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ACC PM 12/14/15
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(ACC Mentioned) ACC: Market Weaker, but Still Strong
Dec 14, 2015 | Chem Info
By Jeff Reinke
The American Chemistry Council released its Weekly Chemistry and Economic Trends Report last Friday, for the week of December 7-11, 2015. -
(ACC Mentioned) Americans Waste Billions Of Tons Of Food. This Congresswoman Is Doing Something About It.
Dec 14, 2015 | Think Progress
By Natasha Geiling
Food waste is a big problem in the United States — nearly 40 percent of the food produced in the country is wasted each year, costing consumers $161 billion annually. -
In Ohio’s ‘Chemical Valley,’ a Debate Over Good Jobs and Bad Health
Dec 12, 2015 | Washington Post
By Kevin Williams
On a cheerful playground outside the local elementary school, a bench commemorates the brief life of Emma Grace Hemsilen Hess, a bubbly 12-year-old who died in July after a long battle with congenital heart ailments. -
Teflon’s Toxic Legacy
Dec 14, 2015 | Earth Island Journal
By Sharon Kelly
Almost two decades ago, Carla Bartlett, a then 41-year -old West Virginia secretary and mother of two, was first diagnosed with cancer – what her surgeon later labeled a “garden variety” type of kidney cancer. -
Brussels Publishes List of Substances Used in EDC Screening Exercise
Dec 14, 2015 | Chemical Watch
By Geraint Roberts
The European Commission has published a list of almost 700 substances that have been used to help screen the available evidence on endocrine disruption. -
TSCA Bill Could Have 'Huge' Impact on Downstream Users
Dec 14, 2015 | Chemical Watch
Changes to the chemical inventory as proposed in the US Senate Toxic Substances Control Act (TSCA) reform would have a “huge” impact on downstream users, according to Lynn Bergeson, owner of Bergeson & Campbell, PC. -
Congress Poised to Make Major Changes to Freight Rail Watchdog, with Little Fanfare
Dec 11, 2015 | Politico Pro
By Heather Caygle
For all of Capitol Hill's bombast, sometimes the biggest policy changes to come out of Congress happen quietly and without much fanfare. -
On PTC, FRA Loses a Bit of Its Bite
Dec 14, 2015 | Politico Pro
By Jennifer Scholtes
Railroads have until next month to submit their updated plans for meeting the new end-of-2018 deadline for getting positive train control technology up and running. -
Railroad Company Asks to Stall Contentious Mont. Project
Dec 14, 2015 | E&E Greenwire
By Manuel Quiñones
A subsidiary of BNSF Railway Co. is moving to delay permitting for what has become one of the country's most controversial proposed rail spurs. -
Obama Team Held Its Ground, Shaped Deal Around Its Wishes
Dec 14, 2015 | E&E Greenwire
By Jean Chemnick
The United States got almost everything it wanted in the landmark climate deal struck here this weekend. -
Nations Make History in Paris, While States Make Plans for Carbon Cuts
Dec 14, 2015 | E&E Interactive
By Emily Holden and Rod Kuckro
International negotiators over the weekend finalized a landmark agreement to curb greenhouse gas emissions. -
After Paris, Push to Expand Climate Regulations Could Grow
Dec 14, 2015 | E&E Climatewire
By Evan Lehmann
It was two months before the Paris climate talks when White House officials met with an unusual collection of businesses to talk about their efforts to cut carbon emissions. -
Parties Stake Out Positions on How to Allocate Emissions Allowances
Dec 14, 2015 | E&E Energywire
By Jeffrey Tomich
For state air regulators, the big question for 2016 is whether to choose rate- or mass-based compliance plans to satisfy U.S. EPA's Clean Power Plan. -
EPA, Corps Vow To Improve 404 Permitting Despite Stay Of 'Waters' Policy
Dec 14, 2015 | Inside EPA
By Amanda Palleschi
EPA and the Army Corps of Engineers are vowing to work together on improving the Clean Water Act's (CWA) section 404 dredge-and-fill permit program, despite an appellate court's stay blocking the agencies from implementing their joint rulemaking to define which waters can be regulated by section 404 and other CWA programs. -
Relying On EPA Analysis, New Jersey Lowers Dioxane Cleanup Level
Dec 14, 2015 | Inside EPA
By Suzanne Yohannan
New Jersey regulators are significantly lowering their state groundwater cleanup standard for 1,4-dioxane, a ubiquitous contaminant, defending a decision to track closely with EPA's oral cancer risk assessment for the chemical despite a push by a private-sector risk group questioning EPA's use of a conservative default assumption in assessing the cancer risk. -
Independent Producers Push Back on Criticism of EPA Study
Dec 14, 2015 | E&E Energywire
By Mike Soraghan
The oil and gas industry is pushing back on criticism of U.S. EPA's finding that hydraulic fracturing has caused no "widespread, systemic" problems with drinking water. -
Unwanted Gifts from Congress Could Hurt Science, Health
Dec 14, 2015 | The Hill - Congress Blog
By Ken Kimmell and Andrew Rosenberg, Ph.D.
While you’re doing your Christmas shopping, Congress is wrapping up a very unwelcome set of gifts for us. -
Garbage: The Back End of the Renewable Economy
Dec 14, 2015 | Huffington Post
By Steven Cohen
Like many, I believe that the Paris climate agreement will be seen as a turning point, when the world community finally agreed to address the climate crisis. One cannot understate the importance of the transition from fossil fuels to renewable energy, and the work of communities, cities, states and nations has now been codified into an international set of norms and expectations.
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(ACC Mentioned) ACC: Market Weaker, but Still Strong
Dec 14, 2015 | Chem Info
By Jeff Reinke
The American Chemistry Council released its Weekly Chemistry and Economic Trends Report last Friday, for the week of December 7-11, 2015. Highlights of the report included:
13 of the leading 20 indicators were positive.
Holiday spending has increased retail sales, but general economic reports showed wholesale sales and inventories were generally flat. This was echoed specifically in the chemical market.
Imports were also down and small business optimism has begun to waver as economic improvement has not happened as quickly as many anticipated.
Oil and natural gas prices were down, which carries mixed economic ramifications. While consumers enjoy the lower prices, oversupply means less investment and job cuts for some suppliers.
New investments in chemical projects is up, with a total of 261 U.S. projects totaling $158 billion in the pipeline.
Railcar loading of chemical, a good real-time indicator of purchasing, was up for the week.
More specifically, overall chemical prices fell 0.2 percent in November, following an identical decline in October and 0.9 percent decrease in September. Pharmaceutical prices roles in November after declines in October and September.
Global semiconductor sales were up almost two percent.
Overall, the positive news for the industry comes from lower energy and feedstock prices. Combined with a strong consumer sentiment and holiday-fueled purchasing levels, the chemical market remains strong and steady.
To view the full report, click here.
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Dec 14, 2015 | Think Progress
By Natasha Geiling
Food waste is a big problem in the United States — nearly 40 percent of the food produced in the country is wasted each year, costing consumers $161 billion annually. A lot of that waste also tends to end up in landfills, where it decomposes and releases methane, a greenhouse gas more powerful than carbon dioxide.
When people hear those statistics, they tend to feel an urge to act — according to a poll by the American Chemistry Council, 70 percent of Americans are bothered by the amount of food wasted in the country.
Earlier this year, the USDA and EPA teamed up to release the country’s first official national goalfor reducing food waste, hoping to cut food waste in half by 2030. Still, despite widespread public support for addressing food waste, it’s an issue that has largely been championed by businesses and activists rather than politicians.
Now, Rep. Chellie Pingree (D-ME) is trying to change that. On Dec. 7, Pingree introduced the Food Recovery Act, a comprehensive bill that seeks to address food waste from the farm to table.
“We wanted … to have people be able to talk about all ways of looking at the problem, from restaurants and at home to municipalities and government,” Pingree told ThinkProgress. “We want to give people a chance to understand it better, how much food in this country is wasted, what they can do as individuals, what we can do to help.”
The bill contains nearly two dozen provisions aimed at curbing food waste across the entire economy, from farm-level waste to food that is wasted at restaurants.
At the consumer level, one of the easiest things to do, Pingree said, would be to reevaluate the “Best By” labels included on most food products.
“That’s one of those things that over time you get used to having on anything you buy, but most people don’t realize there is no corresponding science to what the date is,” Pingree said. Currently, there are no federal laws regulating the dates that can be used on products. Under the bill’s provision, companies wanting to print a “Best By” label would need to include the words “Manufacturer’s suggestion only” in letters of equal size to the “Best By” date.
At the farm level, Pingree’s bill would support the installation of anaerobic digesters on rural farms, which could help turn crop waste into energy, and would also incentivize composting at the farm level. The bill also calls for a deeper study of the incidence of food waste that happens at the farm level, since food waste that happens on the farm is notoriously difficult to track. The USDA does not keep track of post-harvest food waste data, and most studies have been, until now,anecdotal, with numbers and practices ranging from farmer to farmer. An NRDC investigation that looked at post-harvest waste in California found numbers as low as 1 percent and as high as 30 percent, but food waste activists argue that strict cosmetic standards required by supermarkets lead farmers to throw away a great deal of nutritious but aesthetically imperfect produce.
Pingree’s bill would also support restaurants, grocery stores, and schools in cutting food waste, by expanding tax credits for grocery stores that want to donate leftover products and establishing an Office of Food Recovery meant to coordinate federal programs to measure and reduce food waste.
“We see [food waste] as an economic issue, a humanitarian issue, an environmental issue,” Pingree said. “This is one of those things where everyone’s grandma told them not to waste food. It’s not partisan.”
Pingree said that she hopes to pass some of the bill’s provisions before the session ends for the year — the tax breaks for farms and businesses that donate unused produce, for instance, could end up in a tax extender bill making its way through Congress. For the rest of the bill, Pingree hopes to break it down provision by provision and work to enact them individually.
“A lot of our goal is to get a public dialogue going,” she said. “It’s a popular issue, people are interested in it, and sometimes they just want to know what they should do.”
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In Ohio’s ‘Chemical Valley,’ a Debate Over Good Jobs and Bad Health
Dec 12, 2015 | Washington Post
By Kevin Williams
On a cheerful playground outside the local elementary school, a bench commemorates the brief life of Emma Grace Hemsilen Hess, a bubbly 12-year-old who died in July after a long battle with congenital heart ailments.
No one knows what ultimately caused Emma’s heart problems. One of her doctors suggested an obvious suspect: C8, a chemical once used in the making of Teflon, which has been found in the region’s water supply. But “that’s not a road we want to go down,” said Emma’s mother, Christina Hess, 51.
Casting blame is “not what Emma was about,” said Hess, whose relatives and neighbors have long worked in the chemical plants that line the nearby banks of the Ohio River. “She was about loving life and loving God.”
Loyalty to the plants runs deep in Belpre, one of several towns strung along the “Chemical Valley” on the Ohio-West Virginia border. For decades, the plants have provided good jobs paying as much as $35 an hour in a hard-luck part of Appalachia where people have few other prospects for employment.
But in October, a jury blamed C8 for causing kidney cancer in a woman who lived downriver in Coolville and ordered the chemical giant DuPont to pay her $1.6 million. A second case is set to go to trial in March and, with 3,500 other plaintiffs waiting in the wings, the verdict has sparked less hope for the environment than anxiety about the region’s future.
“I’m not trying to put economy over health, but if DuPont would close, people will leave,” said Belpre Mayor Michael Lorentz, 65. “With this C8 case, no one wins, everyone loses.”
The sense of unease has been stoked by an unnerving development: On July 1, DuPont spun off a separate company to run its sprawling Washington Works across the river from Belpre, near Parkersburg, W.Va. For the first time in most people’s lives, the iconic DuPont sign is gone, replaced by a flimsy banner that advertises the new company name, Chemours.
Many suspect the move is aimed at helping DuPont limit the economic fallout from the coming Teflon trials, though Chemours spokeswoman Janet Smith denied that is the case. Smith also said Chemours has “no plans to stop our operations at the Washington Works site” — one of the region’s largest employers, with about 1,700 workers.
“Chemours is confident that DuPont acted reasonably and responsibly at each stage in the long history of C8, placing high priority on the health of its employees and the community,” Smith said. “DuPont never believed that the extremely low levels of C8 that reached the community would cause any harm.”
Still, people are nervous. And tension between the broader populace and those who say their health has been compromised by C8 is palpable in bingo halls, diners and beauty parlors throughout the valley.
