Preview Newsletter
ACC PM 12/17/2015
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(ACC Mention) Trade Groups for Chemical Firms, in a Twist, Seek More U.S. Regulation
Dec 17, 2015 | Wall Street Journal
By Alexandra Berzon
Chemicals used to make baby bottles, paint strippers and furniture have become lightning rods for consumer activism, state regulation and restrictions by big chain stores. That has prompted manufacturers to do something unusual: ask for more federal regulation of their products. -
Science Funding Surge Seen in Omnibus Spending Bill
Dec 17, 2015 | Chemical & Engineering News
By Andrea Widener
A massive federal spending bill unveiled early Wednesday morning would provide increases for most U.S. science funding agencies in fiscal 2016, which began on Oct. 1. -
US CPSC Exempts Untreated Wood in Toys From Testing
Dec 17, 2015 | Chemical Watch
The US Consumer Product Safety Commission has reissued a final rule that exempts unfinished and untreated wood in toys from third-party testing for heavy metal limits, under the commission's toy standard. -
Osha Consults on Extension to Hexavalent Chromium Standards
Dec 17, 2015 | Chemical Watch
The US Occupational Safety and Health Administration (Osha) is seeking public comments on its proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements... -
Enforcement Forum Calls for Changes to REACH’s OR Provisions
Dec 17, 2015 | Chemical Watch
By Geraine Roberts
Echa’s Enforcement Forum says the provisions in the REACH Regulation, which set out the duties of an only representative (OR), need to be changed because they cannot be consistently enforced. -
Echa Publishes 'Quick Update' of Guidance on Substances in Articles
Dec 17, 2015 | Chemical Watch
Echa has published a 'quick update' of its guidance on substances in articles, following the ruling of the European Court of Justice in September(CW 10 September 2015). -
Echa Round-Up
Dec 17, 2015 | Chemical Watch
Echa has added 17 substances to its public activities coordination tool (PACT) for risk management option analysis (RMOA) or hazard assessment. -
WEN Hair Care Products Linked To Hair Loss
Dec 17, 2015 | Environmental Working Group
By Christine M. Hil and Tina Sigurdson
Thousands of Americans, mostly women, have suffered major hair loss after using WEN hair products marketed by one of the nation’s largest direct marketing firms Guthy-Renker and its Hollywood celebrity hair stylist Chaz Dean... -
Omnibus Keeps Funding Flat for Safety Watchdog
Dec 17, 2015 | E&E - Greenwire
By Sam Pearson
The nation's troubled chemical safety agency will see its funding stay flat in the new fiscal year, as a policy provision may delay a plan by regulators to tighten chemical storage rules. -
Obama Admin Targets Environmental, Worker Safety Crimes
Dec 17, 2015 | E&E - Greenwire
By Robin Bravender
The Obama administration today announced it is intensifying its efforts to punish criminals who break environmental and worker safety laws. -
House Republicans Ask if EPA Used 'Covert Propaganda' to Promote Carbon Rule
Dec 17, 2015 | PoliticoPro - Whiteboard
By Alex Guillen
House Energy and Commerce Chairman Fred Upton has seized on a government watchdog's report that EPA relied on unlawful "covert propaganda" to promote its water rule to ask whether the agency used similar techniques to promote its power plant carbon rules. -
EPA ‘Stands By’ Carbon Rule Outreach
Dec 17, 2015 | PoliticoPro - Whiteboard
By Alex Guillen
EPA says the online campaign questioned by House Republicans today was unrelated to its Clean Power Plan, and that it "stands by its outreach efforts" on the carbon rule. -
Mercury Decision Boosts Bid to Kill Climate Rule -- EPA Foes
Dec 17, 2015 | E&E - Greenwire
By Robin Bravender
U.S. EPA critics were dismayed as federal judges this week kept intact a major Obama administration rule to slash mercury emissions from power plants, but others saw a silver lining. -
MISO Says Gas Prices Will Have Big Impact on Clean Power Plan Costs
Dec 17, 2015 | E&E - Energywire
By Jeffrey Tomich
The cost impact of U.S. EPA's Clean Power Plan within the Midcontinent Independent System Operator's 15-state footprint ranges from a few billion dollars to more than $100 billion over the next two decades, according to an initial analysis by the grid operator. -
Ark., Mulling Options, Sees Midcontinent Support for Mass-Based Approach
Dec 17, 2015 | E&E - Energywire
By Edward Klump
Arkansas hasn't settled on a potential path for complying with U.S. EPA's Clean Power Plan, but the state is seeing interest in a mass-based approach both in its jurisdiction and elsewhere. -
EPA is Urged at Hearing to Toughen Cross-State Rule
Dec 17, 2015 | E&E - Greenwire
By Sean Reilly
U.S. EPA must go beyond its currently proposed changes to its Cross-State Air Pollution Rule (CSAPR), a handful of speakers urged at a brief public hearing this morning. -
White House Says Climate Pact Will Unleash Private Cash in Clean Energy
Dec 17, 2015 | E&E - Climatewire
By Evan Lehmann
A top adviser to President Obama predicted yesterday that the global climate accord reached in Paris five days ago would have "a profound impact" on private investments in clean energy, resulting in cheaper technologies able to compete with fossil fuels. -
Dorsey & Whitney's Rubin Previews 2016 Regulatory, Legal Landscape
Dec 17, 2015 | E&E TV
What impact could next year's legal and regulatory landscape have on the power and energy sectors? During today's OnPoint, James Rubin, a partner at Dorsey & Whitney, who previously served for 15 years in the Environment and Natural Resources Division of the Department of Justice... -
IPAA Urges EPA Against Revising Fracking Water Study 'Impacts' Finding
Dec 17, 2015 | InsideEPA
By Bridget DiCosmo
The Independent Petroleum Association of America (IPAA) is urging EPA against revising its conclusion in a draft study that there are "no widespread, systemic impacts" to groundwater from hydraulic fracturing, with IPAA saying the finding is accurate... -
As Enforcement Actions Decline Again, Agency Touts Big Wins
Dec 17, 2015 | E&E - Greenwire
By Hannah Hess
U.S. EPA's enforcement numbers fell in a few key areas in 2015 as the agency launched criminal cases and conducted fewer inspections and evaluations. -
Funding Flat for EPA Watchdog
Dec 17, 2015 | E&E -Greenwire
By Kevin Bogardus
U.S. EPA's internal watchdog is getting a lump of budgetary coal from Congress this Christmas.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News
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Energy and Environment News
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(ACC Mention) Trade Groups for Chemical Firms, in a Twist, Seek More U.S. Regulation
Dec 17, 2015 | Wall Street Journal
By Alexandra Berzon
Chemicals used to make baby bottles, paint strippers and furniture have become lightning rods for consumer activism, state regulation and restrictions by big chain stores. That has prompted manufacturers to do something unusual: ask for more federal regulation of their products.
Due in large part to that industry pressure, observers say, a yearslong push for more-robust federal regulation may soon culminate.
The Toxic Substances Control Act of 1976, which governs the federal government’s scientific examination and regulation of chemicals sold in the U.S., makes it almost impossible for the government to control chemicals that were already in the marketplace when the law went into effect. Trade groups that represent chemical makers are asking that the new rules make it easier to regulate some of the tens of thousands of those chemicals.
These groups say they are hoping that U.S. Environmental Protection Agency clearance might quell some of the momentum recently gained by environmental and health safety activists in convincing big retail outlets and state and local governments to set their own standards.
For example, Toys “R” Us Inc. and other retailers have stopped selling bottles and other baby products that contain bisphenol-A, or BPA, a common ingredient in certain plastics that some studies published in academic journals have linked to hormonal anomalies in animals. Studies funded by industry groups have found BPA in products to be safe.
Other retailers have faced pressure to stop selling paint thinner containing methylene chloride, an industrial chemical that can cause respiratory problems or even death in spaces that aren’t well ventilated and has been deemed by the U.S. government agencies to be potentially carcinogenic.
“There is a problematic perception that chemicals on the market aren’t screened for safety,” said Anne Kolton, a spokeswoman for the American Chemistry Council, which represents more than 100 large chemical companies, including Dow Chemical Co. and DuPont Co., which last week agreed to merge in a deal valued at more than $120 billion. “[The chemicals] are not closely regulated and that’s been exploited by a lot of different groups for a lot of different reasons,” she said. “Having a stronger system in place is good for everyone, including the industry.”
The overhaul bill has a good chance of passing in Congress this session, according to observers who say it has strong bipartisan support, and could affect a vast swath of the economy, from manufacturers to Wal-Mart Stores Inc.
