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Industry and Association News

(ACC Mentioned) The ACC Forecasts 2.9% Growth In US Domestic Chemical Production Next Year
Dec 18, 2015 | Chemicals Technology

The American Chemistry Council (ACC) has predicted that US domestic chemical production will witness 2.9% in growth next year. In 2017, production will increase to 4.4%, and in the second half of the decade; US chemical production is expected to grow at an average rate of over 4% per year, says the ACC's annual report...

Chemical Management News

(ACC Mentioned) Why Chemical Firms Are Seeking More U.S. Regulation
Dec 17, 2015 | The 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.
(ACC Mentioned) Senate Passes Bill to Modernize Toxic Substances Control Act
Dec 18, 2015 | BNA Daily Environment Report
By Pat Rizzuto

Legislation that would overhaul the nation's primary chemicals law was approved by the Senate Dec. 17. In a voice vote, senators passed a bill to modernize the Toxic Substances Control Act for the first time in 40 years. The Senate now will work with the House to merge their respective bills. The House bill sailed through that chamber...
(ACC Mentioned) Senate Passes TSCA Reform Bill
Dec 18, 2015 | Chemical Watch
By Dinesh Kumar

The US Congress has moved closer to reforming the country's chemical safety law. Late on Thursday night the Senate passed a bill, designed to overhaul the Toxic Substances Control Act for the first time since it was enacted in 1976. The Frank R Lautenberg Chemical Safety for the 21st Century Act – measure S 697 – was passed by a unanimous...
(ACC Mentioned) Senate Passes Overhaul Of Chemical Safety Rules
Dec 17, 2015 | The Hill - Regulation
By Timothy Cama

The Senate voted Thursday to approve a sweeping bipartisan chemical safety bill after years of work and months of tense negotiations. The Frank R. Lautenberg Chemical Safety for the 21st Century Act, named after the late New Jersey senator, updates the 1976 Toxic Substances Control Act to give the Environmental Protection Agency...
(ACC Mentioned) Senate OKs Landmark Reform Bill; Conference Talks Up Next
Dec 18, 2015 | E&E Daily News
By Sam Pearson

The Senate yesterday approved a bipartisan bill to update the nation's decades-old chemicals law by voice vote, a quiet cap to what had been a contentious and yearslong debate over the reform. In a somewhat unexpected move, Environment and Public Works Chairman James Inhofe (R-Okla.) asked for and received unanimous consent to ...
(ACC Mentioned) US Senate Passes TSCA Reform
Dec 17, 2015 | Plastics News
By Gayle S. Putrich

The U.S. Senate on Thursday passed a bill that would update a decades-old law regulating chemical manufacture, transportation and use, after weeks of waiting under a hold focused on unrelated legislation. Though the bill (S 697) enjoyed broad bipartisan support, many originally expected something ...
Senate Passes Chemical Safety Bill
Dec 17, 2015 | PoliticoPro - Whiteboard
By Darren Goode

The Senate approved a sweeping bipartisan update to chemical safety law this evening after overcoming a last-minute hurdle tied to an effort by Environment and Public Works ranking member Barbara Boxer to determine who would take part in upcoming bicameral talks on the legislation.
Let’s Savor This Moment: Senate Passes Legislation Representing Real Chemical Safety Reform
Dec 17, 2015 | Environmental Defense Fund
By Richard Denison

A huge step was taken tonight toward bringing this country’s chemical safety law into the 21st century: The Senate (at last!) brought the Lautenberg Act to the floor by unanimous consent and passed it without objection by a voice vote. While this outcome was not surprising, given that 60 Senators had already...
Senate Passes TSCA Reform Bill, Clearing Way For House Conference
Dec 17, 2015 | InsideEPA
By Maria Hegstad

The Senate has unanimously approved its bipartisan bill reforming the Toxic Substances Control Act (TSCA), clearing the way for a conference negotiation with House representatives over the lower chamber's much narrower bill, which won approval with wide support last June.
Health, Safety Data Not Confidential, Advocates Say
Dec 18, 2015 | BNA Daily Environment Report
By Pat Rizzuto

The Chemtura Corp. should release health and safety studies of a flame retardant it makes, because the company has wrongly classified the studies as confidential business information, three environmental health advocacy groups have told the Environmental Protection Agency.
DOJ Seeks To Prosecute Workplace Violations As Environmental Crimes
Dec 17, 2015 | InsideEPA
By David LaRoss

The Department of Justice (DOJ) is transferring responsibility for prosecuting many workplace safety violations to its environmental division and instructing prosecutors in those cases to enforce environmental laws such as the Clean Air Act, noting that labor statutes provide for less stringent penalties than federal air, waste and toxics laws.
US EPA Moves To Web-Based Enforcement System
Dec 17, 2015 | Chemical Watch

The US EPA has launched a web-based system to receive and automatically process self-disclosed violations of the Toxic Substances Control Act (TSCA) and other environmental laws. The new system, called eDisclosure, replaces the agency’s previous paper-based system, which required businesses to disclose violations in writing via a letter...

Chemical Security News

The Obama Secrets Regime
Dec 17, 2015 | The Wall Street Journal
By Kimberley A. Strassel

Some scandals come on fast, and some creep up on Washington. The slow-rolling outrage of 2015—Obama administration secrecy—received a small correction in this week’s omnibus budget bill, but it deserves far more attention. It’s time for the federal government to come back on the grid.
DHS Rolls Out Ways For Plants To Check Workers For Terror Ties
Dec 17, 2015 | E&E News PM
By Sam Pearson

Operators of the nation's highest-risk chemical facilities will not have to submit information to check employees' identification cards against a government database of suspected terrorists, under Department of Homeland Security guidance released today.
RFF Finds Disparity In State Oil And Gas Wastewater Rules
Dec 17, 2015 | InsideEPA

A Resources for the Future (RFF) analysis examining a number of state regulations of tanks and pits used to store oil and gas wastewater finds wide variety in the type and stringency of rules, and also notes that while tanks may lead to smaller and less frequent spills than pits, tank systems are “not a magic bullet” for mitigating risk.

Transportation News

The Life-Saving Train Technology That Congress Isn’t Fully Funding
Dec 18, 2015 | The Atlantic
By Nora Kelly The derailment of Amtrak train 188 in Philadelphia earlier this year, which killed eight people, introduced many Americans to a safety technology that could have prevented the crash in the first place: positive train control. Now, Congress has

The derailment of Amtrak train 188 in Philadelphia earlier this year, which killed eight people, introduced many Americans to a safety technology that could have prevented the crash in the first place: positive train control. Now, Congress has allocated $25 million in funding in the omnibus bill to help railroads...

Energy and Environment News

(ACC Mentioned) Industries, Advocates Raise Varied Challenges To EPA Solid Waste Rule
Dec 18, 2015 | InsideEPA
By Suzanne Yohannan

Groups representing various industry sectors and environmentalists are calling on the U.S. Court of Appeals for the District of Columbia Circuit to vacate varying aspects of EPA's definition of solid waste (DSW) rule, finalized earlier this year, with industry seeking to loosen certain requirements where it alleges EPA has overreached...
API Faults EPA 'Next Generation' Compliance Plan For Oil & Gas Air Policy
Dec 17, 2015 | InsideEPA
By Bridget DiCosmo

The American Petroleum Institute (API) is faulting EPA's proposal to use "Next Generation" compliance tools in its proposed methane emissions rule for new oil and gas drilling, saying the tools -- including third-party verification and electronic reporting -- are unnecessary and that the agency lacks the legal authority to mandate them.
FERC Approves LNG Export Facility
Dec 18, 2015 | BNA Daily Environment Report
By Jonathan N. Crawford

Energy Transfer Equity LP's Lake Charles LNG export facility was approved by federal regulators, joining a backlog of projects forecast to flood the world's market in the next decade. Energy Transfer was cleared to build and operate the Lake Charles LNG project in Calcasieu...
Strategy Offered for Wastewater Controls at Wells
Dec 18, 2015 | BNA Daily Environment Report
By Alan Kovski

Federal and state regulators should reduce the risk of wastewater spills at the sites of hydraulically fractured wells by targeting the causes of pit and tank overflows and leaks rather than thinking of tanks as the solution, according to a discussion paper released Dec. 17 by the think tank Resources for the Future.
Republicans Probe EPA Social Media Use on Clean Power Plan
Dec 18, 2015 | BNA Daily Environment Report
By Anthony Adragna

Senior House Republicans are raising questions about the Environmental Protection Agency's use of social media to promote its Clean Power Plan, days after the Government Accountability Office found the agency violated the law in promoting a Clean Water Act jurisdiction rulemaking.
Union Challenges Feasibility of Clean Power Plan Limits
Dec 18, 2015 | BNA Daily Environment Report
By Andrew Childers

The Environmental Protection Agency erred by setting carbon dioxide emissions limits that cannot be met by any existing power plant as part of its Clean Power Plan, a union told a federal appellate court (West Virginia v. EPA, D.C. Cir., No. 15-1363, statement of issues 12/16/15).
House GOP Queries EPA Publicity Push For Major Rules
Dec 17, 2015 | InsideEPA

House Republicans are attacking EPA's publicity efforts on major rules, with a GOP lawmaker introducing a bill to forbid the agency from spending any funds on hiring public relations firms to help promote regulations and members of the House energy panel separately querying EPA's campaign to promote its utility climate rules.
GOP: EPA's Illegal 'Propaganda’ May Extend To Climate Rule
Dec 17, 2015 | The Hill - E2 Wire
By Timothy Cama

House Republicans think the Environmental Protection Agency’s (EPA) reportedly illegal “covert propaganda” in support of its regulations may have extended to the landmark climate change rule. On the heels of a Government Accountability Office (GAO) report from Monday accusing...
Air Monitor Siting Needs Clarification in EPA Region 6
Dec 18, 2015 | BNA Daily Environment Report
By Nushin Huq

The Environmental Protection Agency needs to clarify with state and local organizations what should be in their annual plans for siting particulate matter air monitors in Region 6, the agency's Office of Inspector General said in a Dec. 17 report. The assistant administrator for air and radiation should clarify...
Catalyst Helps Control NOx Emissions And Resists Contamination
Dec 17, 2015 | Chemical & Engineering News
By Melissae Fellet

A new study describes a catalyst that reduces nitrogen oxide emissions while resisting poisoning by sulfur and alkali metals (Environ. Sci. Technol. 2015, DOI: 10.1021/acs.est.5b03972). It is already being used to clean the emissions at two industrial plants in China, the researchers say.
California High Court Rules on Environmental Reviews
Dec 18, 2015 | BNA Daily Environment Report
By Carolyn Whetzel

The California Environmental Quality Act doesn't generally require project developers to evaluate and mitigate impacts of existing environmental conditions, the state's Supreme Court said Dec. 17 (Calif. Bldg. Indus. Ass'n v. BAAQMD, Cal., No. S213478, ruling, 12/17/15). When a proposed project, however, has the potential ...

