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ACC AM Jan 5
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(ACC Mentioned) Plastic Microbead Ban Signed into Law, Wins Industry Support
Jan 4, 2016 | Environmental Leader
By Jessica Lyons Hardcastle
The plastics industry says it supports a new law that phases out plastic microbeads starting in 2017. US President Barack Obama last week signed the law, which bans personal-care products from containing microbeads and aims to help remove plastic pollution from water supplies. -
(ACC Mentioned) For More Than 50 Years, DuPont Concealed the Cancer-Causing Properties of Teflon
Jan 4, 2016 | Alternet
By Sharon Kelly
Almost two decades ago, Carla Bartlett, a then 41-year -old West Virginia secretary and mother of two, was first diagnosed with cancer – what her surgeon later labeled a “garden variety” type of kidney cancer. “I was scared to death,” Bartlett, now 59, told an Ohio federal jury this fall during hearings in the first of more... -
(ACC Mentioned) "Styrofoam" Bans Expand As Plastic Falls Out Of Favor
Jan 4, 2016 | Market Place
By Amy Scott
New bans on polystyrene foam food containers took effect in the District of Columbia, Montgomery County, Maryland and even the South American nation Guyana on the first of January. Plastic foam cups and clamshells have been falling further out of favor since the city of Berkeley, California, outlawed them in the late 1980s. -
Synthetic Turf Industry Lobbies Up In Safety Fight
Jan 4, 2016 | The Hill - Regulation
By Timothy Cama
The synthetic turf industry is retaining lobbyists to defend against allegations that some of its materials could be toxic. In a registration filed days before New Year’s, lobbying firm Clark Hill said it is representing the Synthetic Turf Council in order to meet with lawmakers “to discuss potential congressional action relating... -
US EPA Will Not Regulate Four Water Contaminants
Jan 5, 2016 | Chemical Watch
The US EPA has made a final determination not to regulate four substances listed on the Third Drinking Water Contaminant Candidate List (CCL). These are: dimethoate; 1,3-dinitrobenzene; terbufos; andterbufos sulfone. It has also delayed making a final determination on regulating strontium. -
US CPSC Delays Textile Testing Rule Effective Date
Jan 5, 2016 | Chemical Watch
The US Consumer Products Safety Commission (CPSC) has reopened the comment period, and delayed the effective date, of a direct final rule clarifying testing requirements for textiles and components used in children's products (CW 21 October 2015). -
Osha Convenes Beryllium Occupational Exposure Hearing
Jan 5, 2016 | Chemical Watch
The US Occupational Safety and Health Administration (Osha) has called an informal public hearing on its proposal to reduce the permissible exposure limit (Pel) for beryllium and its compounds (CW 7 August 2015). The hearing will take place on 29 February. The proposed rule, issued in August, would reduce the current time-weighted average... -
FERC Finds Minimal Impact for Mexico-U.S. Pipeline
Jan 5, 2016 | BNA Daily Environment Report
By Nushin Huq
The Presidio Border Crossing Project, a proposed natural gas pipeline project between Texas and Mexico, will have minimal environmental impact, federal regulators said in an environmental assessment released Jan. 4. The staff of the Federal Energy Regulatory Commission recommended that FERC issue an order finding no significant impact... -
Exxon Mobil Prevails in Pipeline Radiation Appeal
Jan 5, 2016 | BNA Daily Environment Report
By Steven M. Sellers
Multiple lawsuits alleging injuries caused by pipe-cleaning activities in Louisiana's oil fields will stay in federal court—at least for now, a federal court has ruled (Robertson v. Exxon Mobil Corp., 2015 BL 436340, 5th Cir., No. 15-30920, 12/31/15). The Dec. 31 decision by the U.S. Court of Appeals... -
Power Plants Threatened as Water Supplies Dry Up
Jan 5, 2016 | BNA Daily Environment Report
By Alex Nussbaum
More than two-thirds of the world's power plants may have trouble running at full capacity as the warming climate affects water supplies, according to a new study. Reduced streamflows and rising water temperatures may cut monthly generating capacity at nuclear, fossil-fuel and biofuel-powered plants by as much as 30 percent by... -
Water Woes Linked To Warming Threaten Power Plants -- Study
Jan 4, 2016 | E&E News PM
By Amanda Reilly
Most power generation is vulnerable to changes in water resources caused by climate change, according to a study published today in Nature Climate Change. Weaker water flow in rivers and warmer water will affect nuclear and fossil- and biomass-fueled plants, as well as hydropower facilities, researchers affiliated with the International... -
Separate Track Sought in Clean Power Plan Biomass Lawsuit
Jan 5, 2016 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency and a coalition of industry groups are jointly asking a federal appellate court to keep separate and hold in abeyance their challenges to the Clean Power Plan (Biogenic CO2 Coal. v. EPA, D.C. Cir., No. 15-1479, motion filed 1/4/16). -
EPA ‘Not Slowing Down' Climate Efforts, McCarthy Says
Jan 5, 2016 | BNA Daily Environment Report
By Anthony Adragna
The Environmental Protection Agency will pursue an aggressive slate of greenhouse gas regulations in 2016 that will bolster President Barack Obama's legacy of addressing climate change, Administrator Gina McCarthy said Jan. 4. “We've got a lot more work to do, and we're not slowing down,” McCarthy wrote in a blog post. -
EPA Set To Formally Publish Haze Plan For Texas, Okla.
Jan 4, 2016 | E&E News PM
By Sean Reilly
U.S. EPA is on track to formally publish tomorrow the final version of its contested regional haze plan for Texas and Oklahoma. But if the plan has sparked heated objections from power producers and state officials, it's not clear that those complaints will lead to a lawsuit. -
Murkowski Plans Early Push For Committee Package
Jan 5, 2016 | E&E Daily News
By Geof Koss
After seeing a top priority -- repeal of the crude export ban -- signed into law last month, Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) is hoping to secure floor time as quickly as possible for the bipartisan energy package that cleared her committee last summer. -
Utilities: EPA Must Address Co-Benefits in Mercury Rule
Jan 5, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency must address the legality of citing “co-benefits” to justify its mercury and air toxics standards in a response to an adverse 2015 ruling by the U.S. Supreme Court, a power plant trade group said. The Utility Air Regulatory Group, in a comment posted on Dec. 30, said the EPA's supplemental... -
5 Reasons Why 2016 Will Accelerate Environmental Progress
Jan 4, 2016 | The Huffington Post - Blog
By Fred Krupp
2015 was a breakthrough year for our environment -- one of the most important in decades. The nations of the world agreed to a climate deal that finally gives us a chance to turn the corner toward safety. America put in place the first-ever limits on carbon pollution from its largest source, power plants. -
Advocates' Suit Seeks Deadline For States' SO2 Air Plans
Jan 4, 2016 | BNA Daily Environment Report
Environmentalists are suing EPA seeking a deadline for the agency to issue findings that 13 states have failed to submit plans for attaining the 2010 national ambient air quality standards (NAAQS) for sulfur dioxide (SO2), which would trigger a two-year clock for the states to write plans or have EPA-crafted plans imposed on them.
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(ACC Mentioned) Plastic Microbead Ban Signed into Law, Wins Industry Support
Jan 4, 2016 | Environmental Leader
By Jessica Lyons Hardcastle
The plastics industry says it supports a new law that phases out plastic microbeads starting in 2017.
US President Barack Obama last week signed the law, which bans personal-care products from containing microbeads and aims to help remove plastic pollution from water supplies.
The law defines microbeads as “any solid plastic particle that is less than 5 millimeters in size,” and prohibits soaps, body washes, toothpaste and other personal-care products from containing the traditional plastic or bioplastic beads as of July 1, 2017. The law also prohibits the sale of products containing microbeads as of July 1, 2019.
Nine states have already passed microbead laws but the new federal ban is stricter — and a welcome standard, according to the American Chemistry Council, which called the law a “sensible, national standard to phase out solid-plastic microbeads from rinse-off personal care products across America.”
In a statement, the trade organization said: “We commend leaders in Congress and the president for working together on the Microbead-Free Waters Act of 2015. This new law reflects national product stewardship efforts by the personal care industry to phase out the use of solid plastic microbeads used in personal care exfoliating products.”
In 2013, a study by environmental group 5 Gyres found microbeads — likely from personal-care products — are polluting the Great Lakes. The nonprofit presented this evidence to Procter & Gamble, Johnson & Johnson, L’Oreal, The Body Shop, Colgate-Palmolive and Unilever, prompting the brands to phase out the use of these tiny plastic beads.
Other companies follow suit such as Adidas, which pledged to end the use of plastic microbeads across all its body care products by Dec. 31, 2015.
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(ACC Mentioned) For More Than 50 Years, DuPont Concealed the Cancer-Causing Properties of Teflon
Jan 4, 2016 | Alternet
By Sharon Kelly
Almost two decades ago, Carla Bartlett, a then 41-year -old West Virginia secretary and mother of two, was first diagnosed with cancer – what her surgeon later labeled a “garden variety” type of kidney cancer.
