Preview Newsletter
PM ACC 1/6/2015
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(ACC Mentioned) LyondellBasell, North Carolina Latest to Join ACC’s Flexible Film Recycling Group
Jan 6, 2016 | Plastics Today
By Kari Embree
The American Chemistry Council (ACC; Washington, DC) has announced that LyondellBasell (Houston, TX) has joined its Flexible Film Recycling Group (FFRG), a collaboration working to double the recycling of post-use polyethylene film by 2020. -
(ACC Mentioned) Market Forces and States as Laboratories—Not Always Desired by Business
Jan 6, 2016 | Mondaq
By Duane Morris
In the wake of the December 17, 2015, passage of a Toxic Substances Control Act (TSCA) reform bill by the U.S. Senate, which followed the lead of the U.S. House of Representatives, one may ask: What is going on? -
'Strong' California Microbead Bill Paved Way for National Ban
Jan 6, 2016 | Chemical Watch
By Kelly Franklin
The recent federal law banning plastic microbeads has preempted several state-level bans that would have allowed for biodegradable plastics to remain in rinse-off cosmetics (CW 4 January 2015). -
Food Wrapper Chemicals Banned
Jan 6, 2016 | Chemical & Engineering News
By Britt E. Erickson
Three perfluoroalkyl ethyl containing substances that repel grease and water can no longer be used to coat paper that comes into contact with food sold in the U.S., on Jan. 4. FDA’s action comes in response to a 2014 petition by environmental and public health groups that claim... -
Formulators Progress on Safe-Use Information for Mixtures
Jan 6, 2016 | Chemical Watch
By Emma Chynoweth
European chemical formulator associations have published a document that aims to address the significant challenge of communicating substance-based, REACH safe-use information for mixtures down the supply chain. -
The Lawyer Who Became DuPont’s Worst Nightmare
Jan 6, 2016 | New York Times Magazine
By Nathaniel Rich
Rob Bilott was a corporate defense attorney for eight years. Then he took on an environmental suit that would upend his entire career— and expose a brazen, decades-long history of chemical pollution. -
A Lawyer's Long Path From Corporate Defender to DuPont Foil
Jan 6, 2016 | E&E - Greenwire
By Nathaniel Rich
Environmental lawyer Rob Bilott went from defending chemical companies to taking on one of the largest, DuPont. -
Calif. Utility Erects Huge Screens to Block Leak's Oily Mist
Jan 6, 2016 | E&E - Energywire
By Louis Sahagun
The major natural gas leak near a Los Angeles suburb is now combating a new problem: oily mist. -
Leak Wreaks Havoc on L.A. Neighborhood
Jan 6, 2016 | E&E - Greenwire
By James Nash
The Los Angeles neighborhood of Porter Ranch remains mostly deserted as every day enough methane to fill the Empire State Building spews from the nation's fourth-largest underground natural gas storage facility. -
EPRI's Lee Discusses Efforts to Address Cyberthreats Facing E.U. Member Countries
Jan 6, 2016 | E&E TV
A recent study by the E.U. Agency for Network and Information Security found that between 25 and 30 percent of E.U. member states have not addressed issues relating to cybersecurity. How do the European Union's cyberthreats differ from those facing the United States... -
Environmentalists Petition EPA To Revisit Hudson River Sediment Cleanup
Jan 6, 2016 | InsideEPA
Several environmental groups are petitioning EPA to revisit a massive dredging cleanup remedy in the Hudson River to address polychlorinated biphenyls (PCBs), challenging the agency on its decision to effectively deem the completed dredging project protective... -
Republicans Still Hunting a Way Forward on Landmark Climate Deal
Jan 6, 2016 | E&E- Climatewire
By Jean Chemnick
If Republicans are preparing to launch an offensive against the historic climate change agreement the Obama administration struck in Paris last month, they're being awfully quiet about it. -
Biomass Legal Challenge Fuels Debate on its Carbon Footprint
Jan 6, 2016 | E&E- Cliamtewire
By Elizabeth Harball and Brittany Patterson
New lawsuits from advocates of biomass energy challenging the Clean Power Plan expose a long-standing rift between the Obama administration and the industry over whether biomass can be considered renewable on par with solar and wind. -
White House Vows To Veto House Regulatory Reform Bills
Jan 6, 2016 | InsideEPA
The White House is threatening to veto two regulatory reform bills poised to clear the House this week that would set strict limits on EPA and other agencies' rulemaking activities including new hurdles for settlements imposing deadlines for issuing rules, warning the bills would undermine environmental and health protections. -