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Industry and Association News

(ACC Mentioned) The ACC Forecasts 2.9% Growth In US Domestic Chemical Production Next Year

Dec 18, 2015 | Chemicals Technology

The American Chemistry Council (ACC) has predicted that US domestic chemical production will witness 2.9% in growth next year.
In 2017, production will increase to 4.4%, and in the second half of the decade; US chemical production is expected to grow at an average rate of over 4% per year, says the ACC's annual report, Year-End 2015 Chemical Industry Situation and Outlook.
The recently published report, prepared by the ACC's Economics and Statistics Department also stated that the chemical industry growth in the US will outpace the overall growth of US economy in near future.
ACC chief economist and lead author of the report Kevin Swift said: "The US chemical industry renaissance is just getting started.
"The fundamentals are strong.
"Key domestic end-use markets expanded, consumer spending accelerated, the job market began to firm, and households enjoyed extra savings from lower energy costs."
The US trade group further stated that this year, the American chemistry business had expanded at a rate of 3.6%, in spite of facing various global and local challenges, including a strong appreciation of the US dollar and weak global markets."Chemical business has so far only progressed at a rate of 2.8% across the globe, slightly below last year's growth rate."
Swift noted that sales of light vehicles have increased by 5%, and housing market has witnessed a growth of 12% this year.
Around $3,500 worth of chemistry has been used in each light vehicle, and the new home uses around $15,000 worth of chemical products. The ACC expects that the pace of growth would persist, since new capabilities are coming up over the next few years.
During the period of 2010 and December, 2015, over 261 new chemical production projects, valued at over $158bn have been announced in the US. About 34% of these projects have been either completed or are under development.
Swift added: "The United States is still the place for chemical companies to invest."
From the macroeconomic point of view, geopolitical instability and recessions in Brazil, Russia, Japan and other countries coupled with a distinct slowdown in China have weakened the global economy this year. On the contrary, the US, the UK and the European region's economies have prospered, the ACC added.
After a good start during the first part of this year, chemical business has so far only progressed at a rate of 2.8% across the globe, slightly below last year's growth rate.
The scenario is expected to improve by next year, with global output rising at 3.3%, and then 3.7% in 2017.
The ACC report predicted that in the long-run, the developing countries in Asia-Pacific and Africa, and the Middle East region, will register stronger growth.
Swift also highlighted that shale gas will help the US production sector. The country will be facing problems including structural challenges and other issues while receiving western Europe and Japan's support for recapturing its global market share.
America's chemistry business is an $801bn enterprise, and considered to be one of the most important manufacturing industries, with over 96% of manufactured goods using chemical products.
The business accounts for over 14% of all US exports and 15% of the world's chemicals.

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Chemical Management News

(ACC Mentioned) Why Chemical Firms Are Seeking More U.S. Regulation

Dec 17, 2015 | The 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. On Thursday evening the U.S. Senate passed a bill with bipartisan support that 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.
The more comprehensive Senate bill is favored by the chemical industry and some environmental groups, but opposed by other environmental groups. The differences in the House and Senate bills will now need to be worked out before the bill is sent to the President.
“This is so significant to every manufacturer, everyone who does business,” Republican Sen. James Inhofe said on the floor of the Senate after the bill passed. Advertisement
“This brings us a major step closer to enacting the reform we need,” said Fred Krupp, president of the Environmental Defense Fund.
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 persuading 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.”
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. 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. and Macy’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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(ACC Mentioned) Senate Passes Bill to Modernize Toxic Substances Control Act

Dec 18, 2015 | BNA Daily Environment Report

By Pat Rizzuto

Legislation that would overhaul the nation's primary chemicals law was approved by the Senate Dec. 17.
In a voice vote, senators passed a bill to modernize the Toxic Substances Control Act for the first time in 40 years.
The Senate now will work with the House to merge their respective bills. The House bill sailed through that chamber in June with a 398-1 vote (121 DEN A-1, 6/24/15).
The committee prepared a summary of the bill highlighting major features and changes made since it was approved.
Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works committee, introduced a substitute for the Frank R. Lautenberg Chemical Safety for the 21st Century Act. The bill number of the substitute was not clear the evening of Dec. 17.
Sen. Barbara Boxer (D-Calif.), ranking member of the committee, issued a statement explaining her rationale for supporting the bill after repeatedly raising objections, most recently on Dec. 16 (242 DEN A-12, 12/17/15).
“The bill has been vastly improved over the original bill, which in my opinion would have been harmful to our families, because it overrode our state laws and set up an ineffective and nonexistent way to regulate most toxic pollutants,” Boxer said.
“Secondly, I have been assured that as the House and Senate bills are merged into one, the voices of those who have been most deeply affected, including nurses, breast cancer survivors, asbestos victims, and children, will be heard. I will have the opportunity to be in the room at every step and express their views.
“This is very important to me because the history of this bill has been so contentious. I want to assure my colleagues, my home state of California, and the people of this nation that I will stay intimately involved as the bill moves forward, and I will share my views openly. I look forward to the work ahead, and I am optimistic that we can reach a fair and just conclusion.”
Sen. Tom Udall (D-N.M.), who shepherded the bill since the death of its original sponsor Sen. Frank Lautenberg (D-N.J.), said in his statement the bill would “ensure that Americans in New Mexico and all states have necessary protections from toxic chemicals.”
Inhofe and Sen. David Vitter (R-La.), who has worked with Udall on the legislation for years, said in their statement the bill would “help future investment predicted to be responsible for over 700,000 new jobs along with $293 billion in permanent new domestic economic output by 2023, and the benefits don't stop there.”
The American Chemistry Council's statement said the legislation “will protect human health and the environment, build confidence in the U.S. chemical regulatory system and address the commercial and competitive needs of the U.S. chemical industry and the national economy.”
The Environmental Defense Fund, which was said to have played a critical role negotiating text that environmental health advocates could support, said passage of the bill “gives us the best chance in two generations to put an end to a national scandal—a dangerously ineffective chemical safety system that was broken on arrival in 1976.”
People for the Ethical Treatment of Animals praised passage of the bill “which contains important language to reduce and replace the use of animals in painful chemical toxicity tests.”
New Requirements
Some of the mandates in S. 697 that are not found in the Toxic Substances Control Act will:
• require a safety review for all chemicals in commerce;
• ensure new chemicals pass a safety check before they can be sold on the market;
• explicitly require protection for populations whose exposures, age or other conditions make them vulnerable to chemicals;
• give the EPA new authority to require companies to test new and existing chemicals for safety; and
• retain enacted state regulations and laws for chemicals, but temporarily stop new regulations while the agency is assessing a chemical's risks.
The bill passed on Dec. 17 includes a new provision requiring the development of a long-term storage facility for elemental mercury, provides for interim storage by mercury generators and prohibits export of certain mercury compounds, according to a summary of the bill's highlights.
It also would give federal agencies specific authority to investigate potential clusters of cancer.

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(ACC Mentioned) Senate Passes TSCA Reform Bill

Dec 18, 2015 | Chemical Watch

By Dinesh Kumar

The US Congress has moved closer to reforming the country's chemical safety law. Late on Thursday night the Senate passed a bill, designed to overhaul the Toxic Substances Control Act for the first time since it was enacted in 1976.
The Frank R Lautenberg Chemical Safety for the 21st Century Act – measure S 697 – was passed by a unanimous voice vote.
The bill must now be reconciled with the House version of TSCA reform which was approved in June (CW 24 June 2015).
After it sailed through the Senate Environment and Public Works Committee in April, by a 15-5 vote, the bill stalled because of an unrelated issue.
In October Senator Tom Udall (D-New Mexico) – co-author of the measure with Senator David Vitter (R-Louisiana) – made two unsuccessful attempts to get unanimous consent to the bring the bill (S 697) to the Senate floor without extraneous amendments (CW 22 October 2015) and (CW 29 October 2015).
On each occasion he was thwarted by Senator Richard Burr (R-North Carolina), who wanted to attach an amendment relating to the reauthorisation of the Land and Water Conservation Fund (LWCF). Mr Burr then dropped his demand when it was agreed it would be addressed by another bill.
Landmark measure
Mr Udall called the TSCA bill a “landmark chemical safety reform bill” that will overhaul a broken TSCA.
Senator Vitter called the bill a compromise effort where “everyone will not get everything he wants”. Nevertheless, he said, it has resulted in a “comprehensive, effective, thoughtful, bipartisan bill.”
Senator Barbara Boxer (D-California), who had initially opposed the bill and vowed to filibuster it on the floor, said: “I am pleased to move forward with the Senate language on the Toxic Substances Control Act (TSCA), which has been a difficult, multi-year odyssey."
Ms Boxer, who had introduced her own TSCA bill, said she supported the Udall-Vitter measure for two reasons. “First, the bill has been vastly improved over the original bill, which in my opinion would have been harmful to our families, because it overrode our state laws and set up an ineffective and nonexistent way to regulate most toxic pollutants.
“Secondly, I have been assured that as the House and Senate bills are merged into one, the voices of those who have been most deeply affected, including nurses, breast cancer survivors, asbestos victims, and children, will be heard."
Ms Boxer said she will “stay intimately involved as the bill moves forward, and I will share my views openly. I look forward to the work ahead, and I am optimistic that we can reach a fair and just conclusion.”
American Chemistry Council president Cal Dooley called the passage of the bill a watershed moment” in the history of the country's environmental legislation.
“After years of significant contributions from the public health, environmental, labour, consumer groups and industry, the US is now closer to updating the nation’s primary chemical safety law for the first time in four decades,” he said.
The American Cleaning Institute said the “legislation reflects progress in science and technology and advances further innovations. A well designed, updated law can further enable our industry’s ongoing work to develop and innovate more sustainable cleaning products.”
Richard Denison, lead senior scientist at the Environmental Defense Fund (EDF), said passage of the bill was a huge step forward. “While this outcome was not surprising, given that 60 Senators had already co-sponsored the legislation, it took a long time to get here and tonight’s vote is an historic moment that merits reflection.”
But Daniel Rosenberg, senior attorney at the Natural Resources Defense Council, said bill still has significant flaws that must be fixed in conference.

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(ACC Mentioned) Senate Passes Overhaul Of Chemical Safety Rules

Dec 17, 2015 | The Hill - Regulation

By Timothy Cama

The Senate voted Thursday to approve a sweeping bipartisan chemical safety bill after years of work and months of tense negotiations.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act, named after the late New Jersey senator, updates the 1976 Toxic Substances Control Act to give the Environmental Protection Agency (EPA) broad new powers to study and regulate harmful chemicals like asbestos, while restricting states’ individual abilities to make their own rules.Sens. David Vitter (R-La.) and Tom Udall (D-N.M.) made the chemical reform bill a top priority throughout 2015, making tweaks and assurances to build a broad coalition of Republicans, Democrats, industry and safety advocates in support of the measure.
Senators approved the measure Thursday evening by voice vote after Sen. Barbara Boxer (D-Calif.) dropped her hold on the legislation amid promises that the Senate would work to bring the bill closer to legislation passed in the House, which Boxer says provides better protections from harmful substances.
“This is an historic day on which we’ve come together to pass significant chemical safety legislation,” Vitter said in a statement.
“As we honor the legacy of the late Sen. Frank Lautenberg, we also move toward the future embracing these major, necessary reforms to our nation’s broken chemical safety law.”
Vitter said that despite compromises, the resulting measure is “a comprehensive, effective, thoughtful, bipartisan bill.”
The move is “a great milestone, and I thank the numerous other senators who have worked to make this day possible,” Udall said. “This bill is the product of years of collaboration and positive input from lawmakers across the country, who understand that we need a national solution to our broken chemical safety law.”
Boxer continually pushed back against the reform efforts, saying they did not go nearly far enough to protect health and the environment.
She said in a statement that the bill has greatly improved throughout the year, and that she’s optimistic that after negotiations with the House, an acceptable bill will be made law.
“I want to assure my colleagues, my home state of California, and the people of this nation that I will stay intimately involved as the bill moves forward, and I will share my views openly,” she said.
Lautenberg had made chemical reform his top priority before his death in 2013.
The bill would eventually require testing for every chemical currently in commerce, and any new chemicals.
The EPA decisions about chemicals would have to be made solely on the basis of its impact on health and the environment, not the compliance costs.
But the legislation also has significant provisions that the chemical industry asked for, such as restrictions on what states can do on their own, which the industry said is essential for certainty and to avoid a patchwork of rules.
Health and industry groups both counted major wins in the legislation.
“Passage of the Lautenberg Act gives us the best chance in two generations to put an end to a national scandal — a dangerously ineffective chemical safety system that was broken on arrival in 1976,” said Fred Krupp, executive director of EDF Action, the lobbying arm of the Environmental Defense Fund.
“Today’s nearly universal show of support in the Senate reflects years of hard work,” he said.
American Chemistry Council president Cal Dooley called the passage “a watershed moment in the history of U.S. environmental legislation,” and said the bill “ will protect human health and the environment, build confidence in the U.S. chemical regulatory system and address the commercial and competitive needs of the U.S. chemical industry and the national economy.”
Before Boxer’s hold, Sen. Richard Burr (R-N.C.) had blocked quick passage of the bill in an effort to get the Land and Water Conservation Fund renewed. The government spending bill released Wednesday would do just that, so he dropped his objection.
The House passed its own chemical reform bill in June. The Senate sponsors said they plan to work with the House toward a compromise measure.

