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ACC AM Aug 28
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(ACC Blog) On The Road With #ACCaugust – Updated 8/27/15
Aug 27, 2015 | American Chemistry Matters
During the August recess, our state affairs and political mobilization teams will fan out across the country to create opportunities to further our industry’s advocacy goals in a grassroots initiative we’re calling #ACCaugust. Through plant tours, in-district meetings, and industry roundtable discussions...http://blog.americanchemistry.com/ -
(ACC Mentioned) EPA Extends Comment Deadline On Cumulative Risk Plan
Aug 27, 2015 | InsideEPA
EPA is extending by one month -- from Aug. 28 to Sept. 28 -- the deadline for public input on its draft cumulative risk assessment framework for screening pesticides designed to speed prioritization of substances for review, after chemical producers groups argued the existing deadline was insufficient for providing substantive feedback. -
(ACC Mentioned) Welcome to Beautiful Parkersburg, West Virginia
Aug 27, 2015 | The Huffington Post
By Emily Kassie
“Hold on to something,” Jim Tennant warned as he fired up his tractor. We lurched down a rutted dirt road past the old clapboard farmhouse where he grew up. Jim still calls it “the home place,” although its windows are now boarded up and the outhouse is crumbling into the field. -
(ACC Mentioned) No Home for Foam
Aug 27, 2015 | Metroland
By Ann Morrow
On July 1, New York City’s ban on single-use foam plastic—mostly those ubiquitous polystyrene (popularly, but incorrectly, called Styrofoam) cups, plates, and take-out containers—went into effect, making it the largest locality in the country to ban the chemically processed foam packaging. -
More Chemicals, Data to Be Online in EPA's Dashboard
Aug 28, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Getting preliminary toxicity and exposure information about thousands of chemicals will be easier by the end of September when the Environmental Protection Agency unveils an updated, interactive database, agency staff said Aug. 27. Chemical manufacturers will be able to use information in the database to analyze the potential... -
Integrated Plastic Fined for Hazardous Waste Violations
Aug 28, 2015 | BNA Daily Environment Report
A Kansas plastics-recycling company was ordered Aug. 26 to pay $98,000 in restitution and a $10,000 fine for mishandling waste chemicals, U.S. Attorney for the District of Kansas Barry Grissom said (United States v. Integrated Plastic Solutions LLC, D. Kan., No. 6:13-cr-10185-004, 8/26/15). Integrated Plastic Solutions LLC... -
PHMSA Revises Pipeline Mapping Proposal
Aug 28, 2015 | BNA Daily Environment Report
By Rachel Leven
The nation's pipeline regulator announced Aug. 27 it isn't planning to use a rulemaking to expand the types of data it collects for its pipeline mapping tool, in spite of some industry calls that the formal rulemaking process is needed for this significant action. The Pipeline and Hazardous Materials Safety Administration... -
Metal Deposits Main Concern From Animas Spill, EPA Says
Aug 28, 2015 | BNA Daily Environment Report
By Tripp Baltz
The Environmental Protection Agency said Aug. 27 that its long-term concerns from the Animas River spill are metals deposited in sediments in the entire watershed and their release during future high-water events and recreational use. The agency, working closely with state and local officials, is establishing a longer-term watershed monitoring... -
Gas Drillers Fined for Fouling Pennsylvania Wells
Aug 28, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
Three natural gas companies have agreed to pay fines for methane leaks that contaminated private drinking water wells in Pennsylvania, the state's Department of Environmental Protection announced Aug. 25. Chesapeake Appalachia LLC, an Oklahoma City-based subsidiary of Chesapeake Energy Corp... -
Obama Undermines His Climate Strategy With More Offshore Drilling
Aug 27, 2015 | The Huffington Post - Green Blog
By Miyoko Sakashita
So, say you're the leader of the free world and you're trying to figure out how to get your arms around this climate crisis. There are plenty of good options -- but opening up the Arctic and Atlantic oceans to more offshore oil drilling isn't one of them. It's like trying to empty the bath without turning off the faucet. -
White House Denies That Keystone Decision Is Near
Aug 27, 2015 | The Hill - E2 Wire
By Timothy Cama
The State Department is still reviewing the application to build the controversial Keystone XL oil pipeline and has not sent it to the White House for review, President Obama’s top spokesman said on Thursday. White House Press Secretary Josh Earnest gave the update in response to a report in Canada’s Financial... -
Group Compares Obama’s Alaska Trip to ‘Mission Accomplished’
Aug 27, 2015 | The Hill - E2 Wire
By Timothy Cama
An environmental group is drawing parallels between President Obama’s upcoming Alaska trip and President George W. Bush’s “Mission Accomplished” speech in 2003. Obama will use his Alaska trip to highlight his administration's action on climate change, which Credo Action said is at odds with Obama’s approval this month of Royal Dutch... -
Politicians Probe Top EPA Rules for State Impacts
Aug 28, 2015 | BNA Daily Environment Report
By Anthony Adragna
Away from the spotlight of hearing rooms and without the fanfare accompanying press releases, congressional lawmakers wrote the Environmental Protection Agency to highlight state-specific concerns they held with many of the agency's high-priority and controversial regulatory initiatives. -
Colo. Governor Doesn't See Benefit Of Joining Lawsuit
Aug 27, 2015 | E&E News PM
By Jennifer Yachnin
Colorado Gov. John Hickenlooper (D) today asserted that Colorado will be able to easily meet lower carbon emissions dictated by the Obama administration, and said he did not see the benefit of the state opting into a lawsuit that aims to block the Clean Power Plan. -
Illinois Adopts State Process for PSD Permitting
Aug 28, 2015 | BNA Daily Environment Report
By Michael Bologna
Illinois Gov. Bruce Rauner (R) has signed legislation establishing a state-run prevention of significant deterioration permitting process that industry groups say will ease regulatory burdens. Rauner signed S.B. 1672 on Aug. 25. It was a top priority for the Illinois business community and several large employers, including heavy equipment... -
Climate Rule Won't Hurt Poor, Minorities -- EPA
Aug 27, 2015 | E&E News PM
By Robin Bravender
The Obama administration is rebuffing claims that its signature climate change rule will hurt low-income and minority communities. Tom Reynolds, who heads U.S. EPA's communications office, penned a blog post today denouncing assertions that the Clean Power Plan will disproportionately... -
Federal Judge Blocks Water Rule in 13 States
Aug 28, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
A federal judge Aug. 27 blocked implementation of the final clean water rule in 13 states, just a day before it was scheduled to take effect. But the Environmental Protection Agency said the rule will still apply as scheduled in the rest of the country. Judge Ralph Erickson of the U.S. District Court for the District... -
District Court Halts EPA CWA Rule, Highlighting Fight Over Lawsuit Venue
Aug 27, 2015 | InsideEPA
By Bridget DiCosmo
A federal district court has granted a request from 12 states to immediately block EPA and the Army Corps of Engineers from implementing their Clean Water Act (CWA) jurisdiction rule on its planned effective date of Aug. 28, highlighting a fight over whether federal district courts or appellate courts should hear suits over the rule. -
Federal Judge Blocks Obama’s Water Rule
Aug 27, 2015 | The Hill - E2 Wire
By Timothy Cama
A federal judge in North Dakota acted late Thursday to block the Obama administration’s controversial water pollution rule, hours before it was due to take effect. Judge Ralph Erickson of the District Court for the District of North Dakota found that the 13 states suing to block the rule met the conditions necessary for a preliminary injunction... -
North Dakota Federal Judge Blocks Waters Rule, Suggests States Will Win
Aug 27, 2015 | PoliticoPro - Whiteboard
By Jenny Hopkinson
A federal judge in North Dakota has granted a request from 13 states for an injunction on EPA’s Clean Water Rule, blocking the measure from taking effect Friday. In an 18-page opinion issued late today, Chief Judge Ralph Erickson of the U.S. District Court for North Dakota found that because the rule “would encompass virtually all EPA actions... -
EPA Fights Request To Rehear Non-Hazardous Secondary Materials Ruling
Aug 28, 2015 | InsideEPA
By Suzanne Yohannan
EPA is fighting environmentalists' bid for a federal appeals court to rehear its recent unpublished ruling that upheld the agency’s non-hazardous secondary materials (NHSM) waste definition rule, arguing that advocates failed to prove that the court's decision was at odds with prior legal precedent and that the court should reject the request. -
Oregon Adopts Quarterly Reporting of Railroad Hazmat Cargo
Aug 28, 2015 | BNA Daily Environment Report
By Paul Shukovsky
Oregon adopted more stringent reporting requirements Aug. 21 for railroads hauling hazardous materials through the state. The regulation, still in draft form until it is officially posted next month by the Secretary of State, provides for penalties of up to $1,000 a day for failure to comply with the rules.
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(ACC Blog) On The Road With #ACCaugust – Updated 8/27/15
Aug 27, 2015 | American Chemistry Matters
During the August recess, our state affairs and political mobilization teams will fan out across the country to create opportunities to further our industry’s advocacy goals in a grassroots initiative we’re calling #ACCaugust. Through plant tours, in-district meetings, and industry roundtable discussions, we will meet with Members of Congress to raise awareness of the vital importance of our industry and showcase the economic benefits of the business of chemistry where it matters the most—in their districts. Take the #ACCaugust tour with us! Zoom in and out and pan around to see where we’ve been and where we’re going (don’t forget Alaska!)
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(ACC Mentioned) EPA Extends Comment Deadline On Cumulative Risk Plan
Aug 27, 2015 | InsideEPA
EPA is extending by one month -- from Aug. 28 to Sept. 28 -- the deadline for public input on its draft cumulative risk assessment framework for screening pesticides designed to speed prioritization of substances for review, after chemical producers groups argued the existing deadline was insufficient for providing substantive feedback.
The 30-day extension, announced in a Federal Register notice slated for publication Aug. 28, is less than the 45 extra days industry had sought to provide feedback on the “Pesticide Cumulative Risk Assessment: Framework for Screening Analysis Purpose.”
The agency's framework, released July 29, presents a risk-based approach for prioritizing groups of chemicals for review based on factors, including the substances' toxicity and potential exposure.
The screening document is based on EPA's existing guidance and maintains the agency's traditional approach to prioritizing chemicals for cumulative risk review based on their similarities, rather than their potential health outcomes as recommended by a 2008 National Academy of Sciences panel.
Potential risks from combined exposure to all chemicals in a class is one of a variety of issues EPA considers under its Federal Insecticide, Fungicide and Rodenticide Act registration review of pesticides.
EPA describes cumulative risk assessment as a resource-intensive process, and advocacy groups have recently called on the agency to speed the reviews of some classes of pesticides, such as neonicotinoids.
EPA's draft framework consists of a two-step process for evaluating available toxicological information and, if necessary, conducting risk-based screening. The document details how to identify groups of chemicals for further review based on their structural similarity, toxicological profile, as well as mode of action, which describes biological steps from exposure to a specific chemical to a health effect.
Chemical producers groups the American Chemistry Council and CropLife America in letters sent to EPA earlier this month asked for 45-day comment deadline extension, arguing the initial comment period was insufficient for coordinating with the groups' scientists for review and substantive comment on the draft document.
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(ACC Mentioned) Welcome to Beautiful Parkersburg, West Virginia
Aug 27, 2015 | The Huffington Post
By Emily Kassie
1: The Farm
“Hold on to something,” Jim Tennant warned as he fired up his tractor. We lurched down a rutted dirt road past the old clapboard farmhouse where he grew up. Jim still calls it “the home place,” although its windows are now boarded up and the outhouse is crumbling into the field.
At 72, Jim is so slight that he nearly disappears into his baggy plaid shirt. But he drives his tractor like a dirt bike. We sped past the caved-in hog pen and skidded down a riverbank. The tractor tipped precariously toward the water, slamming into a fallen tree, but Jim just laughed.
When we had gone as far as the tractor could take us, Jim climbed off and squeezed through a barbed-wire fence. On the other side was a lush field teeming with crabapple and sycamore, and beyond that, the muddy trickle of water, known as Dry Run Creek, that has brought Jim’s family so much heartache. “This is what Dry Run looks like in the wet season,” Jim told me. “Summer grazing was in the hollow up there—before they destroyed everything, at least.”
The Tennant clan farmed the fertile patch of soil around the home place for more than a century. In the 1950s, Jim’s father ran off, leaving his wife to look after nine cows, two mules, one hog and five children. But the family got by, eating turtle and muskrat and peddling anything it could grow or forage—wild watercress and elderberries in the spring; ginseng and lima beans in the summer; hay and apples in the fall. Their West Virginia farm eventually grew into a 700-acre operation, with more than 200 head of cattle and enough corn to pack a 35-foot silo. Jim and his wife Della bought a house on an adjoining plot of land and swapped the outhouse for an indoor toilet.
Then, in the early 1980s, DuPont, which ran a sprawling chemical plant called Washington Works in nearby Parkersburg, approached the family about buying some acreage for a landfill. The Tennants were wary of having a waste dump so close to the farm. But DuPont assured them it would only dispose of non-toxic material like ash and scrap metal, and so they agreed to sell.
Shortly after the deal closed, Jim and Della, whose home abutted the new landfill, say their two young daughters started wheezing and hacking. Worried about the girls’ health, they moved to a house in town. But most of their relatives stayed, and Jim and Della continued hunting game and eating beef grazed on the farm.
Della took her daughters’ Girl Scout troop there to catch tadpoles in the creek and make plaster molds of deer tracks. Then, at some point in the mid-1990s, the water in the creek turned black and foamy, and the family began finding dead deer tangled in the brambles. The cattle started going blind, sprouting tumors, vomiting blood.
“One time this cow was coming down the road and it was just bellowing, the awfulest bellow you ever heard,” Della told me. “And every time it would bellow, blood would gush from its mouth and its nose. It just bellowed and bellowed and blood just kept flying, and then it would fall down, and it would try to get up … We didn’t have anything to shoot it with, so we just had to watch it until finally the cow bled to death.” Deer bones and Dry Run Creek. Photos courtesy of the Tennant family.
Desperate to find out what was killing the animals, Jim and his brother Earl dissected some of the bodies. “As soon as you cut the skin loose, you get some of the foulest smells you’ve ever smelled,” says Jim. “The innards was bright green.”
Soon the cow carcasses were piling up faster than the Tennants could bury them. Family members were being hospitalized for breathing problems and chemical burns. Convinced that the landfill was to blame, the Tennants tried unsuccessfully to get help from environmental agencies. They also considered suing DuPont, but had trouble finding a local lawyer who was willing to sign on.