Clear the Air
Jan 6, 2016 | Houston Chronicle
By Editorial Board
It's time to spare Texans the rhetoric and work with the EPA to reduce ozone levels. -
Ariz. Aims to Narrow Down Clean Power Plan Options
Jan 6, 2016 | E&E - Climatewire
By Emily Holden
Arizona leaders hope to shorten the list of carbon-cutting approaches that the state might pursue to meet its federal emissions goals, officials in Phoenix said yesterday. -
Ark. Eyes Extension as it Pursues Lawsuit, Compliance
Jan 6, 2016 | E&E - Energwire
By Edward Klump
Arkansas environmental officials signaled yesterday an intention to ask for more time in deciding how the state might comply with U.S. EPA's Clean Power Plan. -
We're Finding Out More and More About the Worrisome Link Between Fracking and Health
Jan 6, 2016 | Business Insider
By Jeremy Berke
A new study in the journal Nature published on Wednesday confirms an opinion long held by experts: that chemicals in fracking fluids and wastewater can pose serious risks for reproductive and developmental health. -
America Has Been Lied to About Climate Change
Jan 6, 2016 | Washington Post
By Robert Brulle
Future generations will look back on our tepid response to global climate disruption and wonder why we did not act sooner and more aggressively.
Industry and Association News - There are no clips to report at this time.
Chemical Management News
Chemical Security News
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Energy and Environment News
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(ACC Mentioned) LyondellBasell, North Carolina Latest to Join ACC’s Flexible Film Recycling Group
Jan 6, 2016 | Plastics Today
By Kari Embree
The American Chemistry Council (ACC; Washington, DC) has announced that LyondellBasell (Houston, TX) has joined its Flexible Film Recycling Group (FFRG), a collaboration working to double the recycling of post-use polyethylene film by 2020. The FFRG’s members are from the entire polyethylene (PE) film value chain, including major resin suppliers, manufacturers (also known as converters), brand owners and recyclers.
North Carolina has also entered into the group, making it the second state after Wisconsin to partner with FFRG’s Wrap Action Recycling Program (WRAP). WRAP works directly with states, municipalities and retailers committed to increasing plastic film recycling through store drop-off programs.
“We are thrilled to welcome LyondellBasell and North Carolina in our efforts to significantly increase the recycling of flexible wraps and bags,” said Shari Jackson, Director of FFRG. “These great partnerships expand our footprint and our ability to educate consumers about the wide range of polyethylene film packaging that can be recycled at major grocery and retail stores.”
“Polyethylene is a valuable material and resource even after its initial use,” said Jim Clark, LyondellBasell’s Polyethylene Director, Americas. “We look forward to working with FFRG and the WRAP Partners to see that more post-use polyethylene packaging gets recycled.”
Together, WRAP and North Carolina will put in place a series of campaign initiatives using effective communications tools and best practices to support community outreach efforts on plastic film recycling. The program will also work to encourage commitment by more retailers to collect a broader mix of polyethylene film materials from consumers. Additionally, the program will work to expand collection and recycling of commercial film (pallet wrap and transport packaging) from small- to mid-sized businesses.
"Much of the infrastructure to recycle polyethylene wraps and bags is already in place," said Scott Mouw, of the North Carolina Department of Environmental Quality (NCDEQ). “Working through WRAP will expedite our efforts to educate residents about opportunities to recycle and divert more valuable plastics and reduce waste.”
The Sustainable Packaging Coalition (Charlottesville, VA) and the Association of Plastics Recyclers (Washington, DC) will also partner with the NCDEQ and FFRG in the North Carolina WRAP program.
Founding members of the FFRG include Dow Chemical (Midland, MI), ExxonMobil (Irving, TX), Chevron Phillips (The Woodlands, TX), Berry Plastics (Evansville, IN), Wisconsin Film and Bag (Shawano, WI), Sealed Air Corp. (Elmwood Park, NJ), SC Johnson (Racine, WI), Trex (Winchester, VA) and Avangard (Houston, TX).