“I was scared to death,” Bartlett, now 59, told an Ohio federal jury this fall during hearings in the first of more than 3,500 personal injury and wrongful death suits by West Virginia and Ohio residents against the chemical giant DuPont. “And all I could think of was not being there, not being able to be there for my family.” Bartlett’s tumor and part of her rib were removed in a surgery in 1997 that, she said, involved cutting her “virtually in half.” Though the cancer hasn’t recurred since, for Bartlett, the harm, both physical and emotional, has lingered. “It’s never out of my mind, because you worry constantly about it,” she said. “And then I have the reminder of the scar, every day, that, you know, this… this is… this was cancer; this could come back.”
On October 7, after less than a day of deliberations, the jury found DuPont liable for Bartlett’s cancer, agreeing with the defendant that the company had for years negligently contaminated her drinking water supply in Tuppers Plain, Ohio with a toxic chemical formerly used to make its signature brand of nonstick coating: Teflon.
What makes the verdict remarkable is that unlike, say, mesothelioma – a form of lung cancer almost exclusively linked to asbestos exposure – the renal cell carcinoma that struck Bartlett is not usually considered the calling card of a specific carcinogen. So it was difficult for her doctors to definitively say what had first made Bartlett sick – it could have been virtually anything. The $1.6 million the jury awarded to Bartlett – the product of decades’ worth of legal battles that unearthed reams of secret DuPont studies and internal emails – came despite the extreme difficulty of connecting common ailments to a specific chemical under the current United States legal system.
Proving that DuPont was legally culpable for Bartlett’s kidney cancer required years of extraordinarily innovative lawyering – and at times some plain dumb luck. The very improbability of that verdict demonstrates much that is flawed about the way this country regulates potentially dangerous chemicals. With no mandatory safety testing for the vast majority of the tens of thousands of chemicals used daily in America, doctors and public health officials have little information to guide them as they seek to identify potential health hazards – including the chemical, called C8, that DuPont knowingly allowed to pollute Bartlett’s drinking water. Bartlett’s travails are also a cautionary tale about C8, which has become so pervasive today that it’s found in virtually every American’s blood.
“Part of a diagnosis is: Well, tell me what you’ve been around,” one of Bartlett’s attorneys, Mike Papantonio, told the jury in opening arguments in the case. “Well, I drank my water. That doesn’t sound like a problem. It was a problem”
Teflon was first created, as many miracle chemicals were, in a laboratory accident. In 1938, Roy J. Plunkett, a DuPont chemist, was experimenting with refrigerants when he discovered a white waxy material that seemed very slippery. The material turned out to be an inert fluorocarbon – Polytetrafluoroethylene (PTFE) – that had superior nonstick properties. In 1945, the company patented the chemical and registered it under the trademark “Teflon,” touting it as “the most slippery material in existence.” By 1948 DuPont was producing about 2 million pounds of Teflon a year at its Washington Works plant in Parkersburg, West Virginia. For DuPont, Teflon, which was used to coat pots and pans, proved to be a gold mine, with sales peaking at roughly a billion dollars a year in 2004, according to the company’s SEC filings.
Starting around 1951, DuPont began using another laboratory-formed chemical known as Perfluorooctanoic (PFOA) acid, or C8 (so called because it contains eight carbon molecules), to smooth out the lumpiness of freshly manufactured Teflon. An unusually durable chemical, C8 first entered the world in 1947 and due to its nonstick and stain-resistant properties its use as a “surfactant” spread with extraordinary speed. The white, powdery compound, often said to look like Tide laundry detergent, would ultimately be used in hundreds of products including fast food wrappers, waterproof clothing, electrical cables, and pizza boxes. (DuPont used to purchase C8 from another chemical company called 3M until 2002, when the company phased it out. DuPont then started manufacturing C8 on its own at a factory in Fayetteville, North Carolina.)
The trouble was that the compound – which has since been linked to a variety of health risks including cancer, liver disease, developmental problems, and thyroid disease – escapes into the air easily. In fact, C8 was often shipped to factories pre-mixed with water to keep the dust from worker’s lungs.
Because it’s an extremely stable chemical, C8 does not biodegrade. Instead, it bioaccumulates, building up in people’s blood over time if they continue to drink water or breathe air laced with the substance. Due to its ubiquitous use, the chemical can now be found in trace amounts in the bloodstream of more than 98 percent of Americans, and even in umbilical cord blood and breast milk, according to the Centers for Disease Control. It’s also been found in the blood of seals, eagles, and dolphins around the world, including in animals living in a remote wildlife refuge in the middle of the North Pacific. The chemical is expected to stay in the environment for thousands of years.
Concerns about the hazards posed by Teflon and C8 began to garner public attention only about 15 years ago. By 2003, DuPont had dispersed almost 2.5 million pounds of C8 from its Washington Works plant into the mid-Ohio River Valley area, according to a peer-reviewed study. The company’s most egregious disposal practices occurred before US environmental laws were first written in the 1970s and included burying toxic waste in drums along the banks of the Ohio River and dropping barrels of it out into the open ocean (where it once caused a scandal when a local fisherman dredged a barrel up in his nets), and, in more recent decades, burying it in local “non-hazardous” landfills.
Now, information emerging from millions of pages of internal company reports reveals that several DuPont scientists and senior staff members had for many years either known, or at least suspected, that C8 was harmful. Yet DuPont continued to use the chemical, putting its own workers, local residents, and the American public at risk.
The documents show that signs of C8’s toxicity began to emerge very quickly as DuPont scaled up its Teflon production in the 1950s. The company funds its own safety-testing laboratory – the Haskell Laboratory of Industrial Toxicology – in part to screen workers for signs of illnesses that might be tied to DuPont products. In 1961, company lab tests linked C8 exposure to enlarged livers in rats and rabbits. DuPont scientists then conducted tests on humans, asking a group of volunteers to smoke cigarettes laced with C8. “Nine out of ten people in the highest-dosed group were noticeably ill for an average of nine hours with flu-like symptoms that included chills, backache, fever, and coughing,” the researchers noted.
“Concerns about the potential toxicity of C8 had been raised internally within DuPont by at least 1954, leading DuPont’s own researchers to conclude by at least 1961 that C8 was toxic and, according to DuPont’s own Toxicology Section Chief, should be ‘handled with extreme care,’” Bartlett’s February 2013 suit against DuPont alleged.
But it wasn’t until the 1970s that DuPont’s researchers began to understand that C8 was building up in the bloodstreams of workers, and soon after, they began to see troubling signs that the chemical could pose serious health risks. The stakes were high: The Washington Works plant where Teflon is manufactured was one of the biggest employers in the region. The plant currently employs more than 2,000 people – 3,000 if you include sub-contractors – in a sparsely populated Appalachian community alongside the Ohio River separating West Virginia from Ohio.
In 1981, the company ordered all female employees out of the Teflon division after two out of seven pregnant workers gave birth to children with birth defects. One of those children, Bucky Bailey, was born with just one nostril and other facial deformities that required many painful surgeries to fix.
“I’ve never, ever felt normal. You can’t feel normal when you walk outside and every single person looks at you. And it’s not that look of He’s famous or He’s rich,” he told ABC News in 2003. “It’s that look of He’s different. You can see it in their eyes.”
In 1984, DuPont began to secretively collect local tap water, asking employees to bring in jugs of water from their own homes, schools, and local businesses, and discovered that C8 was making its way into public drinking water supplies in both Ohio and West Virginia at potentially dangerous levels. Minutes recorded at a meeting at DuPont’s corporate headquarters in Delaware that year suggest a high level of concern regarding how this could affect the company’s image and bottom line. “Legal and medical will likely take the position of total elimination,” notes from the meeting read. The company executives present, however, concluded the available methods for cutting pollution were not “economically attractive.”
In the years following that meeting, instead of slashing its use of C8, DuPont escalated production, while keeping much of what it knew about the chemical’s dangers secret. The company’s Washington Works factory continued with its usual practice of dumping C8-laden sludge in unlined landfills, allowing it to enter the Ohio River, and pumping out C8-laced vapors from its smokestacks.
None of this would have come to light had it not been for a West Virginia cattle rancher named Wilbur Tennant who, along with four other members of his family, sued DuPont in 1998 claiming he had lost hundreds of head of cattle because of pollution from a landfill next to his farm. DuPont had purchased the patch of land, which included a creek that ran directly into the Ohio River, from Tennant in the 1980s, telling him that it would be used as a non-hazardous landfill.
But soon after the landfill got underway, the creek started to turn black and smelly. Sometimes there would be a layer of foam on the water. Within a few years, about 280 of Tennant’s cattle, which drank water from the creek, had died. When the Tennants cut open a cow to investigate the cause of its death, they discovered that its internal organs had turned bright, neon green, video footage recorded by the rancher shows. Tennant and his family members, too, suffered breathing difficulties and cancers.