“It’s a West Virginia coal-miner mentality that you have to sacrifice your health to have a good job,” said Callie Lyons, a local environmental activist.
Belpre is a contraction of “Belle Prairie,” which means “beautiful meadow,” a name bestowed on the town of 6,000 by French trappers. After the Civil War, it became home to the longest bridge in the world at the time, a span across the mighty Ohio River that permitted coal to be carried by rail to the East Coast.
Chemical companies began locating here after World War II, attracted by cheap land, an industrious workforce and ready transportation. The DuPont Washington Works opened in 1948 and began using C8 in 1951 in its expansive Teflon production unit.
C8 is shorthand for perfluorooctanoic acid, an artificial compound that is exceptionally slippery. It has thousands of applications and has been used in products such as Gore-Tex fabric, communication cables and pizza boxes.
Evidence began to emerge that C8 could cause health problems as early as the 1960s, and tests found high levels of the chemical in water discharged from the Washington Works in 1984. But the negative effects of C8 didn’t become apparent locally until the late 1990s, when livestock began to fall ill after drinking from a polluted stream in Lubeck, W.Va., just south of the plant.
In 2005, DuPont paid $16.5 million to settle a federal complaint that it had concealed health information about C8. In 2012, the company released the results of a federally mandated study, which found a probable link between C8 and six different maladies: testicular cancer, high cholesterol, ulcerative colitis, thyroid disease, pregnancy-induced hypertension and kidney cancer.
It was kidney cancer that struck Carla Marie Bartlett, then living in Coolville. Bartlett joined about 3,500 plaintiffs suing DuPont in a class-action lawsuit in federal court. Her case, the first to go to trial, led to a jury verdict against DuPont on Oct. 7.
During the three-week trial in Columbus, Bartlett’s attorneys argued that her tumor, removed in 1997, was caused by drinking water contaminated with C8. DuPont’s attorneys argued that Bartlett’s exposure was insufficient to cause cancer and that other factors, such as obesity, played a larger role. But in a Perry Mason moment, DuPont’s plant manager revealed that he had a suspicious spot on one of his own kidneys.
The jury ordered DuPont to pay Bartlett $1.6 million but declined to assess punitive damages, finding that the company had not acted maliciously.
For many in the Chemical Valley, the verdict was an affirmation of years-long suspicions. Among them is Jenifer Auld, 44, a nurse who lives in Lubeck. Auld was seized five years ago by abdominal cramping that “felt like labor.” A series of colonoscopies revealed a softball-size tumor.
Colon cancer is not among the ailments linked to C8. It is linked to smoking, and Auld is a smoker. But, she said, “I think it’s DuPont and the water.”
Auld’s husband, meanwhile, one of the class-action plaintiffs, is battling thyroid problems. The couple have thought about moving for the benefit of their three children, the youngest of whom is 12. “But it’s not that easy,” she said.
Another plaintiff, Jim Dornan, 34, lives off of DuPont Road in Lubeck in a clutch of ramshackle homes and trailers. Dornan has high cholesterol, as does his mother, Elizabeth Williamson. Her boyfriend, John Mark Miller, has kidney disease.
“I didn’t have any of these health issues until I moved down here . . . to this Valley and drank the water for 20 years,” said Miller, 51, a registered nurse originally from Sandusky, Ohio.
Kelly Guy blames her autoimmune disease on the water in Parkersburg, where she grew up. She now lives in Portland, Ore., and has made YouTube documentaries about the effects of C8. She has no patience for those who oppose the lawsuit.
“Why is everyone going to defend DuPont? That is what pays their bills and gets them through life,” said Guy, 46. “DuPont is putting bread on your table and killing you at the same time.”
Whether or not that’s true, Lorentz and others say the trial verdict is bad news, another misguided step in an adversarial process that could lead inexorably to the region’s ruin. Lorentz spent a lifetime working in the chemical plants, including 26 years at Shell Oil’s expansive Belpre factory. The facility, now known as Kraton Corp., makes polymer plastics and rubber.
“I believe in my heart that if I got sick, and they cut me open and found I was full of crude oil, that that corporation would take care of me,” Lorentz said. “You get better results working with a company than by filing a lawsuit.”
Lorentz said there isn’t “a neighborhood in Belpre that doesn’t have a DuPont employee or retiree in it,” but he doesn’t know of a single soul “who has an illness or ailment linked to C8.”
“I’m not taking anything away from [Bartlett],” Lorentz said, “but I think if someone was affected by C8, then they had underlying health issues.”
Across the river, the Lubeck Public Service District has posted a letter on its website warning new customers that “If you elect to drink the water . . . you do so at your own risk.” Still, manager Randy Atkinson, 58, said district officials “do everything we can do to make sure people have safe drinking water.”
“I drink the water every day,” he added, “and make coffee with it.”
If anyone should be sick, Dave Lawson says, it should be him. Lawson, 74, was born in Lubeck on land that now belongs to DuPont. He lives closer than anyone to the Washington Works, and his backyard springs, he said, have “tested higher than any other water around” for the presence of C8.
Lawson continues to drink the water, he said, with no ill effects. Meanwhile, he counts DuPont as “a terrific neighbor, an asset to the community.”
“When DuPont came in here, we had mud roads. When they came in here, the economy started to go up. People had more money to spend. Without DuPont, this place would have been pretty much of a disaster.”
Lawson says “the C8 thing has been overdone” and that it’s “the lawyers” who will ultimately benefit from the Teflon trials.
As for the plaintiffs, “people are living longer, and people have health issues,” Lawson said. “I don’t blame C8 for them.”
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Dec 14, 2015 | Earth Island Journal
By Sharon Kelly
Almost two decades ago, Carla Bartlett, a then 41-year -old West Virginia secretary and mother of two, was first diagnosed with cancer – what her surgeon later labeled a “garden variety” type of kidney cancer.
“I was scared to death,” Bartlett, now 59, told an Ohio federal jury this fall during hearings in the first of more than 3,500 personal injury and wrongful death suits by West Virginia and Ohio residents against the chemical giant DuPont. “And all I could think of was not being there, not being able to be there for my family.” Bartlett’s tumor and part of her rib were removed in a surgery in 1997 that, she said, involved cutting her “virtually in half.” Though the cancer hasn’t recurred since, for Bartlett, the harm, both physical and emotional, has lingered. “It’s never out of my mind, because you worry constantly about it,” she said. “And then I have the reminder of the scar, every day, that, you know, this… this is… this was cancer; this could come back.”
On October 7, after less than a day of deliberations, the jury found DuPont liable for Bartlett’s cancer, agreeing with the defendant that the company had for years negligently contaminated her drinking water supply in Tuppers Plain, Ohio with a toxic chemical formerly used to make its signature brand of nonstick coating: Teflon.
What makes the verdict remarkable is that unlike, say, mesothelioma – a form of lung cancer almost exclusively linked to asbestos exposure – the renal cell carcinoma that struck Bartlett is not usually considered the calling card of a specific carcinogen. So it was difficult for her doctors to definitively say what had first made Bartlett sick – it could have been virtually anything. The $1.6 million the jury awarded to Bartlett – the product of decades’ worth of legal battles that unearthed reams of secret DuPont studies and internal emails – came despite the extreme difficulty of connecting common ailments to a specific chemical under the current United States legal system.
Proving that DuPont was legally culpable for Bartlett’s kidney cancer required years of extraordinarily innovative lawyering – and at times some plain dumb luck. The very improbability of that verdict demonstrates much that is flawed about the way this country regulates potentially dangerous chemicals. With no mandatory safety testing for the vast majority of the tens of thousands of chemicals used daily in America, doctors and public health officials have little information to guide them as they seek to identify potential health hazards – including the chemical, called C8, that DuPont knowingly allowed to pollute Bartlett’s drinking water. Bartlett’s travails are also a cautionary tale about C8, which has become so pervasive today that it’s found in virtually every American’s blood.
“Part of a diagnosis is: Well, tell me what you’ve been around,” one of Bartlett’s attorneys, Mike Papantonio, told the jury in opening arguments in the case. “Well, I drank my water. That doesn’t sound like a problem. It was a problem”
Teflon was first created, as many miracle chemicals were, in a laboratory accident. In 1938, Roy J. Plunkett, a DuPont chemist, was experimenting with refrigerants when he discovered a white waxy material that seemed very slippery. The material turned out to be an inert fluorocarbon – Polytetrafluoroethylene (PTFE) – that had superior nonstick properties. In 1945, the company patented the chemical and registered it under the trademark “Teflon,” touting it as “the most slippery material in existence.” By 1948 DuPont was producing about 2 million pounds of Teflon a year at its Washington Works plant in Parkersburg, West Virginia. For DuPont, Teflon, which was used to coat pots and pans, proved to be a gold mine, with sales peaking at roughly a billion dollars a year in 2004, according to the company’s SEC filings.
Starting around 1951, DuPont began using another laboratory-formed chemical known as Perfluorooctanoic (PFOA) acid, or C8 (so called because it contains eight carbon molecules), to smooth out the lumpiness of freshly manufactured Teflon. An unusually durable chemical, C8 first entered the world in 1947 and due to its nonstick and stain-resistant properties its use as a “surfactant” spread with extraordinary speed. The white, powdery compound, often said to look like Tide laundry detergent, would ultimately be used in hundreds of products including fast food wrappers, waterproof clothing, electrical cables, and pizza boxes. (DuPont used to purchase C8 from another chemical company called 3M until 2002, when the company phased it out. DuPont then started manufacturing C8 on its own at a factory in Fayetteville, North Carolina.)
The trouble was that the compound – which has since been linked to a variety of health risks including cancer, liver disease, developmental problems, and thyroid disease – escapes into the air easily. In fact, C8 was often shipped to factories pre-mixed with water to keep the dust from worker’s lungs.
Because it’s an extremely stable chemical, C8 does not biodegrade. Instead, it bioaccumulates, building up in people’s blood over time if they continue to drink water or breathe air laced with the substance. Due to its ubiquitous use, the chemical can now be found in trace amounts in the bloodstream of more than 98 percent of Americans, and even in umbilical cord blood and breast milk, according to the Centers for Disease Control. It’s also been found in the blood of seals, eagles, and dolphins around the world, including in animals living in a remote wildlife refuge in the middle of the North Pacific. The chemical is expected to stay in the environment for thousands of years.
Concerns about the hazards posed by Teflon and C8 began to garner public attention only about 15 years ago. By 2003, DuPont had dispersed almost 2.5 million pounds of C8 from its Washington Works plant into the mid-Ohio River Valley area, according to a peer-reviewed study. The company’s most egregious disposal practices occurred before US environmental laws were first written in the 1970s and included burying toxic waste in drums along the banks of the Ohio River and dropping barrels of it out into the open ocean (where it once caused a scandal when a local fisherman dredged a barrel up in his nets), and, in more recent decades, burying it in local “non-hazardous” landfills.
Now, information emerging from millions of pages of internal company reports reveals that several DuPont scientists and senior staff members had for many years either known, or at least suspected, that C8 was harmful. Yet DuPont continued to use the chemical, putting its own workers, local residents, and the American public at risk.
The documents show that signs of C8’s toxicity began to emerge very quickly as DuPont scaled up its Teflon production in the 1950s. The company funds its own safety-testing laboratory – the Haskell Laboratory of Industrial Toxicology – in part to screen workers for signs of illnesses that might be tied to DuPont products. In 1961, company lab tests linked C8 exposure to enlarged livers in rats and rabbits. DuPont scientists then conducted tests on humans, asking a group of volunteers to smoke cigarettes laced with C8. “Nine out of ten people in the highest-dosed group were noticeably ill for an average of nine hours with flu-like symptoms that included chills, backache, fever, and coughing,” the researchers noted.
“Concerns about the potential toxicity of C8 had been raised internally within DuPont by at least 1954, leading DuPont’s own researchers to conclude by at least 1961 that C8 was toxic and, according to DuPont’s own Toxicology Section Chief, should be ‘handled with extreme care,’” Bartlett’s February 2013 suit against DuPont alleged.
But it wasn’t until the 1970s that DuPont’s researchers began to understand that C8 was building up in the bloodstreams of workers, and soon after, they began to see troubling signs that the chemical could pose serious health risks. The stakes were high: The Washington Works plant where Teflon is manufactured was one of the biggest employers in the region. The plant currently employs more than 2,000 people – 3,000 if you include sub-contractors – in a sparsely populated Appalachian community alongside the Ohio River separating West Virginia from Ohio.