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(ACC Mentioned) Senate OKs Landmark Reform Bill; Conference Talks Up Next

Dec 18, 2015 | E&E Daily News

By Sam Pearson

The Senate yesterday approved a bipartisan bill to update the nation's decades-old chemicals law by voice vote, a quiet cap to what had been a contentious and yearslong debate over the reform.
In a somewhat unexpected move, Environment and Public Works Chairman James Inhofe (R-Okla.) asked for and received unanimous consent to amend and pass a House bill, H.R. 2576, or the "TSCA Modernization Act."
And, despite numerous previous procedural and policy hurdles, the upper chamber in just minutes approved the broadest rewrite of an environmental law in decades. In a week dominated by discussion of an omnibus spending bill, passage of the bill came quietly and with a vote conducted with virtually no advance notice.
The legislation -- which had a difficult path through the Senate -- will now be considered by a conference committee to iron out differences between the version passed in the upper chamber and in the House, which approved its own rendering earlier this year by a 398-1 vote (E&E Daily, June 24).
"I think this will be looked back on as a major environmental accomplishment," Sen. Tom Udall (D-N.M.), who sponsored and pushed the reform efforts in the upper chamber with Sen. David Vitter (R-La.), said on the Senate floor, adding that lawmakers plan to hold a press conference with other co-sponsors later this morning.
The Senate's voice vote came as the bill's sponsors had resolved a last-minute disagreement with Sen. Barbara Boxer (D-Calif.) regarding how she would be able to participate in the conference committee.
Though passage of the bill came quickly, it comes after years of gridlock. For years, some Democrats pushed for a broad chemicals bill that would require chemical manufacturers to prove their substances were safe before using them, but industry and Republicans blocked the effort amid concerns that it would stifle competitiveness.
With consumers and advocacy groups pressing for changes to the 1976 Toxic Substances Control Act, over time industry groups and GOP lawmakers agreed that the law, under which U.S. EPA has banned just five chemicals, should be fixed. The question was how to do it.
"The law was broken," Udall told E&E Daily after the vote. "So I just committed with everyone I could work with to see that we would get it done, and I always had confidence and I still do."
Passage of a reform bill has taken years and the dedication of several reform advocates.
Of note, days after reaching an agreement in 2013 between longtime chemical reform proponent Sen. Frank Lautenberg (D-N.J.) and Vitter on an earlier bill, the "Chemicals in Commerce Act," the New Jersey senator died, leaving the bill unfinished. Negotiations later collapsed in late 2014, and Boxer released a draft of legislation that Vitter said was not meant for disclosure (E&E Daily, Sept. 19, 2014).
In hearings in the Senate Environment and Public Works Committee and in the House Energy and Commerce Committee, lawmakers sparred over a litany of issues, like what standard chemicals should have to meet, how fast EPA should be required to review them, and -- most crucially -- whether state authorities should yield to, or be pre-empted by, a federal program.
Environmental groups found themselves at odds over whether the legislation was effective enough and was not the subject of undue industry influence. Supporters, meanwhile, touted the bill as a fitting tribute to Lautenberg's legacy in the Senate and as much-needed reform to a troubled program.
Speaking on the Senate floor, Inhofe credited Lautenberg as well as Udall and Vitter for shepherding the bill.
Off the floor, Udall and Inhofe posed for a photo with staffers from their offices and staff for Sen. Jeff Merkley (D-Ore.), Ed Markey (D-Mass.) and Vitter, some of whom had worked on the issue for years.
Udall stepped around a hallway to call Lautenberg's widow, Bonnie, to tell her the news. Bonnie Lautenberg testified at an Environment and Public Works Committee hearing earlier this year, and supporters have said she has been following the bill's progress closely.
"She's just elated," Udall said. On to the conference committee
On Wednesday, Inhofe said that progress on the bill had stalled because Boxer had backed out of an agreement to allow the bill to proceed to the floor by unanimous consent. Boxer evidently reversed course, allowing the bill to proceed yesterday.
Inhofe had nicer words for Boxer yesterday, saying that Boxer understood that the bill would pass eventually because it had so many co-sponsors.
"I think she appreciated that we had a lot of her language in there, and while she was not working on the bill originally .... she was very helpful in getting it passed," Inhofe said.
In a statement, Boxer said that her concerns over process had been resolved.
Boxer said she allowed the bill to move forward because it had improved over its original form. Boxer sought to assure her constituents that she would have input on the conference committee to look out for Californians and vulnerable populations.
"I have been assured that as the House and Senate bills are merged into one, the voices of those who have been most deeply affected, including nurses, breast cancer survivors, asbestos victims and children, will be heard," Boxer said. "I will have the opportunity to be in the room at every step and express their views."
Boxer added that she "will stay intimately involved as the bill moves forward, and I will share my views openly. I look forward to the work ahead, and I am optimistic that we can reach a fair and just conclusion."
In a statement, Sen. Tom Carper (D-Del.), a co-sponsor of the bill, praised his colleagues for coming together on a tough issue.
"Bipartisanship is hard to come by in the Senate these days, especially on environmental issues," Carper said.
Carper added that he would work to push the legislation "across the finish line."
Vitter in a statement called it part of a "move toward the future embracing these major, necessary reforms." Stakeholders react
Though some large environmental organizations have so far declined to support the TSCA reform bill, supporters have managed to win over industry groups, some environmental groups and some animal welfare and wildlife groups, among others.
In a statement, Daniel Rosenberg, a senior attorney in the health and environment program at the Natural Resources Defense Council, said conferees must remove problematic language from both the House and Senate bills for the bill to be sufficiently protective.
"Although the Senate bill has improved over time, it still has significant flaws that must be fixed in conference," Rosenberg said. "As the bill moves forward, Congress should ensure that the final legislation marries the best aspects of the Senate and House bills and drops the worst."
In a statement, Andy Igrejas, the director of Safer Chemicals, Healthy Families, said the bill remains problematic, including a provision that would make it harder to evaluate the safety of imported products "like most of the toys under your Christmas tree."
"When Congress reconciles the House and Senate versions, they should focus on the fundamentals of reform and simply empower and direct EPA to identify and restrict toxic chemicals," Igrejas said.
The Environmental Defense Fund -- a key supporter of the bill -- praised its passage.
Passage marks "the best chance in two generations to put an end to a national scandal -- a dangerously ineffective chemical safety system that was broken on arrival in 1976," EDF President Fred Krupp said in a statement.
Richard Denison, a senior scientist at the Environmental Defense Fund, wrote in a blog post that he had a hard time imagining earlier in his career that a bill of this nature would win the support of such a broad coalition.
"It's worth savoring the present moment, brought to all of us by a rare amalgam of political risk-taking and courage, willingness to seek common ground and compromise, dedication to one's key principles while acknowledging the legitimacy of others', and countless days, weeks and months of plain old hard work," Denison wrote.
Industry groups said last night that the bill would help provide increased economic certainty for their member companies.
"Today's bipartisan passage of the 'Frank R. Lautenberg Chemicals Safety for the 21st Century Act' is a watershed moment in the history of U.S. environmental legislation," American Chemistry Council President Cal Dooley said in a statement. "This legislation demonstrates what is possible when stakeholders put their differences aside and come together to work toward a common objective."
The bill, if it becomes law, "will enable manufacturers to further improve products while growing the economy and creating jobs," National Association of Manufacturers Vice President of Energy and Resources Policy Ross Eisenberg said in a statement.

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(ACC Mentioned) US Senate Passes TSCA Reform

Dec 17, 2015 | Plastics News

By Gayle S. Putrich

The U.S. Senate on Thursday passed a bill that would update a decades-old law regulating chemical manufacture, transportation and use, after weeks of waiting under a hold focused on unrelated legislation.
Though the bill (S 697) enjoyed broad bipartisan support, many originally expected something of a fight on the Senate floor, led by Sen. Barbara Boxer (D-Calif.), who had her own version of the bill and concerns that the federal law would pre-empt the state laws that have been passed over nearly 40 years of federal inaction.
But it was a hold by Sen. Richard Burr (R-N.C.) that stalled an anticipated summer vote, as he insisted on attaching an amendment relating to the reauthorization of the Land and Water Conservation Fund (LWCF).
The U.S. House of Representatives approved its bill (HR 2576) on June 23, with a 398-1 vote; the lone dissenter was California Republican Rep. Tom McClintock.
Plastics industry groups have long supported an update to TSCA, which has seen more problems than progress over the last four decades.
"Today’s bipartisan passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act is a watershed moment in the history of U.S. environmental legislation," said American Chemistry Council President and CEO Cal Dooley in a news release after the Senate vote. "This legislation demonstrates what is possible when stakeholders put their differences aside and come together to work toward a common objective."
The House and Senate must now reconcile the two versions of the bill before it makes its way to the president's desk for a signature.

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Senate Passes Chemical Safety Bill

Dec 17, 2015 | PoliticoPro - Whiteboard

By Darren Goode

The Senate approved a sweeping bipartisan update to chemical safety law this evening after overcoming a last-minute hurdle tied to an effort by Environment and Public Works ranking member Barbara Boxer to determine who would take part in upcoming bicameral talks on the legislation.
The Thursday voice vote on the House bill that was amended by the Senate was an abrupt end to a years-long, drama-filled battle to pass a measure in the Senate to modernize the 1976 Toxic Substances Control Act, which Republicans, Democrats, the chemical industry, EPA and environmental groups all agree failed to properly oversee dangerous chemicals.
The bill from Sens. Tom Udall and David Vitter is named after late-Sen. Frank Lautenberg, who introduced various TSCA bills in his later years, including one about two weeks before he died in June 2013.
A succession of changes to the measure attracted the backing of a wide group of both liberals and conservatives.
Boxer had opposed the bill because it would preempt state toxic laws, and on Tuesday requested both a bicameral conference and the right to name the Senate Democratic participants. The impasse ended after Senate Democratic leaders got involved, sources said.
In a statement, Boxer described the bill because as “vastly improved” and that she said will even better once merged with a far narrower House version. “This is very important to me because the history of this bill has been so contentious,” she said.