Tennant’s attorney, Robert Bilott, forced DuPont to turn over tens of thousands of pages of internal company documents as part of the legal process. Buried in those materials was a single mention of a chemical Bilott had never heard of before: PFOA (C8). The chemical sounded similar to another one, called PFOS, which had just been pulled off the market by its maker 3M (which, if you recall, supplied C8 to DuPont for decades). So Bilott made another request to DuPont. This time he asked the company to turn over all documents related to C8.
“I did not immediately recognize the significance [of C8],” Bilott told Earth Island Journal, “but we came to.”
The trove of documents ultimately uncovered during the ensuing legal battles offered up incriminating evidence about the company’s decades-long cover-up. In addition to research findings, copies of internal emails and documents included in this cache were especially illuminating. One 2001 email describes a scientist warning that when airborne, C8 is so hard to deal with that “it might require the public to wear ‘gas masks.’”
Another, by DuPont’s in-house counsel, Bernard Reilly, shows that company officials planned to push regulators to allow the public to be exposed to higher levels of the chemical than DuPont itself had recommended. In an October 2001 email to his son, Reilly wrote:
“So far DuPont has been saying there are safe levels, we need to have an independent agency agree, we are hoping that it will agree to higher levels than we have been saying. If for no other reason than we are exceeding the levels we say we set as our own guideline, mostly because no one bothered to do air monitoring until now, and our water test has been completely inadequate.”
Reilly’s personal emails, written mostly to family members between late 1999 and mid-2001 using his work email address, give an unfiltered insight into the company’s legal efforts to cover up C8’s risks. In one August 2000 email he writes: “The shit is about to hit the fan in WV. The lawyer for the farmer finally realizes the surfactant issue. He is threatening to go to the press to embarrass us to pressure us to settle for big bucks. Fuck him.”
This information not only helped the Tennant case – which DuPont settled in 2001 for an undisclosed amount – it would eventually lead to one of the most significant class-action lawsuits in the history of environmental law (which culminated in the landmark October ruling in Carla Bartlett’s case). Sadly, Tennant didn’t live to see the ripple effect of his lawsuit. He died of cancer in 2009 at age 67.
By 2001, while still working on the Tennant case, Bilott came to realize that the C8 contamination wasn’t isolated to the Tennant property, but extended across a large swath of the mid-Ohio River Valley. The chemical had seeped into the water supply of at least six public water systems in West Virginia and Ohio. That year, Bilott filed a class action lawsuit against DuPont, Leach, et al. v E.I. du Pont de Nemours and Co., on behalf of about 80,000 people in the six water districts. He also reported his findings to the US Environmental Protection Agency and sent along copies of some 900 pages of DuPont’s internal documents, after which the agency launched a “priority review” of C8.
In 2004 the US EPA, too, filed a lawsuit against DuPont, charging it with concealing evidence about C8’s risks for more than two decades. In 2005 the company agreed to pay $16.5 million as part of a settlement agreement with the EPA – the largest civil penalty ever in the agency’s history. But environmental groups argue that the fine was little more than a slap on the wrist to a company where a single division sold more than that amount in a single day.
“Under the terms of the settlement, the company wasn’t even obliged to pull C8 from the market… the best the agency could negotiate was a voluntary phase-out by 2015,” the watchdog organization Environmental Working Group says in its May 2015 report “Poisoned Legacy.”
The same year, DuPont settled the class-action suit filed by Bilott’s firm for over $100 million – plus another $235 million if research funded by the settlement turned up evidence that people might be getting sick. Under the settlement, DuPont promised to install filtration systems in contaminated water districts and put $70 million into a community health and education project. And, in a rather unusual move, the company also agreed to fund a multimillion dollar health study, overseen by independent, court-appointed scientists, to determine whether exposure to C8 had actually harmed people. Moreover, DuPont agreed that if the study did prove that the C8 had caused certain diseases, those who suffered from diseases connected to C8 would be entitled to sue individually for personal injury.
It’s not quite clear why DuPont agreed to the independent study. Perhaps it was the knowledge that most medical monitoring programs fail to attract enough participants, which usually makes it almost impossible to draw reliable inferences about disease clusters. But in this case, nearly 80 percent of the surrounding community in West Virginia and Ohio showed up at makeshift medical clinics in trailers around the region to have their blood drawn and a health care questionnaire completed. Community members were, more often than not, drawn by the $400 checks (pulled from the DuPont settlement) that the enterprising team of medical researchers offered to each man, woman, and child who participated.
“We have families of five dragging their three kids kicking and screaming, and the parents are saying, ‘Yes, you’re going to get stuck in the arms – that’s $2,000!’” one local resident told The Huffington Post.
The C8 science panel, which took seven years to complete its research, ultimately linked C8 exposure to six diseases: ulcerative colitis; pregnancy-induced hypertension; high cholesterol; thyroid disease; testicular cancer; and kidney cancer. The panel’s findings, published in several peer-reviewed journals, were remarkable because they proved that the chemical pretty much affected the entire body, even at low exposure levels. The researchers concluded that C8 posed health threats at just 0.05 parts per billion in drinking water for people who drank that water for a single year. They found that the average C8 level in blood samples from the mid-Ohio Valley was 83 parts per billion. The average C8 level for those living closest to the plant – whose drinking water came from Ohio’s Little Hocking water district – was more than 224 parts per billion compared to 4 parts per billion for average Americans.
Once the connection between C8 exposure and the diseases was established, more than 3,500 Ohio Valley residents, including Carla Bartlett, filed personal injury cases against DuPont. Bartlett’s case was the first to go on trial this past September. The court’s verdict in her favor might just set the tone for the rest of cases that will come to trial.
Still, there are many who feel the company will keep trying to wriggle its way out of its responsibilities. (During Bartlett’s trial, for instance, DuPont attorneys argued that her cancer was triggered by her obesity rather than C8, even though, as per terms of the class action suit settlement, DuPont isn’t permitted to dispute the fact that C8 can cause the kind of cancer she endured.)
“I’ve been at it 16 years, if that tells you anything,” Joe Kiger, a local gym teacher and lead plaintiff in the original 2005 class action suit, told the Journal. “When this all started, I did not think it would get out of hand like it has, but we kept finding out more and more of what DuPont did, what the cover-ups were, them knowing full well that this stuff was toxic.” Kiger – who suffers from numerous kidney and liver problems and and had to have surgery following a heart attack in May – is a member of Keep Your Promises DuPont, a community-based organization working to hold the company accountable for its actions. “Our biggest faith and trust we have is in our utilities,” he said. “We flip that light switch on, we expect it to come on. We don’t think anything about it. You turn on your tap to get water, you expect that water to be clean and not have all these chemicals in it. I think now, people are starting to find out that someone has lied to them.”
To understand how C8 managed to remain in use for so long requires a look back at the history of chemical regulation in the US, and the role that DuPont itself played in crafting those laws.
Since the early 1970s, pressure had been growing to regulate the rising use of chemicals in almost every aspect of post-World War II American life. And few companies were as responsible for – or as dependent on – that expansion as DuPont.
In 1930, DuPont created Freon, making mass-market refrigerators and air conditioners possible for the first time. In 1935, a DuPont scientist invented nylon, a synthetic fiber that proved invaluable during World War II. Cellophane, Mylar, Tyvek, Rayon, Lycra – household names to this day – were all developed by DuPont in the past century. The company also made artificial fertilizers, fungicides, pesticides, plastics, and paints. “We have been proud to publicize the fact that more than 60 percent of our sales in 1950 resulted from products that were unknown, or at least were only laboratory curiosities, as recently as 1930,” a DuPont rep told a group of financiers in 1955. But as thousands of new chemical innovations entered the daily lives of Americans, pressure was also rising to find out what health risks many of them posed.
One of the first acts of the White House Council on Environmental Quality, after it was established in 1969, was to highlight the need for federal chemical controls – a system that would let regulators figure out which substances could pose public health risks before people got sick. “The Council’s study indicates the high-priority need for a program of testing and control of toxic substances,” it said as it released a 1971 report calling for new chemical rules. “We should no longer be limited to repairing damage after it has been done; nor should we continue to allow the entire environment to be used as a laboratory.”
For several years, the Manufacturing Chemists Association, an industry trade group that counted DuPont as a core member (known as the American Chemistry Council today), managed to block any attempt to regulate the industry. But as a growing list of chemicals like PCBs, asbestos, and vinyl chloride began to be linked to illness, so did the demand to regulate them. Foreseeing the inevitable, many chemical companies decided that it would be better to be involved in the drafting process than to risk the type of bans that barred the use of the notorious pesticide DDT in 1972.
DuPont had a key seat at that drafting table.
Robert C. Eckhardt, a progressive Texas politician from a north Houston district packed with chemical and oil companies, is often described as the chief craftsman of the legislation that came out of this drafting process – the Toxic Substances Control Act (TSCA), which even today is the primary law regulating chemicals used in the US. First elected in 1966, Congressman Eckhardt was known for riding a bicycle to work at the Capitol – carrying his legislative files in a whisky case strapped to his bike – a habit that put him far ahead of the curve as an environmentalist and gained him support from early conservationists, especially after the 1970s’ energy crisis. During his career in DC, which ended in 1980, the Democratic congressman championed civil rights, fought to tax oil and gas companies, and helped ensure that core environmental statutes like the Clean Air Act and Superfund laws passed.