Finally, in the late 1990s, the Graham family, who owned the neighboring farm, suggested they call Rob Bilott, an attorney at a Cincinnati firm called Taft Stettinius & Hollister. Bilott was hardly an obvious choice: He had spent much of his career on the other side of the table, representing chemical companies. But his grandmother lived in Parkersburg and was friends with the Grahams; Bilott had ridden horses and milked cows at their place as a child. After hearing the Tennants’ story, his firm agreed to accept their case.
Over the next year, Bilott filed numerous motions and DuPont turned over boxes of documents on hazardous substances used at the Washington Works plant. But none seemed relevant to the Tennants’ situation. Then, in August 2000, Bilott came across a single paper that mentioned the presence of a little-known substance called perfluorooctanoic acid in Dry Run Creek. Bilott requested more information on the chemical, which is often called C8 and is found in thousands of household products, including carpeting, Teflon pans, waterproof clothes, dental floss, kitty litter and cosmetics. Unbeknownst to Bilott, his inquiry triggered a panic inside DuPont’s Delaware headquarters. "The shit is about to hit the fan in WV,” the company’s in-house counsel, Bernard J. Reilly, wrote in an email to his colleagues. “The lawyer for the farmer finally realizes the surfactant [C8] issue … Fuck him.”
2: Plastic Man
In 1802, a young French aristocrat named Irénée du Pont de Nemours, who had fled the French Revolution, built a gunpowder mill in northeast Delaware. By World War I, his venture, known as DuPont, had grown so large that it supplied half of the world’s gunpowder and was expanding into bombs and poison gas. But it was drawing fire on the home front. In 1934, Congress spent three days grilling DuPont executives about allegations that they had overbilled the military for explosives. The company became a national pariah almost overnight. To salvage both its reputation and its bottom line, it turned to a legendary adman named Bruce Barton. The only way DuPont could escape the “atmosphere of plague,” Barton advised, was to transform its image from that of a purveyor of doomsday weaponry to a maker of peacetime products that benefited American society.
The following year, DuPont unveiled a new slogan: “Better Things for Better Living … Through Chemistry.” It wasn’t so much a marketing catchphrase as a blueprint for a utopian future. Through the marvels of science, synthetic materials would free people from mundane tasks, allowing them to lead lives of leisure and ease.
DuPont Vice President Charles Stine would unveil one of these revolutionary materials at the site of the upcoming 1938 New York World’s Fair. The fabric was called nylon, he announced. It was made from “coal, air and water” and could be fashioned into fibers “as strong as steel and as fine as a spider’s web.” When nylons went on sale to the general public in 1940, tens of thousands of women stormed past shop windows displaying test tubes and beakers to grab a pair of the miraculous run-proof stockings. Once, in Pittsburgh, 40,000 people queued up to compete for 13,000 pairs. According to a local newspaper, “A good, old fashioned hair-pulling, face-scratching fight broke out in the line.”
But it wasn’t until after World War II that plastics really took off. DuPont and its competitors had developed and refined a host of products for the Allied troops— among them plastic wrap, vinyl and Teflon, which was used to coat the valves and seals of the Manhattan Project’s uranium enrichment equipment. The companies had standardized their production lines to meet the demands of global warfare, which positioned them perfectly to capitalize on the postwar economic boom. In 1948, DuPont built the Washington Works plant to bring these innovative materials to the American consumer.
The new products quickly captured the popular imagination. A Science Digest report from the era envisioned the life of a “Plastic Man.” This fortunate being would enter a world of “color and bright shining surfaces, where childish hands find nothing to break … no crevices to harbour dirt or germs.” He would live his life “surrounded on every side by this tough, safe, clean material which human thought has created.”
The rapid proliferation of plastics gave ordinary people access to conveniences and goods that had once been beyond their reach. It also brought tens of thousands of unregulated chemicals into American homes. In the early 1950s, a group of Columbia University scientists published several papers describing high rates of cancer in rats exposed to plastics such as vinyl, Saran wrap and Teflon. Some lawmakers began to worry about the lack of safety testing for chemicals in the food supply. In 1951, Democratic congressman James Delaney formed a committee to investigate the health effects of these substances and write legislation to protect the public.
1 It was then known as the Manufacturing Chemists' Association
The American Chemistry Council 1 It was then known as the Manufacturing Chemists' Association , an industry trade group, responded by hiring Hill & Knowlton, the same PR firm that would later engineer Big Tobacco’s campaign to discredit the science linking smoking to disease. According to internal industry documents, Hill & Knowlton’s work for plastics companies deployed many of the tactics that the tobacco industry would use to forestall regulation. Chemical makers distributed pro-industry science materials to tens of thousands of public school classrooms, and attacked independent scientists whose work challenged their interests. When Wilhelm Hueper of the National Cancer Institute told the Delaney Committee that ingesting even tiny traces of cancer-causing chemicals was “not advisable,” the industry launched a vicious smear campaign against him. In a letter to the FBI, DuPont’s medical director even accused Hueper—who had emigrated from Germany after the war—of being a member of the Nazi party. The PR assault worked. When Congress passed a food-additives bill in 1958, chemicals already in use were presumed to be safe and grandfathered in.
In reality, the manufacturers themselves already had qualms about some of these chemicals. Among them was C8, a soaplike substance that gives Teflon its nonstick qualities. According to internal company documents, as early as 1954, employees at Washington Works reported that C8 might be toxic. DuPont took these complaints seriously enough that it held off on marketing Teflon to the public.
Then, an enterprising French engineer named Marc Grégoire introduced the world to the wonders of nonstick cookware. Grégoire had hit on the idea in the early 1950s, after coating his wife’s muffin tins with Teflon to stop dough from sticking to the sides. Eventually, his “Satisfry” skillets started popping up in American department stores, and DuPont sought Food and Drug Administration approval to use Teflon in cooking and food processing equipment. In 1961, the Teflon-coated “Happy Pan” hit the market.
During the Happy Pan rollout, DuPont’s chief toxicologist, Dorothy Hood, cautioned in a memo to executives that the substance should be "handled with extreme care.” She explained that a new study had found enlarged livers in rats and rabbits exposed to C8, which suggested the chemical was toxic. But DuPont continued to market Teflon and related products, which would burgeon into a billion-dollar-a-year business for the company.
By the early 1970s, Congress was once again debating how to regulate the chemicals that now formed the fabric of American domestic life. Both houses drafted legislation that would empower the Environmental Protection Agency to study the health and environmental effects of chemicals and regulate their use. But the industry unleashed another lobbying blitz. Under the final version of the Toxic Substances Control Act of 1976, existing chemicals were again grandfathered in. Manufacturers did have to inform the EPA when they introduced new chemicals—but no testing was required. The resulting regulatory regime, which exists to this day, is remarkably laissez-faire. Only a handful of the 80,000-plus chemicals on the market have ever been tested for safety—meaning that we are all, in effect, guinea pigs in a vast, haphazard chemistry experiment. 3: The Factory
Sue Bailey had just gotten pregnant with her third child when she was transferred to the Teflon division of Washington Works. There, she said, she channeled C8 waste into on-site pits using a contraption that looked like a bicycle pump. For the rest of her pregnancy, she suffered from crippling anxiety. “I knew in my gut that something was really wrong,” she says.
When Bailey gave birth in January 1981, the baby had only half a nose and a ragged eyelid that gaped down to the middle of his cheek. The doctors warned that he might not live until morning. Bailey was so shell-shocked that she could hardly bear to hold him. “I was terrified that he would die in my arms,” she told me.
Little Bucky survived and was transported to Children’s Hospital in Columbus, Ohio, where he would undergo the first of many surgeries. A few days later, a DuPont physician called to question Bailey about Bucky’s deformities. He claimed it was a routine inquiry.
When Bailey returned to work later that year, she found a memo on the locker-room bench. It described a recent study by 3M, the manufacturer of C8, that had documented “birth defects in the eyes of unborn rats” exposed to the chemical in utero. Female workers who came into contact with C8 were urged to consult their doctors “prior to contemplating pregnancy.” Bailey took the paper to the on-site medical offices and demanded to know whether the chemical had anything to do with her son’s birth defects. She says the DuPont doctors insisted there was no connection. But a few months later, a friend put her in touch with another Teflon employee named Karen Robinson who had given birth to a baby with similar eye deformities. “That pretty much clinched it for both of us,” Bailey says.
Bailey continued working at DuPont—she needed the insurance to pay for Bucky’s numerous surgeries. But she noticed that the plant foremen were treating her differently. “I just wanted them to say, ‘Yes, this is what happened to your baby and we're really sorry about it. Is there anything we can do to help you?’” she says. “Instead, they shunned me like I had plague.”
Her superiors had reason to be nervous. Two other secret industry studies had found eye defects in lab animals whose mothers were fed C8 and related chemicals during pregnancy. In March 1981, DuPont sent a pathologist and a birth defects expert to review the 3M data Bailey had read about in the locker room. They concluded that “the study was valid” and that “the observed fetal eye defects were due to C8,” according to internal DuPont documents. DuPont immediately removed all female workers from areas where they might come into contact with the chemical.
The Washington Works lab also started designating one person per shift to analyze C8. Kenton Wamsley, a former lab technician, vividly recalls the day his supervisor assigned him this task. “I had an inkling that something was wrong,” he told me. “But he said, ‘Ken, this stuff won’t hurt the men.’ I wasn’t about to go against the paycheck that supported my family. So I shut my mouth.”
A flow-chart from the DuPont pregnancy study.
In April 1981, DuPont began secretly monitoring 50 female employees who had been exposed to C8. Under the guise of routine medical checks, it collected blood samples and had the women fill out lengthy questionnaires. The goal, DuPont’s medical director Bruce Karrh explained in a memo, was to “answer a single question—does C8 cause abnormal children?” The first batch of data showed that two of the seven pregnant workers exposed to the chemical—Bailey (referred to as “Employee W”) and Robinson (“Employee X”)—had given birth to babies with eye and nostril deformities. The researchers concluded that this was a “statistically significant” increase over the two-in-1,000 birth-defect rate in the general population. Rather than informing regulators or employees, DuPont quietly abandoned the pregnancy study.
A page from the questionnaire DuPont gave to female workers.
Less than a year later, DuPont and 3M had compiled new data purportedly showing that there was no link between C8 and birth defects in animals. In a meeting with EPA officials, the companies claimed that the deformities reported in previous studies had actually been caused by researchers mangling delicate fetal eye tissue during dissection. 2 According to DuPont documents, “A few of the EPA people seemed to find it hard to understand how highly positive findings … could subsequently turn out to be negative.”
According to the meeting records, the DuPont officials in attendance made no mention of the birth defects in the babies of its workers. Immediately after the meeting, DuPont moved women of childbearing age back into areas with C8 exposure.
2 According to DuPont documents, “A few of the EPA people seemed to find it hard to understand how highly positive findings … could subsequently turn out to be negative.”
But DuPont continued its clandestine testing of employees, and this yielded more troubling revelations. In a confidential November 1982 memo, DuPont’s medical director warned that some employees were being exposed to potentially dangerous levels of C8. He urged that all "available practical steps be taken to reduce this exposure.” The following year, 3M documented rising levels of C8 in its workers—even when their exposure to the chemical stayed the same. This development should be viewed “with serious concern,” 3M’s medical officer cautioned, because it suggested the chemical accumulated in the body rather than breaking down. (Chemicals with these qualities tend to be very toxic even at low doses.)
DuPont didn’t inform its workers of these developments, much less take additional safety precautions. Shift after shift, Ken Wamsley says he handled C8 samples with his bare hands and inhaled fumes from the furnace where he heat-tested Teflon at 700 degrees. Before long, he developed asthma and crippling stomach pain. “I started cramping up real bad, getting diarrhea,” he explained. “One time, I woke up and my underpants was completely wet with blood.”
As the evidence about C8 piled up, DuPont started to consider the effect the substance might be having outside the factory fence. Over the decades, the company had dumped huge quantities of Teflon waste into the ocean and into unlined pits along the Ohio River. In 1984, DuPont began dispatching employees to secretly fill jugs of water at gas stations and general stores around the plant and bring them in for testing. Sure enough, the tests revealed C8 in the water supplies of two nearby towns—Lubeck, West Virginia, and Little Hocking, Ohio, just across the river from Washington Works. DuPont considered notifying the public, but ultimately chose not to.
Minutes from the C8 meeting.
That May, a group of DuPont executives gathered at the company’s Wilmington headquarters to discuss the C8 issue. According to the minutes, attendees discussed recently adopted plans to cut C8 emissions at Washington Works, such as adding scrubbers to vents that spewed the chemical into the air. But they decided to scrap these initiatives. The additional expense was not “justified,” the executives concluded, since it wouldn’t substantially reduce the company’s liability. “Liability was further defined as the incremental liability from this point on if we do nothing as we are already liable for the past 32 years of operation,” the minutes read. “From a broader corporate viewpoint the costs are small.”
4: The Cover-Up
They call them DuPonters, the 1,700-plus men and women from in and around Parkersburg who make their living at the Washington Works plant. In an area where few people have college degrees, the DuPonters stand out for their relative wealth. Often, they’re singled out for special treatment. (More than one person told me that DuPont employees could get bank loans without even filling out applications.) And as one of the region’s largest employers, DuPont itself inspires a fierce loyalty. Many people see it as the community’s economic lifeblood—and feel that anyone who challenges the company is threatening their livelihood, too.
But once the Tennants’ animals started dying, they felt they had no choice but to fight. Jim’s brother, Earl, sent videos of foamy water and diseased cows to the West Virginia Department of Environmental Protection. State regulators documented “numerous deficiencies” in the landfill’s operation, including erosion “gullies” that funneled waste into Dry Run. In 1996, the department reached a deal with DuPont: The company would pay a $250,000 fine, and the department would take no further action against the landfill. (The official who negotiated the deal later became a DuPont consultant.) But the animals kept dying even faster, and by the late 1990s, the EPA was asking questions. DuPont proposed a collaborative investigation, in which it would appoint half of the scientists. The company didn’t provide the other scientists on the team with information on C8—much less notify them that it was in the water. The final report concluded that the Tennants’ problems were caused by “deficiencies in herd management.”
When the Tennants finally filed suit in 1999, other locals treated them like lepers. “We'd walk in a restaurant, and everybody in a restaurant would get up and leave,” Della told me. “Even the other people at our church wanted nothing to do with us.” The Dry Run landfill.
The Tennants had brought their case at a moment when the entire chemical industry was in state of panic over C8. A 1993 study by 3M, which manufactured C8, had found that workers with ongoing exposure were three times more likely than the average man to die of prostate cancer. DuPont scientists had also linked it to leukemia and other diseases in people. Following these developments, the American Chemistry Council formed a global team to tackle the “C8 issue.” According to court documents, one white paper circulated to companies around the world was considered so sensitive that each copy was numbered for tracking. Recipients were ordered to return a previous draft for destruction.