The U.S. House of Representatives earlier this year passed its version, the TSCA Modernization Act, with just one vote against it.
A more comprehensive Senate bill is favored by the chemical industry but opposed by some environmental groups. Senate aides said that while the bill had been held up for technical reasons for a few months, they believe it is on track now to pass before Christmas.
Under the nearly 40-year-old TSCA law, the EPA has to consider the financial cost of regulation when evaluating a chemical, a burden that has made it highly difficult for the agency to put restrictions even on many substances known to be highly dangerous at any level, such as asbestos.
Under the new proposed rules, the EPA would be able to base its decisions instead on health concerns. The new laws would mandate that the EPA review a certain number of chemicals each year—likely a fraction of the thousands of chemicals that are currently unregulated. Environmental safety activists contend it would take decades to work through the backlog, particularly since the bill doesn’t mandate new funding for the reviews. The new laws would also allow companies to ask the EPA to review particular chemicals.
Industry proponents are hoping new rules would stop momentum by retailers and states to ban particular chemicals in consumer products—a practice the industry calls “retail regulation” when done by stores. Earlier this year, Ashley Furniture Industries Inc. andMacy’s Inc. said they would ban flame retardants from all of their furniture products after consumer activists jumped on news reports about possible cancer risk. Lowe’s Cos. and Home Depot Inc.recently said they would stop selling vinyl flooring containing phthalates, which have been tied to cancer and other health problems in some studies published in academic journals and reports issued by government agencies.
Stephen Holmes, a Home Depot spokesman, said the company still believes the vinyl flooring it previously sold was safe. He said the company decided not to sell flooring with phthalates because other flooring products were available.
In both cases the manufacturers of the chemicals in question say their products aren’t harmful at typical exposure levels, and the EPA doesn’t currently regulate those chemicals.
At Target Corp., the retailer rates products based on the chemicals they contain and then offers incentives to suppliers for products that rate as safer through its measurement tools, such as better display in stores. The chain doesn’t disclose its ratings, which apply to product categories including beauty, household cleaning and baby care.
Wal-Mart maintains a list of 10 of what it considers hazardous chemicals that it encourages manufacturers to avoid. The company hasn’t made the list public, but says that it will issue a report on that program next year. Some American companies base their lists of chemicals they consider hazardous on other governments’ designations, such as the European Union or Canada.
In addition, nearly 30 states, led by California, have passed more than 100 laws regulating chemicals, creating a patchwork of regulations that manufacturers must navigate.
Industry proponents say they are hoping that EPA reviews would create uniform standards that may be less stringent than those of Europe or Canada, and would alleviate uncertainty over the possibility of future prohibitions.
Some environmentalists have rejected components in the Senate bill they say would make it too difficult for states to issue their own regulations and create a list of “low priority” chemicals.
“We think it’s an invitation to exonerate chemicals based on limited information,” said Andy Igrejas, who leads a coalition of groups that engage in consumer campaigns to ban toxic chemicals.
Others involved in chemical safety say that while the new rules governing the federal chemical oversight would be helpful, they are still skeptical that the reviews could be conducted quickly enough to satisfy consumers and expect that retail regulation will continue.
Bill Pease, a scientist for GoodGuide, the company that set up Target’s chemical-review system, said: “In the consumer market there’s really not much patience for allowing chemical risk assessments to play out…for decades.”
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Science Funding Surge Seen in Omnibus Spending Bill
Dec 17, 2015 | Chemical & Engineering News
By Andrea Widener
A massive federal spending bill unveiled early Wednesday morning would provide increases for most U.S. science funding agencies in fiscal 2016, which began on Oct. 1.
The long-awaited agreement between congressional Republicans and Democrats would include a $2 billion increase for the National Institutes of Health, up to $32 billion in fiscal 2016. The Department of Energy’s Office of Science would receive $5.4 billion, up $279 million from 2015. The National Science Foundation would go up $119 million to $7.3 billion.
In an important development for the chemical enterprise, a tax reform plan that accompanies the bill would permanently enact the research and development tax credit for companies. The credit, which gives businesses a tax break for up to 20% of qualifying research expenses, was first passed in 1981. The credit is popular with chemical manufacturers, pharmaceutical companies, and other research-based industries. Congress has failed to make the tax credit permanent despite years of wrangling over whether to do so.
Another provision would restrict the Food & Drug Administration from approving drugs or biological products that come out of inheritable changes to human embryos. And a recently approved genetically modified salmon will not be able to be sold until FDA finalizes its labeling guidelines; its draft guidelines made labeling voluntary.
The bill also would hold the Environmental Protection Agency’s budget flat and keep the agency’s staffing levels below those last seen in 1989.
As C&EN went to press, the bill was scheduled for a vote in the House of Representatives on Friday with the Senate expected to weigh in soon afterward. Congress is scheduled for a holiday recess starting Friday.
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US CPSC Exempts Untreated Wood in Toys From Testing
Dec 17, 2015 | Chemical Watch
The US Consumer Product Safety Commission has reissued a final rule that exempts unfinished and untreated wood in toys from third-party testing for heavy metal limits, under the commission's toy standard.
It first issued the rule in July (CW 17 July 2015) but withdrew it in September (CW 15 September 2015), after receiving “significant adverse comments”.
As it withdrew the rule, the commission proceeded under a notice of proposed rulemaking to elicit public comments. The agency then decided to reissue the rule.
The rule follows its determination that unfinished and untreated tree trunk does not contain heavy metals that would exceed the limits specified in the Consumer Safety Specifications for Toy Safety (toy standard ASTM F963-11).
The standard requires, among others, that surface coating materials and accessible substrates of toys that are sucked, mouthed or ingested comply with the solubility limits on eight heavy elements. Product manufacturers have to get third-party testing done for compliance certification.
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Osha Consults on Extension to Hexavalent Chromium Standards
Dec 17, 2015 | Chemical Watch
The US Occupational Safety and Health Administration (Osha) is seeking public comments on its proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements, contained in the hexavalent chromium standards for general industry, shipyard employment and construction.
The collection of information, under the standards, is aimed at protecting workers from the adverse health effects that may result from occupational exposure to hexavalent chromium.
Information collection efforts include conducting worker exposure monitoring, notifying workers of their exposures, implementing medical surveillance of workers, providing examining physicians with specific information and implementing a respiratory protection programme.
The deadline for comments is 16 February.
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Enforcement Forum Calls for Changes to REACH’s OR Provisions
Dec 17, 2015 | Chemical Watch
By Geraine Roberts
Echa’s Enforcement Forum says the provisions in the REACH Regulation, which set out the duties of an only representative (OR), need to be changed because they cannot be consistently enforced.
According to a report published by the forum last week, a third of inspected ORs are not meeting their registration obligations, compared to just 15% of substance importers and 6% of manufacturers (CW 10 December 2015).
“Often”, says the report, ORs were non-compliant – not because they had failed to register substances – but because they were breaching other obligations. These are set out in Article 8 of REACH and include their duty to keep up-to-date information on quantities of substances imported and customers sold to, as well as information on the supply of safety data sheets.
This means the affected importing downstream users (DUs) are sometimes pushed into non-compliance, without being aware of the situation.
According to forum deputy chair Eugen Anwander, in some cases, the importing company even failed to specify the correct OR for their substances.
Enforcing OR obligations, says the report, “is an extremely demanding task for any NEA – especially due to the generic nature of the provisions of Article 8, which do not define the duties and the functioning of the information chain.”
Explicit duties for ORs and importers
It, therefore, urges the European Commission to revise Article 8 and:explicitly define the duty for an importing DU to keep documents for the relevant substances, with annual tonnages confirmed by the ORs;stipulate that only an importing DU, keeping such documentation, is released from the registration duties of an importer; anddefine a new duty for the OR to send the information on covering the registration duties for the importing DU for a specific substance, including the annual imported quantities of the substance, to the importing DU.
The Commission, it says, should also:clarify the conditions for relying on the REACH provisions exempting re-import from the registration obligation;create a single database for all REACH-relevant import declarations to enable better targeting of inspections. Currently, says the report, this data is maintained by national customs authorities, making it difficult to trace all imports covered by a single OR if they occur in several countries; andmake it mandatory for ORs to submit information on covered importers in their registration file. This, it says, “would be helpful for the ORs and importing DUs and related inspections” and would allow Echa, during the registration dossier completeness check, to make sure the information is in the registration dossier.
“Importers are not provided with sufficient rights and powers to have influence on the compliance of their OR,” said Mr Anwander. “At a minimum, REACH should stipulate an explicit right for importers to know the identity of their OR for a given substance and to be informed about the relevant records on tonnages kept by the OR.”
