the Offshore Operator Committee Task Force on Environmental Science, with EPA Region II, developed an acceptable drilling-mud bioassay procedure and a spectrum of eight general mud types that included essentially all water-based compositions. Previously, the agency had not recognized differences in water-based mud systems and had classified all muds in only two categories, oil- or water-based. The generic mud concept and the EPA Region II bioassay procedure evolved from this effort. The approach has proved to be practical, and the generic mud concept, supported by the Region II bioassay results, subsequently has been incorporated into permits issued by EPA Regions I, III, IV, VI, IX, and X. Generic Mud Concept The generic muds were identified by reviewing the permit requests and selecting the minimum number of mud permit requests and selecting the minimum number of mud systems that would cover all those named by the prospective permittees. Eight different mud systems were prospective permittees. Eight different mud systems were identified that encompass virtually all water-based muds used on the OCS (Table 1). Instead of naming a set concentration for each component in each mud system, concentration ranges were specified to allow the operators sufficient flexibility to drill safely. In the eight generic mud systems, only major components are specified. Specially additives (e.g., lost circulation materials and lubricity agents) needed for special drilling situations are not named. If an unanticipated need for a specially additive arises, the operator is required to submit data on the additive's chemical composition, usage rates, and toxicity to the EPA before its use. On the basis of this information, the EPA regional administrator approves or disapproves discharge of mud containing the additive on a case-by-case basis. If there is a continuing need for the additive, the operator then can submit bioassay data on mud containing the additive. Discharge would be allowed if the additive does not greatly increase mud toxicity. Once an additive becomes "approved" in this way, future discharge of muds containing the additive is allowed without conducting additional bioassays. Note that any of the generic muds may contain one or more specially additives; however, the presence of an approved specially additive in a generic mud does not change the generic mud type.

Reducing Systemic Risk: The Role of Money Market Mutual Funds as Substitutes for Federally Insured Bank Deposits

Natural gas is lauded as a cleaner-burning fuel than either coal or oil, but getting the fuel out of the ground can be a dirty process, especially given the widespread adoption of the technology known as hydraulic fracturing (“fracking”). Concerns about toxic air emissions from previously unregulated fracking sites led to the U.S. Environmental Protection Agency (EPA) announcement on 18 April 2012 of new and updated air pollution regulations for these facilities and certain other elements of oil and natural gas production and transmission.1 Compliance with the new regulations is expected to result in major reductions in emissions of methane and volatile organic compounds (VOCs), particularly from new fracked natural gas wells. The rules were a hot topic nationally, drawing more than 156,000 comments after the proposed version was released in mid-2011. Under the final rules, companies have until January 2015 to fully phase in the control measures needed; by comparison, the initial proposal called for a 60-day phase-in for many major requirements. The EPA says about half of all new wells already use the equipment needed to capture the targeted emissions.2 A hydraulic fracturing natural gas drilling rig on the eastern Colorado plains. In 2009 there were more than 38,000 natural gas wells in the state. Many environmental groups consider the new regulations an improvement over the existing situation, but they tend to be disappointed much more wasn’t done. “This is quite a milestone,” says Jeremy Nichols, Climate and Energy Program director for the advocacy group WildEarth Guardians, one of two groups that filed suit against the EPA in 2009 to force action on the issue. “But is the work done? No, of course not. It’s a floor to build on, providing a minimal level of protection.” The oil and natural gas industry has its own concerns about the new rules but has indicated it can work with them. In a press release issued the day the rules were announced, Howard Feldman, director of regulatory and scientific affairs for the American Petroleum Institute, said, “EPA has made some improvements in the rules that allow our companies to continue reducing emissions while producing the oil and natural gas our country needs.”3

Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed. Whether sprawl, climate change, or other daunting challenges, agencies are increasingly being told to address massive problems but without obvious tools or strategies to do so. In this Article we explore what it means for agencies to whittle away at massive problems. Administrative law scholarship has assumed that massive problems are similar to one another, focusing instead on issues of jurisdiction and instrument choice - who should whittle and which knife they should use. In Part I we argue that the nature of the problem - the stick to be whittled - deserves equal attention. Some problems, because of the presence of certain types of cumulative effects from multiple sources, are significantly more difficult for agencies to manage. In Part II, using examples from the fields of environmental and land use law, we develop a model to identify the different attributes of cumulative effects that drive massive problems and how these can distort or undermine policy responses. In Part III we explore the three different strategies currently used in administrative law to manage massive problems, showing each to be deficient. In Part IV we draw from recent scholarship on Dynamic Federalism, New Governance, and Transgovernmental Network theories to propose an effective strategy for agencies to whittle away at massive problems through loosely-linked weak ties networks of federal, state, and local agencies. Part V illustrates how this can work in practice, using a case study of water pollution in the Gulf of Mexico. We explore both how such multi-scalar, multi-agency coordination networks function and the challenges they pose for administrative law. The Court's observation is quite correct - agencies, even when working together, can only whittle away at massive problems. This article takes the next step, creating models that explain the challenges posed by different types of massive problems and proposing strategies for engaging in more effective multi-agency coordination.

Now is an auspicious time to consider questions of administrative law with flexibility and rigor. Administrative law in the United States is being contested in intense debates, which go far beyond technical discussions among specialists. Administrative law has broken out of the backwater into the American public and political eye in ways that mirror broader and deeper disputes, divisions, and confusions over the rule of law as embodied in the American Constitution. Our thesis is easy to state and difficult to elaborate. It holds that today’s administrative controversies reflect and refract more fundamental constitutional controversies; hence, they can be resolved only by reference to constitutional bedrock. We hope this paper will advance today’s American debates and help bridge America’s divides. But we also hope our ideas will find an audience among our friends in Europe, as they confront their own rule-of-law challenges. Today’s debates in the United States call to mind the Anglo-European origins of our Constitution, and they can be resolved only by reference to those origins. Administrative law in our tradition is not a mechanism for achieving political ends or constraining the size of government. It is, rather, a tool for improving government at any scale by furthering both administrative efficiency and administrative integrity. A sub-species of constitutional law, administrative law is a meta-law form: a law for governing the government, not private individuals. The ultimate ends of administrative law include ensuring fidelity to the commands of the sovereign demos, regularity in governing the demos, and the transparency to the demos of the nature and effects of the manifold activities government undertakes on its behalf. These logically interrelated aims — fidelity, regularity, transparency — are all presupposed by the idea that republican governments are accountable to their citizens. The concept of accountability serves as administrative law’s organizing principle. In this paper, we seek to elaborate and defend our thesis in ways that mimic (but do not retrace) the thinking of America’s Founders. We hope to identify legal and logical reasoning that the Founders themselves would have emphasized if they, not us, had confronted today’s unusual moment for administrative law. The paper has five parts. Part I explains how and why administrative law in the United States is in flux, noting that the intense debates on this side of the Atlantic are, at bottom, arguments over the nature and legitimacy of American constitutional government. After briefly encapsulating these debates, we review Supreme Court opinions that call for re-thinking administrative law and re-tethering it to the Constitution. In Part II we introduce our contention that today’s controversies can be resolved only by eliciting administrative law from constitutional text, structure, and tradition. To help attain this goal, we offer an overview of certain defining elements of American constitutionalism — our characteristic ideas about constitutional law, common law, and legal logic. We then employ these elements to map out seven primary “jurisprudential forms.” Part III builds on a signal advance in constitutional jurisprudence — the Supreme Court’s increasing invocation of “accountability” as a principle for structuring constitutional doctrine. Against this backdrop, we employ the jurisprudential forms of Part II to derive constitutionally grounded distinctions that can be used to define a small number of primary types of administrative proceedings. We propose these classifications as a lingua franca for administrative-law scholarship and adjudication; we claim they provide the beginnings of an answer for every difficult administrative law problem. Part IV begins with Justice Thomas’s proposal for overhauling the constitutional testing of delegations of administrative authority. We conclude that the linchpin of the Thomas position — that America’s administrative law, like our constitutional law, is a law for governing the government, not private individuals — will prove persuasive as a matter of constitutional interpretation. Next, we explore what follows. Drawing on constitutional jurisprudence, we distill seven principles for structuring a liberal reformation rooted in constitutionally derived administrative classifications. We emphasize that what might at first appear as a cry for revolution is better viewed as a call for much-needed renovations to an existing regime. Part V describes features of today’s landscape that make acrimony and misunderstanding the order of the day for administrative-law commentary, adjudication, scholarship, and reform initiatives. It concludes with an admonitory word about the implications of America’s administrative-law moment for our Supreme Court, our Congress, and our Nation.