To get a more accurate understanding of C8’s effect on human health, 3M began testing it on monkeys, which are biologically more similar to people than lab rats. To the researchers’ surprise, even monkeys receiving the lowest dose suffered troubling symptoms, including weight loss and liver swelling. One of the three monkeys in the lowest-dose group fell into a catatonic stupor and died. These findings suggested even modest exposure could have devastating health effects. 3M decided that the study was too significant to keep quiet.
In April 2000, the company notified the EPA of its conclusions. One month later, it announced that it would phase out a close relative of C8 called perfluorooctane sulfonate, or PFOS, which was then used in 3M’s Scotchgard fabric protector. The press release made no mention of C8, but the company began quietly phasing that out, too. Anonymous EPA officials later told The New York Times that if 3M hadn’t stopped producing PFOS, they would have “have taken steps to remove the product from the market.” (Only five chemicals have ever been banned under the Toxic Substances Control Act.)
That August, the Tennants’ lawyer, Rob Bilott, stumbled across the document referring to C8 and started searching for more information. There was almost nothing in the public record—in fact, the only clues Bilott could find at the time were in the 3M press release. The judge in the Tennant case eventually forced DuPont to turn over thousands of documents on C8. And that’s when the picture finally snapped into focus.
The memo explaining the decision to purchase Lubeck's contaminated well field.
The documents revealed that DuPont had used the landfill near the Tennants’ farm as part of an increasingly elaborate cover-up. After discovering C8 in Lubeck’s water supply in the early 1980s, DuPont had dredged up 14 million pounds of C8-laced sludge from the unlined pits near the town wells and dumped it into the Dry Run landfill.
But the C8 levels in Lubeck’s water kept climbing. To hide this, DuPont bought the town’s well field for roughly twice what it was worth. “I feel the price difference will be justified by eliminating the use of these wells as a source of public drinking water,” one Washington Works supervisor wrote in a memo to colleagues. “We could eliminate any future complaints or concerns about perceived or actual contamination of the aquifer by DuPont.” DuPont later built Lubeck a new well field and ordered employees to destroy all unanalyzed samples from the old one. But it soon discovered that the new wells were contaminated, too. Rather than notify the EPA, as the law required, DuPont devised a testing method that grossly underestimated C8 levels. Reilly, the DuPont attorney, complained in an email at the time that the accuracy was “very poor” and said its readings were off by “a factor of 4 or even 5.”
Bernard Reilly’s email.
The documents also showed that the company had been monitoring C8 in Dry Run Creek for years, even as it stonewalled the Tennants. Company insiders had raised concerns about the chemical’s effect on the family’s cows as early as 1991. Still, DuPont let ever-greater quantities of C8 spill into Dry Run. In 1993, after state regulators began asking about the sediment building up on the landfill’s collection ponds, DuPont opened the pond drains, allowing C8-laden sludge to flow freely into the creek. The following year, the company shuttered another landfill and started trucking all of its C8 waste into Dry Run. The levels of the chemical in the creek soared to more than 80 times DuPont’s own internal safety limit. It was around this time that the Tennants’ cattle had started dying off in droves.
After Bilott figured out that C8 was in the water, DuPont began scrambling to get the information out first. In October 2000, a letter went out to the people of Lubeck, informing them that there was C8 in the water. It was printed on Lubeck Public Service District letterhead, but it had been partly written by DuPont officials. The missive also claimed that the C8 levels in the water were within DuPont’s safety guideline—which was only true using the new, less accurate testing method.
In March 2001, Bilott sent the EPA a letter laying out his findings and attaching more than 900 pages of internal DuPont documents. He also invited the Tennants up to Cincinnati and walked them through his findings. All Della could think about was the children who had lived and played on the farm. “It tore me to pieces thinking I had been feeding my kids all of this contaminated meat and taking their Girl Scouts to play in that poison water,” she says. After leaving Bilott’s office, she was rushed to the hospital with heart palpitations.
Jim and Della Tennant. 5: The Backlash
Joe Kiger, a local PE teacher and longtime Lubeck resident, was sitting on his patio swing when his wife, Darlene, handed him a letter explaining that there was something called C8 in the water. At first, the letter didn’t strike Kiger as particularly noteworthy. But over the next few weeks, he began wondering about the teenagers in the neighborhood who had developed testicular cancer. He got to thinking about his brother, who had worked at DuPont and died during surgery for ulcerative colitis, an inflammatory bowel disease, at the age of 21.
Kiger dug the letter out of the pile on his desk and read it over and over. He kept grappling with one sentence: “DuPont has advised the District that it is confident these levels are safe.” He thought, “What the hell does DuPont have to do with my drinking water?’”
Kiger started requesting information from his water district and state environmental officials, but he kept hitting brick walls. Finally, he contacted the EPA and happened to reach an official who was reviewing Bilott’s letter. “He said, ‘Joe, I'm going to send you some information on C8,’” Kiger recalls. “‘I want you to read it very carefully and you'll probably want to contact a lawyer.’” When Kiger went through the file, he felt sick to his stomach. He immediately picked up the phone and called Bilott, who had recently settled the Tennant case for an undisclosed sum. The two discussed filing a class-action lawsuit on behalf of Lubeck residents.
Darlene was initially reluctant to sign on, fearing how the community might react. “We're up against DuPont, for God's sake,” her husband says. “Everybody you talk to or look at has an uncle, brother, cousin—whatever—who is working at DuPont or associated with DuPont in some manner.” Sure enough, after the couple filed the class-action suit in August 2001, friends stopped talking to them. Strangers threw water bottles with homemade C8 labels at their house and called to abuse them. “One man wouldn’t quit shouting at me,” Darlene said. “He kept saying, ‘You’re taking my job away and you’re going to have to feed my kids and pay my bills if DuPont packs up and leaves because of this.’”
Callie Lyons, who has reported extensively on C8 for The Marietta Times, traces the reaction in part to the region’s coal mining roots. For many West Virginians, disease and pollution are simply the price to be paid for economic security. “In the case of DuPont there’s also the perception that they could pack up and go to China at any second, so we’ve got to make them feel welcome,” Lyons said. “If you don’t, you’re not conforming to social norms.”
3 The only lab in the U.S. that did C8 testing, Exygen Research initially refused to analyze the wells because it was under contract with DuPont. Eventually, the West Virginia Department of Environmental Protection, which had entered into an agreement with DuPont to test a neighboring community's water, offered to test Little Hocking's water, too.
But as news of the lawsuit spread, people whose lives had been touched by C8 were finally connecting the dots. Robert Griffin, the general manager of the water district in Little Hocking, read about the Kigers' case in the paper. He began hunting for a lab to get its water tested. 3 The only lab in the U.S. that did C8 testing, Exygen Research initially refused to analyze the wells because it was under contract with DuPont. Eventually, the West Virginia Department of Environmental Protection, which had entered into an agreement with DuPont to test a neighboring community's water, offered to test Little Hocking's water, too. " data-beacon="{"p":{"lnid":"citation", "mpid": 3}}" href="http://highline.huffingtonpost.com/articles/en/welcome-to-beautiful-parkersburg/?ncid=fcbklnkushpmg00000063#">3 All four of the town’s wells showed high levels of C8. The chemical was also found to have contaminated at least half a dozen public water supplies, including one 70 miles downriver from Washington Works.
Around this time, a private detective turned up at Sue Bailey’s home in Bluemont, Virginia. He told her about the litigation and explained that he’d been hired by the plaintiffs’ lawyers to find her. “The first thing I thought was, ‘Prayer answered,’” Bailey told me.
Bailey had always blamed Teflon for Bucky’s deformities, which, over the years, had required dozens of excruciating surgeries. Doctors had bored a hole in the bridge of his nose and hooked a wire through it to pull up his sagging eye. They had inserted a saline-filled pouch in his forehead and inflated it to stretch the skin, which, along with along with steel, silicon and bits of his ear and rib, they used to construct the missing half of his nose.
Bucky himself had never been sure about his mother’s theory. But after the visit from the detective, the Baileys attended a town hall meeting about the class-action lawsuit in Parkersburg. Hearing other families talk about the health problems they’d endured and the animals that had died made Bucky think that perhaps his mother was right. “It really felt like a punch in the face,” Bucky told me.
In September 2002, the EPA launched a rare "priority review" of C8—a sign that regulation could be looming. By this point, 3M was shutting down C8 production, and DuPont had begun manufacturing the chemical itself. Perhaps anticipating that its calculations would soon come under scrutiny, DuPont moved to a more accurate system for measuring C8 in groundwater. This was sure to show that C8 levels were higher than DuPont had claimed was safe. “EPA better buckle their seat belts,” Reilly wrote. “We are exceeding the levels we set as our own guideline.” Indeed, the new system found that C8 levels in Little Hocking’s water were 37 times DuPont’s safety threshold.
Still, DuPont had reason to believe it could evade a regulatory crackdown. In late 2001, the West Virginia Department of Environmental Protection had assembled a team to set a safety threshold for C8. At the time, the department was headed by two lawyers who had previously represented DuPont. Half of the panelists on the C8 team had worked either for DuPont or Toxicology Excellence for Risk Assessment, a private group that ostensibly conducts independent, peer-reviewed safety evaluations of chemicals. However, according to the Center for Public Integrity, TERA is heavily funded by corporations and industry trade groups, and often determines that its funders’ products are safe at levels many times greater than what the EPA deems harmful.
The following spring, the C8 team announced its findings at a public meeting in Parkersburg: C8-tainted water was safe to drink at concentrations of 150 parts per billion—150 times higher than DuPont’s internal safety guidelines, which had never been made public. When the Department of Environmental Protection’s science advisor, Dr. Dee Ann Staats, finished her presentation, Joe Kiger stood up and asked who had funded the study. Staats eventually admitted that DuPont had put up the money. 4 DuPont had also been editing the Department of Environmental Protection’s statements. One draft news release, written in March 2002, would have warned Wood County residents that C8 was being spread around the area by air as well as water. According to records obtained by the Charleston Gazette, the department killed the release after a DuPont lawyer complained. " data-beacon="{"p":{"lnid":"citation", "mpid": 4}}" href="http://highline.huffingtonpost.com/articles/en/welcome-to-beautiful-parkersburg/?ncid=fcbklnkushpmg00000063#">4
4 DuPont had also been editing the Department of Environmental Protection’s statements. One draft news release, written in March 2002, would have warned Wood County residents that C8 was being spread around the area by air as well as water. According to records obtained by the Charleston Gazette, the department killed the release after a DuPont lawyer complained.
After that, Bilott began subpoenaing information on the department’s C8 analysis. He discovered that both Staats and DuPont’s lead toxicologist for C8 were systematically destroying documents about the chemical. (Staats maintains she was following departmental rules on document retention; the department says it had no such agency-wide policy.) West Virginia Circuit Judge George Hill ordered them to stop shredding and hand over the remaining papers. One of the items slated for destruction revealed that the department’s early calculations had actually set the safety limit for C8 closer to 1 part per billion—not 150 parts per billion, the figure announced at the Parkersburg meeting. Staats maintains the initial figure didn’t take all available data into account. But the EPA would later determine even levels of 1 part per billion to be unsafe for human health.
In early 2003, Hill handed the plaintiffs in the class-action suit their first victory—a ruling that C8 was "toxic.” He ordered DuPont to pay for blood tests to measure the plaintiffs’ exposure level. The company was now facing hundreds of millions of dollars in potential damages.
So DuPont brought in a “product defense” firm called the Weinberg Group. Weinberg is best known for helping the tobacco industry recruit scientists to cast doubt on data linking cigarettes to cancer and other disease. But it also has a long history of working with chemical and plastics makers, which it detailed in an April 2003 proposal for DuPont: “Beginning with Agent Orange in 1983, we have successfully guided clients through myriad regulatory, litigation and public relations challenges posed by those whose agenda is to grossly over regulate, extract settlements from, or otherwise damage the chemical manufacturing industry.”
Weinberg’s recommendations included hiring experts on relevant chemicals so that the plaintiffs couldn’t call them as witnesses and “constructing a study to establish not only that [C8] is safe … but that it offers real health benefits.” The firm later started vetting scientists and doctors to work on the C8 issue for DuPont. And DuPont began making sweeping statements about the safety of C8. One company press release claimed that the chemical had been used “for more than 50 years with no known adverse effects to human health."
But the information Bilott and his colleagues had unearthed was simply too damning to suppress. The lawyers had discovered another cover-up involving a grease-repellant chemical called Zonyl that is used in candy wrappers, pizza boxes and countless other food containers. DuPont had long insisted that the substance didn’t migrate into the food, but internal documents showed that it seeped off packaging at levels three times higher than what the FDA regarded as safe—and then broke down into C8. What’s more, while most of the C8 used to make Teflon burned off during production, the DuPont papers showed that it was present in a multitude of household products, from clump-proof kitty litter to dental floss. In early 2004, James Dahlgren, a UCLA toxicologist retained by the class-action plaintiffs, released a study showing that cancer prevalence among Little Hocking residents was “significantly higher” than in the general population.
It was becoming clear that the implications of the lawsuits went far beyond the Tennants or the Kigers or the thousands of residents of the Ohio River Valley. By this time, C8 was being detected everywhere—produce and beef in American grocery stores, polar bears in the Arctic, children in the remote Faeroe Islands. One analysis of blood banks from around the world showed that nearly all of the blood contained C8. The lone exception was a set of archived samples that had been collected from Korean War veterans before 1952. 6: The Consequences
In July 2004, the EPA filed a landmark lawsuit, alleging that DuPont had concealed evidence that C8 was harmful to human health and had failed to disclose the contamination of public drinking water for more than two decades. Later that year, Hill unsealed a series of damning emails showing that DuPont’s own lawyers had been urging the company to clean up C8 contamination for years.
John R. Bowman, an in-house counsel for C8 issues, had advised DuPont in 2000 to get Lubeck a source of clean drinking water to limit potential liability. Bowman believed that DuPont was especially vulnerable to punitive damages because C8 took so long to break down. “Our story is not a good one,” he wrote. “We continued to increase our emissions into the river in spite of internal commitments to reduce or eliminate the release of this chemical into the community and the environment because of our concern about the biopersistence.” In a message to his son, Reilly, the DuPont lawyer, blasted the company’s handling of the C8 issue as “a debacle at best.” “Very poor leadership,” he continued, “the worst I have seen in the face of a serious issue since I have been with DuPont.”
John Bowman’s email.
By September 2004, DuPont had agreed to settle the Kigers’ class-action lawsuit, which now included more than 80,000 plaintiffs, for up to $374 million. The company promised to install filtration systems in contaminated water districts and put $70 million into a health and education project to benefit community residents. It also agreed to fund a $30 million health study, juried by independent, court-appointed epidemiologists, to evaluate the health effects of C8.