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Let’s Savor This Moment: Senate Passes Legislation Representing Real Chemical Safety Reform

Dec 17, 2015 | Environmental Defense Fund

By Richard Denison

A huge step was taken tonight toward bringing this country’s chemical safety law into the 21st century: The Senate (at last!) brought the Lautenberg Act to the floor by unanimous consent and passed it without objection by a voice vote. While this outcome was not surprising, given that 60 Senators had already co-sponsored the legislation, it took a long time to get here and tonight’s vote is an historic moment that merits reflection.
I’ve been working for better chemical safety policies, including meaningful and comprehensive reform of the Toxic Substances Control Act (TSCA), for most of my career at EDF. And for much of that time I found myself and my organization virtually always at odds with the chemical industry and often with the Environmental Protection Agency (EPA). When I started, I’m not sure I could ever have predicted either how long it would take – or how strongly bipartisan the support for TSCA reform would become.
The twists and turns along the way toward today’s Senate vote are too many to recount. Suffice it to say we wouldn’t be here without the tremendous, sustained work of a group of Senators and their staff on both sides of the aisle who dedicated themselves to steadily moving this legislation forward while improving it in response to the concerns of literally hundreds of stakeholders. The key has been the active engagement of and by an ever-enlarging circle of Senators and stakeholders, who saw the potential for a public health and environmental breakthrough and had the courage to work toward a compromise bill even in the most partisan of climates.
EDF’s benchmark for judging the strength of any legislative proposal has been the extent to which it addresses the many flaws in current law. The Lautenberg Act, while clearly a compromise, still unequivocally meets that test – and has the level and diversity of support needed for the bill to actually become law.
Our press release, factsheets and side-by-side comparison of the Lautenberg Act to current TSCA summarize why we believe it represents the meaningful, comprehensive reform for which we’ve been working for so long and that American families deserve.
Of course, the work to get TSCA reform is not done. The task of reconciling the comprehensive Senate bill with the more skeletal TSCA Modernization Act that breezed through the House in the summer now begins. EDF strongly believes this should not be an exercise in merely splitting the differences. Rather, we will be relentless in working to ensure that any bill signed into law meets key health protection objectives and delivers real reform.
Our top-ten list of objectives is as follows:Primary focus on chemicals that EPA, not industry, deems to be of highest priorityAffirmative safety finding before a new chemical can enter the marketNo preemption of state authority triggered by EPA actions on new chemicalsDedicated user fees to defray costs of all EPA chemical reviews, not just those industry selectsFull exclusion of cost considerations from all EPA determinations relating to unreasonable riskElimination of TSCA’s Catch-22 requiring EPA to first show evidence of risk to require testingDeadlines for compliance with, and elimination of a cost-benefit balancing requirement from, EPA chemical regulationsAuthority for EPA to act if another agency to which a risk is referred fails to take timely actionEPA review of confidential business information (CBI) claims, both past and future, and mandatory access to CBI by statesNo allowance for chemical identity in health and safety information to be claimed CBI
But it’s worth savoring the present moment, brought to all of us by a rare amalgam of political risk-taking and courage, willingness to seek common ground and compromise, dedication to one’s key principles while acknowledging the legitimacy of others’, and countless days, weeks and months of plain old hard work.

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Senate Passes TSCA Reform Bill, Clearing Way For House Conference

Dec 17, 2015 | InsideEPA

By Maria Hegstad

The Senate has unanimously approved its bipartisan bill reforming the Toxic Substances Control Act (TSCA), clearing the way for a conference negotiation with House representatives over the lower chamber's much narrower bill, which won approval with wide support last June.
Senators Dec. 17 agreed to a unanimous consent request by Senate environment committee Chairman James Inhofe (R-OK), clearing the way for the bill, S. 697, to be approved by voice vote. “We'll finally be able to analyze chemicals … in the best interest of the American people,” Inhofe said on the floor.
Inhofe added in a statement that he “looks forward to working with my friends in the House of Representatives to quickly get this historic achievement to the president's desk and signed into law.”
While Republicans may outnumber Democrats in the conference committee, getting a quick agreement may not be easy, as Sen. Barbara Boxer (D-CA), the ranking Democrat on the environment committee, has previously supported language in the House version of the bill over S. 697.
In a Dec. 17 statement, she said she had agreed to support the Senate bill because it has been “vastly improved” over the original version, which she charged “would have been harmful to our families, because it overrode our state laws and set up an ineffective and nonexistent way to regulate most toxic pollutants.”
She also said that she “has been assured” that the conference committee will “consider the voices of those who have been most deeply affected, including nurses, breast cancer survivors, asbestos victims, and children, will be heard. I will have the opportunity to be in the room at every step and express their views.”
Both bills would overhaul the 1976 TSCA in order to give EPA new authority to address risks from existing chemicals in the marketplace, and eliminate legal hurdles in current law that have hindered the agency's ability to restrict dangerous chemicals, such as its 1991 failure to ban asbestos.
But one of the most difficult issues to resolve in conference is likely to be the issue of the extent to which federal law preempts state laws -- a key issue for Boxer, who is seeking to preserve her state's programs, as well as industry groups seeking to limit state authority.
For example, the House bill, H.R. 2576, would "grandfather," or preserve existing state chemical safety laws that have taken effect before Aug. 1 and preserve state toxic tort claims, after EPA takes final action on a chemical, unless they "actually conflict" with new federal mandates. New state chemical laws, however, would be preempted once EPA finishes a restriction under TSCA.
By contrast, the Senate bill also contains grandfathering provisions to preserve existing laws, but preemption for new chemical rules and laws would occur when EPA launches a review of a chemical.
House Bill
Boxer and environmentalists have previously indicated support for the House bill over earlier versions of the Senate bill. For example, last July they pressed Senate leaders to take up the narrower House bill rather than S. 697. They called the House bill “clearer and more concise and would be more appropriate to use as the vehicle for changes as the process moves forward.”
In a letter to Senate leaders, environmentalists described among the “primary failings” of S. 697 “a provision that was added right before mark-up that makes it harder for EPA to protect the public from, or even know about, chemicals used in products. While the Senate language on some of these matters has improved, the House bill does not raise these issues at all.”
The Senate vote came after more than a month's delay by Sen. Richard Burr (R-NC), one of the bill's co-sponsors, who placed a hold on the TSCA reform bill. Burr had prevented floor consideration of S. 697 because other senators opposed his attempts to add an amendment to the legislation to reauthorize the expired Land and Water Conservation Fund.
But the omnibus fiscal year 2016 funding bill reauthorizes the fund and Burr lifted his hold. Sen. Tom Udall (D-NM), a lead co-sponsor of the bill began pushing Senate leadership for a vote after Burr lifted his hold Dec. 16. But rumors of another possible hold swirled when Inhofe told E&E News that Boxer was backing away from an earlier agreement not to block S. 697 from reaching a floor vote.

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Health, Safety Data Not Confidential, Advocates Say

Dec 18, 2015 | BNA Daily Environment Report

By Pat Rizzuto

The Chemtura Corp. should release health and safety studies of a flame retardant it makes, because the company has wrongly classified the studies as confidential business information, three environmental health advocacy groups have told the Environmental Protection Agency.
“There is no legal basis for withholding these studies from the public, and EPA should not have accepted Chemtura's CBI designation in the first place,” wrote Eve Garter, staff attorney for EarthJustice, and Veena Singla, staff scientist with the Natural Resources Defense Council, in a Dec. 11 comment to the agency.
In a statement Chemtura provided to Bloomberg BNA, the company said it has evaluated the safety of its products and provided that information to the EPA.
The Toxic Substances Control Act, however, provides mechanisms for companies to protect their intellectual property, it said.
EarthJustice and NRDC commented on a data needs assessment for seven brominated phthalates that the EPA released in August (157 DEN A-1, 8/14/15)
Comments were due. Dec. 16.
Chemicals Used to Slow Fires in Foam
The data needs assessment described toxicity and other information the EPA has for the group of brominated phthalate flame retardants and data, primarily environmental effects information, that the agency would need to assess their risks.
These chemicals are added to the flexible polyurethane foams formulation to slow fires down, the agency said.
Some brominated phthalates also are used in adhesives and sealants auto manufacturers need, the Association of Global Automakers and the Auto Alliance said in comments they submitted to the EPA.
Acute oral toxicity, acute dermal toxicity, prenatal developmental toxicity and other data that Chemtura provided the agency for one particular chemical aren't available to the public, because the company provided them to the EPA as confidential business information (CBI), EarthJustice and NRDC said in comments supported by the Environmental Defense Fund.
The chemical is benzoic acid, 2,3,4,5-tetrabromo-, 2-ethylhexyl ester (TBB; CAS No. 183658-27-7).
The Toxic Substances Control Act doesn't allow health and safety studies or data from health and safety studies to be claimed as confidential, the environmental groups said.
Advocates: No Data, No Meaningful Comment
“The public cannot provide meaningful comment on the brominated phthalates cluster without access to these improperly withheld health and safety studies,” Earthjustice and NRDC wrote.
The groups asked for the health and safety studies to be released to the public.
In addition, the EPA should release certain information about a newly identified brominated phthalate compound, Earthjustice and NRDC said.
They referred to a chemical which hadn't been identified in the agency's data needs assessment, because Chemtura claimed its identity confidential.
According to a Dec. 7 EPA memo in the docket, Chemtura has since allowed the agency to disclose the chemical's generic name, tetrabromophalate diol diester.
Chemtura: Chemicals Are Safe
Chemtura's statement said the company “is committed to conducting health and safety research on its products before they are placed on the market and as required by applicable law.
“We have provided EPA with health and safety data that we have developed for the agency and other authorities throughout the world as assessments are performed on our chemicals.
“Chemtura and other chemical companies regularly provide business confidential information to EPA to allow for the assessment of their respective chemistries,” it said. “As a part of this process, there are built-in protections that allow companies to protect their intellectual property.”
In comments Chemtura submitted to EPA Dec. 16, the company listed dozens of studies it has conducted and submitted to the agency.
“The results indicated that the level of exposure that could cause an unfavorable effect in humans is much higher than what a person encounters in the real world,” wrote Stephen Scherrer, advocacy and product stewardship manager for Great Lakes Solutions, a division of Chemtura.
The Association of Global Automakers and the Auto Alliance told the agency their members need some of the brominated phthalates to meet federal, state and local fire safety standards.

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DOJ Seeks To Prosecute Workplace Violations As Environmental Crimes

Dec 17, 2015 | InsideEPA

By David LaRoss

The Department of Justice (DOJ) is transferring responsibility for prosecuting many workplace safety violations to its environmental division and instructing prosecutors in those cases to enforce environmental laws such as the Clean Air Act, noting that labor statutes provide for less stringent penalties than federal air, waste and toxics laws.
Deputy Attorney General Sally Quillian Yates announced the new focus in a Dec. 17 memo to DOJ's 93 U.S. attorneys, according to a joint statement from DOJ and the Department of Labor (DOL).
“Starting last year, the Departments of Justice and Labor began meetings to explore a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations. This culminated in a decision to consolidate the authorities to pursue worker safety statutes within the Department’s Environment and Natural Resource Division’s Environmental Crimes Section,” the statement says.
It notes that workplace violations could be prosecuted under the Clean Air Act, Resource Conservation & Recovery Act, and Toxic Substances Control Act -- all environmental laws under which DOJ often pursues enforcement actions on behalf of EPA.
DOJ and DOL in their joint statement say violations of worker safety provisions in labor law are generally considered only misdemeanors, but environmental crimes are more often categorized as felonies, with harsher penalties including prison terms and larger fines.
“[P]rosecutors have now been encouraged to consider utilizing Title 18 and environmental offenses, which often occur in conjunction with worker safety crimes, to enhance penalties and increase deterrence. Statutes included in this plan are the Occupational Safety and Health Act (OSH Act), the Migrant and Seasonal Agricultural Worker Protection Act, and the Mine Safety and Health Act (MINE Act),” the statement says. Title 18 of the U.S. Code is reserved for federal criminal statutes.
The statement continues that DOJ's environment division has already “been strengthening its efforts to pursue civil cases that involve worker safety violations,” and notes that officials there will work with DOL's Occupational Safety and Health Administration, Mine Safety and Health Administration, and Wage and Hour Division.
DOJ has previously sought to enforce against workplace violations through environmental statutes, but had never taken the step of transferring responsibility for that category of crimes completely to its environment division. The release touts as a “signature success” of past efforts the criminal prosecutions of pipe and equipment manufacturer McWane and subsidiary companies for a host of environment and labor law violations beginning in 2005.