Supply chain realities
Dieter Drohmann, president of the Only Representative Organisation (Oro), said requiring an OR to send information on the imported quantities of substances to importing DUs wouldn’t work because an OR’s contract is with its customer, the non-EU supplier, not the importing DU.
Instead, he said, “the importer should have, in its supply agreements, that the supplier should provide the OR coverage (for example, together with SDSs and shipping information) to the importer.”
Requiring ORs to submit information on covered importers in their registration file was “wishful thinking”, he said, as the registrations would have to be updated each time there was a change regarding the importers. “Moreover”, he said, “how could you reflect tonnage? Update the dossier with every delivery? Providing certificates through the supply chain to the importer … is the best and easiest option to check compliance at importers.”
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Echa Publishes 'Quick Update' of Guidance on Substances in Articles
Dec 17, 2015 | Chemical Watch
Echa has published a 'quick update' of its guidance on substances in articles, following the ruling of the European Court of Justice in September(CW 10 September 2015).
A more comprehensive update, which will go through the normal consultation procedure, will follow next year.
The update corrects the parts of the guidance, which refer to the 0.1% limit that are no longer consistent with the court's judgement. The latter clarified the scope of the notification and communication obligations of companies in relation to articles, containing substances included in the candidate list of SVHCs, in a concentration above 0.1% weight by weight.
According to the ruling, Echa points out, the legal obligations also apply to articles that are present in complex products, provided these keep a special shape, surface or design, or as long as they do not become waste.
The more comprehensive changes are expected to include a more general re-structuring of the document and new examples that are aligned with the court's judgement. There will be a review of these, against the experience gained and questions received by Echa, since the guidance was first published.
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Dec 17, 2015 | Chemical Watch
New PACT substances
Echa has added 17 substances to its public activities coordination tool (PACT) for risk management option analysis (RMOA) or hazard assessment.
They are:1,1,2,2,3,3,4,4,4-nonafluorobutane-1-sulphonic acid;2,2'-[(3,3'-dichloro[1,1'-biphenyl]-4,4'-diyl)bis(azo)]bis[N-(4-chloro-2,5-dimethoxyphenyl)-3-oxobutyramide];2,2'-dimethyl-4,4'-methylenebis(cyclohexylamine);2,2-bis(bromomethyl)propane-1,3-diol;acenaphthene;ammonium perchlorate;climbazole;lead and lead compounds;lead compounds;nitrobenzene;nonadecafluorodecanoic acid (PFDA) and its sodium and ammonium salts;phenanthrene;sodium perchlorate;terephthalic acid;tributyl citrate;tributyl O-acetylcitrate; andα,α,α,2-tetrachlorotoluene.
Reading guide
The agency has published a readers' guide that gives potential applicants – and advisers – an overview of the key information they need to read before preparing and submitting an application for authorisation.
It covers:guidance documents;questions and answers; andinformation on how the applications are evaluated by the agency's Risk Assessment and Socio-economic Analysis committees (Rac and Seac).
The agency says it intends to adapt the guide in the future, based on any feedback and the publication of new documents.
Downstream user webpage
Echa has added a new page to its website aimed at downstream users dealing with safety data sheets provided by chemical suppliers. It gives:tips;links; andexamples of how to benefit from SDSs in order " to operate safely and in accordance with the different legal requirements that apply to them".
ePIC and REACH-IT updates
The agency has added three new questions and answers to its ePIC webpage. It has also updated its REACH-IT questions and answers page, adding several new topics.
CLH intention
Echa has added a harmonised classification and labelling (CLH) intention to its registry, for the substance 2,2-bis(bromomethyl)propane-1,3-diol.
Norway expects to submit a dossier by 31 December 2016, with proposed entries of mutagenicity 1B and carcinogenicity 1B.
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WEN Hair Care Products Linked To Hair Loss
Dec 17, 2015 | Environmental Working Group
By Christine M. Hil and Tina Sigurdson
Thousands of Americans, mostly women, have suffered major hair loss after using WEN hair products marketed by one of the nation’s largest direct marketing firms Guthy-Renker and its Hollywood celebrity hair stylist Chaz Dean, according to documents disclosed in a class action lawsuit filed this year in federal court in Los Angeles.
Court documents, which have not yet been publicly reported, show more than 17,000 American consumers have expressed complaints directly to Guthy-Renker, reporting that they had lost hair or gone bald after using WEN products. Not only have the 17,000 consumers complained to Guthy-Renker, they also filled out a tedious 25-question survey documenting their horrible reactions from WEN products. Under current federal cosmetic safety regulations, Guthy-Renker, whose second largest product line after the skincare treatment Proactive is WEN, had no obligation to report adverse health events or customer complaints to the Food and Drug Administration.
The federal law designed to ensure that personal care products -- a category that includes hair care products -- are safe has remained largely unchanged since 1938. The FDA does not require safety testing of personal care products before they are put on the shelf. And because the loophole-riddled federal cosmetics law permits companies to keep customer injury complaints secret from the agency and the public, the FDA was not notified of the scope of WEN’s problems.
It’s no surprise then that poorly formulated products like WEN create an avalanche of adverse health reactions for thousands of people. This is yet another example of how desperately our federal cosmetic regulations need to be reformed.
Sens. Dianne Feinstein (D-Calif.) and Susan Collins (R-Maine) have proposed a solution that would remedy this situation and others, introducing a bill called the Personal Care Products Safety Act (S.1014). This bipartisan legislation would reform regulation of personal care products, requiring companies to ensure that their products are safe before marketing them and giving FDA the tools it needs to protect the public. If enacted, this legislation would create a modern regulatory structure that would give the FDA some of the same basic tools it uses to regulate food and drugs, to ensure the safety of personal care products like WEN.
WEN products have been endorsed by such celebrities as Brooke Shields and Angie Harmon. On the WEN website, Brooke Shields states, “WEN dramatically changed the appearance of my hair. I haven’t seen this type of shine, volume and texture since I was a young model.” Many of Chaz Dean, Inc. and Guthy-Renker’s customers were convinced that if they purchased and used the hair care products, they too would possess the locks of these celebrity spokespeople.
Yet the public complaints tell a darker story:
“Her hair literally just slipped right off her head,” wrote the mother of a 10-year old girl who had used WEN Cleansing Conditioner.
“I have now lost 50 percent (of my hair) since using WEN,” wrote “Kim” from Lubbock, Texas on October 10, 2015. “I’m down to washing my hair just once every two weeks because washing it makes the hair loss worse.”
“We both (HAD!!) thick hair, well, not anymore. It’s half the thickness it was. Two months is all it took to lose half of the thickness in our hair….not to mention how it burned our scalps and eyes,” wrote “Roni” from Mead, Wash., on September 24, describing injuries to herself and her mother.
So, what went wrong? Because the FDA doesn’t require companies to submit their product formulations, including specific ingredients in fragrance mixtures, no one has determined exactly which chemicals or what concentrations or mixtures of chemicals might have caused WEN customers to lose hair. WEN formulations on the market today may vary depending on the product distributor. Some chemicals used in WEN products are potentially risky ingredients. Methylisothiazolinone and its sister substance methylchloroisothiazolinone have been restricted in the European Union for use in personal care products, including hair products. These preservatives are sensitizing allergens. Methylisothiazolinone has been linked to contact dermatitis -- a red, itchy rash.
In addition, the WEN line is full of other chemical ingredients that are known allergens. For example, WEN uses an ingredient called Hydroxycitronellal, which is a fragrance component that has been strongly linked to allergic reactions. It also contains Hydroxyisohexyl 3-Cyclohexene Carboxaldehyde, which the European Union’s Scientific Committee on Consumer Product Safety has deemed unsafe for use in consumer products. Allergic reactions to these types of ingredients can be quite serious.
The legislative solution proposed by Sens. Feinstein and Collins would require companies like Chaz Dean, Inc. and Guthy-Renker to disclose the ingredients they use to the FDA. They would also be required to report adverse health events to the agency, including customer complaints like those submitted about WEN, and follow good manufacturing practices. The FDA would have the ability to recall dangerous products and require specific labeling and warnings for products that contain ingredients not suitable for all populations.
Until we reform our antiquated federal cosmetics regulations, consumers will remain vulnerable to harm from companies like Chaz Dean, Inc. and Guthy-Renker. When the settlement talks wind up, WEN products may still be on the market. The consumer’s best bet is to hope the Feinstein-Collins bill passes, so that companies like WEN will have to test their products for safety and disclose the results to the FDA before they show up on store shelves.