Despite all of this, it was far from clear that DuPont would be held accountable for its actions. The following year, the company agreed to pay the EPA $16.5 million to settle charges against it. This was the largest fine in the agency’s history—and yet it was a pittance compared to the $1 billion a year in revenue DuPont was earning from products containing C8. And under the terms of the settlement, the company wasn’t even obliged to pull C8 from the market. Since the Toxic Substances Control Act makes it extremely difficult for the EPA to ban chemicals, the best the agency could negotiate was a voluntary phase-out by 2015.
Reilly's email about the new C8 testing method.
Moreover, DuPont was only required to clean up drinking water in communities where C8 levels exceeded the EPA’s safety limit of 0.4 parts per billion. (A recent study concluded that even this figure may be more than 100 times too high.) The water in Parkersburg, where most of the plaintiffs lived, initially fell just below that threshold. Subsequent tests would find that the level was actually above the cutoff. But DuPont refused to install a filtration system there, and a West Virginia federal judge ruled that it wasn’t obliged to do so.
As for the thousands of residents with health problems that they believed had been caused by C8, they could only seek individual compensation if the DuPont-funded epidemiological study found probable links between the chemical and their diseases. Establishing such links required much larger pools of data than are normally collected in a single rural community. This conundrum weighed heavily on attorney Harry Deitzler, who lives in Parkersburg and serves as a local liaison to plaintiffs. “I knew the reason DuPont settled the case and agreed to assign this panel of epidemiologists was because they didn’t think they were ever in this lifetime going to find links,” Deitzler told me. “But I didn’t want to face people and say, ‘Hey, we got this huge settlement and everybody only gets 600 bucks.’”
Then one night, a solution came to him. “It was like God reached out from the sky and tapped into my brain,” he recalls. The plaintiffs would use the $70 million health and education fund from the settlement to pay people $400 each to participate in the epidemiological study. Deitzler knew that Appalachian residents wouldn’t take kindly to outsiders probing into their health. So he asked a prominent local hospital administrator named Art Maher and a retired doctor named Paul Brooks to run the program. The pair launched a company called Brookmar and got court approval to administer the effort. Within months, they hired more than 100 employees and built online registration and data-tracking systems. They also placed construction trailers with customized reception areas and soundproof exam rooms at four accessible locations, and advertised heavily on local radio and TV.
The response was overwhelming. Tens of thousands of people piled into pickup trucks, church buses and minivans to make the pilgrimage to Brookmar’s trailers. “We have families of five dragging their three kids kicking and screaming, and the parents are saying, ‘Yes, you’re going to get stuck in the arms—that’s $2,000!’” one local said.
By the time the project wrapped up in the summer of 2006, roughly 80 percent of residents in affected water districts had participated. This made it far more likely that the panel of epidemiologists would be able to correlate C8 exposure with particular diseases. “I think it messed up a lot of people at DuPont’s lives that we devised this wild system,” Brooks told me. “These hillbillies threw a rock in DuPont’s machine.”
When the C8 Science Panel finally released its findings in 2012, it found a “probable link” between the chemical and six conditions: testicular cancer, liver cancer, thyroid disease, ulcerative colitis, high cholesterol and pregnancy-induced hypertension—a potentially life-threatening condition that can cause seizures, kidney failure, miscarriage and birth defects. Plaintiffs with these ailments are now entitled to file individual liability lawsuits against DuPont. More than 3,500 Ohio Valley residents have already brought cases, the first of which will go to trial in September.
Among the plaintiffs is Kenton Wamsley, the DuPont lab worker who was assigned to test C8 in the early 1980s. His complaint cites two C8-linked conditions: high cholesterol and ulcerative colitis. However, these diagnoses don’t begin to describe the extent of his suffering.
The crippling stomach cramps and anal bleeding that plagued him during his early days as a tester eventually grew so bad that he had to undergo surgery to remove intestinal blockages, a common complication of ulcerative colitis. After that, his stomach problems eased, but he developed severe asthma and was unable to work for long stretches of time. Other C8 testers also started falling ill: Wamsley recalls one coworker bleeding heavily from his tongue in the lab. By 2001, Wamsley's stomach cramps and rectal bleeding had returned, and he was diagnosed with intestinal cancer.
In June, I visited Wamsley just outside Parkersburg at his faded clapboard bungalow, which is cluttered with crosses and silk flowers. He hobbled to the bedroom, clutching his distended stomach, and returned carrying a dog-eared Bible with grainy images of his tumor-filled colon tucked inside. After the cancer diagnosis, Wamsley had struggled through chemotherapy. “During the second round, my teeth started to really fall apart,” he told me, fingering the yellow stumps in his gum. But the tumors only shrank slightly. His doctor informed him that he’d be dead within months unless he had his colon and anus surgically removed. Wamsley opted for surgery.
The cancer is now gone, but he still suffers from asthma, fatigue, insomnia, prostate problems, chronic pain and diarrhea so severe that he’s afraid to leave his house. “This thing blew up with the diarrhea in a car one day,” he told me, pointing to the colostomy bag bulging through his shirt. “It’s made me scared to go even to the grocery store. I want to go to church, but what if I have an accident in there?”
Despite everything he has been through, Wamsley does consider himself fortunate in one respect: He is the only designated C8 tester who is still alive. “It looks like DuPont might have known this chemical was dangerous and used some of us as guinea pigs,” he says. “I believe God kept me alive to tell their stories.” 7: The New C8
When I met Joe and Darlene Kiger this summer, Joe was carrying the bulging satchel of C8 papers that he refers to as his “Bible.” He takes it everywhere, even on family vacations. Because, despite winning a historic lawsuit against formidable odds, the fight is far from over. These days, Joe is pouring his energies into a new organization, Keep Your Promises, which aims to ensure that DuPont fulfills its obligations to the local community. It is proving to be a daunting mission.
Joe Kiger.
Under the class-action settlement, DuPont was required to pay for a medical monitoring program to regularly screen locals for the conditions that the science panel linked to C8. The plaintiff’s attorneys wanted Brookmar to administer this program. Instead, DuPont maneuvered to have it run by Michael Rozen, then a partner at the New York law firm Feinberg Rozen, which administered the fund to settle claims arising from BP’s Deepwater Horizon oil spill. Multiple Gulf Coast residents have sued Feinberg Rozen, accusing it of delaying payment for as long as possible and then offering financially desperate claimants a fraction of the money they were entitled to.
Kiger and others believe that Rozen is deploying a similar strategy in his work for DuPont. Rozen kicked off the monitoring program with two town hall meetings at 8 a.m. and 1 p.m. on a Friday, when many people in this blue-collar community were working. Residents also say that enrollment packets are unnecessarily complicated, and that people who do manage to enroll are sometimes billed for testing that DuPont is supposed to cover. So far, few people have taken part. As of January 2015, DuPont had paid Feinberg Rozen about $9 million to administer the program, but only $50,000 had been spent on medical claims.
Brooks believes DuPont wants the program to fail. “They poisoned the world,” he says. “A successful medical monitoring program would give us much better data on the links between this chemical and various diseases, and DuPont would have so much liability that it couldn’t possibly compensate everyone.”
Rozen bristles at these allegations, and says that he has done his best to encourage participation. He also stresses that some of the plaintiffs have died or moved away in the decade since the settlement was reached. “The benefit that is being provided to the class is exactly what was prescribed and then some, by the parties themselves in their negotiated settlement,” he told me.
Meanwhile, this past July, DuPont spun off its specialty chemicals division into a separate company called Chemours. The new enterprise will assume the liability for DuPont’s most polluted sites, including Washington Works—but it will only have one-quarter of DuPont’s revenue. Many people with cases pending against DuPont worry that it will use this arrangement to avoid paying damages or, at the very least, stall any resulting payouts. “I’m sure part of their theory is the longer they delay, the more people will die,” said Deitzler, the Parkersburg-based lawyer. “It’s already worked. Before we could even file cases, many of the people who’ve been affected passed on.”
(DuPont declined to answer questions for this story because of the pending individual liability litigation. But it issued a statement which read, in part: “DuPont has met and will continue to meet its obligations under the [settlement], including the provision of medical monitoring for local residents and water filtration systems in six area water districts … DuPont and Chemours remain committed to fulfilling all of their environmental and legal obligations in accordance with existing local, state and federal regulatory guidelines.”)
Even today, large swaths of the community remain loyal to DuPont—and resentful of people like the Kigers. “A lot of people want to blow us off as money-hungry vultures," Joe Kiger told me with an air of resignation. At this point, he excused himself to go to the restroom for the third time during our two-hour interview. “It’s been like this since he got out of the hospital,” Darlene explained. When I asked what she meant, her eyes widened. “Oh, he didn’t tell you? He had a heart attack six weeks ago.”
Even in his hospital bed, she told me, Joe was fielding phone calls and visits from people with C8-linked diseases. “He never gets a break from it, and it worries me—even today, meeting with you, I'm afraid, because of the backlash,” she said, bursting into tears. “It's been so many years of watching this thing eat at him every single day, and I wonder, is it ever going to end?”
This same question haunts the Tennants. In recent years, nearly every member of the family has struggled with serious health problems. Della suffers from high cholesterol, thyroid problems, heart disease and severe osteoarthritis. Her young daughter was diagnosed with breast cancer at age 37, and later developed thyroid cancer and gall bladder disease. Jim’s brother, Earl, suffered from numerous ailments before dying of a heart attack in 2009. Earl’s wife later succumbed to cancer.
In one way, the battle with DuPont has paid off: Last year, the company finally phased out C8. “This is something that affects the entire world,” Deitzler marveled. “And if it weren’t for the Tennants raising a stink, and Rob Bilott discovering that piece of paper, and Paul Brooks and Art Maher doing what they did to collect all that data, nothing would have changed. DuPont probably would have kept putting it up in the air, putting it in the water and everywhere in the world people would be getting more kidney cancer, testicular cancer, thyroid disease. Your blood levels are lower because of the people in this community.”
But C8 can take decades to break down in the human body. It will continue pumping through our veins long after it disappears from assembly lines. Meanwhile, to replace C8, DuPont has simply turned to other closely related substances, such as perfluorohexanoic acid, or C6.
Under the current regulatory system, DuPont is not required to ensure that these chemicals are free of the qualities that made C8 so toxic. While relatively little is known about these substances, most of them have very similar structures and properties to C8, and the limited information that is available reveals troubling effects. Also, while some of the replacement chemicals break down faster than C8 does, they need to be used in larger quantities to achieve the same results, a fact that has caused alarm in the scientific community. This May, 200 scientists—chemists, toxicologists, and epidemiologists among them—signed a statement urging governments to restrict the use of these chemicals because of the “risks of adverse effects on human health and the environment.”
Until that happens, these substances will continue to spread, unchecked. Not long ago, the Little Hocking water district commissioned a study to see whether any of the C8 replacements were contaminating the town’s aquifer. Researchers tested worms unearthed from Little Hocking’s well field, a scraggly meadow overlooking the vast expanse of storage tanks and smokestacks at the Washington Works plant. They found a number of C8’s chemical cousins, including C5, C6, C7, C9 and C10. Once again, local residents may have been unwittingly exposed to toxins whose ultimate effect on human health is unknown.
“DuPont deceived as many people as they could deceive as for as long as they could,” Jim Tennant told me. “Now that their secrets are out and they’ve been forced to clean up the water, they’re starting again with a new set of chemicals. This isn’t a fight that will be won in my lifetime.” Find out if the water in your community has been contaminated by C8 with this interactive map from the Environmental Working Group.
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(ACC Mentioned) No Home for Foam
Aug 27, 2015 | Metroland
By Ann Morrow
On July 1, New York City’s ban on single-use foam plastic—mostly those ubiquitous polystyrene (popularly, but incorrectly, called Styrofoam) cups, plates, and take-out containers—went into effect, making it the largest locality in the country to ban the chemically processed foam packaging. “These products cause real environmental harm and have no place in New York City,” said Mayor Bill de Blasio in a press release.
In 2013, Albany County passed a partial ban on plastic-foam containers for chains with more than 15 locations. “This is an effort to cut down on the materials that don’t break down and to protect our environment,” said Albany County Executive Dan McCoy, who signed the ban into law.
More than 100 municipalities in the United States now have bans, but most of them are in California, where keeping carry-out food and beverages at heated temperatures is less of an issue than in the Northeast. Though the New York City ban is expected to be influential, only a few counties and municipalities in New York state have bans or partial bans on plastic-foam containers.
Almost universally referred to as Styrofoam—a Dow Chemical trademark for a slightly different material that isn’t used for food or beverages—the containers made from expandable polystyrene foam became an industry standard because of their insulating quality, light weight, and low cost. But that cost is being reassessed by environmentalists and public health advocates, and Environmental Advocates of New York State is collecting signatures for a petition for Gov. Andrew Cuomo to ban single-use polystyrene foam containers statewide in 2016.
“Plastic foam containers are wasteful and unnecessary,” said Travis Proulx of Environmental Advocates. “They are made from nonrenewable sources, and can’t be reused or recycled.” Similar to other plastic pollutants, polystyrene takes 500 to 1,000 years to break down. “It gets into all the infrastructure, sewers, storm drains,” said Proulx.
The watchdog environmental group also estimates that the containers comprise a disproportionate amount of landfill space, up to 20 percent, and have public-health impacts because they contain the carcinogens styrene and benzene, which can leach into beverages if the liquid is hot, oily or acidic, or contains alcohol.The containers also cost cities millions in litter pickup and clog drainage, and end up in waterways, where they are harmful to animal life. According to the petition, “When wildlife eats plastic foam thinking it’s food, it can get stuck in their intestines and lead to death.”
The petition drive is also to raise awareness of the dangers of plastic foam. “People don’t think about it when they use a polystyrene cup, that it will outlive them by hundreds of years, and that it contains carcinogens,” said Proulx. “When they find out, they’re startled. And it is startling—polystyrene does not biodegrade.”
Categorized as a “pervasive marine pollutant,” plastics and polystyrene foam comprise 90 percent of all marine debris, with food and beverage containers being among the most common items found in ocean and coastal surveys, according to Ecology Matters website. Polystyrene plastic is also absorbent: It will soak up other chemical toxins such as DDT.
Almost 300 species of fish and seabirds are known to mistakenly eat bits of plastic, and when these species are eaten by a predator, so is the plastic, accumulating in greater amounts up the food chain. Since plastic is not digestible, when its toxic contaminants are released by digestive acids, it enters the water or enters a predator animal, potentially making its way to human consumption.
Lanternfish, for example, are commonly found by scientists to be full of undigested plastic particles, and laternfish are a major food source for tuna and mahi-mahi.