In 1981, the company ordered all female employees out of the Teflon division after two out of seven pregnant workers gave birth to children with birth defects. One of those children, Bucky Bailey, was born with just one nostril and other facial deformities that required many painful surgeries to fix.
“I’ve never, ever felt normal. You can’t feel normal when you walk outside and every single person looks at you. And it’s not that look of He’s famous or He’s rich,” he told ABC News in 2003. “It’s that look of He’s different. You can see it in their eyes.”
In 1984, DuPont began to secretively collect local tap water, asking employees to bring in jugs of water from their own homes, schools, and local businesses, and discovered that C8 was making its way into public drinking water supplies in both Ohio and West Virginia at potentially dangerous levels. Minutes recorded at a meeting at DuPont’s corporate headquarters in Delaware that year suggest a high level of concern regarding how this could affect the company’s image and bottom line. “Legal and medical will likely take the position of total elimination,” notes from the meeting read. The company executives present, however, concluded the available methods for cutting pollution were not “economically attractive.”
In the years following that meeting, instead of slashing its use of C8, DuPont escalated production, while keeping much of what it knew about the chemical’s dangers secret. The company’s Washington Works factory continued with its usual practice of dumping C8-laden sludge in unlined landfills, allowing it to enter the Ohio River, and pumping out C8-laced vapors from its smokestacks.
None of this would have come to light had it not been for a West Virginia cattle rancher named Wilbur Tennant who, along with four other members of his family, sued DuPont in 1998 claiming he had lost hundreds of head of cattle because of pollution from a landfill next to his farm. DuPont had purchased the patch of land, which included a creek that ran directly into the Ohio River, from Tennant in the 1980s, telling him that it would be used as a non-hazardous landfill.
But soon after the landfill got underway, the creek started to turn black and smelly. Sometimes there would be a layer of foam on the water. Within a few years, about 280 of Tennant’s cattle, which drank water from the creek, had died. When the Tennants cut open a cow to investigate the cause of its death, they discovered that its internal organs had turned bright, neon green, video footage recorded by the rancher shows. Tennant and his family members, too, suffered breathing difficulties and cancers.
Tennant’s attorney, Robert Bilott, forced DuPont to turn over tens of thousands of pages of internal company documents as part of the legal process. Buried in those materials was a single mention of a chemical Bilott had never heard of before: PFOA (C8). The chemical sounded similar to another one, called PFOS, which had just been pulled off the market by its maker 3M (which, if you recall, supplied C8 to DuPont for decades). So Bilott made another request to DuPont. This time he asked the company to turn over all documents related to C8.
“I did not immediately recognize the significance [of C8],” Bilott told Earth Island Journal, “but we came to.”
The trove of documents ultimately uncovered during the ensuing legal battles offered up incriminating evidence about the company’s decades-long cover-up. In addition to research findings, copies of internal emails and documents included in this cache were especially illuminating. One 2001 email describes a scientist warning that when airborne, C8 is so hard to deal with that “it might require the public to wear ‘gas masks.’”
Another, by DuPont’s in-house counsel, Bernard Reilly, shows that company officials planned to push regulators to allow the public to be exposed to higher levels of the chemical than DuPont itself had recommended. In an October 2001 email to his son, Reilly wrote:
“So far DuPont has been saying there are safe levels, we need to have an independent agency agree, we are hoping that it will agree to higher levels than we have been saying. If for no other reason than we are exceeding the levels we say we set as our own guideline, mostly because no one bothered to do air monitoring until now, and our water test has been completely inadequate.”
Reilly’s personal emails, written mostly to family members between late 1999 and mid-2001 using his work email address, give an unfiltered insight into the company’s legal efforts to cover up C8’s risks. In one August 2000 email he writes: “The shit is about to hit the fan in WV. The lawyer for the farmer finally realizes the surfactant issue. He is threatening to go to the press to embarrass us to pressure us to settle for big bucks. Fuck him.”
This information not only helped the Tennant case – which DuPont settled in 2001 for an undisclosed amount – it would eventually lead to one of the most significant class-action lawsuits in the history of environmental law (which culminated in the landmark October ruling in Carla Bartlett’s case). Sadly, Tennant didn’t live to see the ripple effect of his lawsuit. He died of cancer in 2009 at age 67.
By 2001, while still working on the Tennant case, Bilott came to realize that the C8 contamination wasn’t isolated to the Tennant property, but extended across a large swath of the mid-Ohio River Valley. The chemical had seeped into the water supply of at least six public water systems in West Virginia and Ohio. That year, Bilott filed a class action lawsuit against DuPont, Leach, et al. v E.I. du Pont de Nemours and Co., on behalf of about 80,000 people in the six water districts. He also reported his findings to the US Environmental Protection Agency and sent along copies of some 900 pages of DuPont’s internal documents, after which the agency launched a “priority review” of C8.
In 2004 the US EPA, too, filed a lawsuit against DuPont, charging it with concealing evidence about C8’s risks for more than two decades. In 2005 the company agreed to pay $16.5 million as part of a settlement agreement with the EPA – the largest civil penalty ever in the agency’s history. But environmental groups argue that the fine was little more than a slap on the wrist to a company where a single division sold more than that amount in a single day.
“Under the terms of the settlement, the company wasn’t even obliged to pull C8 from the market… the best the agency could negotiate was a voluntary phase-out by 2015,” the watchdog organization Environmental Working Group says in its May 2015 report “Poisoned Legacy.”
The same year, DuPont settled the class-action suit filed by Bilott’s firm for over $100 million – plus another $235 million if research funded by the settlement turned up evidence that people might be getting sick. Under the settlement, DuPont promised to install filtration systems in contaminated water districts and put $70 million into a community health and education project. And, in a rather unusual move, the company also agreed to fund a multimillion dollar health study, overseen by independent, court-appointed scientists, to determine whether exposure to C8 had actually harmed people. Moreover, DuPont agreed that if the study did prove that the C8 had caused certain diseases, those who suffered from diseases connected to C8 would be entitled to sue individually for personal injury.
It’s not quite clear why DuPont agreed to the independent study. Perhaps it was the knowledge that most medical monitoring programs fail to attract enough participants, which usually makes it almost impossible to draw reliable inferences about disease clusters. But in this case, nearly 80 percent of the surrounding community in West Virginia and Ohio showed up at makeshift medical clinics in trailers around the region to have their blood drawn and a health care questionnaire completed. Community members were, more often than not, drawn by the $400 checks (pulled from the DuPont settlement) that the enterprising team of medical researchers offered to each man, woman, and child who participated.
“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 resident told The Huffington Post.
The C8 science panel, which took seven years to complete its research, ultimately linked C8 exposure to six diseases: ulcerative colitis; pregnancy-induced hypertension; high cholesterol; thyroid disease; testicular cancer; and kidney cancer. The panel’s findings, published in several peer-reviewed journals, were remarkable because they proved that the chemical pretty much affected the entire body, even at low exposure levels. The researchers concluded that C8 posed health threats at just 0.05 parts per billion in drinking water for people who drank that water for a single year. They found that the average C8 level in blood samples from the mid-Ohio Valley was 83 parts per billion. The average C8 level for those living closest to the plant – whose drinking water came from Ohio’s Little Hocking water district – was more than 224 parts per billion compared to 4 parts per billion for average Americans.
Once the connection between C8 exposure and the diseases was established, more than 3,500 Ohio Valley residents, including Carla Bartlett, filed personal injury cases against DuPont. Bartlett’s case was the first to go on trial this past September. The court’s verdict in her favor might just set the tone for the rest of cases that will come to trial.
Still, there are many who feel the company will keep trying to wriggle its way out of its responsibilities. (During Bartlett’s trial, for instance, DuPont attorneys argued that her cancer was triggered by her obesity rather than C8, even though, as per terms of the class action suit settlement, DuPont isn’t permitted to dispute the fact that C8 can cause the kind of cancer she endured.)
“I’ve been at it 16 years, if that tells you anything,” Joe Kiger, a local gym teacher and lead plaintiff in the original 2005 class action suit, told the Journal. “When this all started, I did not think it would get out of hand like it has, but we kept finding out more and more of what DuPont did, what the cover-ups were, them knowing full well that this stuff was toxic.” Kiger – who suffers from numerous kidney and liver problems and and had to have surgery following a heart attack in May – is a member of Keep Your Promises DuPont, a community-based organization working to hold the company accountable for its actions. “Our biggest faith and trust we have is in our utilities,” he said. “We flip that light switch on, we expect it to come on. We don’t think anything about it. You turn on your tap to get water, you expect that water to be clean and not have all these chemicals in it. I think now, people are starting to find out that someone has lied to them.”
To understand how C8 managed to remain in use for so long requires a look back at the history of chemical regulation in the US, and the role that DuPont itself played in crafting those laws.
Since the early 1970s, pressure had been growing to regulate the rising use of chemicals in almost every aspect of post-World War II American life. And few companies were as responsible for – or as dependent on – that expansion as DuPont.
In 1930, DuPont created Freon, making mass-market refrigerators and air conditioners possible for the first time. In 1935, a DuPont scientist invented nylon, a synthetic fiber that proved invaluable during World War II. Cellophane, Mylar, Tyvek, Rayon, Lycra – household names to this day – were all developed by DuPont in the past century. The company also made artificial fertilizers, fungicides, pesticides, plastics, and paints. “We have been proud to publicize the fact that more than 60 percent of our sales in 1950 resulted from products that were unknown, or at least were only laboratory curiosities, as recently as 1930,” a DuPont rep told a group of financiers in 1955. But as thousands of new chemical innovations entered the daily lives of Americans, pressure was also rising to find out what health risks many of them posed.
One of the first acts of the White House Council on Environmental Quality, after it was established in 1969, was to highlight the need for federal chemical controls – a system that would let regulators figure out which substances could pose public health risks before people got sick. “The Council’s study indicates the high-priority need for a program of testing and control of toxic substances,” it said as it released a 1971 report calling for new chemical rules. “We should no longer be limited to repairing damage after it has been done; nor should we continue to allow the entire environment to be used as a laboratory.”
For several years, the Manufacturing Chemists Association, an industry trade group that counted DuPont as a core member (known as the American Chemistry Council today), managed to block any attempt to regulate the industry. But as a growing list of chemicals like PCBs, asbestos, and vinyl chloride began to be linked to illness, so did the demand to regulate them. Foreseeing the inevitable, many chemical companies decided that it would be better to be involved in the drafting process than to risk the type of bans that barred the use of the notorious pesticide DDT in 1972.
DuPont had a key seat at that drafting table.
Robert C. Eckhardt, a progressive Texas politician from a north Houston district packed with chemical and oil companies, is often described as the chief craftsman of the legislation that came out of this drafting process – the Toxic Substances Control Act (TSCA), which even today is the primary law regulating chemicals used in the US. First elected in 1966, Congressman Eckhardt was known for riding a bicycle to work at the Capitol – carrying his legislative files in a whisky case strapped to his bike – a habit that put him far ahead of the curve as an environmentalist and gained him support from early conservationists, especially after the 1970s’ energy crisis. During his career in DC, which ended in 1980, the Democratic congressman championed civil rights, fought to tax oil and gas companies, and helped ensure that core environmental statutes like the Clean Air Act and Superfund laws passed.
TSCA, as it stands today, was the product of an unlikely collaboration between the iconoclastic Eckhardt and DuPont.
Early meetings between Eckhardt and DuPont had gone so badly that Eckhardt stormed out of the room during a March 1976 negotiation. But as a draft chemical control bill passed the Senate, DuPont reluctantly returned to the table. One of the biggest sticking points was whether safety tests should be required before companies were allowed to put new chemicals on the market – an effort that the industry successfully blocked. “No mandatory testing was a huge compromise,” Rena Steinzor, University of Maryland School of Law professor and president of the Center for Progressive Reform, told the Journal.
The bill that “Bicycle Bob” Eckhardt ultimately produced was so packed with compromises that some of his early supporters opposed the law’s final version. “I mean, it was [called] the Heckert-Eckhardt bill,” Steven D. Jellinek, the EPA’s first-ever assistant administrator for toxic substances, told the Chemical Heritage Foundation’s Oral History Project, referring to Richard Heckert, then a DuPont vice-president and the chair of the Manufacturing Chemists Association. “It was written by industry.”