TSCA, as it stands today, was the product of an unlikely collaboration between the iconoclastic Eckhardt and DuPont.
Early meetings between Eckhardt and DuPont had gone so badly that Eckhardt stormed out of the room during a March 1976 negotiation. But as a draft chemical control bill passed the Senate, DuPont reluctantly returned to the table. One of the biggest sticking points was whether safety tests should be required before companies were allowed to put new chemicals on the market – an effort that the industry successfully blocked. “No mandatory testing was a huge compromise,” Rena Steinzor, University of Maryland School of Law professor and president of the Center for Progressive Reform, told the Journal.
The bill that “Bicycle Bob” Eckhardt ultimately produced was so packed with compromises that some of his early supporters opposed the law’s final version. “I mean, it was [called] the Heckert-Eckhardtbill,” Steven D. Jellinek, the EPA’s first-ever assistant administrator for toxic substances, told the Chemical Heritage Foundation’s Oral History Project, referring to Richard Heckert, then a DuPont vice-president and the chair of the Manufacturing Chemists Association. “It was written by industry.”
Eckhardt’s good intentions might have been undermined by the fact that he was on the Senate Commerce Committee rather than the Environment and Public Works Committee. “The Senate Environment and Public Works Committee was composed of people who believed in the EPA’s mission and knew a great deal about it,” Steinzor says. “The Senate Commerce Committee, like its name, was focused on other concerns and not knowledgeable about toxic chemicals.”
Under the toothless TSCA law that DuPont helped write, industrial chemicals – unlike pharmaceuticals or pesticides – do not have to be tested before they are put on the market. The law does require that the EPA keep a current list of all chemicals used commercially in the US, but it does not require that the chemicals be tested for environmental or human health impacts. Additionally, TSCA allows manufacturers to claim some information, including the chemical’s identity, as a trade secret.
Though the law also requires manufacturers give the EPA some information necessary to assess a new chemical’s safety, roughly 60,000 chemicals that were in use at the time TSCA was enacted were exempted from this rule. These chemicals include bisphenol A (BPA), formaldehyde and several flame retardants – all of which have since been found to present significant risks to human health and the environment. Today, there are more than 85,000 industrial chemicals in commercial use in the US – roughly 2,000 new chemicals are introduced every year in the US – but federal regulators have so far required only a tiny percentage of these to undergo any safety testing. You can literally count on one hand the number of chemicals that EPA has banned or widely restricted under TSCA: asbestos, PCBs, dioxin, CFCs, and hexavalent chromium (made famous in the movie Erin Brockovich). That’s only five chemicals in nearly 40 years.
“In many ways, C8 is a poster child for the failures of US toxic chemical law,” says Bill Walker, one of the authors of the Environmental Working Group (EWG) report on C8. “Between 3M and DuPont you have a increasingly damning cover-up. And yet the law is so toothless that neither company was really concerned about being caught by the EPA.”
The lack of safety testing helps explain why, back in 1998 when the Tennants first contacted Bilott, virtually no one outside of DuPont and 3M – not EPA field inspectors, OSHA chemists, or state environmental testing laboratories – had ever heard of C8. The two companies essentially had a monopoly on information relating to this chemical. DuPont used that monopoly to illegally cover up its own research that showed that C8 was making its workers ill.
“But for the lawsuit, it is very likely that the EPA would be completely unaware of this chemical as well its toxicological profile,” says Ned McWilliams, another plaintiff’s attorney. “This lawsuit quite literally blew the whistle on this still unregulated chemical.”
DuPont, unsurprisingly, plans to appeal the court’s verdict. “The knowledge base around [C8], its environmental footprint, and its health profile has evolved,” company spokesperson Dan Turner told the Journal. “Over the same period, the chemical industry and its regulators have also learned a great deal about how to operate more safely, sustainably and to reduce emissions.” The company has, in the meantime, spun off its Teflon-related operations into another company, called Chemours, in a move that could limit the amount of compensation that plaintiffs can recover.
Over the past few years, DuPont, 3M, and other chemical firms have begun marketing C8-free Teflon, and recent studies show that the levels of C8 in most people’s blood are dropping. Unfortunately, the new chemicals that have replaced C8 are also raising concerns. “These next generation PFCs [perfluorinated chemicals] are used in greaseproof food wrappers, waterproof clothing and other products,” the EWG’s “Poisoned Legacy” report says. “Few have been tested for safety, and the names, composition and health effects of most are hidden as trade secrets.”
On a positive note, efforts to strengthen TSCA, which is the only major environmental law that has not been updated since it was first enacted, have gained steam in recent months. This fall, Congress was on the verge of passing TSCA reform measures. The House and the Senate introduced separate TSCA reform bills this year and while the House passed its bill (HR 2576) in June, and the Senate was yet vote on its bill (S 697) as this story went to press. Reforms proposed by these bills include speeding up the pace of the EPA’s chemical assessments, changing how the agency prioritizes chemicals for safety review, and amending TSCA’s definition of chemicals that may pose an “unreasonable risk” of harmful exposure.
Still, critics say these efforts fall short of what’s needed and may be at risk of repeating the errors of the past.
“Neither bill provides the EPA with the resources to act quickly enough on reviewing and regulating the use of chemicals that can cause cancer and other serious health problems,” Scott Faber, the Environmental Working Group’s senior vice-president for government affairs told the Journal. “Neither clears away the legal hurdles that prevent the EPA from banning chemicals like asbestos, which we already know are dangerous.” Faber is also concerned that the reforms might interfere with regulatory laws introduced by states and other local governments to make up for the lack of effective federal oversight of chemicals. (There are about 172 individual laws regulating chemicals in 35 US states, and another 100 or so similar bills have been under consideration in 28 states this year.)
In the end, it all comes down to the need for a strong political push that can override industry influence and introduce laws to regulate chemicals before they cause the kind of harm that C8 has wreaked. The history of C8, still unfolding, offers many lessons for those battles.
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(ACC Mentioned) "Styrofoam" Bans Expand As Plastic Falls Out Of Favor
Jan 4, 2016 | Market Place
By Amy Scott
New bans on polystyrene foam food containers took effect in the District of Columbia, Montgomery County, Maryland and even the South American nation Guyana on the first of January. Plastic foam cups and clamshells have been falling further out of favor since the city of Berkeley, California, outlawed them in the late 1980s. Last year the New York Supreme Court overturned New York City’s ban, but restaurants in Seattle, San Francisco and Miami Beach are among those free of the containers.
The original Styrofoam was patented by Dow Chemical in 1944, and by the 1950s was widely used to insulate buildings, float life rafts and even make Christmas ornaments. But what we think of as Styrofoam cups and takeout containers are actually made from a similar material called expanded polystyrene.
“We’ve just sort of latched onto the name Styrofoam and applied it to cups and plates and cafeteria lunchboxes and whatever else, but they’re not technically Styrofoam,” said Douglas McCauley, a marine scientist at the University of California, Santa Barbara.
That container we use for a few minutes and discard, he said, sits in landfills for hundreds of years, or ends up in rivers and oceans, where it acts as a sponge for toxic chemicals and is often mistaken for food by fish and sea turtles. Recycling it is too expensive, he said.
“It’s technically feasible, but it is not economically rational to do that,” McCauley said.
Juan Amaya was working the counter at Don Juan Restaurant in Washington, D.C., on the day the ban took effect. He says the Central American restaurant switched to brown biodegradable containers for its takeout pupusas and fried plantains.
“We actually started doing a smooth transition before the effect came in, so everybody could get used to it,” he said.
The American Chemistry Council, which represents plastics manufacturers, has said those alternatives can be two to five times pricier, but some companies have found it more expensive not to switch. After pressure from customers, big chains like McDonald’s and Jamba Juice recently ditched polystyrene cups in favor of paper.
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Synthetic Turf Industry Lobbies Up In Safety Fight
Jan 4, 2016 | The Hill - Regulation
By Timothy Cama
The synthetic turf industry is retaining lobbyists to defend against allegations that some of its materials could be toxic.
In a registration filed days before New Year’s, lobbying firm Clark Hill said it is representing the Synthetic Turf Council in order to meet with lawmakers “to discuss potential congressional action relating to crumb rubber infill in synthetic turf products.”The filing comes after an investigation by NBC News into the rubber material, an essential component of artificial sports fields made by companies such as AstroTurf and FieldTurf.
The reports found a number of young athletes who contracted cancer that they and some environmental advocates say is linked to the rubber infill, which is frequently made from recycled vehicle tires.
The controversy has attracted the bipartisan attention of the House Energy and Commerce Committee, as well as the Environmental Protection Agency (EPA).
The Synthetic Turf Council did not respond to a request for comment, but it has said publicly that research has consistently shown, through more than 50 studies, no health risks from the chemicals in turf infill.
“In each case, study results have shown no elevated health risks associated with synthetic turf or its components,” the group said after the NBC reports.
Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and ranking member Frank Pallone (D-N.J.) wrote to the EPA in October to evaluate where the agency’s scientific work stands in terms of turf infill, and asking whether the EPA’s last study on the matter, finished in 2009, needs updating.
“These stories and others raise questions among athletes and parents that crumb rubber on artificial turf athletic fields may present a pathway to exposure to one or more carcinogens,” they wrote.
The EPA responded in late December that, although the current body of research shows no such risk, the studies “have various limitations and do not comprehensively address concerns about children’s health risks from exposures to tire crumb.”
The agency said it is working with California officials on a comprehensive evaluation on tire crumb.
The EPA has authority over the matter under the Toxic Substances Control Act. In its letter, it did not say that it plans to ban or restrict use of recycled tire crumb.
More than 12,000 athletic fields use turf in North America, including at high schools, colleges, municipal parks and the stadiums of 13 NFL teams, according to the industry group.
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US EPA Will Not Regulate Four Water Contaminants
Jan 5, 2016 | Chemical Watch
The US EPA has made a final determination not to regulate four substances listed on the Third Drinking Water Contaminant Candidate List (CCL).
These are: dimethoate;
1,3-dinitrobenzene;
terbufos;
andterbufos sulfone.
It has also delayed making a final determination on regulating strontium. This is to allow the EPA “to consider additional data and decide whether there is a meaningful opportunity for health risk reduction by regulating strontium in drinking water”.
The Safe Drinking Water Act (SDWA) requires the EPA to determine whether to regulate at least five unregulated substances every five years from its candidate list of 116 contaminants.
It received 14 comments to its 20 October 2014 Federal Register notice on this preliminary determination (CW 21 October 2014).
No objections were raised on its intention not to regulate the four substances.
Some commenters supported the agency's proposed regulation of strontium, while others “questioned whether enough water systems show strontium at levels and frequency of concern that a meaningful reduction in health risk can be achieved through a national regulation”.
Before making a final regulatory determination, the EPA will review additional data and analyses of strontium that were completed after the issue of the preliminary determination.
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US CPSC Delays Textile Testing Rule Effective Date
Jan 5, 2016 | Chemical Watch
The US Consumer Products Safety Commission (CPSC) has reopened the comment period, and delayed the effective date, of a direct final rule clarifying testing requirements for textiles and components used in children's products (CW 21 October 2015).
The agency has extended to 13 January 2016 the opportunity to submit comments. This is because a previous notice incorrectly stated the deadline.
Unless the agency receives any significant adverse comment, the direct final rule will take effect on 12 February 2016.
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Osha Convenes Beryllium Occupational Exposure Hearing
Jan 5, 2016 | Chemical Watch
The US Occupational Safety and Health Administration (Osha) has called an informal public hearing on its proposal to reduce the permissible exposure limit (Pel) for beryllium and its compounds (CW 7 August 2015).
The hearing will take place on 29 February.
The proposed rule, issued in August, would reduce the current time-weighted average (TWA) Pel for general industry of two micrograms per cubic meter of air (μg/m³) to 0.2μg/m³.
Since 2012 the United Steelworkers (USW) union, representing workers exposed to beryllium, and Materion Brush, the only US supplier of pure beryllium metals, have advocated that Osha adopts the more stringent 0.2μg/m³ Pel.
A joint letter in November urged Osha to promptly "adopt a final standard which protects workers exposed to beryllium”.
However, the Non-Ferrous Founders' Society (NFFS) said in a November comment letter “there is strong disagreement, particularly within the EU, regarding the causative relationship between prolonged or repeated exposure to beryllium and the occurrence of bronchial cancer.”
The trade group – representing almost 2,000 companies that produce castings from a variety of materials and alloys – requested Osha convene an informal public hearing.
Interested persons wishing to testify or question witnesses must submit a notice of intent to the agency by 29 January.
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FERC Finds Minimal Impact for Mexico-U.S. Pipeline
Jan 5, 2016 | BNA Daily Environment Report
By Nushin Huq
The Presidio Border Crossing Project, a proposed natural gas pipeline project between Texas and Mexico, will have minimal environmental impact, federal regulators said in an environmental assessment released Jan. 4.
The staff of the Federal Energy Regulatory Commission recommended that FERC issue an order finding no significant impact, the environmental assessment said. The assessment also included about a dozen recommendations to be included in the final order, including a requirement for the company to revise its directional drilling contingency plan.
FERC staff looked at the environmental effects of construction and operation of the project on various items, such as geology, soil, groundwater and wetlands, vegetation, fisheries and wildlife. Staff concluded that environmental impacts would be minimal.
Comments on the environmental assessment are due to the FERC by Feb. 3, 2016.
The pipeline, owned by Trans-Pecos Pipeline LLC, would transport natural gas from a hub on the pipeline grid in West Texas near the Waha storage hub in Pecos County into Manuel Ojinaga, Chihuahua, Mexico. The facilities would have a design capacity of approximately 1.3 billion cubic feet per day and would cost about $3.6 million .
Trans-Pecos Pipeline LLC, owned by Energy Transfer Partners, asked FERC to approve the pipeline project by Nov. 1 to allow construction to commence in the first quarter of 2016 (FERC docket CP15-500). The natural gas would primarily be used to fuel natural gas-fired electric generation plants and supply industrial customers in northern Mexico, the project application said.
Environmentalists' Concerns
Environmentalists voiced concern over the intrastate portion of the project, which will be built in the Big Bend region of Texas. Comments, including those filed by local lawmakers and environmental groups, addressed the ecological uniqueness of the region, which includes Big Bend National Park and Davis Mountain State Park.
In its environmental assessment, FERC focused on the portion of the project that would cross the Texas-Mexico border. The portions of the pipeline in Texas and in Mexico are not under FERC authority. Some stakeholders in Texas had argued that approval for the entire U.S. portion of the project should have been filed with FERC believing federal authorities would be more stringent than the Texas Railroad Commission, the Texas regulator of pipelines. FERC declined to assume jurisdiction of intrastate pipeline facilities, the environmental assessment said.
Other stakeholders requested that FERC staff conduct a full Environmental Impact Study rather than an environmental assessment, but FERC staff disagreed.
“Based on our analysis and considering that the FERC jurisdictional Project would involve limited facilities (approximately 1,093 feet of pipeline), we conclude that the limited impacts associated with this Project would support a finding of no significant impact and, thus, an EA is warranted,” the Environmental Assessment said.
Change in Contingency Plan
FERC staff did ask that Trans-Pecos revise its directional drilling contingency plan. The plan contains measures the company would take in case there is a release into the Rio Grande River.
FERC staff recommended that the plan be revised to include measures that would be used to collect and dispose of drilling mud released into the Rio Grande River. Under the current plan, the company would notify FERC, the Army Corps of Engineers and the Fish and Wildlife Service. FERC staff also requested that the International Boundary and Water Commission also be notified.
In addition to FERC's permit, the project is still awaiting approval of various permits and licenses from other federal and state agencies. These include the Army Corps of Engineers, the International Boundary and Water Commission, the Environmental Protection Agency, the National Park Service Big Bend National Park, the Texas Commission on Environmental Quality and the Texas Railroad Commission.
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Exxon Mobil Prevails in Pipeline Radiation Appeal
Jan 5, 2016 | BNA Daily Environment Report
By Steven M. Sellers
Multiple lawsuits alleging injuries caused by pipe-cleaning activities in Louisiana's oil fields will stay in federal court—at least for now, a federal court has ruled (Robertson v. Exxon Mobil Corp., 2015 BL 436340, 5th Cir., No. 15-30920, 12/31/15).
The Dec. 31 decision by the U.S. Court of Appeals for the Fifth Circuit reverses a September remand by the U.S. District Court for the Eastern District of Louisiana that sent 189 suits back to Louisiana state courts.
The district court ruled the litigation didn't satisfy a jurisdictional requirement of the Class Action Fairness Act (28 U.S.C. §1332(d)) that at least one plaintiff demonstrate $75,000 or more in controversy.
Reversing, the appellate court said “common sense” dictates the cancer claims of some plaintiffs would exceed that threshold.
The three-judge panel's unanimous decision doesn't fully resolve the contours of CAFA jurisdiction in the cases, a lawyer for the plaintiffs told Bloomberg BNA Jan. 4.
Provided Eight Options to Remand
“We presented the district court with eight options to remand,” said Michael Laborde of Jacobs, Sarrat, Lovelace & Harris in New Orleans, who argued the appeal on behalf of Joseph Robertson and other plaintiffs.
“It chose the first option, and the Fifth Circuit reversed only on that ground,” Laborde said.
Laborde also said jurisdictional questions—such as CAFA's burden of proof requirements—remain in play in the cases and haven't been fully addressed by the Fifth Circuit.
Martin Stern, of Adams & Reese in New Orleans, who argued the appeal for Exxon Mobil Corp. and landowner defendants Joseph and Camille Grefer, told Bloomberg BNA Jan. 4 he agreed with the court's decision.