Most studies of the link between dyadic trade and militarized conflict examine the extent of trade interaction. However, interaction measures do not account for the impact of cutting off trade (i.e., exit costs). In this article, I highlight the link between exit costs, the cost of conflict, and “the spoils of conquest,” arguing that one state’s exit costs are associated with higher incidence of dyadic conflict when its trade partner’s exit costs are low. However, its exit costs become less aggravating—and eventually pacifying—as its trade partner’s exit costs increase. I test this argument by estimating import demand and export supply elasticities, developing yearly exit cost measures for directed dyads, 1984–2000. Statistical tests confirm that unilaterally high exit costs are aggravating, but that jointly high exit costs are pacifying, a pattern most prominent for trade in strategic commodities.

In the fall of 2015, the Coast Guard's Atlantic Strike Team (AST) was requested by Environmental Protection Agency (EPA) Region 5 to provide response operations at two abandoned chemical plating factories in Michigan. Starting in October 2015, the AST provided three months of air monitoring and chemical pumping operation support at the Michner Chemical Plating Factory in Jackson, Michigan. Shortly after operations began at Michner, EPA Region 5 requested additional AST support with hazardous material categorization and contractor monitoring at the Hard Chrome Plating facility in Grand Rapids, Michigan. Both abandoned chemical facilities were in close proximity to schools, residential neighborhoods, and community spaces. Each facility contained highly toxic chemicals including hydrochloric acid, hydrogen cyanide, and chromic acid. At each location, AST responders used flexibility and technical knowledge to address emergent issues and long term response strategies. This paper explores many of the challenges faced by the EPA and the Atlantic Strike Team including accurate chemical categorization, determination of appropriate personal protective equipment for responders, and communication issues. This examination reinforces the need for a close working relationship between the EPA and Coast Guard during both coastal and inland incident responses as well as providing recommendations for considerations to be made during future chemical clean-up responses.

The changing regulatory environment: EPA registration of a new marine antifoulant active ingredient

This paper evaluates damage case histories associated with land-based and non-land-based hazardous waste facilities in U.S. Environmental Protection Agency (EPA) Region III. This information was extrapolated from a nationwide study authorized by the EPA Office of Solid Waste. It provides an outline of the kinds of environmental damage associated with certain types of facilities and contamination events and measures the overall extent and damage resulting from mismanagement of hazardous wastes in the region. Approximately 93% of the sites evaluated had evidence of suspected or documented contamination. Damage loss was suspected or documented at 73% of the sites involving contamination, with 38% of the sites evaluated having documented evidence of damage to human health or the environment. The data compiled in this study were used with similar information compiled from the other EPA regions, as part of the agency's ongoing Regulatory Impact Analysis (RIA) program and for use in preparing regulations tailored for specific facility types.

The chemical and petrochemical industries have decades of experience in specifying metallic piping lined with non-metals as a cost effective alternative to high-priced alloy materials of construction for piping in corrosive service. Early on, application of plastic piping was essentially limited to atmospheric chemical sewage service and to above-ground vents and drains. However, applications and usage of plastic piping continue to increase as engineers become more confident in specifying plastic materials and mechanical contractors gain experience with their installation. Non-metallic materials are being developed that are not only corrosion resistant but also have increasingly higher pressure and temperature capabilities. Plastic double-containment piping has experienced tremendous growth for handling hazards and toxic fluids. In the United States, recent dramatic growth of plastic double-containment piping applications has been, to a large extent, for compliance with the Environmental Protection Agency (EPA) regulations of the 1976 Resource Conservation and Recovery Act (RCRA). Related EPA regulatory efforts were accelerated in 1988 by more stringent amendments to this legislation. Industry in the United States must comply with these EPA regulations by December 1998. Plastic piping and metallic piping lined with non-metals have been covered to some extent by the ASME B31.3 Chemical Plant and Petroleum Refinery Piping Code for several years. The distinctive requirements of non-metallic piping and piping lined with non-metals were incorporated into the 1980 edition as a separate Chapter VII, which is dedicated to this growing area of interest in piping. This paper provides an overview of the present coverage of non-metallic piping lined with non-metals in the ASME B31.3 Chemical Plant and Petroleum Refinery Piping Code (1). Some topics that warrant further investigation are presented as well.