This is a potential problem for sport fishing in the Capital Region’s trout streams, said Proulx. In studies in other areas, brown trout, and especially rainbow trout, have been found with their guts full of plastic bits, eaten after the containers broke into pieces and washed into waterways.
According to Freedonia, a market research group, the United States consumes 2.6 billion pounds of plastic foam, such as take-out clamshells, every year. Derived from liquid petrochemicals, expandable polystyrene foam has also been found to have neurotoxic effects when absorbed through the skin or lungs.
The New York City polystyrene ban includes packing peanuts and other loose-fill packaging, and articles such as disposable coolers. The ban is expected to remove more than 30,000 tons of plastic foam a year from the city’s streets, waterways, and landfills.
McCoy said he supports a statewide ban because it will make regulation uniform in all counties and make for stronger enforcement, in addition to keeping light foam from getting into waterways and sewer systems throughout New York. “Statewide regulation would make it fairer and better for all,” he said.
Bans and proposed bans have been fought by the American Chemical Council, along with container manufacturers and chain venues. “The industry is trying to hang on, and well-funded opposition from industry prevails,” said Proulx, which is why public support for the ban is so important.
One of the industry’s complaints is that replacing plastic-foam containers with alternatives, such as earth-friendlier thermoplastic polymers, hurts small businesses because they cost more. And while most recyclable alternatives, such as the waxed paper cups that Starbucks uses, and the double-hulled paper cups that McDonald’s uses, do cost more, that is expected to change as increased demand is met by increased production.
The New York City ban includes a hardship exemption for nonprofits and small businesses with under $500,000 in yearly revenue. The New York state ban is expected to include similar exemptions.
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More Chemicals, Data to Be Online in EPA's Dashboard
Aug 28, 2015 | BNA Daily Environment Report
By Pat Rizzuto
Getting preliminary toxicity and exposure information about thousands of chemicals will be easier by the end of September when the Environmental Protection Agency unveils an updated, interactive database, agency staff said Aug. 27.
Chemical manufacturers will be able to use information in the database to analyze the potential toxicities of a new chemical's structure before the molecule is made, to guide safety tests of a chemical during research and development, and to address questions that arise as customers explore new applications of an existing chemical.
The updated, interactive Chemical Safety for Sustainability (iCSS) Dashboard will provide users access to chemical data generated by the EPA and through a multi-agency collaborative effort called Toxicology in the 21st Century, or Tox21, said Matthew Martin, a research biologist with the agency's National Center for Computational Toxicology.
Biological activity data generated through high-throughput screening technologies, details on the specific tests used to generate that information and preliminary information about how chemicals are used are among the types of information that will be available through iCSS, Martin said during a webinar preview of the database.
Data on 8,000 Chemicals
The current test, or “beta,” version of the iCSS Dashboard contains information about 1,800 chemicals that have been evaluated to varying degrees through 800 assays.
The updated dashboard will provide results from screening, or preliminary, tests conducted on more than 8,000 chemicals, the EPA told Bloomberg BNA in an e-mailed response to questions.
The EPA revised its dashboard based on suggestions it received from users, Martin said.
New features include allowing users to graphically display the biological activity a chemical had in assays and to export the data for further work.
Users also can copy a website displaying the particular information they requested and share that link with colleagues to collaborate, Martin said.
In addition to data derived from high-throughput screening tests, the updated dashboard includes publicly available information about chemical structures, consumer and industrial uses of the chemical and chemicals that may be similar due to their structure or biological activity.
EPA Urged to Add ‘Work Plan’ Chemicals
An EPA toxicologist who listened to the presentation asked Martin if the dashboard provided a specific section for “work plan” chemicals the agency is evaluating through a Toxic Substances Control Act initiative announced in 2012. Updated in 2014, the work plan list consists of 90 chemicals (206 DEN A-14, 10/24/14) .
That feature is not currently in the updated dashboard, but could easily be added, Martin said.
He encouraged users to continue to provide suggestions because the agency plans to expand and improve the dashboard.
The updated iCSS will expand the resources available through EPA's Aggregated Computational Toxicology Resource (ACToR) website.
In June, the agency released the Endocrine Disruption Screening Program Dashboard (EDSP21), which is designed to assist evaluations of chemicals for endocrine-related activity. The agency released that dashboard as part of its efforts to use computational technologies combined with automated cellular tests to screen chemicals and pesticides (118 DEN A-20, 6/19/15).
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Integrated Plastic Fined for Hazardous Waste Violations
Aug 28, 2015 | BNA Daily Environment Report
A Kansas plastics-recycling company was ordered Aug. 26 to pay $98,000 in restitution and a $10,000 fine for mishandling waste chemicals, U.S. Attorney for the District of Kansas Barry Grissom said (United States v. Integrated Plastic Solutions LLC, D. Kan., No. 6:13-cr-10185-004, 8/26/15). Integrated Plastic Solutions LLC pleaded guilty to one count of illegal storage of a hazardous waste, admitting in its plea that it stored highly inflammable paints and solvents without a permit at a facility in El Dorado, Kan., from 2009 to July 2013. The company also was sentenced to serve three years of probation and to participate in a compliance and ethics program. The company's co-owners, Sean M. Riley and Brian J. Riley, were previously sentenced to 18 months of probation and three years of probation, respectively, in addition to being ordered to pay $119,000 in restitution. A company spokeswoman declined to comment on the sentence.
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PHMSA Revises Pipeline Mapping Proposal
Aug 28, 2015 | BNA Daily Environment Report
By Rachel Leven
The nation's pipeline regulator announced Aug. 27 it isn't planning to use a rulemaking to expand the types of data it collects for its pipeline mapping tool, in spite of some industry calls that the formal rulemaking process is needed for this significant action.
The Pipeline and Hazardous Materials Safety Administration did propose to reduce the amount of data it would request industry to submit regarding PHMSA-regulated pipelines and to allow the new data to be submitted in phases. The agency will also seek public comments before sending its revised request—as an information collection request—to the White House for approval.
“[T]his information collection complies with the paperwork reduction act, as it was done with the approval of [the Office of Management and Budget],” PHMSA's meeting notice (80 Fed. Reg. 52,084) that was published Aug. 27 in the Federal Register said.
“Further, this information collection revision was carried out with additional procedures normally involved in a rulemaking such as the notice and comment procedures, public meetings, advisory committee discussions and proposed hearing,” the notice said.
At issue is the expansion of the National Pipeline Mapping System, a tool that hasn't been updated since 1998 and is intended for use by the government, industry and the public in environmental protection, infrastructure protection and emergency response activities. While many agree an update is necessary in some capacity, the burden of new requirements and security concerns have been highlighted by industry (235 DEN A-11, 12/8/14).
Items Dropped
The revised information request drops eight items from data that industry must send, such as its proposal for operators to identify the installation method for pipelines that cross waterways with minimum widths of at least 100 feet. These data points were dropped for reasons ranging from agency jurisdiction issues to lack of need for that information.
That leaves 27 categories where PHMSA will seek either the same information it requested before, or slightly modified information for clarity or feasibility purposes.
For example, the agency will be requesting information related to positional accuracy of pipelines. However, the agency loosened its requirements to allow accuracy of within 50 feet or 100 feet depending on the pipeline, compared with its initial proposal of accuracy within 5 feet or 50 feet, in part in response to operators' statements that they don't have most pipelines mapped to 5-foot positional accuracy.
The agency responded to security concerns similarly to how it discussed them in earlier meetings. Information deemed sensitive will be labeled “Security Sensitive Information” and would only be released to “government agencies who can verify they maintain an SSI-compliant environment,” the notice said.
The revised version of the information collection request—the first version of which was proposed in July 2014—will be available for public comment through Oct. 26 under Docket No. PHMSA-2014-0092 at http://www.regulations.gov. A public meeting will be held on Sept. 10 in Arlington, Va.
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Metal Deposits Main Concern From Animas Spill, EPA Says
Aug 28, 2015 | BNA Daily Environment Report
By Tripp Baltz
The Environmental Protection Agency said Aug. 27 that its long-term concerns from the Animas River spill are metals deposited in sediments in the entire watershed and their release during future high-water events and recreational use.
The agency, working closely with state and local officials, is establishing a longer-term watershed monitoring strategy for the surface water and sediments that have been affected by the Gold King Mine release.
EPA investigators triggered the spill Aug. 5 when excavating collapsed debris at the entrance of the mine near Silverton, Colo., unleashing 3 million gallons of mining wastewater and sludge laced with heavy metals. The plume of waste eventually flowed into the Animas, San Juan and Colorado rivers (154 DEN A-2, 8/11/15).
The waste included concentrations of arsenic, cadmium, mercury and lead, the EPA said in releasing a contractor's Draft Technical Memo of the Aug. 5 incident, including photographs, an EPA on-scene coordinator's description of the events depicted in the photographs and an EPA phone duty officer's memorandum to the file about the incident.
Metals of Concern
Those four metals are the primary constituents of concern because of their potential for posing significant health risks, the EPA said. Concentrations of the four and an additional 20 metals were measured from 24 different sampling locations, the agency said.
For each metal, trend graphs show that concentrations were “significantly lower” than recreational screening levels (RSLs), which are health-based concentrations established by the EPA based on exposure during recreational use.
For surface water, the RSLs assume an adult or child would receive all of their daily water intake—2 liters per day—from the river over a continuous 64-day period, the EPA said. “These screening criteria represent the most conservative scenario for recreational users,” the agency said.
The concentration of metals in all samples collected are below surface water and soil/sediment RSLs, the EPA said. The samplings show that concentrations of all 24 metals in the watershed are trending toward “pre-event” conditions, it said.
High Exposure Can Poison
Short-term human exposure to very high doses of metals such as lead, arsenic, mercury and cadmium can cause poisoning, according to a draft paper by the Superfund Research Program at the University of Arizona provided to Bloomberg BNA Aug. 27. In the case of the Gold King Mine spill, high levels of exposure could have occurred only at the mouth of the spill, the paper said.
As the plume moved down the river, it was diluted, mixing with local water and sediment that have higher pH, the paper said. “As the pH of the water rises, many remaining soluble metals will become insoluble and fall to the sediment bed mixing with the local sediment,” it said.
The effect of long-term exposure levels in the rivers upstream of Lake Powell are unknown at this time, the program paper said.
“Very long-term exposure to lower doses of these metals can cause damage to organs, particularly developing organs in children, and/or lead to illnesses like cancer,” it said.
Meanwhile, the chances of significant exposure to these metals directly resulting from the spill in the lower Colorado region below Lake Powell are negligible, the program said.
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Gas Drillers Fined for Fouling Pennsylvania Wells
Aug 28, 2015 | BNA Daily Environment Report
By Leslie A. Pappas
Three natural gas companies have agreed to pay fines for methane leaks that contaminated private drinking water wells in Pennsylvania, the state's Department of Environmental Protection announced Aug. 25.
Chesapeake Appalachia LLC, an Oklahoma City-based subsidiary of Chesapeake Energy Corp., paid $193,135 for polluting four private water wells in Bradford County in 2012; XTO Energy Inc., a Fort Worth, Texas-based subsidiary of Exxon Mobil Corp., paid $95,753 for damage to seven private wells in Lycoming County in 2011; and SWEPI LP, a Houston-based subsidiary of Royal Dutch Shell plc, paid $85,593 for allowing methane to leak into two hunting club water wells in Tioga County in 2012.
All three cases violated the 2012 Oil and Gas Act, the Clean Streams Law, and DEP Chapter 78 regulations, the DEP said. All the affected wells have since been treated, repaired or replaced, and all penalties have been paid, the DEP said.
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Obama Undermines His Climate Strategy With More Offshore Drilling
Aug 27, 2015 | The Huffington Post - Green Blog
By Miyoko Sakashita
So, say you're the leader of the free world and you're trying to figure out how to get your arms around this climate crisis. There are plenty of good options -- but opening up the Arctic and Atlantic oceans to more offshore oil drilling isn't one of them. It's like trying to empty the bath without turning off the faucet.
Yet that's the awkward stance that President Obama will be taking in Alaska next week, where he'll promote his climate change policies and Arctic stewardship against the backdrop of global concern about his decision to let Shell drill for oil in the Chukchi Sea. He'll address a conference of nations with interests in the Arctic and somehow try to convince them not to follow the example he's setting.
Climate scientists say at least a third of the world's currently-identified oil reserves must remain safely in the ground to avoid cataclysmic impacts to our oceans and climate. Add the oil under the Arctic and Atlantic oceans, which isn't now counted as oil reserves but is estimated to contain about 95 billion barrels of crude oil, and you've got a carbon bomb of massive proportions.
But here's what's so strange: President Obama has made addressing climate change a higher priority than any previous president, recently unveiling new controls on power plant emissions. Yet over the past year, he's also called for offshore oil drilling in the Arctic and Atlantic oceans, endangering wildlife and undermining his own greenhouse gas reduction goals.
How can a president who pledges to address "the urgent and growing threat of a changing climate" single-handedly add two untapped oceans of burned oil to our planet's atmosphere that's already in crisis?
Worldwide oil production and carbon emissions are already at all time highs. Let's not dig ourselves any deeper into this hole.
President Obama's main obstacle to a good climate change policy isn't the global warming denial crazies in Congress - his own policies have accelerated domestic oil production, even in environmentally-sensitive areas.
We see a similar disconnect in California, where Gov. Jerry Brown recently told a Vatican climate change conference that we must leave a third of oil reserves in the ground. And yet, he supports expanded oil production in his state, including recently-authorized controversial offshore fracking permits to squeeze more oil from beneath the ocean floor.
If risking their credibility as climate leaders isn't enough, perhaps Obama and Brown should consider the very real and present environmental risks of offshore drilling, an inherently dangerous form of oil extraction.
The industry itself makes the case, whether it's the Deepwater Horizon disaster in 2010 or, just a few months ago, the crude oil that coated the Santa Barbara coastline and killed hundreds of birds and marine mammals. These weren't aberrations - this is simply the price we pay for offshore oil drilling, an inevitable cost of this risky business.
In the Chukchi Sea, where the Obama administration recently allowed Shell to begin its long-sought Arctic oil drilling operations, conditions are so hazardous that even the Department of the Interior admits there is a 75 percent chance of an oil spill of at least 42,000 gallons of crude. Containing a spill would be far tougher in the unforgiving Arctic than in the relatively calm Gulf of Mexico, which BP found so difficult, and cleaning a spill in that churning, icy sea would be impossible.
Even before drilling takes place, the seismic testing for oil in the Atlantic, according to an Interior report, could injure 138,000 dolphins and whales, including endangered North Atlantic right whales whose calving grounds are in the impact zone, and disrupt marine mammal feeding, calving, breeding, and other vital activities more than 13.5 million times. Nonetheless, the Obama administration quietly opened the public comment period on four seismic testing applications on July 28, as environmentalists were busy criticizing his Arctic drilling authorization from the week before.