“Importantly, Congress provided parties the right to seek immediate appeal of remand decisions under the Class Action Fairness Act to clarify a relatively new area of law,” Stern said in an e-mail.
“This opinion does so with respect to what is required to establish the requisite amount in controversy under CAFA, and we look forward to pursuing the case in federal court,” Stern added.
Plaintiffs in the cases allege their illnesses stem from radiation released from pipe-cleaning activities that occurred in the oil fields from 1958 to 1992.
Radiation From Pipe Cleaning Alleged
The complaints allege pipe cleaning activities by oil companies and contractors in Harvey, La.—where scale was removed from pipes used in drilling operations—produced airborne radioactive materials that settled into surrounding soil and groundwater, causing physical illnesses and financial harm.
The litigation was filed in Louisiana state court, but Exxon Mobil and other defendants removed the cases to federal court as a CAFA “mass action.”
The plaintiffs moved to remand the cases to state court, arguing that the defendants hadn't shown that any plaintiff met CAFA's $75,000 amount-in-controversy, and the district court agreed.
Exxon Mobil and the Grefers, who owned property where the pipe cleaning occurred, appealed.
CAFA and ‘Common Sense.'
Louisiana law prohibits allegations of an amount in controversy, so the question is whether the preponderance of the evidence proves CAFA's monetary standard is met, the court said in reversing the remand order.
Here, one plaintiff alleged she suffered from emphysema and that her husband died of lung cancer, and another plaintiff alleged he developed prostate cancer, making it “more likely than not that these plaintiffs seek to recover more than $75,000,” the court said.
A removing party's burden of proving the amount in controversy “does not mean that the removing party cannot ask the court to make common-sense inferences about the amount put at stake by the injuries the plaintiffs claim,” the court said
The decision left open whether CAFA requires only that one plaintiff satisfy the individual jurisdictional amount—or that at least 100 plaintiffs in such an action must meet the individual threshold, citing an Eleventh Circuit decision (Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007).
In Lowery, the Eleventh Circuit rejected the notion that CAFA's individual amount-in-controversy element required monetary proof for at least 100 plaintiffs.
Agrees With Eleventh Circuit's Ruling
“We have no reason to question the Eleventh Circuit's sound reasoning here because the district court decided only that defendants had not shown that any plaintiff's claim exceeds $75,000 and plaintiffs have not briefed any argument for a greater threshold requirement,” the court said.
Judge Stephen A. Higginson wrote the opinion, joined by Judges James E. Graves Jr. and Gregg Jeffrey Costa.
The law offices of Jacobs, Sarrat, Lovelace & Harris represented Joseph Robertson and other plaintiffs in the appeal.
Adams & Reese represented Exxon Mobil Corp. and Mobil Exploration & Producing U.S. Inc. Jones, Swanson, Huddell & Garrison, who represented Joseph F. Grefer and Camille Grefer, was also on the brief.
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Power Plants Threatened as Water Supplies Dry Up
Jan 5, 2016 | BNA Daily Environment Report
By Alex Nussbaum
More than two-thirds of the world's power plants may have trouble running at full capacity as the warming climate affects water supplies, according to a new study.
Reduced streamflows and rising water temperatures may cut monthly generating capacity at nuclear, fossil-fuel and biofuel-powered plants by as much as 30 percent by the 2050s, according to research published Jan. 4 in the journal Nature Climate Change. Global hydropower capacity is expected to drop by as much as 3.6 percent in the 2050s and almost double that amount by the 2080s.
“The world's electricity sector strongly depends on the availability and temperature of water resources,” wrote the team of scientists led by Michelle T. H. van Vliet of Wageningen University in the Netherlands. “Global warming, with increased climate variability and likelihoods of heat waves and droughts, may have important impacts.”
The review of about 26,000 power plants found capacities may be reduced by at least 61 percent of hydroelectric plants and 81 percent of those that use nuclear, coal, geothermal and other fuels, the study found, based on current temperature trends.
That will vary by region, depending on the changing climate around the globe. Increasing streamflows over the century may increase capacity at power plants in parts of Canada, northern Europe, Russia and India, the researchers found. Still, the worldwide trend is negative.
Greater efficiency and changes to operations may help electric generators avoid the worst impacts, the authors said. A 10 percent increase in hydropower efficiency may be enough to offset annual reductions in capacity while other power plants may adapt by changing cooling systems and switching from coal to gas, according to the report.
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Water Woes Linked To Warming Threaten Power Plants -- Study
Jan 4, 2016 | E&E News PM
By Amanda Reilly
Most power generation is vulnerable to changes in water resources caused by climate change, according to a study published today in Nature Climate Change.
Weaker water flow in rivers and warmer water will affect nuclear and fossil- and biomass-fueled plants, as well as hydropower facilities, researchers affiliated with the International Institute for Applied Systems Analysis in Austria found.
As much as 86 percent of thermoelectric plants and three-quarters of hydropower plants could experience lower capacity between 2040 and 2069 because of climate change, the study concludes.
"This is the first study of its kind to examine the linkages between climate change, water resources and electricity production on a global scale," said co-author Keywan Riahi, the institute's energy program director. "We clearly show that power plants are not only causing climate change, but they might also be affected in major ways by climate."
The study was supported by the Niels Stensen Fellowship and a grant from the Netherlands Organisation for Scientific Research.
Researchers used computer modeling to measure how climate change could affect freshwater resources in the next several decades. They used data from 24,515 hydropower plants and 1,427 thermoelectric plants -- 78 and 28 percent, respectively, of the world's installed capacity.
Together, hydropower and thermoelectric power make up 98 percent of the world's electricity generation, according to the study. Both types of power plants depend on water availability to generate power, while thermoelectric plants also depend on fresh water for cooling.
The study found that climate change will reduce fresh water in streams and rivers in the United States, southern and central Europe, Southeast Asia, southern parts of South America, Africa, and Australia. Northern latitudes, on the other hand, are expected to experience increased stream flow.
Average freshwater temperatures around the globe are expected to increase, the study also found.
The reduced stream flow in southern latitudes will affect both hydropower and thermoelectric plants, while higher temperatures will make it more difficult for thermoelectric plants to use fresh water for cooling purposes.
"We find that climate change will reduce the existing power plant capacities of both hydropower and thermoelectric power in most regions worldwide," the researchers wrote.
Because of climate change, the study found thermoelectric plants are poised to see a drop-off of between 81 and 86 percent in plant capacity between 2040 and 2069. During that time, it says, hydropower plants will experience a reduction of 61 to 74 percent in usable capacity due to climate change.
Thermoelectric plants will see a greater effect than hydropower plants because most nuclear, fossil fuel and biomass plants are located in southern latitudes affected most by reduced stream flow, the study found.
The authors warn the problem would grow worse as energy demands increase with economic development and growing world population. They cautioned that the power sector will need to establish strategies in the early 2020s to avoid the expected water constraints in the future.
According to the study, increasing the efficiency of hydropower plants by up to 10 percent will likely completely offset the increase in water constraints. Saving thermoelectric power plant capacity, however, will instead require replacing cooling systems and switching fuel, it says.
"In order to sustain water and energy security in the next decades," said lead author Michelle van Vliet, a researcher at IIASA and Wageningen University in the Netherlands, "the electricity focus will need to increase their focus on climate change adaptation in addition to mitigation."
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Separate Track Sought in Clean Power Plan Biomass Lawsuit
Jan 5, 2016 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency and a coalition of industry groups are jointly asking a federal appellate court to keep separate and hold in abeyance their challenges to the Clean Power Plan (Biogenic CO2 Coal. v. EPA, D.C. Cir., No. 15-1479, motion filed 1/4/16).
The lawsuit filed by the Biogenic CO2 Coalition, which includes the American Farm Bureau Federation and American Bakers Association, argues their lawsuit will be limited to only the EPA's treatment of carbon dioxide emissions from burning biomass, which should be handled separately to other lawsuits filed over the Clean Power Plan, according to a motion filed in the U.S. Court of Appeals for the District of Columbia Circuit Jan. 4. Severing and holding that particular challenge in abeyance will allow the EPA and the industry coalition to pursue an administrative resolution, including a petition for reconsideration, the joint motion said.
“Should EPA ultimately conclude at the end of its review that biogenic CO2 emissions should not be regulated or regulated in a certain manner to which petitioner does not object, there will be no purpose served by litigating the petition for review,” the motion said. “Accordingly, to avoid unnecessary litigation, the appropriate step now is to sever or decline consolidation and place this case in abeyance.”
The Biogenic CO2 Coalition filed its lawsuit on Dec. 22, the deadline to file challenges to the Clean Power Plan (RIN 2060-AR33), which sets carbon dioxide emissions limits on the power sector in each state (246 DEN A-10, 12/23/15).
That has not yet been consolidated with other challenges to the Clean Power Plan, and the Biogenic CO2 Coalition said two other lawsuits filed Dec. 22 by the National Association of Forest Owners, American Forest & Paper Association and American Wood Council are also expected to focus on the treatment of carbon dioxide emissions from biomass.