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Omnibus Keeps Funding Flat for Safety Watchdog
Dec 17, 2015 | E&E - Greenwire
By Sam Pearson
The nation's troubled chemical safety agency will see its funding stay flat in the new fiscal year, as a policy provision may delay a plan by regulators to tighten chemical storage rules.
Appropriators will keep the U.S. Chemical Safety Board's budget flat at $11 million under the omnibus spending bill released yesterday.
The level is less than its request of $12.25 million. The request, made under previous CSB leadership, called for the extra $1.25 million to hire more safety inspectors and work to clear a backlog of unfinished investigations.
"In recent years, the CSB has made a concentrated effort to alleviate the backlog of open investigations, but the agency also intends to continue to investigate new serious chemical incidents affecting workers, the environment, and the public," the agency said in its budget request in February.
The agency has been criticized for not sending investigators to a new accident site in nearly 10 months. The Charleston Gazette-Mail reported that CSB has made no decision about whether it will look into a recent incident in which 11 contract workers were hospitalized after a tank on an industrial boiler at an Axiall Corp. plant in Marshall County, W.Va., released steam and ash into the air.
CSB was satisfied with the funding levels, CSB Chairwoman Vanessa Sutherland said in a statement.
"This demonstrates a renewed confidence in the agency's critical chemical safety mission," Sutherland said. "The agency will continue to focus on the completion of high quality investigations as we did in 2015."Safety change delayed
Another provision in the omnibus legislation could reset an emerging effort at the Department of Labor's Occupational Safety and Health Administration to toughen standards for the storage of hazardous chemicals.
The effort is part of an executive order President Obama issued in 2013 to urge agencies to work together to identify regulatory gaps that may lead to chemical explosions like the one in West, Texas, that killed 15 people.
To save time, OSHA issued guidance documents earlier this year announcing how it planned to reinterpret existing process safety management regulations for highly hazardous chemicals and concentrations of chemicals. It also issued guidance for facilities covered under an exemption for chemical retailers, among others.
The move drew immediate opposition from business interests, which argued that the agency acted improperly by failing to conduct a rulemaking that would allow for public comment.
"Our members were mystified by why OSHA didn't go through the proper channels," said Bill Allmond, vice president of government and public relations at the Society of Chemical Manufacturers & Affiliates.
Republican lawmakers questioned OSHA's use of the expedited process earlier this year.
Republican Sens. James Lankford of Oklahoma, Lamar Alexander of Tennessee, Joni Ernst of Iowa and Steve Daines of Montana sent a letter to the agency in October asking for more information on OSHA's use of guidance documents.
The action could "dramatically expand the universe of regulated parties, create extreme logistical and financial burdens on regulated parties and convert flexible recommended practices into mandatory requirements -- all without the opportunity for public comment," the lawmakers wrote (Greenwire, Oct. 5).
According to language in the departments of Labor, Health and Human Services, and Education, and Related Agencies section of the omnibus bill, OSHA would be barred from enforcing the changes or deeming them in effect until it completes a formal rulemaking process.
OSHA had already delayed enforcing the change until July 2016.
OSHA spokeswoman Kimberly Darby said the agency could not discuss implementation of the policy rider until the appropriations bill is signed into law.
Public interest groups have defended the agency's previous actions.
It was problematic for OSHA to see "even initial steps be blocked or sabotaged by people representing special interests," Rick Hind, legislative director for Greenpeace's toxics campaign, said earlier this year.
Brian Reuwee, a spokesman for the Agricultural Retailers Association, declined to comment on the rider, noting pending litigation against OSHA over the action. ARA is a party to a lawsuit, brought with the Fertilizer Institute, against OSHA over the regulatory change in the U.S. Court of Appeals for the District of Columbia Circuit.
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Obama Admin Targets Environmental, Worker Safety Crimes
Dec 17, 2015 | E&E - Greenwire
By Robin Bravender
The Obama administration today announced it is intensifying its efforts to punish criminals who break environmental and worker safety laws.
Under the plan, the Justice Department's Environment and Natural Resources Division's environmental crimes section will beef up its attempts to pursue worker endangerment violations. While worker safety laws generally allow for only misdemeanor penalties, prosecutors have now been encouraged to consider using environmental offenses -- which often occur alongside worker safety crimes -- to increase penalties and improve deterrence, the administration said.
"We are aligning environment, health and safety so that we can look across the entire horizon of the reasons for injuries and in fact use our resources to combat that and make that a high priority for the department," John Cruden, assistant attorney general for the Environment and Natural Resources Division, told reporters today. He called the move "a historic act" to align the resources of the departments of Justice and Labor and to protect workers across the country.
DOJ's environmental division has been increasing efforts to pursue civil cases involving worker safety violations under laws including the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, and the Toxic Substances Control Act, officials said.
"Violations of a number of provisions under these statutes can have a direct impact on workers tasked with handling dangerous chemicals and other materials, cleaning up spills and responding to hazardous releases," the administration said in a press release.
Deputy Attorney General Sally Quillian Yates sent a memo today to all 93 U.S. attorneys across the country, urging them to work with DOJ's environmental crimes section to pursue worker endangerment violations.
"On an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked," Yates said in a statement. "Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers' health and safety."
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House Republicans Ask if EPA Used 'Covert Propaganda' to Promote Carbon Rule
Dec 17, 2015 | PoliticoPro - Whiteboard
By Alex Guillen
House Energy and Commerce Chairman Fred Upton has seized on a government watchdog's report that EPA relied on unlawful "covert propaganda" to promote its water rule to ask whether the agency used similar techniques to promote its power plant carbon rules.
The Government Accountability Office said this week that EPA's campaign for its Waters of the United States rule violated laws against agencies lobbying Congress. EPA disputed GAO's conclusion and said it never encouraged the public to lobby Congress.
In a letter today, Upton and two of his lieutenants say the GAO report raises questions about EPA's use of social media in other rulemakings. They note that EPA used a "Thunderclap" campaign to promote the Clean Power Plan, similar to what the agency did with the water rule.
“EPA getting busted for its illegal propaganda and lobbying on the WOTUS rule raises serious red flags, and we want to know if these shenanigans extended to the climate rules,” Upton said in a statement. “EPA took an aggressive approach with respect to its climate rules and we want to ensure that EPA did not violate the law promoting these rules. The bottom line is EPA betrayed the public trust.”
The letter demands EPA hand over documents related to any Clean Power Plan campaign. It also asks Administrator Gina McCarthy to "certify in writing that EPA has not engaged in covert propaganda or grassroots lobbying when promoting the Clean Power Plan."
EPA did not immediately comment on the letter.
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EPA ‘Stands By’ Carbon Rule Outreach
Dec 17, 2015 | PoliticoPro - Whiteboard
By Alex Guillen
EPA says the online campaign questioned by House Republicans today was unrelated to its Clean Power Plan, and that it "stands by its outreach efforts" on the carbon rule.
“The EPA places a high priority on providing the public timely, accurate and accessible information about the environment and our rulemaking activities. Social media is an increasingly important tool in this public outreach and education effort,” spokeswoman Melissa Harrison said in a statement. “The Agency is continually learning and refining its approaches, both to make sure communications are effective and to ensure that we continue to be in compliance with the law.”
House Energy and Commerce Chairman Fred Upton today questioned whether an EPA “Thunderclap” campaign that used the hashtag “#ActOnClimate” could be considered unlawful, similar to the Government Accountability Office report this week describing a Waters of the United States rule campaign as “covert propaganda.”
EPA says the campaign specified by Upton occurred before the Clean Power Plan was proposed and linked to an EPA page on how individuals can reduce their carbon output, not information about regulations.
The agency said it has never used its "#CleanPowerPlan" hashtag in a Thunderclap campaign.
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Mercury Decision Boosts Bid to Kill Climate Rule -- EPA Foes
Dec 17, 2015 | E&E - Greenwire
By Robin Bravender
U.S. EPA critics were dismayed as federal judges this week kept intact a major Obama administration rule to slash mercury emissions from power plants, but others saw a silver lining.
Having the mercury rule in place, they say, bolsters their arguments against another major rule, EPA's Clean Power Plan.
In the litigation over that landmark rule to limit power plants' greenhouse gas emissions, a central argument made by EPA's critics is that the agency lacks authority to issue the climate rule using the Clean Air Act's Section 111(d) because the 2011 mercury rule already regulates power plants under a separate section of the air law.
By keeping the structure of EPA's power plant mercury rule "largely in place, the lower court has preserved the argument that the [Clean Power Plan] is effectively pre-empted ... under Clean Air Act text" and case law, said Scott Segal, an attorney at Bracewell & Giuliani who represents utilities.
For states and industry groups opposed to both rules, the issue presents a legal paradox.