The world doesn't need more oil wells, and even if it did, the Arctic and Atlantic oceans are terrible places to put them. We can do better -- future generations of both people and wildlife are depending on it.
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White House Denies That Keystone Decision Is Near
Aug 27, 2015 | The Hill - E2 Wire
By Timothy Cama
The State Department is still reviewing the application to build the controversial Keystone XL oil pipeline and has not sent it to the White House for review, President Obama’s top spokesman said on Thursday.
White House Press Secretary Josh Earnest gave the update in response to a report in Canada’s Financial Post saying that Obama is likely to reject the pipeline before Labor Day weekend, citing “a well-connected source.”On an Air Force One flight to New Orleans for the 10th anniversary of Hurricane Katrina, Earnest said he had not read the Financial Post report, but added he has no reason to believe it.
“This project continues to be under review by the State Department. I’m not aware of any decisions the State Department has forwarded onto the White House,” Earnest said.
“It’s my understanding this review process is still ongoing and I don’t have an update on timing at this point.”
Earnest added that he also had no update on when the Obama administration planned to complete its review of the Canada-to-Texas pipeline.
It’s been nearly seven years since TransCanada Corp. applied for its permit to build the pipeline across the United States’ northern border, frustrating oil interests, Republicans and most Canadian leaders.
The Post report said a decision on the permit would likely come next week, while Congress was still away on recess.
“The latest in the United States capital is that an announcement will be made next Thursday or Friday, when many are out of town, reducing potential for blowback, said a well-connected source,” the Post’s report said.
Obama said in 2013 that he would only approve Keystone if it did not significantly increase greenhouse gas emissions. The State Department declared last year that the project would fit that standard, a decision that environmentalists and even the Environmental Protection Agency later questioned.
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Group Compares Obama’s Alaska Trip to ‘Mission Accomplished’
Aug 27, 2015 | The Hill - E2 Wire
By Timothy Cama
An environmental group is drawing parallels between President Obama’s upcoming Alaska trip and President George W. Bush’s “Mission Accomplished” speech in 2003.
Obama will use his Alaska trip to highlight his administration's action on climate change, which Credo Action said is at odds with Obama’s approval this month of Royal Dutch Shell’s plan to drill for oil in the Arctic Ocean.Like Bush’s speech about the Iraq War in front of a banner that said "Mission Accomplished," Obama’s trip shows that he is out of touch with the effects of his own actions, Credo said.
“The tragic irony of Bush’s ‘Mission Accomplished’ moment on Iraq is what comes to mind as President Obama prepares for his trip to Alaska,” Credo climate campaign manager Elijah Zarlin wrote Thursday on Medium.
“There, he will discuss his administration’s climate legacy against a backdrop of melting glaciers, in the very place where he just gave Shell approval to drill into the vast carbon bomb of oil that lies beneath the Arctic ocean floor,” he said.
The Arctic holds about 100 billion barrels of oil, which cannot be burned if the world hopes to prevent catastrophic climate change, Zarlin argued.
“The scientific consensus on unburnable carbon demonstrates the problem with President Obama’s climate leadership in a nutshell,” he said. “The carbon budget is a simple concept, and presumably he understands it. Yet in approving Shell to drill in the Arctic, he is continuing a string of decisions allowing the massive extraction of fossil fuels, keeping us on a path of 4 or 5 degrees of warming — a climate catastrophe.”
Zarlin’s post is the most recent objection from environmentalists to Obama’s approval of Arctic drilling.
He said Arctic drilling shows the “hypocrisy” of Obama’s energy policy, also citing his approval of hydraulic fracturing on public lands and the southern leg of the Keystone XL pipeline.
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Politicians Probe Top EPA Rules for State Impacts
Aug 28, 2015 | BNA Daily Environment Report
By Anthony Adragna
Away from the spotlight of hearing rooms and without the fanfare accompanying press releases, congressional lawmakers wrote the Environmental Protection Agency to highlight state-specific concerns they held with many of the agency's high-priority and controversial regulatory initiatives.
Senate and House members sent letters to EPA Administrator Gina McCarthy, obtained by Bloomberg BNA through the Freedom of Information Act, to voice objections to the Clean Power Plan, Clean Water Act jurisdictional rulemaking, renewable fuel standard and revisions to the national ozone standard.
Many of the lawmakers had signed other letters that had included larger groups of congressional colleagues but dispatched separate letters behind the scenes to highlight more detailed, state-specific issues with the regulations.
Bloomberg BNA obtained letters sent by congressional offices to the EPA between Jan. 1 and April 3 this year. The Clean Power Plan and clean water rule have since been finalized, while the renewable fuel standard and ozone revisions should be finished this fall.
Clean Power Plan
Members of Congress frequently expressed concern over how their state's unique circumstances would be treated under the Clean Power Plan, which sets an individual carbon dioxide emissions target for each state's existing power plants but lets each state craft its own plan for meeting the goal.
Several different groups of Michigan congressmen wrote to express concern over how energy storage technologies—like Michigan's Ludington Pumped Storage Power Plant—would be counted under the regulation, to inquire whether earlier actions to reduce emissions would be counted and to voice support for the inclusion of a “safety valve” in the final rule to ensure grid reliability.
“We strongly believe that clarification and further guidance is needed to assist the Michigan coalition as it develops its State compliance plan,” nine Republican congressmen wrote Feb. 3. “We ask that you work with the state of Michigan to resolve these issues.”
Misgivings about aspects of the EPA's approach were not limited to Republicans. Rep. Bobby Rush (D-Ill.), top Democrat on the House Energy and Commerce Subcommittee on Energy and Power, said the draft Clean Power Plan (RIN 2060-AR33) did not treat nuclear power fairly.
“EPA must work to finalize a rule that incentivizes states to preserve nuclear power in their energy portfolios, rather than unintentionally penalizes states with competitive electricity markets by discounting nuclear generation in comparison to other carbon-free sources,” Rush wrote Feb. 12, noting he had a productive meeting with the agency's top air official, Janet McCabe, on his concerns.
Other State Concerns
Four Washington state Republicans voiced their own concerns in a Feb. 3 letter that the proposed Clean Power Plan “effectively ignored” hydropower and used an arbitrary year of 2012 as a baseline for emissions targets. The congressmen said those factors meant the state would be “disproportionately affected” by the plan to reduce carbon dioxide emissions.
“The problem with using an arbitrary year as a baseline, instead of using the average of multiple years, is that in 2012, Washington State had an abnormally high hydropower year which resulted in a very low carbon emissions year,” the congressmen wrote. “Not only is the state's hydropower production being ignored, but other factors, such as the stringent forced shutdown timeline of the Centralia Coal Plant, make the EPA rule un-functional.”
Sen. John Thune (R-S.D.) sent his own letter Jan. 6 warning the proposed Clean Power Plan failed to recognize his state's “unique energy profile” and urging the EPA to withdraw the “regressive national energy tax.”
“At a minimum, the EPA should reconsider South Dakota's emission reduction target to more accurately reflect our existing energy portfolio and the investments [that] utilities and ratepayers have already made in efficiency upgrades, renewable energy production, and demand-side energy management programs,” Thune wrote.
In response—and as it replied to most of the letters about proposed rulemakings—the EPA said it would place the Thune letter in the regulatory docket. It did not address the specific issued raises by the South Dakota Republican.
State-Specific Ozone Concerns
Another issue that drew significant state-specific interest was the EPA's proposed rule (RIN 2060-AP38) to lower than national ambient ozone standards from 75 parts per billion to between 65 ppb and 70 ppb.
“The Washington-knows-best regulations that the EPA is proposing are not only less-effective than the localized approach we've taken in Colorado, but are frankly insulting to those who have put many years of care and hard work into ensuring our state is clean and prosperous,” Colorado Republican Reps. Scott Tipton, Ken Buck and Doug Lamborn wrote March 4.
The congressmen said the draft proposal was unattainable in many regions of the state and would devastate the local economy and business conditions. McCabe responded April 14 that the Clean Air Act requires the agency to review and revise the health-based standard every five years.
Five Republican members of the Louisiana congressional delegation raised similar concerns in a March 17 letter. They said the most recent 2008 ozone standards had yet to be fully implemented and urged the EPA to more seriously consider the economic consequences of its proposal.
Not all letters regarding the ozone standard were negative. Rep. John Sarbanes (D-Md.) in a Feb. 25 letter urged the agency to “proceed expeditiously” toward tighter requirements that he said would “save lives and yield billions of dollars in health benefits.”
“With positive local policies, Maryland has raised the number of moderate and good air quality days, but this work is not done,” Sarbanes wrote. “While the Maryland Department of the Environment has taken strides to curb smog pollution from sources within our state, we will continue to suffer from pollution transported from other states without stronger federal standards.”
Waters of the U.S
A joint EPA and Army Corps of Engineers regulation meant to clarify the scope and jurisdiction of the Clean Water Act also got the attention of lawmakers with localized concerns.
Sen. Michael Bennet (D-Colo.) wrote Jan. 12 with “suggestions from Colorado's water community” as the agencies worked to finalize the rule, urging them to “consider the unique characteristics of the arid West in its final rule and consider the merits of a case-by-case jurisdictional determination of ephemeral features.”
Bennet, one of the few Democrats expected to face a competitive reelection contest in 2016, also urged President Barack Obama's administration to consider “limited” exemptions for water management during natural disasters such as wildfires.
The controversial regulation also got the attention of Sen. Marco Rubio (R-Fla.), now a presidential candidate. He wrote McCarthy to express his objections to the proposed regulatory framework and to voice support for legislation from the 113th Congress that would block the regulation.
“Through recent actions, the EPA has attempted to go beyond the intentions of the original legislation by releasing a proposed rule that would inappropriately expand their federal jurisdiction without Congressional approval,” Rubio wrote Jan. 16. “Protecting our water through responsible regulation is important, but environmental legislation should not be used to usurp the role of the states.”
Occasional Friendly Fire
Concerns from local businesses sometimes resulted in criticism of the agency from lawmakers who are ordinarily supportive of the EPA's actions.
Sen. Sheldon Whitehouse (D-R.I.) wrote McCarthy Feb. 26 to express dismay that the agency's inability to issue its annual renewable fuel standard on time was harming local Rhode Island companies.
“I urge you to move quickly to issue biodiesel standards that support the continued growth of domestic biodiesel as I would prefer to have more positive topics to discuss with you,” Whitehouse said.
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Colo. Governor Doesn't See Benefit Of Joining Lawsuit
Aug 27, 2015 | E&E News PM
By Jennifer Yachnin
Colorado Gov. John Hickenlooper (D) today asserted that Colorado will be able to easily meet lower carbon emissions dictated by the Obama administration, and said he did not see the benefit of the state opting into a lawsuit that aims to block the Clean Power Plan.
Hickenlooper made his remarks in an appearance at the Colorado Oil and Gas Association's annual Rocky Mountain Energy Summit.
"I don't think we're going to have a heavy lift to meet those rules," Hickenlooper said in a brief speech in which he focused on Colorado's current energy economy -- acknowledging a downturn in oil prices while asserting that "these down-cycles always drive innovation" -- and briefly touched on the Clean Power Plan.
In an interview with E&ENews PM following his remarks, Hickenlooper said the state is doing its "due diligence" on how to meet the Clean Power Plan. He also said he has met with Attorney General Cynthia Coffman (R) over whether Colorado should join a lawsuit with 15 other states aimed at blocking the new regulations. Coffman will ultimately decide whether the state joins the lawsuit.
"I look at it in a more pragmatic way: that we're a mile high, we want as clean air as we can," Hickenlooper said. "We're doing our own plan anyway, and we're hopeful that many of the things that we want to get done anyway are going to allow us to comply with the goals that are set for us" in Section 111(d) of the Clean Air Act.
He added: "We're doing the analysis of the data, but certainly so far we haven't felt that the state benefits from that lawsuit."
In his speech, Hickenlooper also acknowledged "some disagreement" with Coffman over the lawsuit.
"The indications are, I won't put words in her mouth, that she wants to file suit against this. I think there's legitimate questions about local autonomy, whether this is a state's rights issue," Hickenlooper said.
He also asserted that the new rules aimed at lowering greenhouse gas emissions from existing power plants would help elevate the use of natural gas for energy generation.
"Certainly if you're involved in oil and gas, there's a lot of good that will come out ... in terms of continuing to make sure that natural gas takes a higher role," Hickenlooper said.
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Illinois Adopts State Process for PSD Permitting
Aug 28, 2015 | BNA Daily Environment Report
By Michael Bologna
Illinois Gov. Bruce Rauner (R) has signed legislation establishing a state-run prevention of significant deterioration permitting process that industry groups say will ease regulatory burdens.
Rauner signed S.B. 1672 on Aug. 25. It was a top priority for the Illinois business community and several large employers, including heavy equipment manufacturer Caterpillar Inc., power company Dynegy Inc. and the agricultural processing giant Archer Daniels Midland Co. An earlier industry-driven version of the bill, however, was significantly modified following negotiations with environmental groups and Illinois Attorney General Lisa Madigan (D).
The new law, Public Act 99-0463, requires the Illinois Pollution Control Board (PCB) to develop and operate a new PSD permitting program for major new or modified sources of air pollution in nonattainment areas, primarily outside of the Chicago and East St. Louis, Ill. metropolitan areas.
In promulgating rules for the program, S.B. 1672 requires PCB to adhere to all specified provisions of the Clean Air Act.
New source review and prevention of significant deterioration permits require industrial facilities such as manufacturers and power plants to install best available control technology when they expand or make modifications that increase emissions. The permits are intended to prevent emissions increases that could impair states' ability to implement federal national ambient air quality standards.
The law also permits the PCB to adopt permitting requirements and emission standards more stringent than current federal requirements if it deems appropriate.
A major change, however, would move the appeals process to the PCB from the Environmental Protection Agency's Environmental Appeals Board (EAB). For many years Illinois had been one of a handful of states that permitted affected parties to challenge permits before the EAB instead of a state agency.
Conformity With Rules in 41 States
The Illinois Chamber of Commerce applauded Rauner's support for S.B. 1672, calling the new law, “the most substantial environmental policy change in Illinois in more than a decade.”
“Senate Bill 1672 puts Illinois on a level playing field to compete for new businesses and business expansions with 41 other states, including all of our surrounding states, which have state-run PSD permitting programs,” the chamber said in a statement Aug. 26.
Federal ‘Program Wasn't Broken.'
Ann Alexander, a senior attorney with the Natural Resources Defense Council, said environmental organizations initially opposed S.B. 1672, fearing it would interfere with air quality standards and limit citizens' ability to challenge permitting decisions.