The Biogenic CO2 Coalition is represented by David Williamson from Williamson Law + Policy PLLC.
Timothy Webster, a partner at Sidley Austin LLP representing the National Association of Forest Owners, told Bloomberg BNA Jan. 4 that they will file a similar request with the court shortly.
States Seek Speedy Resolution
States opposed to the Clean Power Plan urged the D.C. Circuit to move quickly to hear lawsuits, arguing the rule imposes immediate burdens on state regulators in a Dec. 31 reply.
States and industry groups opposed to the Clean Power Plan have asked D.C. Circuit to address core legal questions about the EPA's authority to issue the rule, seeking an expedited process that would see the case argued by May. Challenges to the implementation of the rule could be heard subsequently once the court has addressed whether the EPA has the legal authority to issue the Clean Power Plan, they argue.
“It is thus critical to state petitioners that oral argument occurs by May 2016, prior to this court's several-month-long summer recess,” the reply said.
States have until Sept. 6 to submit an initial plan to the EPA detailing how they intend to implement the Clean Power Plan.
The states said the need to expedite the oral argument could be alleviated if the court were to stay implementation of the rule during litigation.
The EPA has opposed the motions to expedite hearing while placing implementation challenges on a separate legal track, arguing that would actually slow resolution of the litigation (245 DEN A-1, 12/22/15).
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EPA ‘Not Slowing Down' Climate Efforts, McCarthy Says
Jan 5, 2016 | BNA Daily Environment Report
By Anthony Adragna
The Environmental Protection Agency will pursue an aggressive slate of greenhouse gas regulations in 2016 that will bolster President Barack Obama's legacy of addressing climate change, Administrator Gina McCarthy said Jan. 4.
“We've got a lot more work to do, and we're not slowing down,” McCarthy wrote in a blog post. Obama's “climate legacy is already impressive, but we will build on it in 2016 by continuing to protect health and opportunity for all Americans.”
McCarthy said the EPA will be “hitting the ground running” in 2016 to “defend and implement” its landmark Clean Power Plan, complete new fuel efficiency standards for medium and heavy-duty vehicles and a suite of regulations on methane emissions from new oil and gas operations, assist countries around the world in implementing an international climate change agreement reached in December in Paris and finalize efforts to reduce the production and use of hydrofluorocarbons (HFCs).
Though the Clean Power Plan, which curbs carbon dioxide emissions from existing power plants, is the centerpiece of the president's efforts on climate change, the agency has said it will complete an aggressive suite of additional regulations in that area before Obama leaves office in January 2017 (225 DEN A-2, 11/23/15).
Defense of Clean Power Plan
McCarthy expressed confidence the agency's Clean Power Plan (RIN 2060-AR33) would ultimately withstand a barrage of challenges lodged against it.
“We're confident the Clean Power Plan will stand the test of time—the Supreme Court has ruled three times that EPA has not only the authority but the obligation to limit harmful carbon pollution under the Clean Air Act,” McCarthy said.
On the international front, McCarthy indicated the EPA would provide “technical leadership” to other countries in measuring and reporting their emissions as required under the Paris climate change agreement. That assistance will include air quality monitoring expertise and developing greenhouse gas inventories, according to the administrator.
In July, the EPA anticipates completing the second phase of its greenhouse gas emissions limits for medium- and heavy-duty trucks (RIN 2060-AS16) in conjunction with updated corporate average fuel economy standards (RIN 2127-AL52) issued by the National Highway Traffic Safety Administration.
The agency also expects to finish up this June the first methane emissions limits for new oil and natural gas wells (RIN 2060-AS30).
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EPA Set To Formally Publish Haze Plan For Texas, Okla.
Jan 4, 2016 | E&E News PM
By Sean Reilly
U.S. EPA is on track to formally publish tomorrow the final version of its contested regional haze plan for Texas and Oklahoma. But if the plan has sparked heated objections from power producers and state officials, it's not clear that those complaints will lead to a lawsuit.
Under federal law, any side can seek a review by the U.S. Court of Appeals for the District of Columbia Circuit within 60 days of the rule's publication in the Federal Register. At the state level, that decision will rest with Texas Attorney General Ken Paxton (R), whose office is already challenging the Obama administration's Clean Power Plan and EPA's recently announced standard for ground-level ozone (Greenwire, Jan. 4). In an email this afternoon, spokeswoman Cynthia Meyer said only that the attorney general's office is reviewing the rule.
At the Association of Electric Companies of Texas, an advocacy group for power producers, President and CEO John Fainter said today he did not expect the organization to mount a legal challenge. At Xcel Energy Inc., which owns one of the eight coal-fired plants covered by the plan, spokesman Wes Reeves said in an email that he was not aware of any decision on whether to sue. A spokesman for Luminant, a branch of Energy Future Holdings Corp. that owns another four of the plants in question, had no comment.
In releasing the final plan last month, EPA officials made few changes to a draft rolled out in late 2014. The plan is geared to eventually cut sulfur dioxide emissions by some 230,000 tons annually and improve visibility at the Wichita Mountains Wildlife Refuge in Oklahoma as well as Big Bend National Park and Guadalupe Mountains National Park in Texas. The latter is home to the state's highest point, Guadalupe Peak, with a height of more than 8,700 feet.
The new regulations will not affect any Oklahoma electric plants. In Texas, however, they will require added emissions controls at seven of the eight plants over three to five years, with an estimated price tag of about $2 billion, according to the Texas Commission on Environmental Quality. The federal plan will in part supplant a 2009 state strategy for reducing haze-related pollution that EPA officials had found wanting (E&ENews PM, Nov. 24, 2014).
In an emailed statement, commission spokesman Terry Clawson said that the state plan merited EPA approval and that haze conditions in the Big Bend and Guadalupe Mountains parks "are much better today than Texas projected back in 2009."
"Visibility conditions at those parks will continue to improve even without EPA's costly-but-ineffectual regulations," Clawson said.
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Murkowski Plans Early Push For Committee Package
Jan 5, 2016 | E&E Daily News
By Geof Koss
After seeing a top priority -- repeal of the crude export ban -- signed into law last month, Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) is hoping to secure floor time as quickly as possible for the bipartisan energy package that cleared her committee last summer.
Murkowski has waited months for the energy bill (S. 2012) to find its way to the floor, but the measure has taken a back seat to other Senate business. She told E&E Daily last month that she hopes the bill can take its place in the queue sooner rather than later.
"Things are so issue-specific around here, crisis-specific," Murkowski said. "We'll see what's coming up in January, but I'm gonna push to get on early."
Along with ranking member Maria Cantwell (D-Wash.), Murkowski labored for months to develop the broader energy package, which aims to boost efficiency, renewables and energy infrastructure while imposing deadlines for the Energy Department to make final decisions on applications to export natural gas (Greenwire, July 30, 2015).
To retain bipartisan support, the pair worked to keep more controversial provisions out of the bill. Murkowski ended up packaging the crude export repeal into separate legislation (S. 2011) that also would increase states' shares of revenues raised by oil and gas drilling off their coasts, which the panel approved in September. The export repeal was later included by itself in the year-end omnibus spending bill.
House Energy and Commerce Chairman Fred Upton (R-Mich.) also tried to defuse controversy in assembling a companion package (H.R. 8) to the larger Senate bill. However, committee Democrats later balked over the package, saying that Republicans had reneged on an agreement to only include provisions agreed to by both sides, and just nine Democrats supported the measure when it passed the House last month (Greenwire, Dec. 3, 2015).
In an interview last month, Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.) was undeterred by Democrats' complaints about the bill, as well as the White House's threatened veto, saying he was anxious for the Senate to pass its version so the chambers could go to conference.
While floor debates on energy have stalled in the Senate in recent years, the landmark omnibus-tax extenders package signed into law last month may help defuse some of the policy tensions on energy because it included priorities of both parties -- a repeal of the crude export ban championed by Republicans, as well as long-term renewable energy tax incentives cherished by Democrats.
Still, Senate Democrats in September unveiled their own comprehensive energy package focused on clean energy that may preview some of the amendments that could surface on the floor (Greenwire, Sept. 22, 2015).
Besides the energy bill, Murkowski last month noted that work continues on other issues under the panel's jurisdiction, including addressing Puerto Rico's debt crisis, the Western drought crisis, a wildfire funding overhaul and a sportsmen's package.
"We've got lots of stuff," she said. "We're gonna be busy."
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Utilities: EPA Must Address Co-Benefits in Mercury Rule
Jan 5, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
The Environmental Protection Agency must address the legality of citing “co-benefits” to justify its mercury and air toxics standards in a response to an adverse 2015 ruling by the U.S. Supreme Court, a power plant trade group said.
The Utility Air Regulatory Group, in a comment posted on Dec. 30, said the EPA's supplemental finding on whether it is “appropriate and necessary” to regulate power plant emissions of mercury and other hazardous air pollutants must explore “every aspect” of the agency's authority to regulate emissions under Section 112 of the Clean Air Act. The EPA is currently accepting public comments on proposal (RIN 2060-AS7) that would reaffirm the agency's finding after a consideration of cost, as required by the Supreme Court.