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US EPA Moves To Web-Based Enforcement System

Dec 17, 2015 | Chemical Watch

The US EPA has launched a web-based system to receive and automatically process self-disclosed violations of the Toxic Substances Control Act (TSCA) and other environmental laws.
The new system, called eDisclosure, replaces the agency’s previous paper-based system, which required businesses to disclose violations in writing via a letter to the EPA.
The agency says the new system will make the processing of disclosures faster and more efficient, and will save time and resources for both those regulated and the EPA.
At Chemical Watch’s recent enforcement summit in Brussels, Rosemarie Kelley, acting deputy director in the agency’s Office of Enforcement and Compliance Assurance (OECA), said the move will help her department accomplish its goals in light of budgetary cuts.
The TSCA audit policy – which provides incentives for those regulated by an environmental law to disclose and fix a violation - has been “fairly successful”, Ms Kelley said. The policy has brought in hundreds of violation disclosures from companies each year, many of which have been corrected.
“However, in recent years, as our resources have become more constrained, it has become more of a challenge to process,” she added.
“We believe the [move to a web-based system] strikes the right balance by automating the resolution of more routine violations … and deferring penalty mitigation decisions on more complex violations, until any possible enforcement response occurs.”
The US EPA has encouraged companies to register with the system and disclose their violations online promptly.
The agency is likely to retain the current policy, which requires reporting within 21 days of discovery, and 60 days after that, submitting a compliance report certifying the violations have been corrected.
Read the full article on the EPA's new enforcement strategies in this month's Global Business Briefing Meanwhile, the EPA has published its 2015 Annual Enforcement Report. The report can be searched for cases involving chemicals. No case involving infringement of the Toxic Substances Control Act made it into the agency's list of major infringements in 2015.

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Chemical Security News

The Obama Secrets Regime

Dec 17, 2015 | The Wall Street Journal

By Kimberley A. Strassel

Some scandals come on fast, and some creep up on Washington. The slow-rolling outrage of 2015—Obama administration secrecy—received a small correction in this week’s omnibus budget bill, but it deserves far more attention. It’s time for the federal government to come back on the grid.
A steady drip of news has shown that for seven years now, the highest (and lowest) echelons of the Obama administration have conducted the people’s business in secret, via private email addresses and other hidden electronic means. They’ve been doing so in contravention of department guidelines, executive orders and statutes that require record-keeping and public accountability. Since those rules are well known and understood, it has to be assumed that they’ve been doing it purposely, to hide their actions.
The New York Times on Thursday revealed the latest email-hider: Defense Secretary Ash Carter. Mr. Carter was confirmed in February, and from the start used a private account to correspond with aides about everything from legislation to media appearances. He may well have discussed far more serious, classified matters, but we don’t know. That’s because we must rely on Mr. Carter’s word that he turned all his work correspondence over to the Defense Department. Just as we must trust that Hillary Clinton didn’t delete anything official from the private server she used as secretary of state.
Speaking of the Democratic front-runner, it seems that Mr. Carter continued to use his private email account for two full months after the news broke about Mrs. Clinton’s ether escapades. So the defense secretary either a) doesn’t read the news; b) thinks rules apply to him even less than they do Mrs. Clinton; or c) felt the secrecy afforded was worth the risk of getting caught. It seems Mr. Carter didn’t stop until White House Chief of Staff Denis McDonough—who was watching the Hillary explosion—told him in May to cut it out.
Secrecy aside, this marks the second top Obama national-security official to be caught winging around potentially sensitive information on unsecured email. Mr. Carter has presumably sat in on a few briefings about the growing threat from hackers and the urgent need for better cybersecurity.
One irony of these scandals is that, in seeking to keep government business secret from Americans, officials make it more available to foreign enemies.
Former EPA Administrator Lisa Jackson used private email accounts. She and Agriculture Secretary Tom Vilsack also used email aliases, making it harder for Freedom of Information Act filers to track down correspondence. Former Health and Human Services Secretary Kathleen Sebelius used private email. As did former Acting Labor Secretary Seth Harris, who had three private accounts.
The head of the Chemical Safety Board used a private account and didn’t preserve the correspondence. High-ranking Justice Department officials—including the former head of the criminal division—were off the government grid. Disgraced former IRS official Lois Lerner used two off-reservation email addresses, as well as an internal instant-messaging service that didn’t archive conversations.
When the folks at the top routinely break the rules, the folks lower down figure they get to as well. Mrs. Clinton’s aides conducted business off government servers. A former EPA official strategized over private email with environmental groups about how to shut down the proposed Pebble Mine in Alaska. Attorney Chris Horner, of the Energy and Environment Legal Institute, recently unearthed emails showing an EPA official working with outside groups over private email to draft Mr. Obama’s climate regulations.
The Government Business Council this year interviewed 412 “high-level” federal executives about private email. A full one-third admitted it is used at least “sometimes” for government work. (The number was 41% at the Defense Department.) Only 18% said private email is “never” used. And 31% admitted these emails aren’t archived—meaning a big chunk of government business has been deleted from the public record.
Republicans this week included in the omnibus bill a rider that bars IRS employees from using private email for work. The question is why they stopped there. Conservatives complain ceaselessly about the Obama administration’s extralegal or abusive practices, and the record shows a main conduit for these shenanigans is private email. Since we can have no confidence they will provide a full record of their private correspondence, the wiser course is to bar it entirely. For every federal employee.
The best excuse any Obama official has been able to come up with for these accounts is “convenience”—and that’s a hoot in today’s world of easy-to-use technology. More to the point, who ever said federal employees are due “convenience”? They aren’t the average American. Quite the opposite. They serve the average American, and a core duty is to create a public record of their work. If Republicans want a 2016 issue that will resonate with the public, here’s one: End the Obama Secrets Regime.

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DHS Rolls Out Ways For Plants To Check Workers For Terror Ties

Dec 17, 2015 | E&E News PM

By Sam Pearson

Operators of the nation's highest-risk chemical facilities will not have to submit information to check employees' identification cards against a government database of suspected terrorists, under Department of Homeland Security guidance released today.
Under a notice of implementation set to be published in the Federal Register tomorrow, employers will be allowed to simply look at workers' Transportation Worker Identification Credential (TWIC) to see whether they're valid, even though the method "has inherent limitations and provides less security value" than other choices, DHS said.
So-called visual verification "may make it more difficult to ascertain whether a credential or document has expired, been revoked, or is fraudulent," the notice said, though TWIC cardholders must undergo a separate security check by the Transportation Security Administration.
The notice is the first major step in rolling out the long-delayed Personnel Surety Program, part of DHS's Chemical Facility Anti-Terrorism Standards program. It lays out how DHS will permit the highest-risk chemical facilities to meet a mandate that they vet employees for possible terrorist links.
Under CFATS, chemical facilities identified as posing a high risk are sorted into four tiers. That's based on DHS calculations using information submitted by plant operators on such characteristics as the quantity and types of chemicals used and the plants' proximity to major population centers.
The notice of implementation tells operators of facilities designated under CFATS as in Tiers I and II -- the most serious categories -- that they have the opportunity to participate in a new personnel program. The facilities, whose names are not disclosed, will also be notified individually, DHS said.
Because employees of the highest-risk chemical plants may have access to restricted areas and sensitive chemicals, federal officials have sought to develop systems to ensure that individuals with links to terrorist groups do not gain employment at these sites. However, the process has faced questions from some lawmakers and labor groups, who want it to strike a balance that does not create onerous regulatory roadblocks preventing workers from securing these jobs.
The agency was trying to "get to the one-stop system where you only have to go once to get your card and then you'll get it mailed to you," Homeland Security Secretary Jeh Johnson said at a House Appropriations Committee hearing last year.
Workers who already possess TWICs, a biometric credential issued by the TSA for employees who work within secure areas of ports and ships, can have their employers submit this information for electronic verification, though visual verification is also allowed.
DHS "continues to believe that visual verification has significant security limitations and, accordingly, encourages high-risk chemical facilities choosing this option to identify ... the means by which they plan to address these limitations," the notice said.
Visual verification can only be chosen as an option if a facility describes how it will do so in its site security plan, the notice said. Failing to adequately explain how the process will work could result in the rejection of the site security plan.
The standards instruct covered facilities to perform "appropriate background checks" on workers and "as appropriate" for unescorted visitors. Previous requirements that these groups be subject to identity validation, criminal history checks and verification of a legal ability to work in the United States have already been implemented, DHS said, except for a final mandate to check these individuals for ties to terrorist groups.
The agency will allow plants at least four methods to check employees. That provides a high-risk facility "flexibility to tailor its implementation ... to fit its individual circumstances and, in this regard, to best balance who qualifies as an affected individual, unique security issues, costs and burden," the notice said.
Permitted methods include submitting information about employees to DHS to vet for ties to terrorist groups through the FBI's Terrorist Screening Database -- a list said to include tens of thousands of Americans. Plants may also submit information on individuals who already have credentials that required a threat assessment by DHS to "verify the continuing validity of these credentials." The other choices are visual verification or electronically validating a TWIC without submitting the information to DHS.
Plants can also propose their own alternative measures to accomplish the objective, which will be evaluated holistically, the notice said.

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RFF Finds Disparity In State Oil And Gas Wastewater Rules

Dec 17, 2015 | InsideEPA

A Resources for the Future (RFF) analysis examining a number of state regulations of tanks and pits used to store oil and gas wastewater finds wide variety in the type and stringency of rules, and also notes that while tanks may lead to smaller and less frequent spills than pits, tank systems are “not a magic bullet” for mitigating risk.
“Our survey of state regulations of on-site oil and gas wastewater storage revealed significant heterogeneity across states in the number and stringency of regulated elements,” according to the Dec. 17 study, “Pits versus Tanks: Risks and Mitigation Options For On-site storage of Wastewater from Shale gas and Tight Oil Development.”
The study says the disparity in rules provides an opportunity for states to improve their regulations based on the experiences of other state programs.
For example, Arkansas requires closed-loop tanks to be used within 100 feet of waterbodies, and Michigan requires tanks to be used for produced water, completion fluids, and other liquid wastes. However, North Dakota, Pennsylvania and other states allow pits to be used but vary in design, reclamation and other components of pit regulations.
Environmentalists have generally favored closed loop tank systems over open pits for storing flowback and produced water from hydraulic fracturing, but the RFF study indicates that while tanks lead to smaller and less frequent spills than pits, they are “not a magic bullet,” research fellow Yusuke Kuwayama said during a Dec. 17 call.
The report points out that it is difficult to determine whether the tanks lead to fewer and smaller spills because they are safer or because pits are more widely used.