“We have never been convinced that replacing the federal program with a state program was necessary or a great idea,” Alexander told Bloomberg BNA in an interview Aug. 26. “The federal program wasn't broken and we saw no particular need to fix it. That aside, we fought very hard make sure the Illinois program would continue to protect the public and we largely succeeded.”
Alexander said the environmental coalition, together with the Office of the Attorney General, negotiated four critical changes to S.B. 1672.
• Standing to appeal. The law permits any person who is “aggrieved or is or may be adversely affected,” and had submitted comments on the permit, to bring an appeal to the PCB.
• Stay of permit effectiveness. While permit stays are no longer automatic, the law allows parties to seek a stay before the PCB under certain circumstances. Appellants would have to show that preserving the status quo is necessary and there is some merit to the appeal.
• Public participation. The law creates requirements for public hearings and public comments on draft permits. Formal responses from the Illinois Environmental Protection Agency would be required.
• More stringent state requirements. The coalition rolled back an industry-sponsored provision mandating that the new program could never be more stringent than the federal program.
Jennifer Walling, Illinois Environmental Council executive director, said her organization was officially neutral on the bill. At the same time, she said the negotiated bill contains adequate protections for public participation and air quality.
“In the end, we think the law does no harm,” Walling said in an interview Aug. 26. “We will have to work on the rules, but we have come up with a process that significantly preserves public rights, public appeals, and has the ability to protect public health and the environment.”
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Climate Rule Won't Hurt Poor, Minorities -- EPA
Aug 27, 2015 | E&E News PM
By Robin Bravender
The Obama administration is rebuffing claims that its signature climate change rule will hurt low-income and minority communities.
Tom Reynolds, who heads U.S. EPA's communications office, penned a blog post today denouncing assertions that the Clean Power Plan will disproportionately harm minority and low-income groups by raising energy bills and eliminating jobs.
"[I]n the weeks since the announcement, we're seeing the usual cast of special interest critics roll out the usual tired, worn out, and frankly, false arguments," Reynolds wrote. "Put simply, the Clean Power Plan will not impact affordable, reliable power. It will protect vulnerable communities. And it will save consumers money."
By 2030, he added, "the average family will save $85 a year on electricity, thanks to increased energy efficiency measures. In the interim, any small, short-term increase in electricity bills would be well within normal price fluctuations -- roughly the cost of a gallon of milk per month."
The approaching 10th anniversary of Hurricane Katrina, Reynolds said, serves as "a powerful reminder that low-income and minority communities are the most vulnerable to climate-related impacts like stronger storms, floods, fires, and droughts, and the least able to rebuild after a disaster."
Critics including the National Black Chamber of Commerce have argued that minorities stand to lose the most if the rule drives up the cost of power and puts pressure on U.S. manufacturing and other industries (Greenwire, June 12).
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Federal Judge Blocks Water Rule in 13 States
Aug 28, 2015 | BNA Daily Environment Report
By Amena H. Saiyid
A federal judge Aug. 27 blocked implementation of the final clean water rule in 13 states, just a day before it was scheduled to take effect. But the Environmental Protection Agency said the rule will still apply as scheduled in the rest of the country.
Judge Ralph Erickson of the U.S. District Court for the District of North Dakota granted a motion sought by 13 states headed by North Dakota to prevent the Clean Water Act jurisdiction rule from taking effect Aug. 28 (N. Dakota v. EPA, D.N.D., No. 15-00059, motion granted 8/27/15).
Erickson agreed with the states that the rule—written by the EPA and the U.S. Army Corps of Engineers—would cause the states “irreparable harm” if it took effect.
The clean water rule, published June 29, has faced several petitions seeking the injunction and requests from groups seeking postponement (80 Fed. Reg. 37,054; 156 DEN A-6, 8/13/15).
In a statement late Aug. 27, the EPA said the rule would take effect as scheduled in the 37 states not covered by Erickson's ruling.
“Under the order issued by the District Court of North Dakota, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation,” the agency said in a statement. “In light of the order, EPA and the Army Corps of Engineers will continue to implement the prior regulation in the following States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.”
“In all other respects, the rule is effective on August 28. The Agencies are evaluating these orders and considering next steps in the litigation,” the EPA said.
Other Courts Ruled Differently
Two other federal district courts had dismissed petitions seeking similar injunctions against the rule, citing lack of jurisdiction.
The U.S. District Court for the Northern District of West Virginia dismissed a petition by Murray Energy Corp. seeking a similar injunction, saying the federal appeals court was the appropriate jurisdiction for the challenge. Likewise, the U.S. District Court for the Southern District of Georgia dismissed a similar injunction sought by Georgia that petitioned on behalf of 10 states—Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, West Virginia and Wisconsin (Murray Energy Corp. v. EPA, N.D. W.Va., No. 15-00110, 8/26/15; Georgia v. EPA, S.D. Ga., No. 15-00079, 8/27/15).
The final clean water rule (RIN 2040-AF30) sought to clarify which waters and wetlands received Clean Water Act protections under federal permitting, oil spill prevention, and state water quality certification programs.
‘Imminent and Likely' Harm
Unlike the judges for the district courts in West Virginia and Georgia, Erickson dismissed the government's argument that the rule would benefit the public by affording protection to more waters than is the case.
“The risk of irreparable harm to the States is both imminent and likely,” Erickson wrote. “More importantly delaying the Rule will cause the Agencies no appreciable harm. Delaying implementation to allow a full and final resolution on the merits is in the best interests of the public.”
For instance, Erikson noted in the ruling that North Dakota would under the rule be required to seek jurisdictional studies for every proposed natural gas, oil or water pipeline project. He also took note of the recently released corps memos that questioned whether the rule's technical, economic and legal rationale was based on sound science, saying the rule as written would be difficult to defend in court and challenging to implement (144 DEN A-1, 7/28/15)(144 DEN A-1, 7/28/15).
In an Aug. 27 statement to Bloomberg BNA, Gary Broadbent, assistant general counsel for Murray Energy Corp., told Bloomberg BNA that the coal company looks forward to pursuing its case and holding the Obama administration responsible for “their blatantly unconstitutional effort to radically rewrite the Clean Water Act by unlawfully and unreasonably expanding the definition of ‘Waters of the United States.' ”
Broadbent noted that “the Obama EPA's actions here are fundamentally flawed and completely illegal, and we will prevail in this litigation.”
Groups Seek Delay
The split court rulings came the same day that the EPA and the corps held a joint webinar on implementing the clean water rule. The agencies announced that they would start posting data to their websites about which waters and wetlands are determined to be jurisdictional under the Clean Water Act.
Ken Kopocis, EPA deputy assistant administrator for water, said the agencies will post the status of a jurisdictional determination for water features based on the categories of waters that fall under Clean Water Act protections under the new rule. Kopocis said the agencies will indicate whether jurisdiction was determined or not determined for a given water feature. The posting also will include the agencies' rationale for a given decision, he said.
“Admittedly, there will not be jurisdictional determinations under the new rule made starting tomorrow, but there will be the ability for us to grow that population and provide this kind of information to the public,” Kopocis said.
The corps conducts a jurisdictional determination at the request of property owners who want to know whether they need a Clean Water Act permit for a specific project that could affect waters or wetlands found on their property.
Jurisdictional determinations that the corps approves prior to the new rule taking effect would remain in effect for five years unless new site-specific information requires revision. In that case, the approved jurisdictional determination would be made under the new clean water rule, said Gib Owen, assistant for water resources legislation in the Office of the Assistant Secretary of the Army for Civil Works.
Kopocis emphasized that the new rule would have no effect on the current National Pollutant Discharge Elimination System permit holders. He noted that water quality standards may change for some waters that are found to be newly jurisdictional but didn't expect much change.
During the webinar, Kopocis made it clear that the agencies were continuing to hold training seminars and would be developing guidance documents to implement the rule. In an Aug. 26 letter, the National Association of State Departments of Agriculture, wrote to EPA Administrator Gina McCarthy and Assistant Secretary to the U.S. Army for Civil Works Jo-Ellen Darcy. The association urged the agencies to postpone the rule from taking effect “until adequate outreach to state regulatory agencies and the regulated community is able to occur and all parties—including EPA and Corps field staff—have a clear understanding of their duties and obligations under the new rule.”
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District Court Halts EPA CWA Rule, Highlighting Fight Over Lawsuit Venue
Aug 27, 2015 | InsideEPA
By Bridget DiCosmo
A federal district court has granted a request from 12 states to immediately block EPA and the Army Corps of Engineers from implementing their Clean Water Act (CWA) jurisdiction rule on its planned effective date of Aug. 28, highlighting a fight over whether federal district courts or appellate courts should hear suits over the rule.
The Aug. 28 opinion and order by U.S. District Court for the District of North Dakota Southeastern Division's Chief District Judge Ralph Erickson also strongly suggests he will find for the states and scrap the rule outright. His order enjoining the agencies from implementing it says the jurisdiction rule is “arbitrary and capricious” as the agencies “failed to establish a 'rational connection between the facts found' and the Rule as it will be promulgated.”
The decision also creates major legal confusion because it asserts the court's authority to hear the states' challenge to the rule even though the U.S. Court of Appeals for the 6th Circuit recently consolidated a host of appellate suits over the regulation in a still-pending case -- and at press time it was unclear how the situation might be resolved.
Erickson concludes he has jurisdiction to hear the suit because only CWA rules that establish effluent limits and “other limitations” must be heard in appeals court, whereas EPA's rule defines waters of the United States.
“Original jurisdiction is vested in this court and not the court of appeals,” he writes. The rule “has at best only an attenuated connection to any permitting process. If the exceptionally expansive view advocated by the government is adopted” and the appellate court deemed the correct venue to hear the case, it “would encompass virtually all EPA actions under the Clean Water Act, something precisely contrary” to the CWA, he says.
After concluding the district court has authority to hear the suit, Erickson then attacks the merits of the regulation. EPA and the Corps issued the rule in a bid to resolve uncertainty over the CWA's scope following Supreme Court rulings that created competing tests for jurisdiction. Supporters say the rule provides much-needed certainty on the law's reach, but critics counter that it expands the scope of the CWA far beyond what Congress intended.
A coalition of 12 states opposed to the rule, led by North Dakota, filed suit in the state's federal district court and urged it to block the agencies from implementing the rule as planned Aug. 28. They claimed that they face major harms from the rule due to the costs of new studies, permitting and other work they will have to do under the rule.
“On balance, the harms favor the States. The risk of irreparable harm to the States is both imminent and likely. More importantly delaying the Rule will cause the Agencies no appreciable harm. Delaying implementation to allow a full and final resolution on the merits is in the best interests of the public,” the judge's order says.
Erickson says the states are likely to succeed in their challenge because “it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue, and it appears likely the EPA failed to comply with APA requirements when promulgating the Rule.”
The order says EPA and the Corps in issuing the rule violated the CWA by overstepping the parameters laid out in Rapanos v. United States, the 2006 Supreme Court ruling that created the competing jurisdiction tests.
EPA in the rule sought to adopt language from Justice Anthony Kennedy's concurring opinion in Rapanos, which held that waters with a “significant nexus” to downstream waterbodies are jurisdictional, but Erickson warns that the agency's significant nexus definition oversteps the Kennedy language. “The Rule here likely fails to meet this standard,” he writes. The order indicates that EPA's definition is overly broad, saying, “The Rule allows EPA regulation of waters that do not bear any effect on the 'chemical, physical, and biological integrity' of any navigable-in-fact water.”
Competing Rulings
The North Dakota judge's order is at odds with decisions by at least two other federal district court that denied separate requests by coal mining firm Murray Energy and Georgia to block the rule's effective date.
U.S. District Court for the Northern District of Virginia Judge Irene Keeley in an Aug. 26 memorandum dismissed without prejudice litigation over the rule in Murray Energy Corporation v. EPA, et al., finding that the court lacks jurisdiction to review the suit and also to decide whether to grant a motion from the energy company seeking a preliminary injunction to block the rule from taking effect.
“The Court agrees that a jurisdictional determination is proper, and, after carefully reviewing the relevant statutes and decisions, concludes that, under the law of the Fourth Circuit, jurisdiction over Murray’s challenges to the Clean Water Rule is vested exclusively in the Sixth Circuit,” Keeley said.
Separately, U.S. District Court for the Southern District of Georgia's Brunswick Division Judge Lisa Wood issued an Aug. 27 decision rejecting Georgia's request for an injunction halting the rule.
Despite the orders from Keeley and Wood, the order from North Dakota's Erickson places an injunction on implementing the rule and exacerbates the uncertainty over which court should hear the CWA rule suit.
Many environmental statutes, including the Clean Air Act and the Resource Conservation & Recovery Act, provide that judicial review of final agency rules must proceed in a court of appeals as opposed to a federal district court. But section 509 of the CWA says that only specific types of rules must be initiated at the appellate level.
Section 509 of the water law says that legal challenges to approval or promulgation of any effluent limitation "or other limitation" under sections 301, 302, 306, or 405, permit approvals under section 402, or individual water quality control strategies under section 304 must seek initial review in an appeals court.
However, the jurisdiction rule does not fall within a specific section of the water law, and so the open question is whether it will be considered as an "other limitation" under the courts. The legal uncertainty has led to the myriad lawsuits over the rule filed at both the district court and appellate court levels.
EPA and the Corps have argued that the rule is both a “limitation” and an “underlying permit regulation” under section 509, while industry in the Murray Energy Corp. suit countered that the rule “imposes no restrictions” under any of the CWA programs listed in section 509, and does not involve issuing or denying permits.
“Murray’s rigid application of [section 509] is contrary to the prevailing flexible approach utilized by many courts, particularly the Fourth Circuit,” Keeley writes in the memorandum.
The Virginia district court found that the governing case on the issue is Virginia Electric & Power Co. v. Costle, a 1977 4th Circuit, over EPA's cooling water intake regulation, in which the court held that the regulation was mandatory in that it requires certain information to be considered in decided the best available technology for intake structures.
That court held that “[t]his in itself is a limitation on point sources and permit issuers, for we construe that term as a restriction on the untrammeled discretion of the industry which was the condition prior to the passage of the statute.”
And Wood in the Georgia case found that the rule constitutes a limitation under section 509 and therefore the district court does not have jurisdiction. “Upon due consideration, the Court concludes that original subject matter jurisdiction over this case is proper in the Courts of Appeal, given that the Rule, as drafted, constitutes a limitation promulgated under [section 509] of the Clean Water Act, and the Court does not have jurisdiction in this case.”