Eckhardt’s good intentions might have been undermined by the fact that he was on the Senate Commerce Committee rather than the Environment and Public Works Committee. “The Senate Environment and Public Works Committee was composed of people who believed in the EPA’s mission and knew a great deal about it,” Steinzor says. “The Senate Commerce Committee, like its name, was focused on other concerns and not knowledgeable about toxic chemicals.”
Under the toothless TSCA law that DuPont helped write, industrial chemicals – unlike pharmaceuticals or pesticides – do not have to be tested before they are put on the market. The law does require that the EPA keep a current list of all chemicals used commercially in the US, but it does not require that the chemicals be tested for environmental or human health impacts. Additionally, TSCA allows manufacturers to claim some information, including the chemical’s identity, as a trade secret.
Though the law also requires manufacturers give the EPA some information necessary to assess a new chemical’s safety, roughly 60,000 chemicals that were in use at the time TSCA was enacted were exempted from this rule. These chemicals include bisphenol A (BPA), formaldehyde and several flame retardants – all of which have since been found to present significant risks to human health and the environment. Today, there are more than 85,000 industrial chemicals in commercial use in the US – roughly 2,000 new chemicals are introduced every year in the US – but federal regulators have so far required only a tiny percentage of these to undergo any safety testing. You can literally count on one hand the number of chemicals that EPA has banned or widely restricted under TSCA: asbestos, PCBs, dioxin, CFCs, and hexavalent chromium (made famous in the movieErin Brockovich). That’s only five chemicals in nearly 40 years.
In many ways, C8 is a poster child for the failures of US toxic chemical law,” says Bill Walker, one of the authors of the Environmental Working Group (EWG) report on C8. “Between 3M and DuPont you have a increasingly damning cover-up. And yet the law is so toothless that neither company was really concerned about being caught by the EPA.”
The lack of safety testing helps explain why, back in 1998 when the Tennants first contacted Bilott, virtually no one outside of DuPont and 3M – not EPA field inspectors, OSHA chemists, or state environmental testing laboratories – had ever heard of C8. The two companies essentially had a monopoly on information relating to this chemical. DuPont used that monopoly to illegally cover up its own research that showed that C8 was making its workers ill.
“But for the lawsuit, it is very likely that the EPA would be completely unaware of this chemical as well its toxicological profile,” says Ned McWilliams, another plaintiff’s attorney. “This lawsuit quite literally blew the whistle on this still unregulated chemical.”
DuPont, unsurprisingly, plans to appeal the court’s verdict. “The knowledge base around [C8], its environmental footprint, and its health profile has evolved,” company spokesperson Dan Turner told theJournal. “Over the same period, the chemical industry and its regulators have also learned a great deal about how to operate more safely, sustainably and to reduce emissions.” The company has, in the meantime, spun off its Teflon-related operations into another company, called Chemours, in a move that could limit the amount of compensation that plaintiffs can recover.
Over the past few years, DuPont, 3M, and other chemical firms have begun marketing C8-free Teflon, and recent studies show that the levels of C8 in most people’s blood are dropping. Unfortunately, the new chemicals that have replaced C8 are also raising concerns. “These next generation PFCs [perfluorinated chemicals] are used in greaseproof food wrappers, waterproof clothing and other products,” the EWG’s “Poisoned Legacy” report says. “Few have been tested for safety, and the names, composition and health effects of most are hidden as trade secrets.”
On a positive note, efforts to strengthen TSCA, which is the only major environmental law that has not been updated since it was first enacted, have gained steam in recent months. This fall, Congress was on the verge of passing TSCA reform measures. The House and the Senate introduced separate TSCA reform bills this year and while the House passed its bill (HR 2576) in June, and the Senate was yet vote on its bill (S 697) as this story went to press. Reforms proposed by these bills include speeding up the pace of the EPA’s chemical assessments, changing how the agency prioritizes chemicals for safety review, and amending TSCA’s definition of chemicals that may pose an “unreasonable risk” of harmful exposure.
Still, critics say these efforts fall short of what’s needed and may be at risk of repeating the errors of the past.
“Neither bill provides the EPA with the resources to act quickly enough on reviewing and regulating the use of chemicals that can cause cancer and other serious health problems,” Scott Faber, the Environmental Working Group’s senior vice-president for government affairs told the Journal. “Neither clears away the legal hurdles that prevent the EPA from banning chemicals like asbestos, which we already know are dangerous.” Faber is also concerned that the reforms might interfere with regulatory laws introduced by states and other local governments to make up for the lack of effective federal oversight of chemicals. (There are about 172 individual laws regulating chemicals in 35 US states, and another 100 or so similar bills have been under consideration in 28 states this year.)
In the end, it all comes down to the need for a strong political push that can override industry influence and introduce laws to regulate chemicals before they cause the kind of harm that C8 has wreaked. The history of C8, still unfolding, offers many lessons for those battles.
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Brussels Publishes List of Substances Used in EDC Screening Exercise
Dec 14, 2015 | Chemical Watch
By Geraint Roberts
The European Commission has published a list of almost 700 substances that have been used to help screen the available evidence on endocrine disruption. This will inform which policy option should be chosen for identifying endocrine disrupting chemicals (EDCs).
The Commission has already consulted on different options for defining the criteria for the identification of EDCs and is conducting an impact assessment of the options. It has also launched a study to estimate which chemicals would be identified as EDCs under the different options. It uses a screening methodology developed by the Commission’s Joint Research Centre (CW 4 June 2015). This screening exercise started in May, using the substances in the list just published.
A rationale included with the list emphasises that presence on the list does not mean the substances should be considered - “even on a working hypothesis basis” – as actual or suspected EDCs.
The document also makes it clear that the screening process using these substances does not replace an in-depth regulatory assessment. Nor does it preempt any regulatory conclusions that may eventually be drawn.
Concerned about any potential blacklisting effect, Cefic says it is “vital to avoid unfounded conclusions as to the nature of the selected substances, as this could unintentionally result in beneficial substances being subject to stigmatisation and market pressure.”
The listed substances include:
324 falling under the pesticides Regulation;
95 falling under the biocides Regulation;
201 covered by REACH; and
45 falling under the cosmetics Regulation.
Once they have been chosen, the final criteria for identifying EDCs will be applied across the EU chemicals regulatory framework, including the Regulations on cosmetics, biocides and pesticides, REACH and the water framework Directive.
After the screening is completed, a second study – due to be completed next year – will assess potential impacts on health, environment, trade, agriculture, and socio-economy in general associated to the regulatory actions which would follow from the identification of substances as endocrine disruptors.
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TSCA Bill Could Have 'Huge' Impact on Downstream Users
Dec 14, 2015 | Chemical Watch
Changes to the chemical inventory as proposed in the US Senate Toxic Substances Control Act (TSCA) reform would have a “huge” impact on downstream users, according to Lynn Bergeson, owner of Bergeson & Campbell, PC.
Bill S697 proposes to reset the TSCA Inventory of Chemical Substances to determine which chemicals are still active and which are inactive.
Ms Bergeson said she couldn't emphasise enough the importance of the inventory reset for manufacturers, processors, and downstream users. They should, she said ensure that their chemical – whether "on the receiving side from the supplier or a manufacturing or importing side" – stays on the inventory.
Failure to reassert a chemical could “jeopardise” the substance, given that if it is not reasserted it would be required to go through the “front door”, that is to say through the new chemical requirements.
However, the responsibility to reassert a substance on the inventory will lie with the manufacturer or the importer. Therefore downstream users will need to reach up through the supply chain to ensure that substances used in their products remain active on the inventory. Alternatively they will have to seek out a different supplier who has completed the reassertion process.
Ms Bergeson added that whether a TSCA reform package is passed or not, it is likely that EPA may continue to seek ways to exercise its authority under the current law. These efforts may include increased use of its authority under Section 5 of TSCA, additional use of “more robust” significant new use rules (Snurs), and the use of the agency's “growing interest in diminishing the historic reliance upon the exemption for articles of chemicals that are subject to Snurs”.
In the current state of play, existing Snurs can act as a “regulatory backstop” to producers’ voluntary commitments to reduce or phase-out manufacture or import, which affects the downstream user's use those substances. This was the case with such substances as perfluorinated chemicals (including PFOS and PFOA) and polybrominated diphenyl ethers like penta- and octa-PBDE, said Ms Bergeson.
Additionally, some new chemical control actions and Snurs include specific restrictions for downstream processing or uses.
She said that these more “creative” uses of Snurs “show the agency is seeking to use what it has in new and different ways independent of TSCA reform”.
Despite having bipartisan support, attempts to bring the Senate bill to the floor have so far been blocked. The bill's supporters remain hopeful that the bill will be passed.
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Congress Poised to Make Major Changes to Freight Rail Watchdog, with Little Fanfare
Dec 11, 2015 | Politico Pro
By Heather Caygle
For all of Capitol Hill's bombast, sometimes the biggest policy changes to come out of Congress happen quietly and without much fanfare.
A sweeping overhaul of the way the freight railroads are regulated - the first major changes for the federal agency tasked with the job since its creation - is on its way to the president's desk after clearing the House on Thursday afternoon.
The bill reauthorizes and overhauls the Surface Transportation Board, which keeps watch on freight railroads, settles pricing disputes with shippers and oversees potential mergers within the freight rail industry.
"Though an agency that very few Americans know about, the STB has a profound impact on the availability and costs of goods across our nation," said Rep. Mike Capuano (D-Mass.), the top Democrat on the House Transportation Committee's railroad panel.
The five-year measure (S. 808) cleared the House with a little more than a head nod Thursday afternoon, cementing major changes to the board that have been in the legislative pipeline long before the bill was introduced in the Senate earlier this year.
The bill makes the STB an independent agency apart from the Department of Transportation, and boosts its board from three to five members. It also contains language intended to help railroads and shippers settle their disputes faster and easier.
The overhaul tries to target some of the board's most glaring inefficiencies, including the cost hurdles shippers must overcome to have complaints vetted and the sometimes glacial pace it can take the agency to resolve rate disputes.
The current process for settling rate disputes between shippers and railroads can cost more than $3 million and take years to resolve, according to a Senate Commerce Committee summary. This bill establishes speedier timelines to settle those disputes and orders the agency to look at alternatives to make the process more efficient and less costly.
The agency will have to establish a public database of complaints and is being granted the authority to investigate burgeoning rate and service issues before they escalate into serious disagreements, potentially saving railroads and shippers millions of dollars.
"This is what a transportation and infrastructure bill should be, coming to the floor in a bipartisan way, figuring these things out, because this is good for America," said House Transportation Chairman Bill Shuster (R-Pa.), speaking in support of the measure shortly before its passage. "It has nothing to do with Republicans and Democrats, it has to do with what's good for the American people, what's good for the American economy."
In addition to being the first major overhaul of the rail regulatory agency since it was formed in the mid-1990s, the measure also caps off a busy transportation to-do list this year that most recently included enactment of the first long-term highway and transit bill in a decade.
"In doing our vetting on the House side, it was pretty clear we didn't have anybody over there that was throwing up objections to it or resistance," said Senate Commerce Chairman John Thune (R-S.D.), who first introduced the bill in the upper chamber this spring.
Thune said there was some talk about including the reauthorization in the wide-ranging highway, transit and passenger rail bill that cleared Congress last week, but he's glad the House ultimately decided to take up his STB overhaul and pass it as a freestanding measure.
"Because it's so good," he said with a laugh when asked why the House chose to adopt his STB bill instead of crafting their own alternative.
Thune, who had a stint as his state's railroad director in the early 1990s, spearheaded the effort to move the bill through Congress this year following massive shipping delays in recent years due to service slowdowns and cold-weather issues.
But Thune has long been working on issues addressed in the legislation and versions of an STB overhaul have been in the works since at least 2009.
Unlike some past versions of the legislation that stalled, this bill earned the backing of the two key constituent groups impacted by the changes - the freight rail industry and the legion of shippers that depend on railroads to get their goods across the country.
More than 100 trade groups representing agriculture, chemical, energy and manufacturer shippers sent a letter to House leaders last week urging them to take up the Senate bill, calling the measure an "unprecedented agreement between rail shippers and the freight rail industry."
The STB was formed in the mid-1990s as a successor to the Interstate Commerce Commission. But since then, Congress has largely left the STB alone, shying away from making any major changes to its operations until now.