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Transportation News

The Life-Saving Train Technology That Congress Isn’t Fully Funding

Dec 18, 2015 | The Atlantic

By Nora Kelly The derailment of Amtrak train 188 in Philadelphia earlier this year, which killed eight people, introduced many Americans to a safety technology that could have prevented the crash in the first place: positive train control. Now, Congress has

The derailment of Amtrak train 188 in Philadelphia earlier this year, which killed eight people, introduced many Americans to a safety technology that could have prevented the crash in the first place: positive train control. Now, Congress has allocated $25 million in funding in the omnibus bill to help railroads implement the technology—but some of Washington’s most ardent supporters of PTC are still let down.
“A $25 million investment in PTC is clearly not enough, but it is infinitely more than we have invested in recent years,” Representative Sean Patrick Maloney of New York said in a statement. The omnibus funding represents a “small step [that] continues to move us in the right direction toward universal implementation of this life-saving technology—but we must do more.”
The insufficient installation of PTC across the country has generated an emotional debate on the Hill in recent months. The technology prevents train-on-train collisions and speed-induced derailments by controlling the train or stopping it altogether. As a result, PTC is widely considered a life-saving technology. At a House Transportation and Infrastructure Committee hearing earlier this year, Federal Railroad Administrator Sarah Feinberg repeatedly emphasized the railroads’ grave need for PTC, which she called a “long-overdue technology,” but said railroads are hampered by meager funding from Congress. The new omnibus support is certainly welcome; it just isn’t enough.
“The funding in the recently passed transportation bill and in the bill that funds the government for the next year are good starts,” Feinberg said in a statement, “but more is needed for commuter railroads.”
That’s because PTC is mandatory for commuter rails and those that transport hazardous materials, both of which make up a big chunk of the country’s total rail network. But meeting that mandatory rule is in doubt. In the comprehensive transportation bill Congress passed earlier this month, $199 million was allocated for PTC on commuter rails, the first time Congress had dedicated funding specifically for the technology. But that money, combined with the omnibus allocation, still falls a staggering $600 million short of the figure the Federal Railroad Administration has requested in the last two years: $825 million “to assist commuter railroads with the implementation of PTC and additional funding to aid with the implementation of PTC on Amtrak’s national network,” according to testimony Feinberg gave in June. Meanwhile, the omnibus allocation doesn’t even specify that funding must be used solely for PTC; it could be used to implement other safety measures, too.
The railroads’ deadline for installing PTC has also been controversial. Until recently, the railroads had a December 31, 2015, deadline to implement the technology, per the Rail Safety Improvement Act of 2008. But a majority of rail lines weren’t on track to meet it. In October, Congress granted the railroads a three-year extension, with “wiggle room” for an additional two more years after an intense lobbying push by the industry and threats of a commuter-rail and freight shutdown. Northeast Democrats strongly disapproved of the extension: They want more funding for PTC, but they also don’t want the railroads to get away with not installing it for many more years. According to a report in The New York Times, proponents of the extension say the extra time will help because “the equipment is costly and time-consuming to install across thousands of miles of track.”
But Feinberg warned railroad officials at a conference last month that they must not assume Congress will push back the deadline again, and she emphasized PTC’s life-saving implications—just as she had back in June, when she predicted more accidents to come: “If PTC is not fully implemented by January 1, 2016, we can and should expect there to be accidents in the months and years to follow that PTC could have prevented.”
After the Philadelphia crash last spring, lawmakers held a hearing to find out what went wrong on train 188 and how PTC could have helped. (Though PTC wasn’t fully implemented on the Philadelphia track at the time, Amtrak is now on target to finish it on the entire Northeast Corridor, the country’s busiest rail line, by the end of the year. Amtrak isn’t eligible for the omnibus funding.) At the hearing, Representative Maloney cited an accident on the Metro-North commuter rail line, where a 2013 derailment killed four people. He blamed Congress itself for not giving railroads the tools they need to make safety improvements: “Of all of the people who ought to be apologizing for these accidents that keep happening because we don’t have the safety systems in place, the United States Congress maybe ought to be at the top of the list, wouldn’t that be fair to say?” he asked Feinberg. “I think that would be fair to say,” Feinberg answered.
Democratic lawmakers from the Northeast, like Maloney, have been the most vocal about PTC. A couple weeks before the House hearing, 23 Democratic senators sent a letter urging the Appropriations Committee to allocate more funding for it, though they didn’t call for a specific dollar figure. Democratic Senator Bob Casey of Pennsylvania, the chief author of that letter, said the omnibus funding could “substantially increase” rail safety. “Since the devastating Amtrak 188 crash, we have learned that PTC truly [affects] the safety and lives of those traveling on our country’s railways,” Casey said in a statement.
Democratic Senator Richard Blumenthal of Connecticut, who has had strong words for the railroads for not yet implementing PTC, said he’s pleased the omnibus “includes a small down payment” for the technology. But “$25 million is just a drop in the bucket given the large scale and scope of rail-safety measures needed immediately,” he said in a statement. “Congress must appropriate far more to rebuild a crumbling rail network that today is ill-prepared and ill-suited for our 21st-century needs.”

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Energy and Environment News

(ACC Mentioned) Industries, Advocates Raise Varied Challenges To EPA Solid Waste Rule

Dec 18, 2015 | InsideEPA

By Suzanne Yohannan

Groups representing various industry sectors and environmentalists are calling on the U.S. Court of Appeals for the District of Columbia Circuit to vacate varying aspects of EPA's definition of solid waste (DSW) rule, finalized earlier this year, with industry seeking to loosen certain requirements where it alleges EPA has overreached and environmentalists arguing certain exemptions from hazardous waste requirements exceed EPA's authority.
In opening briefs in the consolidated lawsuit American Petroleum Institute (API) v. EPA., the two sets of parties take contrary views on whether EPA's DSW rule -- a revision spurred by earlier litigation brought by environmentalists -- is too strict or too lax.
"EPA's regulations unlawfully and arbitrarily assert [Resource Conservation & Recovery Act (RCRA)] authority over materials that are not discarded," industry parties say in their Dec. 9 opening brief. Industry petitioners are API, Utility Solid Waste Activities Group, National Association of Manufacturers, American Chemistry Council and energy resource company Freeport-McMoRan. Relevant documents are available on InsideEPA.com. (Doc. ID: 187235)
On the same day, environmental petitioners represented by Earthjustice filed their opening brief, arguing the rule exceeds EPA's authority by including a "verified recycler exclusion," which allows companies who meet certain criteria to avoid strict hazardous waste requirements. The environmental petitioners are Sierra Club, Counsel for California Communities Against Toxics, Clean Air Council, Coalition for a Safe Environment and Louisiana Environmental Action Network.
At issue is EPA's DSW rule, promulgated last January. The long-awaited rule responds to earlier litigation by environmental groups over a Bush-era rule and attempts to close what EPA saw as regulatory gaps in the 2008 version of the rule by mandating use of all four of the agency's criteria for determining that recycling of hazardous waste is legitimate, rather than just two under the Bush-era rule (Inside EPA, Dec. 12, 2014).
It also eliminates a transfer-based exclusion from the solid waste definition, replacing it with a stricter "verified recycler exclusion," allowing those who meet certain criteria an alternative to meeting strict hazardous waste requirements.
In addition, the final rule affirms the legitimacy of pre-2008 DSW exclusions, but industry attorneys have said EPA is nonetheless imposing new requirements on these recyclable materials.
According to EPA's supporting documents for the 2015 rule, the rule also "retains the exclusion [from the solid waste definition] for recycling under the control of the generator, including recycling on site, within the same company, and through toll manufacturing agreements." Exempting hazardous secondary materials from the definition of solid waste also exempts them from hazardous waste regulation under RCRA.
The two sets of briefs detail a host of legal issues being raised in the litigation.
The industry petitioners assert that EPA oversteps its RCRA authority in the rule by imposing requirements on materials not discarded, pointing to EPA's mandatory legitimacy factors.
In particular, they say the required legitimacy factors "exceed EPA's statutory authority because they (1) impose handling, storage, and chemical-composition standards on non-discarded materials; and (2) deem the reuse or recycling of many non-discarded, in-process materials to be 'sham recycling' because, e.g., the materials are reused or recycled in a different process than the one that generated them," the brief says.
Further, they argue the agency "unlawfully applied the legitimacy factors to pre-2008 exclusions without record support, and to used-oil recycling without notice and contrary to statute."
In their brief, the industry parties argue the rule subjects all "hazardous secondary materials" -- including material under pre-2008 exclusions -- to the legitimacy factors, illegally regulating materials that have not been discarded. RCRA is limited to materials that have been discarded, the brief says, pointing to case law.
One of the legitimacy factors, in effect, imposes EPA specifications for handling and storing material that has not been discarded, making the type of storage "the 'dividing line between "waste" and nonwaste', without any connection to the concept of 'discard,'" the brief says, citing the 2000 D.C. Circuit ruling in Association of Battery Recyclers v. EPA. In that case, the court ruled the agency had exceeded its jurisdiction when it attempted to regulate secondary materials from mining and mineral processing as solid waste, with the court finding that at least some of the materials were destined to be reused in a continuous industrial process.
The industry parties also take issue with the decision to replace the 2008 rule's transfer-based exclusion with the verified recycler exclusion. Under this measure, secondary hazardous material must be sent to a "'verified reclamation facility,'" the brief says. These facilities must either possess a RCRA subtitle C hazardous waste management permit, or have gone through an alternative pre-approval process for obtaining a variance, it says.
While the exclusion "purports to define 'solid waste' in the context of secondary materials sent to third parties for reclamation, at least two of its conditions bear no reasonable relation to 'discard,'" the industry parties say. Instead, they say, those conditions affirmatively regulate materials such as petroleum refinery catalysts that have not been discarded, "thus effectively rendering the exclusion a 'sham' definition of 'solid waste,'" they say.
Underlying EPA's overreach is its presumption that all materials sent off-site to other parties for reclamation have not been discarded, they say. But this is not valid as it conflicts with the court's 2003 ruling in Safe Food & Fertilizer v. EPA "that mere transfer of secondary materials for recycling is not a good indicator of 'discard' . . ."
The industry parties also say EPA oversteps RCRA authority, as well as its historical position dating back to 1985, when it asserts RCRA authority over off-specification fuels and other products used in a typical manner, or further processed for use. "Thus, manufacturers may be compelled to prove that their products are products," they say.
They ask the court to vacate assertions of RCRA jurisdiction over non-discarded materials and to vacate the legitimacy factors that assert jurisdiction over such materials. They also ask the court to vacate the rule's authority over secondary materials that meet the conditions of the verified recycler exclusion with certain exceptions, and to vacate EPA's RCRA authority over commercial chemical products used in their normal manner or reclaimed for use.
Environmentalists also take issue with the verified recycler exclusion, saying it is unlawful and arbitrary, but take a contrary position to industry's.
They say their litigation "challenges a new exclusion that stretches the statutory definition of solid waste beyond the breaking point by exempting hazardous wastes as not discarded even when the owners of these wastes must pay to have [them] hauled . . . away."
They say paying for having the waste removed indicates the company has discarded the substances in "an ordinary sense of the word."
"By excluding hazardous wastes from RCRA's definition of solid waste -- and therefore from regulation under RCRA -- EPA exceeds its authority and violates the plain meaning of the statute," the environmental groups say in their brief. "EPA's argument that hazardous wastes are not wastes so long as their owners comply with certain conditions that EPA placed on the Verified Recycler Exclusion must be rejected under the first step of Chevron analysis."
Environmentalists say they are also challenging "EPA's decision to leave dozens of outdated exclusions on the books and unchanged even after the agency became aware that these exclusions lack the minimum requirements necessary to prevent the unlawful discard of hazardous wastes."
These exclusions refer to 32 exclusions from rulemakings issued prior to 2008. The environmental petitioners say these allow hazardous wastes to avoid RCRA regulation in the absence of additional requirements. In the 2011 draft rule, EPA stated that these exclusions "lack the 'minimum requirements necessary' to prevent the unlawful discard of hazardous waste, and solicited comment on whether to revise them," the environmentalists say. But EPA did not make changes on these in the final rule -- an action that was not legal and was arbitrary, they say. The environmental groups ask the court to vacate the verified recycler exclusion and the pre-2008 exclusions.