For the Phase I field test of the National Human Exposure Assessment Survey (NHEXAS) in U.S. Environmental Protection Agency (EPA) Region 5, this paper presents the survey sampling design, the response rates achieved, and the sample weighting procedure implemented to compensate for unit nonresponse. To enable statistically defensible inferences to the entire region, a sample of about 250 members of the household population in EPA Region 5 was selected using a stratified multistage probability-based survey sampling design. Sample selection proceeded in four nested stages: (1) sample counties; (2) area segments based on Census blocks within sample counties; (3) housing units (HUs) within sample segments; and (4) individual participants within sample households. Each fourth-stage sample member was asked to participate in 6 days of exposure monitoring. A subsample of participants was asked to participate in two rounds of longitudinal follow-up data collection. Approximately 70% of all sample households participated in household screening interviews in which rosters of household members were developed. Over 70% of the sample subjects selected from these households completed the Baseline Questionnaire regarding their demographic characteristics and potential for exposures. And, over 75% of these sample members went on to complete at least the core environmental monitoring, including personal exposures to volatile organic compounds (VOCs) and tap water concentrations of metals. The sample weighting procedures used the data collected in the screening interviews for all household members to fit logistic models for nonresponse in the later phases of the study. Moreover, the statistical analysis weights were poststratified to 1994 State population projections obtained from the Bureau of the Census to ensure consistency with other statistics for the Region.

If we want to talk about administrative reform, we need to address the methods of administrative law scholarship. Why is this the case? The short answer is: Sometimes changes are so profound that we are unable to conceptualize them unless we adjust our perspective. A longer answer is given in this article by analyzing the relationship between the development of German administrative law and the intense debate on the methods of administrative law scholarship, which took place over the last two decades. This debate, which is usually framed as a dispute between the traditional ‘juristic method’ (Juristische Methode) and the new paradigm of regulation or ‘steering’ (Steuerung), resulted in the emergence of the Neue Verwaltungsrechtswissenschaft (New Administrative Law). The Neue Verwaltungsrechtswissenschaft is part of a larger transnational movement towards a new theoretical foundation for the study of administrative law.

The attenuation performance and noise reduction rating (NRR) of six commercially available active noise reduction (ANR) headsets was assessed using the proposed environmental protection agency (EPA) regulation. The passive attenuation results were collected using American National Standard Institute (ANSI) S12.6 method for measuring real-ear attenuation at threshold (REAT) of hearing protectors while the active attenuations results were collected using ANSI S12.42 methods for the measurement of insertion loss of hearing protection devices in continuous or impulsive noise using microphone-in-real-ear (MIRE) or acoustic test fixture procedures. ANSI/ASA S12.68 methods of estimating effective A-weighted sound pressure levels when hearing protectors are worn was used to compute noise reduction metrics including the noise reduction statistic A-weighted (NRSA) and the graphical noise reduction statistic (NRSG). The proposed NRR labels for the ANR headsets were computer per the guidance in the draft U.S. EPA regulation. The presentation will include the baseline passive, active, and total attenuation, the NRSA and the Graphical NRSG, and the proposed EPA labels for passive attenuation and total attenuation while in an active mode.

The Environmental Protection Agency (EPA) regulations force owners of PCB equipment to carefully review regulatory compliance and develop PCB risk management programs. The EPA regulations are briefly reviewed, highlighting the more commonly violated requirements. Several risk management techniques are presented and discussed. A method of quantifying PCB equipment owning cost is presented. >