"If you're challenging the rule in one place, you're supporting it in the other," said Suzanne Murray, a former EPA regional general counsel who's now a partner in the Dallas office of Haynes and Boone.
The connection between the two rules is a complicated one that involves some legislative confusion.
EPA issued its climate rules for power plants under Section 111(d) of the Clean Air Act. But two versions of that section were signed into law, one from the Senate and one from the House. Critics of the EPA rule contend that one version bars EPA from issuing standards under 111(d) for sources of pollution already covered by other regulations. The mercury rule regulates power plants under Section 112 of the clean air law, so foes of the climate rules say the 111(d) regulation is unlawful.
The Supreme Court's June ruling that the mercury rule was illegal raised questions about whether that decision could undermine the arguments against the climate rule (Greenwire, June 30).
But the high court didn't strike down the rule, opting instead to send it back to the U.S. Court of Appeals for the District of Columbia Circuit. That lower court Tuesday agreed to hold the rule in place to allow EPA to adjust it in line with the high court's ruling (Greenwire, Dec. 15).
Thomas Lorenzen, a former Justice Department environmental attorney now representing industry clients at Crowell & Moring, said the D.C. Circuit's decision preserves industry's argument "that existing coal-fired power plants cannot be regulated under Section 111(d) because they are regulated under Section 112."
Industry and state attorneys find that argument persuasive.
They raised the issue during their failed attempt at blocking the climate rule before it was finalized and in recent arguments to the D.C. Circuit saying the final rule should be halted while the litigation plays out.
"[G]iven that such power plants are extensively regulated under Section 112 ... the exclusion forecloses EPA from invoking Section 111(d) to doubly regulate those same plants," a state coalition led by West Virginia told the court earlier this year.
But the Obama administration and its allies have argued the other version of Section 111(d) -- the one that originated in the Senate -- says only that EPA cannot redundantly regulate a pollutant. That would allow its greenhouse gas rule. They also say that the two versions are ambiguous and that the agency deserves deference from the court in interpreting unclear statutory language (Greenwire, April 16).
"This argument that a mercury rule blocks the carbon rules is a loser," said David Doniger, an attorney at the Natural Resources Defense Council that supports EPA in the lawsuits attacking the climate rule.
"Basically, they're arguing that Congress wrote the law to force EPA to pick your poison and you can't regulate carbon if you've regulated mercury. That's not a sensible interpretation, and it's not driven by the statutory language." He added, "EPA in its brief has shown very adequately that the statute either unambiguously gives them the authority" to regulate under Section 111(d) or that it's a "reasonable interpretation" of the law.
The legal battle over the mercury rule is expected to flare up again after EPA issues its revised rule. That could create further uncertainty about the rule that might spill over into the Clean Power Plan litigation that's expected to wind up in the Supreme Court and might drag on until 2018.
Justin Savage, a former DOJ environmental attorney now at Hogan Lovells, said the mercury decision is "helpful" to the arguments against the Clean Power Plan, "but I anticipate renewed challenges to the mercury rule."
Legal experts predict that EPA will face challenges over how it measured so-called co-benefits when crafting the mercury rule. The issue came up during oral arguments over the mercury rule in the Supreme Court, and D.C. Circuit Judge Brett Kavanaugh predicted that EPA's calculation of health benefits not directly attributable to reductions in mercury will be the "key battleground" in the next round of litigation over the rule (Greenwire, Dec. 7).
"The bottom line is that there's still going to be some question about whether the mercury rule might have to be remanded yet again on this question of co-benefits," said Vermont Law School professor Patrick Parenteau. "It might mean that the mercury rule remains in limbo for some period of time."
Parenteau said he doesn't think EPA's position in the climate litigation will change in light of the mercury case. "They're going to continue to say, 'Yes, coal plants are regulated under 112. So go ahead and argue if you want that we can't regulate them both under 112 and 111(d). ... I think it crystallizes the question."
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MISO Says Gas Prices Will Have Big Impact on Clean Power Plan Costs
Dec 17, 2015 | E&E - Energywire
By Jeffrey Tomich
The cost impact of U.S. EPA's Clean Power Plan within the Midcontinent Independent System Operator's 15-state footprint ranges from a few billion dollars to more than $100 billion over the next two decades, according to an initial analysis by the grid operator.
What separates the opposite ends of the cost continuum is a seemingly endless number of variables that state regulators must weigh as they decide how to meet the prescribed cuts in power plant carbon dioxide emissions.
The first look at estimated compliance costs was presented by MISO to members of its Planning Advisory Committee yesterday and reflects the huge variance in estimates since the final plan was issued on Aug. 3 (ClimateWire, Nov. 30).
The MISO analysis, too, comes with a sizable caveat: It doesn't include new electric transmission or gas pipelines, which are projected to add billions of dollars. Nor does it attempt to quantify any environmental or economic benefits -- a factor that EPA and environmental advocates argue is frequently overlooked.
Carmel, Ind.-based MISO, which operates the bulk power grid over a wide swath of the central United States, hasn't taken a position on the rule itself, while a number of states within MISO's footprint have sued EPA to keep it from taking effect.
But MISO is conducting short-, medium- and long-term planning as part of its effort to help state policymakers craft compliance plans that ensure grid reliability at the lowest cost (EnergyWire, Nov. 5).
In its initial analysis, which is focused on helping understand compliance options, MISO made assumptions about key variables most expected to affect costs involved with slashing CO2 emissions from power plants.
And the single factor that will most influence compliance costs is one that no one can control -- natural gas prices.
What the initial modeling did confirm, according to Jordan Bakke, a senior policy studies engineer at MISO, is that the significant latitude given to states to decide how to achieve CO2 cuts prescribed by EPA will help minimize costs.
"Just having that flexibility on the system leaves open that option for having lower compliance costs in the end," Bakke told the committee.
Within MISO's footprint, the Clean Power Plan would reduce systemwide CO2 emissions to less than 350 million tons annually from a current level of greater than 500 million tons.
MISO's analysis of the final rule looked out 20 years and assumed different sensitivities for average natural gas prices ($2.30-$6.30 per million British thermal units); renewable portfolio standards (from the current 14 percent to 30 percent); CO2 costs (nothing to $100 per ton); additional coal retirements (none to 28 gigawatts); and various levels of energy efficiency savings.
Overall, MISO ran 675 simulations using every combination of variables and got back a scatter plot that showed a wide range of levels of compliance and costs, some of which the grid operator noted are not realistic.
MISO is making the tool available to its members -- utilities, generation and transmission owners, and state regulators -- to tinker with and plug in their own assumptions.
The grid operator specifically defines compliance costs as energy production costs -- fuel, operations and maintenance, and capital costs for generation and demand-side resources such as demand response and energy efficiency.What happens to coal?
Among the key issues MISO and its members want to better understand is how the fuel mix in its footprint will change.
And understanding that means getting a better grasp of how much coal-fired generation will be shut down as states move to cut CO2 output.
In modeling the draft rule last year, MISO estimated the Clean Power Plan could lead to retirement of an additional 14 GW of coal generation (EnergyWire, Sept. 18, 2014). That's on top of 12.6 GW expected to be retired as a result of EPA's Mercury and Air Toxics Standards.
In its initial analysis of the final rule, MISO used the 14-GW reference case and four other potential scenarios for coal retirements, ranging from zero additional plant closures to 28 GW.
Again, the cost impact of coal retirements varied widely depending on other assumptions. But the analysis showed average compliance costs related to coal retirements declining initially as cleaner energy displaces coal and then increasing at a certain point, Bakke said.
"There's a low point in the cost curve" around 7 to 14 GW, he said.
Bakke said MISO would continue to refine its analysis in coming months, digging deeper into rate- and mass-based compliance approaches that will be presented to the same committee in January and February.
MISO's analysis of the final rule will continue over the next two-plus years with medium- and longer-range studies focused on transmission needs.
"The bulk of the analysis is yet to come," he said.
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Ark., Mulling Options, Sees Midcontinent Support for Mass-Based Approach
Dec 17, 2015 | E&E - Energywire
By Edward Klump
Arkansas hasn't settled on a potential path for complying with U.S. EPA's Clean Power Plan, but the state is seeing interest in a mass-based approach both in its jurisdiction and elsewhere.
That trend was clear yesterday during Arkansas' latest conference call on a proposed federal plan and model trading rules related to EPA's regulation, which aims to reduce carbon dioxide emissions from power plants.
Under the Clean Power Plan, states can develop a rate- or mass-based approach or face a potential federal plan. A cap would be put on emissions under a mass-based setup, while a rate-based route would cut emissions to a certain level per megawatt-hour.