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API Faults EPA 'Next Generation' Compliance Plan For Oil & Gas Air Policy

Dec 17, 2015 | InsideEPA

By Bridget DiCosmo

The American Petroleum Institute (API) is faulting EPA's proposal to use "Next Generation" compliance tools in its proposed methane emissions rule for new oil and gas drilling, saying the tools -- including third-party verification and electronic reporting -- are unnecessary and that the agency lacks the legal authority to mandate them.
"The general Next Generation compliance topics for which EPA is seeking input" in the preamble to the proposed new source performance standards (NSPS) air rule "are broad issues that should not be addressed as part of sector specific rulemakings," API says in recent comments. EPA took comment through Dec. 4 on its package of oil and gas sector air rules, including the NSPS and voluntary guidelines to cut ozone air pollution from existing drilling.
Any elements of the compliance framework included in the proposed rule must be clearly demonstrated to aid in EPA enforcement, API says in its comments, and "not substitute non-EPA entities to perform EPA responsibilities."
The group adds that the proposed NSPS preamble suggests measures that are "unnecessarily punitive" for a generally applicable rule.
In the preamble, EPA suggests it is weighing how to use some compliance strategies as part of its Next Generation enforcement framework. The agency is taking comment on use of third-party verification for storage tank controls and an audit program of fugitive emission components at well sites and compressor stations, expanding electronic reporting measures, and third party information reporting for some of the control requirements.
Next Generation is the agency's plan to cut enforcement costs by relying more on data such as electronic reporting than in-person facility inspections for enforcement, a move that has prompted outcry from environmentalists and others who warn it will reduce EPA's ability to identify and prosecute violators of laws.
The focus on Next Generation is in line with the agency's fiscal year 2014-2018 strategic plan outlining policy and other priorities for those years, in which the agency proposes a reduction in planned enforcement activities as it turns toward the Next Generation enforcement goal of relying more on data than inspections for enforcement.
Some features of the new compliance strategy have previously drawn ire from stakeholders. For example, industry officials said that an EPA enforcement memo floated in early 2015 laying out options for how regulators could use "Next Generation" provisions in civil settlement agreements in order to bolster compliance with environmental laws, could raise concerns about citizen oversight and enforcement.
Compliance Mechanisms
Now, EPA is suggesting several of the innovative approaches could become compliance mechanisms in its air rules, though API is raising concerns about EPA's authority; whether such approaches are necessary; and whether EPA may float the options in preamble language as opposed to the proposed rule.
On third party verification for compliance, EPA took comment on establishing a program that would have mechanisms to ensure oversight of third-party reviewers by EPA and/or states. It has identified one area in which third-party verification would be used for closed vent systems to "review the design and verify that it is designed to accommodate all emissions scenarios, including flash emissions episodes," and ensure proper installation.
EPA also solicited comment on an audit program of the collection of unplanned "fugitive" emissions components at oil and gas well sites and compressor stations, in which the facilities would be responsible for determining and documenting that their auditors are competent and independent pursuant to specified criteria.
But API in its comments argues that EPA fails to explain why self-certification programs like those in existing NSPS programs would be ineffective or why third-party verification would improve compliance, and that EPA has not explained where it "finds legal authority to impose a third-party verification requirement."
Noting that EPA suggested third-party verification the proposal for its 2012 NSPS for the sector, API says there is nothing in the Clean Air Act that appears to authorize EPA to require affected facilities to hire contractors to ensure compliance. As with the 2012 NSPS, "it again appears the purpose of the third-party verification requirement would be for the third-party verifiers to relieve burden on EPA," the comments say.
EPA also suggested expanding requirements of its March 20 proposed NSPS electronic reporting rule to include affected facilities to report quantitative environmental results on their corporate websites, taking comment on whether all owner and operators should be required to do this, or only a subset, and what data the agency should require.
API says such an expansion is "inappropriate" and "far exceeds" any air law power to require records, and violates the First Amendment as it would effectively be a "content base restriction subject to strict scrutiny" citing the Supreme Court ruling in Reed v. Town of Gilbert and a fails a separate legal test for appropriate regulation of commercial speech. The agency also took comment third party information reporting of a regulated entity's activity directly to the regulator. EPA proposed a third party reporting structure for manufacture performance testing for controls in its 2013 amendments to the 2012 NSPS, but did not finalize the provision.

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FERC Approves LNG Export Facility

Dec 18, 2015 | BNA Daily Environment Report

By Jonathan N. Crawford

Energy Transfer Equity LP's Lake Charles LNG export facility was approved by federal regulators, joining a backlog of projects forecast to flood the world's market in the next decade.
Energy Transfer was cleared to build and operate the Lake Charles LNG project in Calcasieu Parish, La., during the Federal Energy Regulatory Commission's monthly meeting in Washington Dec. 17. The Dallas-based company plans to build three liquefied natural gas trains, or production plants, that will produce as much as 2 billion cubic feet a day of the super chilled fuel starting in 2020.
Developers, including Energy Transfer, are racing to construct export terminals amid a glut of natural gas that has cut prices to a 16-year low. The once-promising outlook for U.S. projects has dimmed amid signs of an impending oversupply of the fuel on the international market and waning demand from top buyers in Asia, where economies have slowed.
Energy Transfer's projects lags others including Cheniere Energy Inc.’s Sabine Pass terminal, which is scheduled to begin shipping the fuel by the first quarter of 2016. The proposed Lake Charles LNG export facility would bring the total amount of capacity approved for construction in the lower 48 states to 12.62 billion cubic feet per day, according to the agency's website.
The Lake Charles LNG project is expected to obtain final investment decisions in 2016, with construction to start after that, Energy Transfer said Nov. 4 in an earnings report. The company said it has negotiated for U.K.-based BG Group Plc, which is being taken over by Royal Dutch Shell Plc, to buy the LNG for a minimum 25-year term. BG Group will also help develop the project.
Energy Transfer's project will obtain natural gas via the company's existing 2,200-mile Trunkline Gas pipeline system, which has 2.1 billion cubic feet a day of capacity to the existing Trunkline import terminal. Vessels exporting the cargoes have access to the Gulf of Mexico via a 52-mile ship channel.

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Strategy Offered for Wastewater Controls at Wells

Dec 18, 2015 | BNA Daily Environment Report

By Alan Kovski

Federal and state regulators should reduce the risk of wastewater spills at the sites of hydraulically fractured wells by targeting the causes of pit and tank overflows and leaks rather than thinking of tanks as the solution, according to a discussion paper released Dec. 17 by the think tank Resources for the Future.
The paper reviewed findings on risks associated with on-site storage of wastewater from shale gas, shale oil and tight-sand oil wells and offered recommendations on how to address the risks.
The “pits versus tanks” issue is noteworthy to oil and natural gas developers and people living near well sites, because of the assumption by the federal Bureau of Land Management (BLM) and some state regulators that requirements to use tanks will better protect human health and the environment. Not necessarily, the paper indicated.
Instead of outright bans of pits or tanks, the paper said, a better idea would be to “integrate specifications regarding fluid storage in pits with specifications regarding fluid storage in tanks so that operators have the flexibility to choose the least-cost storage solution that meets given performance standards.”
Pit overflows, tank overfills and pit liner malfunctions are the most common causes for the release of shale gas wastewater into the environment, the paper said.
“This pattern in the data suggests that regulations and industry practices that target these three types of incidents would be effective in reducing the frequency of spills,” the paper said, citing state spill databases.
No Clear Evidence
The Resources for the Future team studying the subject said it didn't find clear evidence that tanks should be required rather than pits. The team, led by led by RFF fellow Yusuke Kuwayama, cautioned that the databases were incomplete.
“Our literature review and analysis of state spill databases suggest that smaller and less frequent spills occur with tanks than with pits,” the paper said. “However, tanks are not a magic bullet, and because of a lack of information on the overall number of pits and tanks, it is not possible to ascertain whether tanks lead to fewer and smaller spills because they are actually safer or because a smaller number of them are currently being used.”
The BLM, in its final rule on hydraulic fracturing on federal and tribal lands, included an effective ban on pits for wastewater storage (55 DEN A-14, 3/23/15).
BLM Urged to be Flexible
Two oil and gas industry groups, the Independent Petroleum Association of America and the Western Energy Alliance, tried to get the BLM to allow flexibility in using lined pits or storage tanks when they commented on the BLM's then-pending rule.
“There are economic, environmental, and operational advantages to each and operators should have the flexibility to choose the solution most appropriate under various circumstances,” the groups said.
Among states, Pennsylvania is moving toward a ban on use of pits for unconventional wells, which typically means a well that has been or will be hydraulically fractured (156 DEN A-5, 8/13/15).

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Republicans Probe EPA Social Media Use on Clean Power Plan

Dec 18, 2015 | BNA Daily Environment Report

By Anthony Adragna

Senior House Republicans are raising questions about the Environmental Protection Agency's use of social media to promote its Clean Power Plan, days after the Government Accountability Office found the agency violated the law in promoting a Clean Water Act jurisdiction rulemaking.
In a Dec. 17 letter to Administrator Gina McCarthy, three House Energy and Commerce Committee Republicans requested copies of all social media messages concerning the Clean Power Plan, all communications referring to social media use and an accounting of federal funds used in those efforts.
“EPA's actions potentially undermined the integrity of the rulemaking process concerning [the Clean Water Rule], and call into question the use of social media to promote other rulemaking activities,” Reps. Fred Upton (Mich.), Tim Murphy (Pa.) and Ed Whitfield (Ky.) wrote. “We request that you certify in writing that EPA has not engaged in covert propaganda or grassroots lobbying when promoting the Clean Power Plan.”
The lawmakers asked for copies of the communications by Dec. 29.
On Dec. 14, the GAO concluded the EPA violated publicity, propaganda and anti-lobbying restrictions in two appropriations laws during fiscal years 2014 and 2015 by aggressively promoting its Clean Water Rule, previously known as the waters of the U.S. regulation (240 DEN A-1, 12/15/15).
‘Continually Learning and Refining.'
In response to the letter from House Republicans, Melissa Harrison, an EPA spokeswoman, told Bloomberg BNA Dec. 17 the agency felt social media was an “increasingly important” outreach tool and said it stood by its efforts on the Clean Power Plan.
“The EPA places a high priority on providing the public timely, accurate and accessible information about the environment and our rulemaking activities,” Harrison said. “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.”
Meanwhile, one House Republican introduced legislation (H.R. 4271) that would bar the EPA from hiring outside public relations contractors directly in response to the findings from the GAO.
“Millions of dollars spent on the best public affairs firms can't fool the American people into believing that the EPA should be regulating their farm, small business, wood stoves, ponds or backyard barbecues,” Rep. Jason Smith (R-Mo.) said in a statement. “Public relations contractors do not provide any essential function for the EPA. They are used to advertise poorly crafted rules and regulations to the American people.”
According to Smith, the EPA spent $26 million between 2000 and 2014 on public relations contracts.
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Union Challenges Feasibility of Clean Power Plan Limits

Dec 18, 2015 | BNA Daily Environment Report

By Andrew Childers

The Environmental Protection Agency erred by setting carbon dioxide emissions limits that cannot be met by any existing power plant as part of its Clean Power Plan, a union told a federal appellate court (West Virginia v. EPA, D.C. Cir., No. 15-1363, statement of issues 12/16/15).
The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers and AFL-CIO also said in its statementent of issues filed Dec. 16 in the U.S. Court of Appeals for the District of Columbia Circuit that it plans to challenge the EPA's failure to set separate emissions standards for power plants based on the type of coal burned and whether the agency exceeded its authority in promulgating a rule that requires coal-fired generation be replaced by low- or zero-carbon dioxide emitting sources.
According to the statement of issues, the union will also challenge the EPA's decision to issue a carbon dioxide standard for existing power plants that is effectively more stringent than comparable requirements for new units, reversing decades of agency practice.
The International Brotherhood of Boilermakers along with a majority of states and several utilities and industry groups has challenged the EPA's Clean Power Plan (RIN 2060-AR33), which sets carbon dioxide emissions limits for the power sector in each state that would then be implemented by state regulators.
Petitioners have asked the D.C. Circuit to hear challenges to the EPA's legal authority to even issue the rule first, setting aside challenges to its implementation at a later date. The expedited schedule they are seeking could see the lawsuits briefed and argued by May 2016 (237 DEN A-2, 12/10/15).
The union has filed a similar lawsuit challenging the EPA's carbon dioxide new source performance standards (RIN 2060-AQ91) for new and modified power plants (231 DEN A-3, 12/2/15).
The International Brotherhood of Boilermakers is represented by attorney Eugene M. Trisko.
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House GOP Queries EPA Publicity Push For Major Rules