“Through this rulemaking, EPA must therefore address fundamental legal issues, such as whether EPA can cite criteria pollutant co-benefits to support a rule that regulates hazardous air pollutants,” the group said.
The EPA's cost-benefit analysis issued alongside the 2012 mercury and air toxics standards (RIN 2060–AP52, RIN 2060-AR31) only quantified between $4 million and $6 million in benefits that could be directly attributed to reducing emissions of air toxics. The rest of the up to $90 billion in annual benefits were attributed to “co-benefits,” such as reducing fine particulate matter emissions.
While the Supreme Court did not rule on the legality of co-benefits in its June opinion in Michigan v. EPA, Chief Justice John Roberts did raise concerns about the agency practice during oral arguments (Michigan v. EPA, 135 S. Ct. 2699, 80 ERC 1577, 2015 BL 207163 (2015); 125 DEN A-1, 6/30/15).
In addition to Roberts' comments that the use of co-benefits to justify a $9.6 billion rule “raise the red flag,” the UARG comment also cited remarks by Judge Brett Kavanaugh, of the U.S. Court of Appeals for the District of Columbia Circuit, that the co-benefits issue would be the “key battleground” in future litigation on the EPA's action on remand.
“The D.C. Circuit panel's questioning during the recent December 4, 2015, oral argument on remedy confirmed that fundamental issues will have to be resolved during the remand rulemaking,” the group said.
Comment Extension Sought
The agency's proposed supplemental finding did cite the formal cost-benefit analysis that was prepared in conjunction with the 2012 MATS rule. While the agency noted that such a formal analysis isn't required, the agency said the record shows that the benefits of the standards “are significant and far exceed the cost.”
The EPA has said it intends to issue a final supplemental finding by mid-April.
The Utility Air Regulatory Group and the Class of ‘85 Regulatory Response Group, a coalition of about 30 electric generating companies, have both requested that the EPA extend the comment period beyond the current Jan. 15 deadline, citing a need for more time to develop substantive comments.
The D.C. Circuit in December decided to leave the MATS rule in place while the EPA addresses the Michigan v. EPA ruling (White Stallion Energy Ctr. LLC v. EPA, D.C. Cir., No. 12-1100, order issued 12/15/15).
The Utility Air Regulatory Group said that until the D.C. Circuit issued that decision on Dec. 15, work on comments would have been a “potentially wasteful effort.” The group said that “in effect,” the public was only given 31 days to prepare comments and should be provided with an additional month.
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5 Reasons Why 2016 Will Accelerate Environmental Progress
Jan 4, 2016 | The Huffington Post - Blog
By Fred Krupp
2015 was a breakthrough year for our environment -- one of the most important in decades.
The nations of the world agreed to a climate deal that finally gives us a chance to turn the corner toward safety. America put in place the first-ever limits on carbon pollution from its largest source, power plants. And the Senate passed sweeping bipartisan legislation that promises to fix our chemical safety system, which has been broken for 40 years.
At Environmental Defense Fund, we're proud to have played key roles in all of these breakthroughs.
Still, even with all that we accomplished, I expect 2016 to top the year now coming to an end.
The twin drivers of progress in the next 12 months will be ambition and accountability -- two mutually dependent qualities the environmental movement must have to thrive.
Ambition without accountability is just rhetoric, and accountability without ambition is merely record keeping. Together, though, they are what made the recent Paris talks such a success, and they are how we'll ratchet up global action in the year ahead.
Here's why:
1. Paris set the tone
For the first time, the world got the message: Climate change is the race of our lives. And leaders responded with action on a global scale.
In support of the latest Conference of the Parties, or COP21, 187 countries covering almost 99 percent of global emissions submitted commitments to take action on climate.
The agreement reached in Paris doesn't solve climate change, but it created a framework through which the world can take measurable, verifiable action to see emissions peak, stabilize and eventually decline.
And it requires countries to track progress and increase ambition over time, further improving the odds that we can keep warming below catastrophic levels.
In other words, Paris is the starter's gun.
2. Markets are ramping up
The Paris agreement sent a powerful, immediate signal to global markets that the clean energy future is open for business. It's a message markets are primed to receive: Emissions trading systems are already at work in more than 50 places that are home to nearly 1 billion people.
With the Paris framework in place, momentum for bottom-up, decentralized market-based policies will only increase -- and at the core of such systems are transparency and integrity.
It's a principle of economics that as participation grows, activity accelerates. We reach economies of scale, new investment is drawn in and businesses come to depend on the new market tools.
3. Private sector is coming onboard
The corporate world is ready to play a larger role, too.
More than 100 savvy businesses ran an ad in The Wall Street Journal just before the Paris talks, supporting action to reduce United States emissions that achieve or exceed national commitments, "and increase ambition in the future."
By pledging, these companies also invite us to hold them accountable.
4. Clean energy investments are rising
Domestically and internationally, 2015 was a breakthrough year for clean and efficient energy, and 2016 should see the amplification of smart policies and investments.
On the domestic front, the U.S. Department of Energy released a new standard to cut emissions from commercial air conditioners and furnaces. It's expected to save more energy than any other standard the agency has issued so far.
The promise of clean energy is global, and another critical piece of the Paris agreement is that it invites the developing world to participate in the rising flow of clean energy investments.
Emerging economies such as China and India are expected to spend $2.7 trillion on renewable energy between 2015 and 2040, far outpacing industrialized nations.
Now all nations, rich and poor, will be able to show that these investments pay off.
5. Market solutions grow on land, at sea
The "no net loss" habitat standards the Obama administration announced in late 2015, and is set to ramp up in 2016, call for landscape-scale, market-based solutions that bring net benefits for wildlife on working lands.
At the same time, successes in the U.S. commercial fishing sector are expanding globally. Fishing rights management programs are transforming the industry, increasing prosperity in fishing communities and abundance in fish populations.
These two, ambitious initiatives are built on demonstrable results. Look for more progress in 2016 as they continue to expand.
2016: A year of opportunity
While we're making extraordinary environmental gains, there is, of course, still much to be done.
We need to continue to work with government and industry partners to identify and mitigate methane leaks from the oil and gas sector. We know it can be done at low cost and have tremendous impact.
We also need to ensure that a strong bill to reform the Toxic Substances Control Act emerges from the House-Senate negotiations and is signed into law. Americans deserve to know their everyday products are safe to use.
The era of delay is over. We must be ambitious and hold our public officials, our business leaders, and ourselves accountable. We need smart, flexible solutions that can ratchet up environmental protection over time.
Ambition plus accountability accelerates progress.
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Advocates' Suit Seeks Deadline For States' SO2 Air Plans
Jan 4, 2016 | BNA Daily Environment Report
Environmentalists are suing EPA seeking a deadline for the agency to issue findings that 13 states have failed to submit plans for attaining the 2010 national ambient air quality standards (NAAQS) for sulfur dioxide (SO2), which would trigger a two-year clock for the states to write plans or have EPA-crafted plans imposed on them.
The Sierra Club's suit, filed Dec. 29 in the U.S. District Court for the District of Columbia, claims that Arizona, Indiana, Iowa, Kentucky, Louisiana, Michigan, Montana, New Hampshire, Ohio, Pennsylvania, Tennessee, West Virginia and Wisconsin missed an April 6, 2015, Clean Air Act-mandated deadline to submit state implementation plans (SIPs) for the SO2 NAAQS.
The air law gives EPA up to six months after that deadline, to Oct. 6, to issue “findings of failure to submit” to the states, triggering a two-year deadline for EPA to either approve a state plan or promulgate a federal implementation plan instead. However, EPA missed this deadline, Sierra Club says in its new suit, asking the court to set an “expeditious certain date” for the agency to issue the necessary findings on the missing SIPs.
EPA issued its first-time one-hour NAAQS for SO2, set at 75 parts per billion (ppb), back in 2010, tougher than the previous annual NAAQS of 30 ppb and 24-hour NAAQS of 140 ppb set in 1971. The one-hour form of the standard aims to limit short bursts of intense SO2 pollution emitted by power plants or other industrial facilities.
However, implementation of the 2010 standard has been delayed by years beyond Clean Air Act-mandated schedules for designation of areas as “nonattainment” or “attainment” for the NAAQS, and the subsequent issuance of SIPs to mitigate SO2.
EPA has issued relatively few nonattainment designations to date, including some in the 13 states cited by Sierra Club, and the country will now not be fully designated until the end of 2020, pending the establishment of a new air quality monitoring network necessary to detect short bursts of pollution.
Although Sierra Club initially protested EPA's extension of the designation process, the group ultimately reached a consent decree agreement on the schedule with EPA in Sierra Club and Natural Resources Defense Council v. Regina McCarthy in the U.S. District Court for the Northern District of California.
Several states are, however, appealing the consent decree in the U.S. Court of Appeals for the 9th Circuit, seeking EPA's prompt designation of areas lacking the necessary monitoring data as “unclassifiable,” a status that avoids the obligation to install costly pollution controls that flows from a nonattainment designation.
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