A participant in Arkansas' call yesterday asked what air regulators might be hearing from other states and probed whether rate-based plans would be implemented widely.
Stuart Spencer, an associate director in the Office of Air Quality at the Arkansas Department of Environmental Quality, responded by citing discussions with members of the Midcontinent States Environmental and Energy Regulators group.
"We have had conversations on just the general leanings of those environmental and [energy] regulators toward either the mass or the rate plan," Spencer said.
And, without pointing to specific numbers, Spencer said, "The trend does seem to be that more of the states that we've had conversations with are favoring the mass system."
The questioner also asked about the administrative lift of a possible rate-based approach.
"There is obviously more that goes along with maintaining that type of program," Spencer said, calling a mass-based system "a much simpler and streamlined approach."
Spencer added that "all approaches are still on the table as far as trying to analyze what the best step ... moving forward is." But he said a rate-based setup could require more resources, as staff might need to monitor and measure aspects of the program.
The question of what approach to take is being weighed by a number of states as they digest the Clean Power Plan, which seeks to cut CO2 emissions from power plants 32 percent by 2030 compared with 2005 levels. Targets vary by state, and Arkansas is exploring what compliance option might work best even as the state's attorney general is in litigation over EPA's carbon plan (EnergyWire, Oct. 13).
Missouri, Arkansas' northern neighbor, is one example of possible support among some air regulators for a mass-based approach (EnergyWire, Dec. 3).Entergy 'leaning' toward mass-based
Back on yesterday's Arkansas call, Chuck Barlow, speaking for Entergy Corp., a power provider, said any approach to the carbon rule "needs to try to avoid unit-specific constraints on the dispatch or the operation of" units. Preserving regional economic dispatch can help to ensure reliability, he said, because a high-emitting unit that's needed could purchase allowances or credits.
A possible Arkansas approach, according to Barlow, "needs to promote interstate trading, and it needs to promote a liquid market, really whether you're talking about an allowance market or credit market."
He added that "most states may be leaning one way or the other, but they're really still trying to figure all this out" in terms of rate or mass.
"Entergy is really leaning in our thinking toward the mass-based systems," Barlow said. "Again, not saying that rate-based systems could not work but that ... on balance we see a lot more concern and complication with the rate-based systems."
A speaker for the Arkansas Public Service Commission said it was hearing that other states were generally leaning toward a mass approach. But some support for rate-based ideas remained on yesterday's call.
Ken Smith, policy director at the Arkansas Advanced Energy Association, said a rate-based plan might be straightforward, as performance rates of electric generating units could be affected by credits. He said renewable energy and energy-saving measures could play a role, and Smith touted the potential of options such as demand-side energy efficiency and waste heat recovery.
Smith called a rate-based approach "workable for the state," adding: "We would not be opposed to it."
Smith said his organization would look to utilities and regional transmission organizations for their direction but said he wouldn't "at this time discount" rate-based as an opportunity, particularly as it relates to economic development and compliance. Smith, in an interview later yesterday, said he was open to listening to more about mass-based, as well.
A speaker for Southwestern Electric Power Co. (SWEPCO) said on yesterday's call that the company hasn't made a determination on rate or mass approaches but expressed hope that Arkansas and other states would file a state implementation plan. SWEPCO is part of American Electric Power Co. Inc.
The discussion in Arkansas is expected to continue, with a stakeholder meeting set for Jan. 5 at a Midcontinent Independent System Operator facility in the Little Rock area. For the Clean Power Plan, EPA has a Jan. 21 deadline for comments on the proposed federal plan and model rules.
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EPA is Urged at Hearing to Toughen Cross-State Rule
Dec 17, 2015 | E&E - Greenwire
By Sean Reilly
U.S. EPA must go beyond its currently proposed changes to its Cross-State Air Pollution Rule (CSAPR), a handful of speakers urged at a brief public hearing this morning.
The proposal unveiled last month is designed to reduce power plant emissions of nitrogen oxides (NOx) that waft across state lines and contribute to the creation of ozone. But the proposal, which would affect power producers in 23 states, is geared toward meeting the previous ozone standard, 75 parts per billion, not the 70 ppb limit EPA adopted in October.
"There is a big delta between the level of ozone that is safe and the level of ozone that this CSAPR update is targeting," Zack Fabish, a Sierra Club project attorney, told the three EPA officials conducting the session.
While the American Lung Association is pleased that EPA is moving ahead with an update, the proposal "only requires polluting plants to run the emissions controls they have already installed," said Paul Billings, the group's senior vice president for advocacy.
"More must be done to protect the air in downwind communities," Billings said.
A similar note was struck by David Foerter, executive director of the Ozone Transport Commission, comprising a dozen Eastern states and the District of Columbia. State and federal action just to meet the 75 ppb ozone standard is "significantly overdue," Foerter said.
For transport commission members to reap the benefits of the new 70 ppb limit, EPA regulators should move ahead with guidance to help states meet their "good neighbor" obligations under that standard at the same time they are wrapping up work on the current proposal, he added.
The three were the only speakers to pre-register for the hearing, which had been scheduled to last as long as 11 hours but instead ended well before lunchtime.
The sole industry representative was Maria Race, director of federal environmental programs for NRG Energy Inc., who asked EPA to extend the public comment period by up to 45 days to account for the fact that many of the company's key employees are on vacation for the holidays.
At present, the comment period is set to end Jan. 19. In written filings, many other power producers are also asking for more time.
Although EPA portrays the NOx budgets in its proposal "as reflecting relatively limited adjustments" to power plant operations, a preliminary review suggests they "reflect unrealistic and unsupported assumptions and projections of dramatic near-term changes" in plant operations, Larry Monroe, Southern Co.'s chief environmental officer, wrote earlier this week in requesting a 45-day extension.
According to EPA figures, the proposal would make cuts to this year's ozone-season NOx budgets of up to 72 percent by 2017 (see chart). Based on preliminary data on actual 2015 emissions, however, almost all of the 23 states came in under this year's targets and several, such as Maryland and Texas, were already below their proposed 2017 budgets.
When coupled with other regulations on the books, EPA officials expect the proposed update would lead to about a 30 percent cut in NOx releases from last year through 2017, Janet McCabe, the agency's acting air chief, told reporters last month (Greenwire, Nov. 17).
In return for an estimated $93 million annual price tag, EPA expects the planned regulations to yield up to $1.2 billion in health benefits.
Ozone, the prime ingredient in smog, can inflame lung passageways and worsen diseases like asthma and emphysema. But while the agency says its proposal can be readily met with proven, affordable technology, some industry representatives are voicing doubts.
At the Tennessee Valley Authority, which says it has cut NOx emissions by 90 percent from a 1995 peak, the new plan would require additional steep reductions, Don Houston, the agency's program manager for air policy, said in an interview last week.
"It will be very challenging to make that quick a reduction by 2017," Houston said, adding that EPA is making some "incorrect" assumptions about generating units that will be retired.
At Hunton and Williams LLP, a law firm whose clients include power producers, "we are still in the process of speaking to them about the impact of the rule and are also evaluating that ourselves," E. Carter Chandler Clements, an associate attorney, said in an interview yesterday.
Based on feedback so far, she said, "the requirements under the rule are much more stringent than I think they expected."
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White House Says Climate Pact Will Unleash Private Cash in Clean Energy
Dec 17, 2015 | E&E - Climatewire
By Evan Lehmann
A top adviser to President Obama predicted yesterday that the global climate accord reached in Paris five days ago would have "a profound impact" on private investments in clean energy, resulting in cheaper technologies able to compete with fossil fuels.
Brian Deese, Obama's climate aide, said the agreement will give confidence to companies and investors worldwide to launch products in emerging low-carbon markets driven by global commitments to slash emissions.
Elements of the climate pact will assure them that there's an appetite for those new products, he said, pointing to emission reduction goals being tightened every five years and public data showing how nations are meeting their commitments.
"I think this agreement is going to have a profound impact on private investment, and as a result on the cost of deployable technologies in this country," Deese said yesterday at an event hosted by The New Republic.
"If I'm an investor, what I want to know is ... the certainty of these cycles, and I want to have visibility into the data so that I know as technology improves I can understand what countries are doing and how that's impacting their emissions trajectory," he added.
A key outcome of the agreement is a pledge by 20 nations to double their public research and development funding in clean energy. The program, named Mission Innovation, will result in a $5 billion annual increase in research and development investments in the United States.
A parallel private initiative by 28 of the world's richest investors will reward those 20 countries by using their capital to fund high-risk clean energy technologies. Their objective is to provide "patient" capital that will help large-scale technologies survive the valley of death in order to become commercially viable, a period that can take 10 years by some accounts.