"Congress really hasn't come back to this issue or done anything with the STB since it was created, so a lot has changed over that time period and it's time to take a look at the STB and see how we can make it work better," said American Chemistry Council spokesman Scott Jensen, whose organization represents dozens of shippers impacted by the changes.
"I think everybody would agree that it's not really working the way that it should," he added.
Congress has checked off a number of rail items this year, including giving railroads several more years to install positive train control , implementing a slew of changes designed to make Amtrak more cost conscious and topping it off with the first major shakeup of the STB since its inception.
"That's the thing that's been kind of terrific in all of this, we've gotten more and more people on board in support," Jensen said. "We're pleasantly surprised that it can happen this quickly and with pretty strong support."
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On PTC, FRA Loses a Bit of Its Bite
Dec 14, 2015 | Politico Pro
By Jennifer Scholtes
Railroads have until next month to submit their updated plans for meeting the new end-of-2018 deadline for getting positive train control technology up and running. But the Federal Railroad Administration won’t be making up-or-down decisions about whether those proposals are good enough. That move, our Lauren Gardner explains, takes the teeth right out of FRA Administration Sarah Feinberg’s warnings against railroads submitting plans that assume — right off the bat — that they’ll be granted another extension through 2020.
No say: Lauren notes that “Feinberg said last month she’d ‘aggressively’ enforce the new Dec. 31, 2018, deadline for railroads to implement positive train control, telling them not to bother sending her updated plans that contemplate needing extra time to get the technology online. But Congress decided she misinterpreted the law, so they included language in the five-year transportation law … to make it clear that she could not create more regulatory hoops for railroads than they intended. The highway and transit law now explicitly prevents the FRA from approving or rejecting revised PTC implementation plans from railroads responsible for getting the technology online by the end of 2018.”
Mountain of paperwork: According to lawmakers, the FRA had originally wanted to avoid the burden of having to sift through scores of revamped plans accounting for a new deadline. But Feinberg insisted in a guidance letter to railroads last month that regulators would need to give them the final say over their revised plans, in addition to any eventual extension requests.
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Railroad Company Asks to Stall Contentious Mont. Project
Dec 14, 2015 | E&E Greenwire
By Manuel Quiñones
A subsidiary of BNSF Railway Co. is moving to delay permitting for what has become one of the country's most controversial proposed rail spurs.
Tongue River Railroad Co. Inc. asked the Surface Transportation Board last month to pause its deliberations on the so-called Tongue River Railroad, which has been under development for years.
The latest plans call for building a rail line from the town of Colstrip, Mont., to Arch Coal Inc.'s proposed Otter Creek coal mine near the Wyoming border.
"Unless and until Otter Creek Coal obtains a final, judicially-affirmed permit from the State of Montana allowing it to develop a mine, and that mine is then developed," the rail company wrote, "any TRRC rail line will have no coal to transport and therefore no reason to be constructed."
In 2012, the 9th U.S. Circuit Court of Appeals tossed a 2007 STB approval for a different version of the Tongue River Railroad, saying the agency failed to properly scrutinize the project under the National Environmental Policy Act.
In April, the federal regulatory body released a draft environmental statement for the new proceedings. More than 100,000 commenters submitted their thoughts (Greenwire, Sept. 24).
Developers say they were planning permitting for the mine and rail spur in concert. But things didn't work out according to their forecasts; market conditions for coal have deteriorated sharply.
"[G]iven the delays related to the mine permitting process and near-term market weakness, TRRC and Otter Creek Coal have recently revisited the timelines for the permitting and development of their respective projects," wrote Steptoe & Johnson LLP attorneys for the rail developer.
"While Otter Creek Coal believes that it will ultimately be successful in obtaining that permit, there is some level of risk inherent in any permitting proceeding of this nature and in any judicial review proceeding that will follow," they wrote.
Debate over the Tongue River Railroad has become part of the broader discussion about whether to export more U.S. coal from proposed Pacific Northwerst terminals.
Last week the Northern Plains Resource Council and Rocker Six Cattle Co. asked the STB to deny permits for the rail spur rather than pause the permitting process.
They say rancher landowners don't want to face more uncertainty about whether Tongue River will one day cross their properties.
"My family and our neighbors have been facing federal condemnation of our private land for this speculative project for 38 years," said well-known rancher Clint McRae. "This latest delay by the TRR is the last straw. It is time to deny the railroad permit. They have had ample time to prove a need for the railroad, and they have failed."
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Obama Team Held Its Ground, Shaped Deal Around Its Wishes
Dec 14, 2015 | E&E Greenwire
By Jean Chemnick
The United States got almost everything it wanted in the landmark climate deal struck here this weekend.
The historic agreement by 195 countries handed President Obama an international legacy on global warming without crossing any red lines drawn by U.S. negotiators. And it allowed the administration to tell the American public that it had pushed China, India and other major developing nations to shoulder an unprecedented share of the responsibility for cutting emissions.
But environmentalists are divided on whether U.S. muscle helped broker the strongest practicable deal or whether it bullied smaller countries and lost an opportunity to cut carbon to the extent that scientists say will avoid environmental catastrophe. And Republicans are already calling the deal a "paper tiger" that a GOP president could walk away from.
For his part, Obama was quick to claim credit for the United States' helping to broker the deal. In remarks hours after the gavel went down at the sprawling Le Bourget conference center just outside Paris, the president said the world had been able to "seize the moment" on climate, in part, because of American work at home and abroad since U.N. negotiations ran aground in Copenhagen, Denmark, six years ago.
"Today, the American people can be proud -- because this historic agreement is a tribute to American leadership," he said from the White House. The United States helped rebuild the world response to warming after Copenhagen, he said, by taking steps to curb its own greenhouse gases through domestic actions like U.S. EPA's Clean Power Plan.
Senior administration officials immediately after the conference praised Obama's involvement, including his bilateral outreach over the past few years to a range of countries, which helped set the stage for Saturday's agreement.
The highlight, an official said, was last year's joint U.S.-China announcement, in which the world's two biggest greenhouse gas emitters put forward post-2020 reduction commitments that "surprised the world and changed the dynamic of this issue."
Secretary of State John Kerry spent his birthday week with delegations from China to Tuvalu, attempting to eke out a deal that would move the needle on warming but not be vulnerable in the Senate.
Kerry told reporters after the conference that China's agreement to peak its emissions no later than 2030 ensured that contrary to the Kyoto Protocol -- which the United States didn't ratify -- and the failed architecture of Copenhagen, the Paris deal would stand because it is global.
Previous efforts "didn't have this kind of momentum behind them," he said. "And the bottom line is that this agreement recognizes that we are going to have to begin to change the way we power our planet, the way we power things, whether it's transportation or buildings, create electricity that everybody draws on."'Good things were actually lost'
The administration's top objective was striking a deal that Obama could join without consulting the Senate.
That meant it could not make funding levels or emissions cuts subject to international law, and had to stay within the bounds of the U.N. Framework Convention on Climate Change, which the Senate has ratified.
In public statements here, the administration painted this "bottom-up" approach as the best way to secure global buy-in.
Developed countries, U.S. officials noted, would not agree to make their own emissions commitments binding under international law. And the form most developing countries preferred -- which bound rich countries, but not themselves, to emission cuts -- is no longer appropriate, the American negotiators said, because it would perpetuate obsolete distinctions that ignore the growth of China and other economies in the last 25 years.
"We're past that," a senior administration official said. "That's the backward-looking world."
But behind closed doors, developing countries say, Kerry drove home to them that a deal that included mandatory commitments of cash or carbon cuts was a deal the world would have to implement without its largest economy. Participants say the top U.S. diplomat warned them that such a deal would die in the Senate.
So poor countries were forced to roll over, advocates for those countries said, and accept a deal that guaranteed them neither funding nor a future of climate stability.
"I think the constraints of the U.S. domestic politics that makes it so difficult for the U.S. administration to take on even domestic action, let alone ambitious global actions, I think that domestic constraint unfortunately has spilled over into the international arena," said Chee Yoke Ling of Third World Network in Malaysia. "Behind closed doors, a lot of really good things were actually lost."
But some greens say omitting binding targets in this deal will not ultimately weaken it. Countries would tend to put forward less-stringent goals if they knew they could be held liable for missing them, they say.
"There's a silver lining to nonbinding commitments, because they foster greater ambition and wider participation," said Alex Hanafi of the Environmental Defense Fund.Did U.S. stance become 'consensus position'?
But a Senate-proof deal wasn't the only win the United States wrung out of these talks.
Asked whether the world's wealthiest countries had to "cave" during negotiations, a senior administration official replied, "I don't think we had to cave on anything, actually."
And that was borne out in the elements of the agreement that are made legally binding as much as in the ones that are left to national discretion.
The agreement requires countries by 2020 to resubmit commitments through 2030, even if their existing pledges cover those years, a concession the United States secured from a reluctant China and India.
While those new commitments need not be more ambitious than the ones now in place, many advocates hope large economies will be pressured to not simply reiterate promises they've already made.
The administration holds that it has the authority to bind the United States to make a submission of its own in 2020 under authorities granted when the Senate ratified the UNFCCC.
And Hanafi said the United States was right to prioritize transparency of monitoring and verification in these talks.
The final deal includes U.S.-backed language on transparency that is also binding under international law and grants developing countries more time and yet-unspecified "flexibility" in the agreement's early years. But it will eventually mandate that all but the poorest countries meet the same standards of disclosure required of the United States and the European Union.
This is a win for the environment as much as for the United States, Hanafi said, because transparency is necessary to any agreement that relies on common action.
"Ultimately, what countries can do and how much they're willing to do is going to depend on what they see others doing and the opportunities they see for themselves," he said. If countries don't trust that trade competitors are making good on their promises, he said, they'll be unlikely to put forward more ambitious goals in 2020 when countries submit their next tranche of commitments.
Policy consultant Paul Bledsoe, who has followed these talks for decades, disputed that the United States drove the agenda in Le Bourget.
"What happened was that the U.S. goals became consistent with the goals of most nations," he said. "The American position evolved into the consensus position, and that's why they were able to carry the day."
Europe and progressive developing countries wanted binding commitments, but their agreement to allow the United States to join the "high-ambition coalition" was viewed as a statement that nationally determined targets weren't incompatible with a strong result. The United States did come to embrace the need for an aspirational goal of keeping warming to 1.5 degrees Celsius over preindustrial levels, which was an evolution of its position, if not a major reversal. And the world's largest economy promised some additional support for poor country adaption -- a nod to developing countries' top request.
The United States secured language in the deal that precludes compensation and liability for losses poor countries sustain due to climate change. But Bledsoe argued that China as well as the United States would have a stake in wanting that exclusion in place. And Hanafi said that poor and climate-vulnerable countries wouldn't have signed onto the deal at all if they didn't on the whole support it.
Nicaragua's delegation determined that the deal did not strike that balance. It was the lone dissenting voice, though it did not officially move to scuttle the deal, which under U.N. rules required consensus to move forward.
Paul Kelley, chief negotiator for the Central American country, told reporters after the deal was adopted that Nicaragua took its stand because the deal did too little to protect poor nations from warming. The country's agriculture, fisheries and coastlines were all in danger, he said.
"We demand that there be a scientific, objective, measurable, verifiable and transparent carbon budget based on historic responsibilities," he said. "Those that have given out the greatest emissions should be the ones who cut the emissions to meet the 1.5-degree target," he said. "They're the ones who have the carbon; they're the ones who have the funds."
Erich Pica, president of Friends of the Earth and the self-described "skunk at the garden party" here, said that the United States "absolutely threw its weight around in these talks."
"You got an unanimous agreement on the deal because no one wanted to be blamed for taking it down," he said in an email. "Unfortunately, the mitigation targets and the squishiness of the commitments and review will nearly guarantee that countries in Africa and small islands will feel the brunt of climate change."
But Joe Aitaro of Palau, an island nation vulnerable to the impacts of climate change, emerged from the plenary smiling. The deal gives his country a path to survival, he said.
"I have hope today," he said. "I didn't yesterday, and today I do."Deal could be 'shredded' -- Sen. McConnell
The response from the other side of the Atlantic Ocean began the moment the gavel went down in Le Bourget.
Senate Majority Leader Mitch McConnell said conference attendants should put away their Champagne because the next president is unlikely to follow Obama's lead.
"The president is making promises he can't keep, writing checks he can't cash, and stepping over the middle class to take credit for an 'agreement' that is subject to being shredded in 13 months," McConnell said.