Regulatory Implementation
Separate from the court challenges, the National Association of State Departments of Agriculture (NASDA) in an Aug. 26 letter to EPA and the Corps urged the agencies to delay implementing the rule until adequate outreach has been conducted with state regulators and regulated entities. The letter, signed by NASDA director Barbara Glenn, asks the agencies to hold off on implementing the rule until “all parties -- including EPA and Corps field staff -- have a clear understanding of their duties and obligations under the new rule.”
The letter gives several examples of why more outreach is needed, including questions over application of terrestrial pesticides in or around ditches near farm fields, which the letter says could result in CWA violations and citizen suit litigation from inadvertent pesticide contact with these types of waters.
The limited government group Pacific Legal Foundation also continues to attack EPA's CWA jurisdiction policy, filing a complaint Aug. 27 in the U.S. District Court for the District of Wyoming in Andy Johnson v. EPA. The group filed the suit on behalf of a Wyoming rancher challenging a 2014 EPA administrative compliance order under the CWA over a stock pond -- which the agency says are excluded from jurisdiction under the new rule.
“In the year and a half that Andy and his environmental consultant have spent trying to explain to EPA why this stock pond is exempt, that potential fine has already grown to nearly $20 million and will only continue to grow,” the complaint says.
Ahead of the North Dakota district court's ruling, EPA and the Corps were taking further steps to implement the rule by Aug. 28. The agencies this week posted a long-awaited question and answer document on their websites to aid in implementing the regulation. The document reflects the agencies' position on key issues, such as the grandfathering of existing jurisdictional determinations (JDs); CWA agriculture exemptions for “normal” farming, ranching, and silviculture activities; clarification on the rule's definition of “tributaries;” and other questions.
EPA in its the document seeks to address a number of concerns that it says stakeholders have raised over the rule's implementation, and agency officials have said they will continue to add to the document. For example, on the question of how the rule will affect pending and existing JDs, EPA says that preliminary JDs -- which are non-binding preliminary indications of jurisdiction -- and JDs already completed that have not yet expired will not be affected by the final rule, while stand-alone approved JDs completed after Aug. 28 are finalized under the new rule.
But Erickson's order means implementation of the CWA rule is now on hold, a decision that prompted criticism from the League of Conservation Voters' Legislative Representative Madeleine Foote.
“This is a terrible decision for the 1 in 3 Americans who have already been waiting too long for these vital protections for their drinking water,” Foote said. The decision “puts the interests of big polluters over people in need of clean water. Blocking the implementation of the Clean Water Rule leaves in place an unworkable status quo that jeopardizes the clean water our families, economy, and communities depend on,” she added. “Time and again the public has demonstrated that it overwhelmingly supports protections for our waterways, including small streams and wetlands,” Foote said.
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Federal Judge Blocks Obama’s Water Rule
Aug 27, 2015 | The Hill - E2 Wire
By Timothy Cama
A federal judge in North Dakota acted late Thursday to block the Obama administration’s controversial water pollution rule, hours before it was due to take effect.
Judge Ralph Erickson of the District Court for the District of North Dakota found that the 13 states suing to block the rule met the conditions necessary for a preliminary injunction, including that they would likely be harmed if courts didn't act and that they are likely to succeed when their underlying lawsuit against the rule is decided.The decision is a major roadblock for the Environmental Protection Agency (EPA) and the Army Corps of Engineers, who were planning Friday to begin enforcing the Waters of the United States rule, expanding federal jurisdiction over small waterways like streams and wetlands.
But the Obama administration says it will largely enforce the regulation as planned, arguing that the Thursday decision only applies to the 13 states that requested the injunction.
“Once the rule takes effect, the states will lose their sovereignty over intrastate waters that will then be subject to the scope of the Clean Water Act,” Erickson wrote in his order.
“While the exact amount of land that would be subject to the increase is hotly disputed, the agencies admit to an increase in control over those traditional state-regulated waters of between 2.84 to 4.65 percent. Immediately upon the rule taking effect, the rule will irreparably diminish the states’ power over their waters,” he continued, calling the Obama administration's interpretation of its jurisdiction "exceptionally expansive."
The states and the federal government argued over how to judge the likelihood opponents of the rule would win their case. But Erickson decided that the regulation is not “likely” to stand up to full court consideration.
In a statement shortly after the ruling, the EPA was defiant and said that the injunction only applies in the thirteen states that filed for it: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
“In all other respects, the rule is effective on August 28,” EPA spokeswoman Melissa Harrison said in the statement. “The agencies are evaluating these orders and considering next steps in the litigation.”
The EPA’s interpretation appears to conflict with responses from most stakeholders, lawmakers and others.
The water rule quickly became one of the most controversial regulations from Obama’s EPA, opposed by most states and many business, agriculture and development interests, among others.
They argue that the regulation greatly expands the federal government’s authority over water and land.
The Obama administration says the rule is necessary to protect small waterways from pollution or harm, as called for under the Clean Water Act.
As a preliminary injunction, Erickson’s ruling is designed only to last as long as the litigation persists, and can be overturned.
The 13 states, led by North Dakota, are participating in just one of 10 lawsuits against the water rule. In total, 29 states, along with business interests representing energy, developers, farmers and others are suing.
The cases have been consolidated into one lawsuit at the Court of Appeals for the Sixth Circuit in Cincinnati, but Erickson argued that he could still issue his injunction. Multiple litigants had requested injunctions in their lawsuits, and most had been dismissed and deferred to the Sixth Circuit.
On Wednesday, a federal judge in West Virginia declined to block the rule. Shortly after Erickson's decision in North Dakota, Judge Lisa Godbey Wood in the District Court for the Southern District of Georgia also declined a plea from 11 states to block the rule, saying she lacked jurisdiction.
Congressional Republicans and their allies applauded the injunction.
“The judge’s decision to block the rule — which was challenged by 13 states — is encouraging, especially as EPA’s credibility has been questioned in the past month,” said Julia Slingsby, spokeswoman for House Natural Resources Committee Chairman Rob Bishop (R-Utah). “The EPA needs to be stopped before it does more harm to our nation’s precious water resources.”
“A federal court threw a giant wrench into the EPA and Army Corps’ plan to radically expand their power,” said Dan Danner, head of the National Federation for Independent Businesses, which filed one of the lawsuits.
“The agencies ignored the impact of their actions on small business and ignored prior Supreme Court decisions.”
The League of Conservation Voters sharply criticized the decision.
“This is a terrible decision for the 1 in 3 Americans who have already been waiting too long for these vital protections for their drinking water,” said Madeleine Foote, the group’s legislative representative.
“The District Court for North Dakota’s decision puts the interests of big polluters over people in need of clean water,” she said.
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North Dakota Federal Judge Blocks Waters Rule, Suggests States Will Win
Aug 27, 2015 | PoliticoPro - Whiteboard
By Jenny Hopkinson
A federal judge in North Dakota has granted a request from 13 states for an injunction on EPA’s Clean Water Rule, blocking the measure from taking effect Friday.
In an 18-page opinion issued late today, Chief Judge Ralph Erickson of the U.S. District Court for North Dakota found that because the rule “would encompass virtually all EPA actions under the Clean Water Act,” and not just permitting procedures, the law gives original jurisdiction over the measure to the district courts.
Erickson further added that “the states are likely to succeed on their claim” as “it appears likely that the EPA has violated the Congressional grant of authority in its promulgation of the rule at issue.” EPA may also have failed to comply with federal rulemaking statues, he said.
The move granting the injunction followed a pair of opinions from district courts in other states that the suit needed to be addressed by an appellate court.
In a six-page opinion flied late today, Chief Judge Lisa G. Wood of the U.S. District Court for the Southern District of Georgia, denied an injunction request by 11 states, saying jurisdiction over the case belongs in the U.S. Court of Appeals. The opinion mirrored conclusions reached Wednesday in a West Virginia federal court.
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EPA Fights Request To Rehear Non-Hazardous Secondary Materials Ruling
Aug 28, 2015 | InsideEPA
By Suzanne Yohannan
EPA is fighting environmentalists' bid for a federal appeals court to rehear its recent unpublished ruling that upheld the agency’s non-hazardous secondary materials (NHSM) waste definition rule, arguing that advocates failed to prove that the court's decision was at odds with prior legal precedent and that the court should reject the request.
Earthjustice, representing the Louisiana Environmental Action Network (LEAN), the Sierra Club and other groups, on July 20 petitioned the U.S. Court of Appeals for the District of Columbia Circuit for rehearing. They argued that the court's four-page decision issued June 3 upholding the rule was in error, claiming that it conflicts with the court's previous rulings as well as precedent from the 9th and 11th Circuits and the Supreme Court.
But the Department of Justice (DOJ) in an Aug. 27 opposition brief filed on EPA's behalf asks the court to reject the rehearing petition “because it simply rehashes arguments that were thoroughly considered and reasonably rejected by the panel, and there is nothing the panel ‘overlooked or misapprehended,’” the brief says.
“Furthermore, there is no basis for rehearing en banc [by the full court] because the panel’s decision is entirely consistent with existing case law and does not present an issue of exceptional importance,” DOJ says.
EPA’s 2011 Resource Conservation & Recovery Act (RCRA) rule allows for the exclusion of some secondary material -- such as scrap tires, used oil and dewatered pulp and paper sludge -- from the definition of solid waste, thereby allowing the material to be burned in boilers with less stringent air requirements than commercial incinerators. The rule determines if a combustion unit must meet emissions limits in the Clean Air Act boiler maximum achievable control technology rule or the air law's more stringent commercial/industrial solid waste incinerator rule.
The three-judge panel's decision backed EPA’s determination that some secondary materials such as scrap tires are not solid waste and therefore can be burned as fuel in lesser-regulated boilers, rather than more stringently regulated incinerators. The ruling in Eco Services Operations v. EPA effectively allows the NHSM rule to stand, striking down challenges to the rule by both environmentalists and industry groups that filed suit.
Advocates had argued for tighter emissions controls under the rule, contending that secondary materials such as used oil and tires should be classified as solid waste and trigger the more stringent incinerator requirements when burned as fuel, while industry parties argued for loosening the rule. Industry for instance called for extending the exemption from solid waste regulations to third-party transfers of secondary materials for fuel burning, and for sewage sludge.
Environmentalists in their rehearing petition said the decision upholding the agency's first-time RCRA definition of nonhazardous solid waste allowed EPA to exclude almost all solid waste from the definition. As a result, “facilities operating in thousands of communities across the country can now burn scrap tires, used oil, and other wastes, including processed household waste, without controlling, measuring, or reporting the toxic pollution that results,” they said.
DOJ's Arguments
But DOJ, on behalf of EPA, contends in its new filing that “LEAN greatly overstates the effect of the NHSM Rule” in claiming that the rule excludes nearly all solid waste from the regulatory definition. The rule relates only to non-hazardous secondary materials combusted for energy or materials recovery, DOJ says. It does not apply to materials that are landfilled, recycled or disposed of in other ways, nor does it apply to hazardous waste, DOJ notes.
Advocates make arguments based on “the erroneous premise that all post-consumer secondary materials that are burned are irrevocably ‘solid waste’ from the moment the consumer decides they do not need or want them,” DOJ says.
It adds that “LEAN’s interpretation is clearly overbroad, as it would turn such items as a crib given to a neighbor or a lamp donated to a charity sale into solid waste, along with any sort of recycling or reuse activity.”
Under RCRA, solid waste, in relevant part, is defined as “discarded material,” but the law does not define “discard,” DOJ notes. It then points to case law established by the D.C. Circuit to reject the petitioners’ argument that a secondary material becomes a solid waste automatically once it is no longer used for its original purpose
DOJ says the D.C. Circuit in its 1987 American Mining Congress v. EPA (AMC I) ruling said “the relevant question was whether the material had become part of the ‘waste disposal problem,’ and noted that in determining what constitutes ‘discard,’ EPA should consider the statutory goal of encouraging the use of alternatives to disposal, including recycling.”
The government says the NHSM rulemaking is analogous to EPA’s determination that certain secondary materials recycled for use in fertilizers were not discarded and therefore not solid waste.
That finding was upheld by the D.C. Circuit in its 2003 decision in Safe Food & Fertilizer v. EPA. In that case, the court held “that it is permissible under RCRA for EPA to determine that a secondary material used for other than its original purpose . . . is not discarded, and thus is not a solid waste, and to establish standards for determining when a particular secondary material should be classified as a product or a waste,” DOJ says.
“That is what EPA did in the NHSM Rule,” DOJ says. “It determined that non-hazardous secondary materials meeting criteria that made them analogous to valuable product fuels are not discarded, and thus not solid waste, when burned for energy recovery.”
Courts' Decisions
DOJ further rejects the petitioners’ arguments that the June 3 decision conflicts with other decisions by the D.C. Circuit or other circuit courts.
For instance, while LEAN in its arguments “relies on language from AMC I, i.e., that the ordinary meaning of discarded is ‘disposed of, thrown away, or abandoned,’ it ignores both the actual issue before the Court in AMC I as well as the holding of that case,” DOJ says.
As the court recognized in Eco Services, EPA correctly exercised its discretion to develop criteria to determine when NHSM should be classified as product fuels versus when they should be deemed solid waste, DOJ says. “AMC I specifically rejected the argument LEAN makes here that a material immediately and irrevocably becomes a solid waste when it is no longer serving its initial purpose,” DOJ says.
Finally, DOJ disputes the petitioners’ claim that the rule conflicts with the Clean Air Act because Congress in the air law found scrap tires, used oil and refuse-derived fuel to be waste.
“In fact, Congress did no such thing,” DOJ contends. It points to the air law’s section 129, which specifically defers to RCRA on the question of what constitutes a solid waste. “The fact that Congress specifically excluded certain types of facilities from the definition of ‘solid waste incineration unit’ in section 129 of the Clean Air Act does not constitute a determination by Congress that specific materials are solid waste under RCRA,” DOJ says.
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Oregon Adopts Quarterly Reporting of Railroad Hazmat Cargo
Aug 28, 2015 | BNA Daily Environment Report
By Paul Shukovsky
Oregon adopted more stringent reporting requirements Aug. 21 for railroads hauling hazardous materials through the state.
The regulation, still in draft form until it is officially posted next month by the Secretary of State, provides for penalties of up to $1,000 a day for failure to comply with the rules.
The state's Transportation Commission acted in light of the sharp increase in the amount of crude oil coming into the state by rail, Oregon Department of Transportation Rail Safety Manager John Johnson told Bloomberg BNA in an Aug. 27 telephone interview.
The rule requires railroads to provide quarterly, after-the-fact reports detailing hazardous materials shipments. Under the old requirements, reports were made on an annual basis, Johnson said. Reports will be released under the state public records statute, however exemptions exist for trade secrets. Railroads will also now be required to provide immediate notification of any hazardous materials incidents.
BNSF Railway Co. and Union Pacific Railroad are the two long-haul railroads in the state, said Johnson.
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