"This collective failure can be addressed, in part, by a dramatically scaled-up public research pipeline, linked to a different kind of private investor with a long term commitment to new technologies who is willing to put truly patient flexible risk capital to work," the investors say on their website.
The group, named the Breakthrough Energy Coalition, will focus on five sectors: electricity generation and storage, transportation, industrial processes, agriculture, and energy system efficiency.
"Now if you want to talk about a strong signal to the private capital markets, that if a country steps forward and does something transparently to push R&D, they're gonna be rewarded with private capital. That's pretty significant," Deese said.
The Obama administration promised the global community that the United States would cut its emissions by 26 to 28 percent compared with 2005 levels by 2025. Deese said yesterday that Obama will use his remaining year in office to work toward that goal by working with states to implement the Clean Power Plan and advancing proposed regulations in the transportation and oil and gas sectors. He also said the administration is working on a suite of energy efficiency rules.
Some environmental groups hope the president will propose rules to reduce methane at existing oil and gas wells. The administration is already working on methane regulations for new facilities, but the Natural Resources Defense Council and other organizations believe existing methane leaks can be addressed before Obama leaves office.
When asked after the event yesterday whether the president is open to that, Deese said the focus is on advancing the rules for new facilities while existing operators comply with voluntary measures.
"We're going to keep looking at that question," he said of methane rules for existing wells. "But for the time being, we're focused on implementation, and we're focused on what are the steps we're going to need to take to get to that rule."
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Dorsey & Whitney's Rubin Previews 2016 Regulatory, Legal Landscape
Dec 17, 2015 | E&E TV
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is James Rubin, a partner at Dorsey & Whitney. Jim previously served for 15 years in the Environment and Natural Resources Division of the Department of Justice. Jim, it's nice to have you back on the show.
James Rubin: Thank you for having me.
Monica Trauzzi: Jim, 2015 was an exceptionally busy year of regulation for U.S. EPA, and as we look to 2016, the expectation is that that will continue and that litigation matters will take a big focus. How quickly will the legal action on the Clean Power Plan pick up, and what is the trajectory you envision for the litigation?
James Rubin: Well, I mean, it's already picked up. I mean, there's the stay motion will be fully briefed by the middle of next week. I'm sure the justices will have nice Christmas reading. I would expect to see some kind of ruling early in 2016. I think it would be fair to expect that. I'm not sure I could tell you what's going to happen on that ruling. I have my own thoughts, but it'll be a close call. But, you know, at the same time, the petitioners have now filed a motion to expedite the briefing, which is almost to say really they want it all done in the first round by May before any submissions are due, so I'm not sure that motion will go anywhere, but the stay motion may be a little bit more powerful. So it all depends on what the D.C. Circuit does. If the D.C. Circuit decides to issue a stay, the whole complexion of 2016 changes. A lot of states will probably stop their opportunity. Some will keep going, but you know, I think it'll seriously slow down the process. And this does bode poorly on the merits for EPA because it's part of the stated determinations. If the stay is denied, it doesn't mean the rule is going to survive, but there's now a period of time that's going to go out where the states are going to be implementing and, you know, it will be some time before that litigation is resolved, even at the D.C. Circuit level.
Monica Trauzzi: And beyond the power plan, which has received much of the critical focus that we've seen in 2015, what are the key regulations we're anticipating in 2016 that will impact the power and energy sectors?
James Rubin: Well, first of all, you know, the Clean Power Plan obviously was a big play in 2015. It will be the big play of 2016 because even with the litigation, there's still regulation to be done there, so they have to finish the federal rules for trading, they have to finish the federal rule, and then there's also going to be state submissions. But outside of that, there are a number of other things going down the pike that will affect the power sector. First and foremost, if we're focusing still on greenhouse gases, you know, the -- Paris was made possible, in a sense, by the Clean Power Plan is one way of looking at it. But that only got the United States part of the way to where they want to be on their declared targets. Methane regulation is pretty critical, and there -- regulations were put out in August. Theoretically will be done by August of next year, which we can talk about may have a timing issue. But that's a pretty key piece of the administration. It's not a power sector. It's an oil and gas sector, but because it involves fracturing natural gas, it has an impact on it. You've got the MATS regulation, which just survived the court. At least it's not vacated, it's still in effect, but EPA has a rule they'll have to come out by April 15th because the D.C. Circuit bought the argument, said yes, please put the regulation out. That will involve rulemaking. And there's also the clean state -- Cross-State Air Pollution Rule, which -- 2.0 which is out. Maybe it's one and a half because it's only one part of the CSAPR is out as well. So those are kind of the big-ticket items that will be finalized by the end of next year, but EPA is going to put out a proposed regulation in aviation. It's going to finalize the regulation on transportation, heavy trucks. There's a whole series of things down the line that are going to drop in 2016.
Monica Trauzzi: But there are things that could happen that could potentially unravel some of these efforts.
James Rubin: Well, the -- on methane, the only thing that will unravel that at this point is not putting a regulation out or doing it in a way that's too late that allows there to be a congressional attack. There's a lot of things that have to happen -- that's if -- different president in power and so forth. But you know, the litigation is going to be key for a number of these issues, and that's what will be litigated once the EPA comes up with a new cost determination that will be litigated. The Cross-State Air Pollution Rule will be litigated probably into 2017, but you've got the Clean Power Plan and also the new source plan, which is the predicate to the Clean Power Plan, is now in litigation, and that might be fully litigated and decided by the end of the year, which a ruling against that rule could very negatively impact the Clean Power Plan. So there's a lot of litigation that will be dealing on just in 2016.
Monica Trauzzi: So EPA has taken on a significant number of new employees recently. Even with that expanded workforce, do you believe the agency and other relevant agencies will be able to complete their work on these regulations prior to the president leaving office?
James Rubin: I don't necessarily think a lack of FTEs in EPA would be holding things back. I mean, things that tend to hold the agency back are as political as anything else. I think in -- that the, you know, the methane regulation particularly will be -- if it's held back will be because they are trying to get the regulation right in a way that will be surviving scrutiny. I think that the legal scrub that's being done on these regulations is impressive, and I think EPA's spending a lot of time on that. They're done when they're done, but I'm not sure the lack of employees will be impacting the timing of it. It may be more a sense of where the political resources exist in the middle of 2016. They're going to be -- at some point, they're going to have to start looking at the clock and realizing they can only get so much done before administration changes, you know, depending which administration's going to take over, but they'll have to take a hard look on where they need to put their effort, you know, at the political level as well as the technical level.
Monica Trauzzi: We're awaiting the Supreme Court's decision on FERC's Order 745. It's the demand response case. How will this decision impact markets and subsequent regulations pertaining to the power sector that we see coming out of this administration? Do you think it'll have an impact?
James Rubin: Well, again, the -- it will certainly have an impact. I think that what you see in this administration, at least in the interface of energy and environment, is an attempt to essentially capture where the market's going anyway and maybe push that a bit further and at least lock in what's being done. And there is such a move toward demand side and other aspects of energy development that way. I think that, obviously, a negative ruling would impact, but the states are still going to be working their areas, I think, in a way that will minimize impact.
Monica Trauzzi: I want to go back to the mercury rule that you touched on at the top. What shape could the legal challenges take following this week's circuit court ...
James Rubin: Well, I actually heard someone mention to me -- someone mentioned to me that there might be a ... attempt on just this ruling, which I think is a bit of a stretch. This was a very quick ruling, almost procedural in nature. I think the next litigation will be when EPA puts out a final consideration of -- it's a finding, they call it, of whether to regulate or not. That'll be challenged. That's probably the next piece of litigation that will be a D.C. Circuit challenge 60 days after April 15th.
Monica Trauzzi: So a busy 2016 ahead.
James Rubin: Very busy 2016.
Monica Trauzzi: All right. Thank you very much for coming on the show.
James Rubin: Thank you very much.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
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IPAA Urges EPA Against Revising Fracking Water Study 'Impacts' Finding
Dec 17, 2015 | InsideEPA
By Bridget DiCosmo
The Independent Petroleum Association of America (IPAA) is urging EPA against revising its conclusion in a draft study that there are "no widespread, systemic impacts" to groundwater from hydraulic fracturing, with IPAA saying the finding is accurate and that the agency should ignore advocates' push to reconsider the conclusion.
Some members of an EPA Science Advisory Board (SAB) panel reviewing the draft fracking study are also debating calling on the agency to revise the finding, saying it lacks adequate justification.