The Kentucky Republican has taken a leading role in targeting the administration's rules for clipping greenhouse gas emissions from power generators. Without those rules, the United States can't meet its 26 to 28 percent emissions reduction commitment.
Senate Environment and Public Works Chairman James Inhofe (R-Okla.) said in a statement that poor countries that "hope to be flooded with financial resources" would be disappointed.
The Senate has already said that Obama's commitments to the Green Climate Fund and other climate aid programs would not be forthcoming, he said. And the outcome of these talks would be the same as it was after the Kyoto Protocol was negotiated 18 years ago; the president could accept it, but the Senate wouldn't comply with its strictures.
"I regret to say Sen. Inhofe is just wrong," Kerry said after the deal was approved.
The Obama administration had maintained credibility throughout the talks despite messaging from congressional Republicans thanks to a combination of domestic achievements and negotiating prowess, he said.
"My being here for five days -- I can't tell you how many people commented how that made a difference to them," Kerry said. "It said the United States is serious."
The fact that the deal is an executive agreement rather than a treaty means the next president would have less legal difficulty removing the United States from it. But Kerry said that would be unlikely.
"I just personally do not believe that any person who doesn't understand the science and isn't prepared to do for the next generations what we did here today and follow through on it cannot and will not be elected president of the United States," he said. "It's that simple."
Alden Meyer of the Union of Concerned Scientists said this deal is already viewed as a global achievement. Governments across the world have contributed to it and labored over it. If a U.S. president withdraws now, it will not only damage American credibility internationally but make it difficult or a new president to find support abroad for his or her other priorities.
"I think the blowback on that would be much more severe than it was when George Bush pulled out of the Kyoto Protocol," he said.
Climate change has become a "geopolitical issue of the first order," he said, not least now that the world has succeeded in reaching an agreement about how it should be addressed. "I think it's really a different environment."
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Nations Make History in Paris, While States Make Plans for Carbon Cuts
Dec 14, 2015 | E&E Interactive
By Emily Holden and Rod Kuckro
International negotiators over the weekend finalized a landmark agreement to curb greenhouse gas emissions.
The 195 countries party to the U.N. Framework Convention on Climate Change agreed to a goal of keeping global warming to 1.5 degrees Celsius, with firmer language calling for a limit "well below" 2 degrees Celsius -- which scientists say is needed to avoid dangerous climate change.
Read more about Paris from ClimateWire's Jean Chemnick (ClimateWire, Dec. 12).
Meanwhile in the United States, states are working toward compliance plans to reach carbon targets that are key to the Obama administration's Paris commitments.
California's Air Resources Board today will hold a public workshop on the Clean Power Plan in Sacramento. CARB will focus on whether complying with the CPP could require amendments to the state's cap-and-trade program. E&E's Debra Kahn will cover the event.
EPA has asked for comments by tomorrow on its Clean Energy Incentive Program, which would give states extra compliance credit for early renewable energy development and energy-saving programs in low-income communities.
Also tomorrow, the Virginia Department of Environmental Quality will host a second stakeholders' meeting in Richmond on the Clean Power Plan.
The 14 stakeholders involved include representatives from Dominion Resources Inc., American Electric Power Co. Inc., Alpha Natural Resources Inc. and the Natural Resources Defense Council.
Michael Dowd, director of DEQ's Air Division, said the group will try to reach consensus on whether to pursue a "state measures" approach or set emissions standards to comply with the rule. Representatives also will try to pick between a rate-based or mass-based standard. Electric utility Dominion favors the rate approach, although environmental advocates would prefer to cap mass emissions of carbon at a specific level and include new sources of power, Dowd said. If no agreement is reached, the state may continue exploring both alternatives, he noted.
ClimateWire's Emily Holden will attend the meeting.
Friday is the last day to submit comments to the North Dakota Department of Health on the Clean Power Plan. It is also the day for the state's last public meeting on the rule. The meeting will take place in Fargo.
In case you missed it:
Minnesota is ahead of most states in meeting Clean Power Plan emission reductions targets (ClimateWire, Dec. 11).
Republican North Dakota Rep. Kevin Cramer is open to replacing EPA's greenhouse gas rules with a carbon tax. Cramer, a former state electricity regulator, suggested an emissions tax with revenues directed to research about cleaner fossil fuel-fired power (ClimateWire, Dec. 9).
Travis Kavulla, president of the National Association of Regulatory Utility Commissioners, believes power companies and politicians alike will be vying to benefit from the Clean Power Plan. And he warns that state regulators must be hypervigilant to make sure consumers end up with the least-costly carbon-cutting plans (EnergyWire, Dec. 8).
EPA general counsel Avi Garbow came out swinging last week against the politicization of the agency's latest environmental rules. "Almost all the rhetoric is completely unfounded," he told a gathering in Las Vegas. His message: Now is the time for collaboration and optimism in the industry (EnergyWire, Dec. 8).
American Electric Power will not renew its membership in the American Legislative Exchange Council, which has crafted state legislation to scuttle the Clean Power Plan. AEP said it will work with states on implementing the EPA greenhouse gas rules (Greenwire, Dec. 8).
President Obama's top advisers were in Paris to begin a final push toward a global climate accord, vowing that U.S. carbon reductions are here to stay. U.S. EPA Administrator Gina McCarthy, Energy Secretary Ernest Moniz and Secretary of State John Kerry were trying to convince a skeptical world that Obama's Climate Action Plan will survive his presidency (Greenwire, Dec. 7).
Ratings agency Standard & Poor's is warning against politics thwarting compliance with the Clean Power Plan (EnergyWire, Dec. 7).
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After Paris, Push to Expand Climate Regulations Could Grow
Dec 14, 2015 | E&E Climatewire
By Evan Lehmann
It was two months before the Paris climate talks when White House officials met with an unusual collection of businesses to talk about their efforts to cut carbon emissions. These weren't obvious visitors. They represented the industrial sector, one of the largest-emitting components of the economy, and one that isn't governed by carbon rules.
At least not yet.
In attendance were members of some of the most challenging industries: oil refiners, cement makers, paper processers, chemical companies and other manufacturers. These are the kinds of facilities that many experts see as a key target of future climate policies under successors to President Obama. They are also among the most difficult to regulate. The sector has a mongrel membership of dissimilar factories and plants. And it is defended by entrenched political interests.
The sector accounts for about 25 percent of the nation's greenhouse gas emissions, and analysts say it's unlikely that President Obama's Paris promise to shave carbon by up to 28 percent in 10 years can be fulfilled without reducing the release of greenhouse gases at these facilities. The administration hasn't explained exactly how it will meet its Paris goal.
For all the attention being paid to Obama's landmark rules on electric power plants, analysts predict it will account for only about a quarter of the CO2 reductions outlined in the administration's 2025 goal. It calls for a 26 to 28 percent reduction from 2005 levels.
Other forces are also driving down emissions. Increased use of natural gas, more renewable energy, flat electricity demand and better fuel economy in cars are all having an effect. Proposed regulations that would clamp down on methane leaks at future oil and gas wells will also pitch in.
But there's still a gap between the president's promise and predicted reductions. When all the actions to cut carbon are added up, the shortfall is as large as a third of the goal, according toanalyses by business groups and environmental organizations.
"You can't even begin to fill the gap unless you address industrial emissions," said George David Banks, a former climate aide for President George W. Bush.
He argues in a recent paper that the next president will have to find untapped sources of emissions to fill in that hole. They'll likely come from industrial sources in politically important states, like Ohio. And the groundwork for that controversial effort, he writes, is likely already underway, at least initially.
"After the conclusion of any Paris agreement, we can assume that the Obama White House would focus its efforts on this objective -- in preparation for a possible Democratic victory in November 2016," the paper says.
If that's the case, it would mark a large move toward decarbonizing the U.S. economy through a series of independent regulations affecting, first, the transportation and electric power sectors and, second, industrial manufacturers. And it would happen without approval from Congress.'We don't need regulation'
The idea of reducing carbon in American industry was a key challenge during the cap-and-trade debate in 2010. Midwestern lawmakers, including moderate Democrats, were concerned that the legislation would hamstring manufacturers by increasing energy costs and requiring expensive equipment that's more efficient.
Those concerns were one reason legislation failed, and they appear to still be alive.
"I'm not prepared to talk about that today," said Sen. Claire McCaskill (D-Mo.) when asked recently whether she could support industrial regulations.
The late-September meeting at the White House featured about 20 company officials. They gathered in the Indian Treaty Room with Rob Diamond, the administration's director of private-sector engagement, to reveal their voluntary plans to help prevent global temperatures from rising more than 2 degrees Celsius. Also in attendance were about 10 aides from the departments of State and Energy.
Among the companies' "deliverables," according to a slide presentation obtained byClimateWire, is the deployment of four "game changer" technologies in the chemical industry, and ramping up the use of renewable energy and efficiency among cement makers. Carbon capture and sequestration also appear to be key needs for cement makers.
The companies present that day are climate leaders. They see their efforts as being financially beneficial. United Technologies Corp., for example, is a global corporation that owns Otis Elevator Co. It developed an elevator system that generates energy on its way down in order to offset the amount of electricity needed on the way up.
So these companies appear to be less focused on avoiding direct climate regulations than promoting new rules that would help them sell their products, like efficient elevators. Policies requiring more efficient buildings might benefit them.
"We understand it has sort of economic benefits that go along with it, and that's why it's important to us," said William Sisson, a sustainability official with UTC. "We don't need [climate] regulation to tell us that."Next target: refineries?
Among the companies at the White House were oil giant Shell; Lafarge North America, a cement maker; International Paper; and Monsanto, a chemical company. The meeting was organized by the World Business Council for Sustainable Development, a consortium of companies pushing for things like greater energy efficiency, more renewable energy, and carbon capture and sequestration.
To one person there that day, it seemed like the White House was laying the groundwork for future policies to restrict emissions on the industrial sector.
"It just confirmed for a lot of folks that this is something the administration is very much thinking about," the person said. "They did say that their agencies had been putting some thought into what those might look like, the framework, the regulations."
He added, "It's not a question of whether the industrials are gonna be regulated, it's when and what does it look like."
The White House didn't comment for this story, and a spokesperson for U.S. EPA didn't respond directly to questions about whether it had begun exploring carbon regulations for industrial sources. Opponents of those potential rules note that the agency requested funding in 2015 for work related to regulating a host of manufacturing subsectors, including refineries, cement and paper.
When asked whether that funding had been used to develop carbon rules, EPA noted only that Congress appropriated $8 million less than what the president requested for work related to climate change.
Environmentalists began pressing for climate regulations on industrial sources during the latest Bush administration. During a revision of the New Source Performance Standards for oil refineries, Bush officials declined to regulate carbon dioxide, and environmentalists sued. A settlement was reached in 2010 in which the Obama EPA agreed to someday regulate carbon at refineries.
That hasn't happened yet. But many observers believe that decision puts refineries at the front of the line for climate regulations.
"The EPA's doing a lot," said David Doniger, a senior climate lawyer with the Natural Resources Defense Council. "But I would think that in the next administration you'd want to start dealing with some of the other large-emitting industrial categories. Refineries, chemical plants, cement are among the leading emitters. So we'll be looking for strategies to move those forward. It doesn't necessarily immediately mean lawsuits. It might mean lawsuits."
Until then, he said, environmentalists will press for new regulations to pinch off methane leaks at existing oil and gas operations. They see that as the extent of what Obama can accomplish before leaving office.
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Parties Stake Out Positions on How to Allocate Emissions Allowances
Dec 14, 2015 | E&E Energywire
By Jeffrey Tomich
For state air regulators, the big question for 2016 is whether to choose rate- or mass-based compliance plans to satisfy U.S. EPA's Clean Power Plan.
For the states that decide simpler mass-based plans to cap power plant CO2 emissions are the way to go, an even thornier issue awaits. It involves how to allocate emissions allowances.
Under a mass-based approach, states will issue allowances equal to the number of tons of CO2 allowed. Each fossil-fuel burning unit needs an allowance for each ton emitted. Allowances can be bought and sold and costs get factored into the expense of generating each megawatt-hour of electricity.
But before any transaction can occur, states face a lengthy menu of decisions regarding allocation: Are they handed out or auctioned? Are they awarded based on historical emissions or electrical output? How are proceeds used? Are they given to distribution utilities or generators? Are there set-asides?