Dec 17, 2015 | InsideEPA

House Republicans are attacking EPA's publicity efforts on major rules, with a GOP lawmaker introducing a bill to forbid the agency from spending any funds on hiring public relations firms to help promote regulations and members of the House energy panel separately querying EPA's campaign to promote its utility climate rules.
The increasing scrutiny of the agency's efforts to raise public awareness of its major regulations stems from a Dec. 14 legal opinion by GAO General Counsel Susan Poling finding that the agency's public outreach campaign supporting its Clean Water Act (CWA) jurisdiction rule was unlawful.
In response, Rep. Jason Smith (R-MO) on Dec. 16 introduced H.R. 4271, which would forbid EPA from spending any appropriated funds to hire private public relations firms. The text of the legislation was not available at press time, but a press release announcing its introduction claims that the government has paid $4.34 billion to public relations firms since 2007, and that such spending has increased by 47 percent under President Obama.
“We’ve seen the lengths the EPA will go to in order to push their agenda. Maybe they should rely on the substance of their regulations and not push insincere soundbites,” Smith said, citing the GAO finding.
Other Republican lawmakers are seeking to expand the scrutiny of EPA's promotional efforts beyond the CWA rule to include the agency's power plant greenhouse gas (GHG) standards.
Three top-ranking members of the House Energy & Commerce Committee, in a Dec. 17 letter to EPA Administrator Gina McCarthy, say the agency's conduct promoting the CWA rule signals possible misconduct promoting the agency's utility climate rules, known as the Clean Power Plan.
“EPA's actions potentially undermined the integrity of the rulemaking progress concerning [the CWA rule], and call into question the use of social media to promote other rulemaking activity. For example, EPA undertook an extensive social media messaging campaign in support of its Clean Power Plan,” the letter says.
The committee is seeking records of all social media and web postings “referring to or relating to the Clean Power Plan,” all communications “between or among EPA, other federal agencies, or third parties” concerning those posts, and an accounting of federal funds EPA spent “soliciting comments in support of the Clean Power Plan.” It asks EPA to provide those records by Dec. 29.
“In addition, we request that you certify in writing that EPA has not engaged in covert propaganda or grassroots lobbying when promoting the Clean Power Plan by December 29, 2015,” the letter says.
The letter is signed by energy committee Chairman Rep. Fred Upton (R-MI), oversight and investigations subcommittee Chairman Rep. Tim Murphy (R-PA) and energy and environment subcommittee Chairman Rep. Ed Whitfield (R-KY).

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GOP: EPA's Illegal 'Propaganda’ May Extend To Climate Rule

Dec 17, 2015 | The Hill - E2 Wire

By Timothy Cama

House Republicans think the Environmental Protection Agency’s (EPA) reportedly illegal “covert propaganda” in support of its regulations may have extended to the landmark climate change rule.
On the heels of a Government Accountability Office (GAO) report from Monday accusing the EPA of breaking the law in promoting and lobbying for its major water rule, Republican leaders on the House Energy and Commerce Committee are asking the EPA if its social media campaigns for the climate rule were above board.The findings about the water rule “call into question the use of social media to promote other rulemaking activity,” Chairman Fred Upton (R-Mich.) and other leaders said in a letter to the EPA.
“For example, EPA undertook an extensive social media messaging campaign in support of its Clean Power Plan, authoring blog posts, and posting messages on Facebook and Twitter,” the lawmakers said.
The Republicans did not cite any specific social media posts that it says might have violated the law.
EPA spokeswoman Melissa Harrison said all of its social media use is legal and it prioritizes educating the public about its activities.
“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,” Harrison said in a statement. “EPA stands by its outreach efforts on the Clean Power Plan.”

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Air Monitor Siting Needs Clarification in EPA Region 6

Dec 18, 2015 | BNA Daily Environment Report

By Nushin Huq

The Environmental Protection Agency needs to clarify with state and local organizations what should be in their annual plans for siting particulate matter air monitors in Region 6, the agency's Office of Inspector General said in a Dec. 17 report.
The assistant administrator for air and radiation should clarify what the necessary evidence is to prove compliance with “monitoring siting and operational requirements” for annual plans, the report said. It also recommended that the EPA's Region 6 address state-specific deficiencies in monitoring plans and assessments and strengthen its network assessment review process.
EPA's Region 6 covers Arkansas, Louisiana, New Mexico, Oklahoma and Texas.
Particulate matter is a mixture of solid particles and liquid droplets found in the air. Some are small enough that they can be inhaled. The EPA's “Quality Assurance Handbook for Air Pollution Measurement System; Ambient Air Quality Monitoring Programs” explains how to implement a system for ambient air monitoring.
EPA regulations require two types of network reviews from state and local agencies, annual monitoring network plans and periodic network assessments. The agency uses these reviews for ensuring that networks meet the EPA requirements for monitoring air quality.
Most of the state and local annual monitoring network plans in Region 6 included most of the required information for monitoring fine particles, known as PM2.5, but the plans didn't show proof that the sites where the monitoring took place were in compliance with siting requirements, the EPA inspector general said.
Change in Site Condition Missed
One monitoring organization failed to identify a change in the site condition, which resulted in the EPA invalidating a year's worth of data, the report said. Another one got approval to establish a near-road PM2.5 monitoring site outside the annual plan process, which limited the opportunity for public comment.
“A lack of clarity in the EPA's requirements for demonstrating siting compliance in the annual plan could have contributed to this happening,” the report said. “The EPA needs to clarify this concept so that states can better address this annual plan requirement.”
Having accurate information on where these air monitors are located is important, because they give information on current air quality and whether the air quality meets health standards, the report said.
The report outlined ways the agency could strengthen small particulate monitoring in Region 6. The region agreed with all of the inspector general's recommendations and proposed corrective action, the report said.

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Catalyst Helps Control NOx Emissions And Resists Contamination

Dec 17, 2015 | Chemical & Engineering News

By Melissae Fellet

A new study describes a catalyst that reduces nitrogen oxide emissions while resisting poisoning by sulfur and alkali metals (Environ. Sci. Technol. 2015, DOI: 10.1021/acs.est.5b03972). It is already being used to clean the emissions at two industrial plants in China, the researchers say.
Combustion—whether from power plants, vehicles, or factories—produces nitrogen oxides (NOx), health-harming gases that also generate ozone and particle pollution. Power plants remove NOx by reacting the exhaust gas with ammonia to produce nitrogen and water. However, the catalysts used for this selective catalytic reduction can be poisoned by other components of the exhaust, like alkali metals and sulfur dioxide, which render the catalysts ineffective.
Sulfur dioxide adsorbs onto the surface of the catalyst and reacts to form sulfates that block its active sites. Catalysts made of metal oxides with protonated hydroxyls on their surface, like vanadium oxide, resist sulfur deposition. However, this surface also makes it easier for alkali ions in the exhaust, such as potassium, that come from the fuel burned to replace vanadium in the catalyst. That alters the active sites and deactivates the catalyst.
Xingfu Tang of Fudan University and his colleagues wanted to build a catalyst that captured alkali ions inside it, rather than holding them on the material’s surface. The researchers attached vanadium oxide nanoparticles to the surface of hexagonal tungsten oxide nanorods. The rods contain tunnels that are slightly larger than the diameter of a potassium ion. Using synchrotron X-ray diffraction, the researchers saw potassium ions inside the channels of the nanorods, indicating that the material worked as hoped.
To test the catalyst’s performance, the researchers filled it with 350 μmol of potassium sulfate per gram of catalyst and passed a mixture of nitrogen oxide, ammonia, oxygen, and 1,300 mg m-3 sulfur dioxide through the catalyst, simulating high sulfur conditions in the exhaust treatment stage of a factory or power plant. The catalyst maintained its activity after four hours at 350 °C. However, a catalyst made from the conventional catalyst mixture of vanadium oxide, tungsten oxide, and titanium oxide exposed to the same conditions was deactivated after four hours, even with less than half the potassium loading.
The new catalyst is being used by two Chinese companies that burn biomass, Tang says. He adds that it might also be used to clean the emissions from boilers at glass and ceramic plants, where traditional catalysts suffer severe deactivation.
In industrial settings, catalysts are typically preloaded with alkali ions to reduce the impact of alkali poisoning. “But that’s not a solution,” says Pu-Xian Gao of the University of Connecticut. “The ultimate solution is to have an intrinsically stable catalyst to help with this problem. This kind of design gives that option.”
To use this catalyst to clean diesel emissions—another important source of NOx—Gao notes that it would have to be tested in the honeycomb structure of vehicle emissions control systems with realistic environmental tests.

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California High Court Rules on Environmental Reviews

Dec 18, 2015 | BNA Daily Environment Report

By Carolyn Whetzel

The California Environmental Quality Act doesn't generally require project developers to evaluate and mitigate impacts of existing environmental conditions, the state's Supreme Court said Dec. 17 (Calif. Bldg. Indus. Ass'n v. BAAQMD, Cal., No. S213478, ruling, 12/17/15).
When a proposed project, however, has the potential to increase existing environmental hazards or conditions, then the law and its implementing guidelines require an analysis of those potential impacts on future residents and users, the court said.
The opinion comes in a lawsuit the California Building Industry Association filed challenging air pollutant thresholds the Bay Area Air Quality Management District adopted in 2010 to guide local land-use decisions, but it doesn't resolve the case.
Now the case heads back the First Appellate District of the California Court of Appeal to revisit “certain potentially important” CEQA claims it declined to consider when the appellate panel upheld the air district's air pollutant thresholds, the opinion said (160 DEN A-3, 8/19/13).
“We reverse the Court of Appeals judgment and remand so that it may have opportunity to address these issues to the extent necessary in light of today's holding,” the justices said in the unanimous opinion.
While the court's review does address the narrow question of under what circumstances existing environmental conditions must be weighed under CEQA, it may do little to resolve similar legal disputes, Sean B. Hecht, the co-director of the Emmett Institute on Climate Change and the Environment at the University of California, Los Angeles School of Law, told Bloomberg BNA.
‘Complicated Decision.'
“It's a complicated decision, and I'm guessing it will not provide a lot of clarity for future similar disputes,” Hecht said. “Some people thought this case would be able to provide a bright light.”
Hecht added, “I'm guessing it will not provide a lot of clarity for future similar disputes.”
The question developers and others will have to ask is whether a proposed project will exacerbate an existing environmental condition, he said.
In the decision, the court said it sought to “distinguish between requirements that consider the environment's effects on a project and those that contemplate the project's impacts on the existing environment,” based on its analysis of the language in the law and its implementing guidelines.
“We're still revising the decision,” the air district's counsel Brian Bunger, said in an e-mail. “The court did not find that the air district's thresholds are invalid and it does hold that where a project will exacerbate an existing hazardous condition, CEQA require an analysis of the impacts of the project on the environment.”
Air District's Thresholds
Bunger said the air district's thresholds are consistent with the court's holding.
“The air district's thresholds are designed to address existing air quality hazards and in most cases, new development will contribute additional air pollution that will exacerbate those conditions,” Bunger said.
In a written statement, the California Building Industry Association said the court's decision “will help to keep CEQA to its original mission—evaluating the impacts of projects on the environment.” Other statutes and regulatory programs deal with existing environmental issues, the group said.
“The ruling is particularly important for infill development,” the group said. “Infill projects are often challenged by opponents who assert existing environmental programs as a reason not to approve the proposed infill.”
That was the issue in the case, the group said. The air district's toxic air contaminants guidelines “would have placed the burden of evaluating and mitigating existing air quality problems on new residential development,” the group said.

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