But IPAA Executive Vice President Lee Fuller in a Dec. 11 letter to EPA says, "The conclusion of no widespread, systemic impacts appropriately describes EPA's findings, which show that while oil and natural gas development (or indeed any kind of energy development) is certainly not risk free, the risk of water contamination is not pervasive."
The letter, addressed to agency Administrator Gina McCarthy, says, "EPA's report counters the notion that hydraulic fracturing poses an inherent threat to underground sources of drinking water (USDW)."
IPAA also raises concerns that the SAB panel is considering recommending that EPA revise its finding that the draft study "did not find evidence" of "widespread, systemic impacts on drinking water resources."
The draft study, released in June, identified potential mechanisms by which fracking activities could impact drinking water, including water withdrawals in areas with low water supply, spills of fracking fluids and produced water, underground gas migration, inadequate wastewater disposal and fracking directly into water resources.
But SAB panel members have indicated they could suggest that EPA revise the draft language, saying in a Dec. 4 preliminary summary response to charge questions following a Dec. 3 teleconference that the statements of findings "should be revised to be more precise and specific" and draw more clearly from the draft study.
"Of particular concern is the statement of no widespread, systemic impacts," the draft SAB panel document says, adding "Neither the system of interest nor the definitions of widespread, systemic or impact are clear and it is not clear how this statement reflects the uncertainties and data limitations" in the draft study.
IPAA says in the letter to McCarthy that it is concerned that pressure from environmental groups may be influencing the SAB panel comments. Advocates have also strongly urged EPA to revise the statement on impacts from fracking in their public comments during several SAB meetings. But IPAA says, "there is nothing ambiguous about EPA's finding. The terms 'widespread' and 'systemic' are clearly defined and unequivocal."
The letter points to a number of published studies that IPAA says support EPA's draft conclusion, including a study published in the Proceedings of the National Academy of Sciences from earlier this year, Drollette, et al. That analysis found no evidence of a direct link between shallow drinking water wells and upward migration from shale plays and a 2014 Department of Energy study that reported similar findings.
Chemical Disclosure
Meanwhile, a recent analysis slated for publication in the January 2016 volume of Energy Policy finds that the state-run database, FracFocus, is comprehensive but rates of withheld chemical information have increased. FracFocus has been the vehicle for fracking chemical disclosure in 23 state rules.
"However, when companies report fracturing chemicals without attribution to the specific products in the fracturing fluid (a systems approach to reporting) withholding rates drop four-fold," according to an abstract of the study, "Hydraulic fracturing chemicals reporting: Analysis of available data and recommendations for policymakers."
Separately, environmentalists have dropped a fracking chemicals disclosure lawsuit against EPA after the agency in October agreed to launch a rulemaking to add natural gas processing plants to the industry sectors required to report their chemical releases to the agency's Toxics Release Inventory (TRI). But the agency rejected advocates' efforts to expand the TRI rules to include oil and gas facilities, such as wells or compressors.
The Environmental Integrity Project (EIP) led 16 other groups, including Natural Resources Defense Council and Clean Air Council in petitioning EPA in 2012 to add SIC 13 to the inventory, saying it was necessary because the industry releases an estimated 127,000 tons of hazardous air pollutants annually. They filed suit in the U.S. District Court for the District of Columbia to try and force a response to the petition.
Given that EPA has now announced its rulemaking plan, EPA and EIP jointly moved Dec. 15 to dismiss the litigation and the court granted that request the same day.
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As Enforcement Actions Decline Again, Agency Touts Big Wins
Dec 17, 2015 | E&E - Greenwire
By Hannah Hess
U.S. EPA's enforcement numbers fell in a few key areas in 2015 as the agency launched criminal cases and conducted fewer inspections and evaluations.
The agency yesterday released its annual enforcement and compliance data for fiscal 2015, touting record-setting hazardous waste, Clean Air Act and Superfund settlements. But shrinking federal budgets, the agency acknowledged, have affected enforcement efforts.
"The large cases we tackled in 2015 will drive compliance across industries and protect public health in communities for years to come," EPA enforcement chief Cynthia Giles said yesterday in a statement.
"These cases are putting cutting edge tools to work and using innovative approaches to reduce pollution. Through another strong year in enforcement, we are implementing America's environmental laws and delivering on EPA's mission," she said.
In fiscal 2015, EPA enforcement actions required companies to commit to slash pollution by about 533 million pounds per year. Though that's an increase from the 514 million pounds of pollution EPA actions eliminated in fiscal 2014, the agency could have eclipsed the total with its sweeping agreement with Mosaic Fertilizer LLC (Greenwire, Oct. 1).
The settlement, involving the largest quantity of hazardous waste to date under the Resource Conservation and Recovery Act, would have contributed an additional 61.7 billion pounds "if the case had been entered by the court by the end of the fiscal year," EPA said in a document showing trends over time.
The report also highlighted a Clean Air Act settlement with Hyundai-Kia, the large criminal plea agreement with Duke Energy Corp. and its investigation against Volkswagen AG for illegally emitting air pollution from diesel vehicles.
EPA continued to "pursue larger, more complex, risk-based enforcement cases leading to significant environmental and health gains, but lower numbers overall," the agency said. Case numbers in 2014 also were lower due to the shutdown and budget cuts.
Investigators opened 213 criminal cases in 2015, down from 271 last year and 300 in 2013. The number of defendants charged -- 185 -- also dropped slightly. But, EPA said, the focus on large cases has abated serious health and environmental threats, despite the drop in number of investigations.
The number of inspections and evaluations conducted by EPA also was down last year. The agency conducted about 15,400 inspections and evaluations, down by 200 from last year. In 2013, the total was about 18,000.
"As EPA's budget has declined, the total number of inspections has declined as well," the agency stated. "EPA continues to pursue additional means of gathering information about facility compliance, to supplement our on the ground inspections."
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Dec 17, 2015 | E&E -Greenwire
By Kevin Bogardus
U.S. EPA's internal watchdog is getting a lump of budgetary coal from Congress this Christmas.
Under the enormous $1.15 trillion spending bill, EPA's Office of the Inspector General will not see funding rise in fiscal 2016 as requested by President Obama. Instead, the EPA IG is getting the same amount of funding that it received in fiscal 2015.
The EPA watchdog will receive almost $41.5 million from the omnibus spending package for fiscal 2016. That's roughly $8.6 million less than the nearly $50.1 million that Obama requested in his budget proposal earlier this year (Greenwire, Feb. 3).
Congress' flat funding for the agency watchdog could cost the federal government in the long run. Less money means fewer investigations that root out fraud and reduce government waste, according to a spokesman for the EPA IG.
"Since 90 percent of the OIG's budget is dedicated to staffing costs, we are clearly a labor-intensive agency," said Jeff Lagda, the IG spokesman. "Any decrease in funding equates to fewer personnel to accomplish our mission. Bottom line: A decrease in staff means fewer audits and investigations."
Earlier this year, EPA Inspector General Arthur Elkins warned lawmakers not to underfund his investigators, touting the return on investment that his office brings in.
"The budget levels made available to me are impeding our ability to do our work," Elkins told the House Oversight and Government Reform Committee in prepared testimony in February. "This is penny-wise and pound-foolish, as Ben Franklin used to say. We returned $7.33 for every dollar given to us in the past year. When the OIG is not able to carry out its responsibilities because of inadequate funding, it is a net loss to the federal government and American taxpayers."
Other inspectors general didn't fare well either in the omnibus spending bill.
The IG office for the Department of the Interior didn't see its budget request fulfilled by lawmakers.
Fiscal 2016 funding for the Interior IG remains the same as fiscal 2015 at more than $50 million. That is almost $2.2 million less than the more than $52.2 million the president asked for from lawmakers on Capitol Hill.
A spokeswoman for the Interior IG said the office was disappointed in the spending bill's funding for their work.
"Given our above-average [return on investment], we are disappointed in the stagnate funding," said Nancy DiPaolo, the Interior IG spokeswoman. She warned the watchdog will have cut back on some of its investigations.
"The reduced budget means we have to scale back our plans to bolster work on Indian Country fraud, insider threat detection and public safety inspections," DiPaolo said. "This will impact investigative initiatives, and stymie the development of subject matter experts. However, this setback will in no way deter our commitment and dedicated work preventing and detecting fraud, waste and abuse within the U.S. Department of the Interior."
Not all agency watchdogs were left wanting by Congress in the end-of-year spending bill.
The Department of Energy inspector general saw its budget proposal for fiscal 2016 met by lawmakers.
The DOE IG office will receive about $46.4 million in funding under the omnibus package. That is the funding level requested by Obama and is approximately $5.9 million more than the $40.5 million the Energy watchdog received in fiscal 2015.
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