In most states that don't already participate in some type of carbon market such as the Regional Greenhouse Gas Initiative (RGGI) in the Northeast, these questions won't be fully answered for at least a couple of years. But as states continue to dig deeper into their options, generators, advocacy groups and others engaged in talks around Clean Power Plan compliance are staking out positions.
Xcel Energy Inc., based in Minneapolis, operates across eight states from Michigan to Colorado -- each of which may decide on different approaches to the Clean Power Plan.
But in those states that settle on mass-based plans, the company believes free allocation of allowances with oversight by state utility regulators is preferable to reduce the cost impact to consumers, said Jack Ihle, the company's director of environmental policy.
"We are very concerned with the magnitude of the cost for our customers," Ihle said.
He cited Colorado as an example. If the state adopts a mass-based plan, it would need to cut annual power-sector CO2 output from 41 million tons annually to about 30 million tons. At a hypothetical cost of $20 per allowance, it would add up to $600 million in annual costs, he said.
"It's a significant potential percentage increase in customers' bills if you auction allowances or otherwise force the utilities to pay for them rather than freely allocate them and put it under the oversight of the PUC," he said.
Xcel, which announced plans to close two large coal-fired units at the Sherburne County Generating Station north of Minneapolis-St. Paul by the middle of the next decade, has also made clear that it wants to keep allowances for retired fossil units (ClimateWire, Dec. 11).A case for historical emissions
Utilities have warned that redirecting emissions allowances from retired coal units could instead incentivize them to continue running aging, inefficient plants.
Houston-based Dynegy Inc., an independent power producer that operates in eight states, recommended that Pennsylvania adopt a mass-based plan. In comments to the Pennsylvania Department of Environmental Protection, the company said allowances should be allocated based on historical emissions or auctioned to generators and "a restricted pool of non-affected participants."
Dynegy said allocating allowances to electricity retailers would only "increase costs that are ultimately passed onto consumers." The company also cautioned against using set-asides and allocations as "a source of funding for incentives and subsidies."
Chicago-based Exelon Corp., which operates the nation's largest nuclear fleet, also favors a mass-based approach, which would allow states "to auction or allocate allowances for maximum benefits," spokesman Paul Adams said in a statement.
Exelon, however, declined to specify how it believes allowances should be allocated.
In neighboring Missouri, St. Louis-based Ameren Corp. and other utilities have convinced state regulators that a mass-based approach is preferable (EnergyWire, Dec. 3). But the company declined to say how it thinks allowances ought to be allocated.
"There are still many details that must be considered as we move forward under a mass-based approach," Ajay Arora, Ameren Missouri's vice president for environmental services and generation resource planning, said in a statement.Steering clear of 'default option'
Like other environmental groups, the Natural Resources Defense Council would prefer a RGGI-style auction with proceeds invested in energy efficiency, renewable energy and bill rebates, especially for low-income consumers, said Katharine McCormick, Midwest advocate for the NRDC.
Meanwhile, the group is cautioning against the "default option," in which states simply hand out allowances based on historical CO2 emissions.
"That basically just rewards the biggest polluters," McCormick said, adding that generators that cut carbon pollution can potentially profit by selling allowances rather than passing those benefits onto consumers.
But McCormick said there is also "middle ground" in states where an auction is unpalatable. Other options include allocating allowances based on electrical output, which would mean renewable energy and energy efficiency providers. In deregulated states, allowances could also be distributed to utilities, which could sell them to generators and use revenue to reduce costs for consumers or invest in clean energy.
Chris Kunkle, regional policy manager for Wind on the Wires, an advocacy group based in St. Paul, said how allowances are allocated in states choosing mass-based plans is among the key policy decisions that can help maximize the benefits of the enormous wind potential across the Upper Plains.
The group sees "tremendous opportunity" for states such as the Dakotas, Iowa and Minnesota, which benefit by exporting carbon-free energy to neighbors in search of ways to meet Clean Power Plan targets at the lowest possible cost.
"We think regulators and utilities are going to recognize the value there," he said.
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EPA, Corps Vow To Improve 404 Permitting Despite Stay Of 'Waters' Policy
Dec 14, 2015 | Inside EPA
By Amanda Palleschi
EPA and the Army Corps of Engineers are vowing to work together on improving the Clean Water Act's (CWA) section 404 dredge-and-fill permit program, despite an appellate court's stay blocking the agencies from implementing their joint rulemaking to define which waters can be regulated by section 404 and other CWA programs.
In a recent joint memo to EPA and Army Corps of Engineers federal and regional officials, EPA Administrator Gina McCarthy and the Army Corps' Assistant Secretary for Civil Works Jo-Ellen Darcy lay out plans to move forward with measures to improve implementation of the CWA section 404 program through greater "transparency" such as a new website listing 404 jurisdictional determinations, and improved coordination on permitting.
The memo, recently posted to EPA's website, notes the U.S. Court of Appeals for the 6th Circuit's stay that prevents the agencies from further implementing their CWA jurisdiction rule. And it notes that during the stay the agencies will use prior federal regulations for determining whether waters are jurisdictional under the water law, "together with relevant case law, applicable policy, and the best available science and technical data."
But McCarthy and Darcy say that the pending slew of litigation over the rule -- which includes the 6th Circuit case and more than a dozen federal district court cases -- will not halt efforts to improve the 404 program. Even as we defend the Clean Water Rule in court, we intend to move forward with measures to improve implementation of the national CWA section 404 program that were announced concurrent with the Rule," they write.
"It is critical that we capitalize on the momentum already established to improve transparency, strengthen our coordination processes, increase public participation, utilize the best available science and technical data for making case-specific significant nexus determinations, and to promote public health and environmental protection for all America," the memo says.
Under CWA section 404, the Corps has the authority to issue permits for the discharge of dredged or fill material into waters of the United States, including wetlands. However, EPA has the authority to develop policy used in evaluating permit applications, approve and oversee state and tribal assumption, review individual permit applications and prohibit, deny or restrict the use of any defined area as a disposal site.
The agencies alongside the final CWA rule announced efforts to improve the the 404 program, including interagency coordination, transparency, public participation, and use of best available science.
'Improving Coordination'
The Nov. 16 memo -- sent to the administrators of EPA's 10 regional offices and top Corps officials -- outlines steps for improving the program by "strengthening transparency" and "improving coordination."
To boost transparency, McCarthy and Darcy note that in a July 8 memo to the same officials "we made an unequivocal commitment to make publicly available all jurisdictional determinations made under the CWA section 404 program and conducted under" the CWA jurisdiction policy, which EPA calls the Clean Water Rule.
"That commitment will also apply to CWA section 404 program jurisdictional determinations made under the prior regulations during the pendency of the stay," according to the memo.
The letter notes that the two agencies will continue to work to "expeditiously complete development" of a new website providing information about jurisdictional determinations being made under the CWA section 404 program by the end of 2015. They also pledged to continue to expedite administration of the permitting program, noting that they would follow January 2008 guidance from the Corps on joint coordination.
"We also committed to improving implementation of the CWA section 404 permit program by reducing delays, making the program more understandable, increasing consistency nationwide, and making the public notice process more effective and accessible," according to the memo.
On strengthening coordination, McCarthy and Darcy say, "It remains our goal for the agencies to work together more effectively than ever to improve and expedite administration of CWA Section 404."
The two agencies say they will continue with efforts to revise nationwide permits, which are general permits to authorize activities that have minimal individual and cumulative adverse environmental effects, according to the Corps.
"The revision of the Nationwide Permits will occur over the course of the coming year and presents an important opportunity to improve the effectiveness and efficiency of the section 404 permit program. We are committed to working closely together on this effort from the outset to ensure effective cooperation between the two agencies," McCarthy and Darcy write.
EPA is also exploring how it can assist states with their efforts to obtain authority to issue their own CWA section 404 permits. However, an EPA advisory panel charged with such efforts recently raised concerns that some Corps officials oppose any effort to examine state assumption of section 404 permitting authority.
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Relying On EPA Analysis, New Jersey Lowers Dioxane Cleanup Level
Dec 14, 2015 | Inside EPA
By Suzanne Yohannan
New Jersey regulators are significantly lowering their state groundwater cleanup standard for 1,4-dioxane, a ubiquitous contaminant, defending a decision to track closely with EPA's oral cancer risk assessment for the chemical despite a push by a private-sector risk group questioning EPA's use of a conservative default assumption in assessing the cancer risk.
The change may trigger re-evaluation of past dioxane cleanups, although one environmental source doubts the state will enforce re-opening cleanup sites.
New Jersey Department of Environmental Protection's (NJDEP) newly adopted groundwater remediation standard for 1,4-dioxane is 0.4 parts per billion (ppb) -- "more than an order of magnitude lower than the old ground water remediation standard" of 10 ppb, NJDEP says in a Nov. 25 announcement.
EPA has determined 1,4-dioxane is a likely carcinogen found in groundwater at sites throughout the country, according to an EPA fact sheet. It has been widely used as a stabilizer in chlorinated solvents, paint strippers, greases and waxes, the fact sheet says. EPA's 2013 cancer risk assessment for dioxane is based on an oral slope factor of 0.1 per milligram per kilogram bodyweight per day for ingestion effects.
The department Nov. 25 announced the dioxane interim groundwater quality standard along with 11 other such standards, including one of the first in the nation for the lesser-known perfluorinated chemical (PFC) perfluorononanoic acid (PFNA). PFCs are a class of chemicals known for their non-stick properties, and have been found in soil, air and groundwater across the United States, according to EPA.
For PFNA, NJDEP sets an interim groundwater quality criterion of 0.01 ppb, calling it "extremely persistent" in the environment. The chemical is less common than other PFCs and most of the detections in water systems have centered around a chemical plant in southern New Jersey.
The state has also been eyeing setting a drinking water limit for the chemical, with the state's Drinking Water Quality Institute (DDWQI), an advisory board to NJDEP, recently recommending that the Garden State set a level of 13 nanograms per liter of water (ng/L) for PFNA in drinking water. The DWQI's maximum contaminant level (MCL) recommendation indicates that there are no "guidance values or standards . . . for PFNA by U.S. federal agencies including USEPA, U.S. states, or other nations."
NJDEP's release of interim groundwater quality standards for dioxane, PFNA and 10 other chemicals effectively apply as groundwater remediation standards in the state.
TERA Analysis
Earlier this year, the chemical industry in comments on the draft interim groundwater quality standard for dioxane called for reevaluating new information "to avoid having an overly (up to 1,000 times) conservative" standard that is "based on pre-2010 default assumptions [made by EPA] that are superseded by more recent analyses." The more recent analyses were conducted in 2014 by Michael Dourson, a toxicologist and founder of Toxicology Excellence for Risk Assessment (TERA), which is a non-profit toxicology consulting group affiliated with the Alliance for Risk Assessment.
TERA's work -- a re-evaluation of a 1978 National Toxicology Program cancer bioassay in mice -- has drawn the interest of other states. At least two states -- Texas and Kentucky -- are engaging with TERA as part of a coalition further reviewing studies on the chemical's likely cancer mode of action (MOA).
But New Jersey in its response to comments on the draft water quality standard refutes industry's criticisms and defends its reliance on EPA's 2013 oral cancer assessment for dioxane based on liver tumors in rodents, where the federal agency used strict linear cancer modeling analyses. Such analyses assume there is no safe level of exposure to the chemical. EPA uses the linear approach if a chemical's MOA, or how it can cause cancer, is unknown. NJDEP disputes TERA's logic and the nonlinear MOA conclusions made by the TERA scientists.
"In conclusion, the data and explanation provided by Dourson et al. (2014) do not establish a firm or unique link to the proposed MOA of cytotoxicity followed by regenerative hyperplasia, and does not indicate that a threshold approach is appropriate for risk assessment for this compound," NJDEP says in the response to comments.
"As such, the information provided by Dourson et al. (2014) does not invalidate the conclusion made by USEPA [Integrated Risk Information System (IRIS)] (2013) that the available information does not establish a plausible mode of action for 1,4-dioxane, and that the available data are not sufficient to establish significant biological support for a non-linear (threshold) mode of action."
For these reasons, EPA's approach -- using a linear low dose extrapolation for development of an oral cancer slope factor for the chemical -- "is appropriate," NJDEP says.
Threshold Carcinogen
But a former EPA risk assessor maintains that the science has progressed since EPA's 2013 risk assessment, noting that other groups are considering the chemical to be a threshold carcinogen.
Since the new remediation standard for dioxane is more than an order of magnitude stricter than the previous standard, NJDEP says an "order of magnitude evaluation is required" for sites with groundwater remedial action permits as part of the cleanup protectiveness evaluation of the permit, NJDEP says in an announcement of the changes. "The purpose of this evaluation is to determine whether the existing engineering or institutional controls on the site prevent exposure to the contamination and that the site remains protective of public health, safety and the environment," NJDEP says.
For sites where dioxane is being remediated by an active groundwater treatment system or by monitored natural attenuation without a permit, "an order of magnitude evaluation is required as part of the state's biennial certification process," the announcement says.
Further, for sites where the groundwater was remediated to 10 ppb dioxane, "an order of magnitude evaluation will be required if and when the site is subsequently reevaluated," for instance if there is a new trigger under the state's Industrial Site Recovery Act.
A spokesman for NJDEP could not provide the number of sites that would need to be revisited, and says that licensed site remediation professionals (LSRP), who oversee cleanups in the state, "will have to take the new number into account in whatever remediation strategies are being applied at any given site."
But the environmentalist doubts the state will enforce reopening site decisions, noting that NJDEP implementing rules lack any effective mechanisms to implement the order of magnitude reevaluations under the privatized LSRP.
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Independent Producers Push Back on Criticism of EPA Study
Dec 14, 2015 | E&E Energywire
By Mike Soraghan
The oil and gas industry is pushing back on criticism of U.S. EPA's finding that hydraulic fracturing has caused no "widespread, systemic" problems with drinking water.
The Independent Petroleum Association of America and numerous other independent producer groups sent a letter Friday to agency Administrator Gina McCarthy supporting that finding. The letter suggested that the criticism of the finding by EPA's Science Advisory Board (SAB) has been driven by criticism from environmental groups rather than science.
"SAB is a scientific body, and thus its conclusions should be based on science," said the letter, signed by IPAA Executive Vice President Lee Fuller. "They should not be subject to political pressure from environmental groups who simply disagreed with what the EPA's five-year study found."
The assertion of no "widespread, systemic" problems was the top-line finding of EPA's years-in-the-making study of hydraulic fracturing and its effects on drinking water released earlier this year. But SAB members have said the terms are ill-defined and inconsistent with the research presented in the study (EnergyWire, Nov. 4).
"There's agreement the sentence needs to be modified," David Dzombak, a Carnegie Mellon University professor chairing the EPA Scientific Advisory Panel conducting a peer review of the study, told EnergyWire earlier this month. "The sentence is ambiguous and requires clarification."
The IPAA letter cited studies by other governmental entities that offered various levels of assurance about the safety of shale gas development. It tracks with formal comments sent to SAB by Cabot Oil & Gas Corp. (EnergyWire, Nov. 25).
The advisory panel is also recommending that the study include more about three major EPA investigations into water contamination near drilling sites that were scuttled by agency higher-ups.
The IPAA letter argued against revisiting those cases, saying the contamination allegations "have long been put to rest."
The Obama administration has often taken a kid-gloves approach to the oil and gas industry, looking at it as a bridge fuel to a clean energy economy and welcoming the jobs it brought in bleak economic times.
But the administration's moves on methane have been seen by some as a signal that it is ready to take a tougher approach with the industry.
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Unwanted Gifts from Congress Could Hurt Science, Health
Dec 14, 2015 | The Hill - Congress Blog
By Ken Kimmell and Andrew Rosenberg, Ph.D.
While you’re doing your Christmas shopping, Congress is wrapping up a very unwelcome set of gifts for us.
We are seeing literally hundreds of proposed policy “riders” tacked on to budget bills we need to pass to keep the government running These riders couldn’t pass both houses of Congress and garner a presidential signature on their own – the way laws are supposed to be made according to our Constitution. But now these proposals might slip through the legislative process, largely out of the public eye, because they are attached to spending bills. Most are narrow favors to special interests, or backdoor attacks on the laws that we rely on for fundamental science-based protections for public health, safety and the environment. They have almost nothing to do with the actual budget.
What are some of these gifts to corporations and trade groups?
Take the dietary guidelines. Nutrition experts give their advice, based on the best available science, to the Department of Health and Human Services and the Department of Agriculture. But policy riders proposed in Congress would limit the ability to use this science to offer advice or design informational labels that consumers rely upon. That’s a gift to the food industry players who load down the food we eat with added sugar.
Ozone, a common pollutant linked to respiratory diseases like asthma, is regulated under the Clean Air Act. The Obama administration set a new ozone standard this year, at the least protective end of the range federal scientists suggested—but even that standard is too strong for some members of Congress, who want to tack on riders that allow for higher levels of ozone pollution. That’s a present for industrial polluters who would rather not reduce their ozone emissions in the interest of public health.
Or take the Endangered Species Act, a successful piece of legislation that relies on science to protect wildlife at risk of extinction – in many ways the protections of last resort before losing species forever. A record number of riders have been proposed to overrule science and deny protection to species like the gray wolf and the sage grouse in the name of oil and gas development and livestock ranching on public lands.
Other proposed riders would be a lovely wrapped gift to the fracking industry, preventing the Bureau of Land Management from enforcing safety requirements on fracking on public lands, and blocking the EPA from studying the effects of fracking on the water supply. There are so many riders, it’s hard to keep track of them all. We just learned of one that would discourage scientific experts from advising the Environmental Protection Agency, while encouraging the EPA to invite more industry representatives to offer their views.
These riders would cripple important science-based policies, all to help out highly profitable industries and their trade groups.
Policy riders like these do double damage - to science and democracy. Because they contain controversial policies, they make it harder to pass spending bills and more likely that those bills will draw a veto. That means even more budgetary uncertainty and a potential shutdown of government functions, all because members of Congress insisted on tacking on unrelated policies. And because the process is so hurried and so opaque, there is little opportunity for the public to get involved in the decisions – unless you can afford a high priced lobbying firm. That isn't how democracy should work in a government by and for the people.
There’s a straightforward, simple way to avoid both the risk of a shutdown and the pointless damage these policies would do to science and science-based policies. Congress should pass clean spending bills without trying to sneak gifts to special interests along for the ride.
Kimmell is the president of the Union of Concerned Scientists. Rosenberg is the director of the Center for Science and Democracy at UCS and a former NOAA scientist.
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Garbage: The Back End of the Renewable Economy
Dec 14, 2015 | Huffington Post
By Steven Cohen
Like many, I believe that the Paris climate agreement will be seen as a turning point, when the world community finally agreed to address the climate crisis. One cannot understate the importance of the transition from fossil fuels to renewable energy, and the work of communities, cities, states and nations has now been codified into an international set of norms and expectations. That helps the front end of the economy where goods and services are made and the middle part of the economy where goods and services are used. But what about the back end of the economy where the stuff we use goes to die? Well, don't expect a fancy conference in Paris to deal with the ugly, smelly and disgusting problem of solid waste management.
Solid waste management is a challenge for large urban areas around the world. Removing garbage from residential, institutional and commercial locations in cities is a major logistical and operational task. Waste management is usually a function of local government, and is often a major item in a city's budget. Solid waste generation rates are rising fast, particularly in cities experiencing increasing population rates and higher economic activity, putting pressure on municipal governments to deal with rising costs and environmental impacts.
The waste from cities around the world is already enough to fill a line of trash trucks over 3,000 miles long every day. In 1900, the world had 220 million urban residents that produced 300,000 tons of waste per day; by 2000, those numbers grew to 2.9 billion people generating 3 million tons of solid waste per day. Worldwide, waste rates are expected to triple by 2100, exceeding 11 million tons per day. The global cost of dealing with all that trash is rising too, from $205 billion a year in 2010 to $375 billion by 2025, with the sharpest cost increases in developing countries. Due to this volume of waste material, an increasing amount of waste is recycled, burned for energy, or in the case of food waste, reprocessed as fertilizer.
East Asia is now the world's fastest growing region for waste. Waste generation in Asia's urban areas is expected to soon reach 1.8 million tons per day. In 2004, China surpassed the U.S. as the world's largest waste generator. The Chinese government has developed a number of laws and plans related to waste management. China's 12th Five Year Plan sets ambitious goals managing solid waste, with an emphasis on recycling. However, China is undergoing an unprecedented increase in waste generation. According to the World Bank, the quantity of municipal solid waste generated in China's cities has increased fivefold between 1980 and 2009, from 85,000 tons to 430,000 tons per day, and is projected to reach 1.6 million tons per day by 2030.
Most waste in China goes to landfills or unregulated waste heaps outside major cities, and as China's landfills are filling up, cities are turning to burning waste to generate electricity at waste-to-energy plants. Overall in China, the number of waste incinerators is projected by the World Bank to increase from 93 in 2009 to 200 this year, raising the daily disposal capacity from 55,400 tons to 140,000 tons. However, there is increasing public concern about the environmental performance of these waste incinerators and their impact on the local environment and communities. While many waste-to-energy plants can burn garbage with little pollution, cheap incinerators without pollution controls create massive amounts of air emissions.
Many cities around the world are implementing innovative measures to deal with waste, and are increasingly incorporating waste management into sustainability plans. Some cities are setting positive examples through aggressive recycling and zero waste programs. Cities are reducing food waste with better storage and transportation. They are implementing construction strategies that increase reuse of materials. Some local policies such as waste disposal fees and other charges are being used to encourage waste reduction. Some cities have banned the use of plastic shopping bags and some are requiring that stores charge for the use of bags.
In the United States our per capita generation of waste peaked at the turn of the 21st century, but our total amount of waste continues to grow along with our population. In the Midwest and west, where land is relatively plentiful, most garbage is dumped into a hole in the ground called a landfill. But a growing percentage of our garbage is recycled or burned in low-polluting waste-to-energy plants. In New York, our most crowded city, and possibly a taste of the future for the rest of America, waste management has been a growing problem.
New York City's 8 million residents and millions of businesses, construction projects and non-resident employees generate 14 million tons of waste and recyclables per year. This amount is so vast that waste is handled by two separate systems - one public and one private. The public agency - the New York City Department of Sanitation (DSNY) - serves residential buildings, government agencies and many nonprofit organizations. Private commercial firms do not receive free garbage pick-up by the city government. They must pay private companies to remove their solid waste. Spending on garbage pick-up and disposal is about $2.3 billion of the city's $75 billion annual budget. In 2000, when we still had our own landfill, the cost was $658 million.
Of the 3.8 million tons of solid waste that the New York City Department of Sanitation now collects annually, 14% is recycled, 76% is sent to landfills and 10% is converted to energy at a waste-to-energy facility. The waste that goes to landfills often travels long distances to states like Pennsylvania, Ohio, Virginia and South Carolina. New York funds trash collection with general tax revenue - it doesn't charge customers directly for waste collection.As with many other sustainability issues, one element of the problem is people's values and behavior. People like to use stuff and when they are finished with it they need to throw it out. There are limits to the amount of time and energy most people are willing to devote to managing their own garbage. There are also system limits to what is possible. If you separate your home garbage, but the city has no real recycling program, your effort has been wasted. If you live in the countryside you may be able to compost your food waste, but in a city you must depend on a special collection system and an anaerobic digester (a technology that mimics a compost heap) to convert your food waste to fertilizer.
Unlike climate change, which attracts billionaires like Bill Gates and celebrities too numerous to name, no one wants to do a benefit concert for garbage. No one wants a waste management facility near their home and just about everyone hopes those big green plastic bags can be magically transported to solid waste heaven. The solution to the climate change issue will be new renewable energy technology that drives fossil fuels from the marketplace. Similarly, the solution to waste management will rely on new technology. One of the most promising technologies allows the collection of a single waste stream and then mechanically separates the garbage. Some goes to an anaerobic digester, some is recycled, some is burned for energy, and the residue of the incinerated garbage can be used as a construction material.
Another solution to waste management is non-technological. It involves designing products that can be easily reconditioned and reused, and designing a post-consumption process that brings the product back to the manufacturer. Xerox does this by leasing some copiers and designing them for remanufacturing. Hewlett Packard does it by designing its toner cartridges to be easily collected and then refilled.
Just as economic development creates a demand for more energy and exacerbates the climate crisis, increased consumption results in more waste. With growing wealth we will see growing garbage. We've already seen it in China and we will see it everywhere before long. But in the U.S. we have started to put in place local solutions to this very local problem. Europe and Japan have been ahead of us on this issue for more than half a century. Managing our waste, the back end of the economy, is at least as important as managing our consumption.
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