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(ACC Mentioned) Market Forces and States as Laboratories—Not Always Desired by Business
Jan 6, 2016 | Mondaq
By Duane Morris
In the wake of the December 17, 2015, passage of a Toxic Substances Control Act (TSCA) reform bill by the U.S. Senate, which followed the lead of the U.S. House of Representatives, one may ask: What is going on? The current Congress is supporting new federal environmental regulation?
The answer lies in two facts: (1) the existing statute was simply outdated and unworkable for industry, and (2) the existence of a dysfunctional federal regulatory program had spawned the equally disliked (principally by industry, but also by environmentalists) evolution of differing regulations in different states. Thus, the American Chemistry Council (ACC), after acknowledging the need for public confidence in federal regulation of chemical safety, noted: "This lack of confidence has created pressure on individual state legislatures to create their own chemicals management laws and on retailers to pull products from the shelves, often based on the claims of activists rather than scientific conclusions."
When both the ACC and People for the Ethical Treatment of Animals (PETA) agree on the need for regulatory reform, and work together (with many other stakeholders) to get bills through both the House and Senate, it is apparent there was a problem with the status quo.
The House and Senate bills will likely go to a joint conference committee. When the dust settles on a final bill, we will provide our insights, so please check back in with us.Renewable Energy Tax Incentives Extended
On December 18, 2015, the Consolidated Appropriations Act was signed by President Obama and became law, extending a number of key renewable energy tax incentives. Of keen interest to many investors and developers, the law extends the PTC (the Section 45 Production Tax Credit) and the ITC (the Section 48 Investment Tax Credit) for solar and wind projects. The extensions are for longer periods of time (up to six years for the ITC) than under prior extension legislation (one or two years), thereby providing greater certainty in the marketplace. However, credit phase-outs are built into the new law.
For solar projects, the ITC is initially equal to 30 percent of qualifying costs, but drops incrementally to 26 percent for projects started in 2020, and to 22 percent for projects started in 2021. The ITC extends to projects for which construction has begun before January 1, 2022, but if a project is not placed in service before 2024, the credit drops to 10 percent. For wind projects, the PTC (2.3 cents-per-kilowatt hour) has been extended through 2019 (project construction commencement prior to December 31, 2019). However, the PTC for wind projects drops incrementally for projects started in 2017, 2018 and 2019. The option to take the ITC in lieu of the PTC remains. For other renewable projects, such as biomass and geothermal projects, the ITC/PTC extension period is much shorter, ending on December 31, 2016. All of the credit extensions are retroactive to January 1, 2015.
As the EPA Clean Power Plan deadlines approach—even with litigation raising questions about the viability of those deadlines—these extended tax credits will provide real incentives for accelerated investment in renewables.New York State Electricity Transmission Regulatory Developments
The future of New York state's electricity transmission grid is taking shape as outlined in a New York State Public Service Commission (PSC) decision issued on December 17, 2015. Large population centers in the southern part of the state, namely, New York City, present significant challenges to the delivery of electricity through the state's grid. Electricity supply for southern New York can come from two main sources. Either generating facilities can be built and operated near the load center, or transmission facilities can be constructed to move electricity generated in other parts of the state southward. The PSC, facing a choice between the two, chose the latter, identifying four separate transmission projects that it believes will ease congestion within the grid.
The PSC plays a leading role in planning and developing the state's electricity transmission grid. Under the applicable transmission planning process, the PSC is responsible for identifying and evaluating transmission needs and then submitting those needs to the state's transmission grid operator, the New York Independent System Operator, Inc. (NYISO), for further development of solutions to them. Following the identification of the state's goal of reducing grid congestion—and thus energy costs—the PSC received comments, proposals and analyses provided by interested parties, transmission and generation developers, and the PSC's staff in furtherance of that goal. In its order, the PSC described its choice as one between the build-out of generating facilities near load centers, which would include the natural gas pipeline infrastructure to support that generation, or the construction of new transmission facilities to move power from existing sources to load centers in urban areas. By finding that a robust transmission system is more consistent with the public policy goals established by the state; that a stronger transmission system will increase the grid's capability to utilize existing generation sources, as well as new renewable generation; and that the construction of new generation has greater cost impacts, the PSC determined that there is a discernable transmission need within the state. The process now moves to NYISO, where, based on the need identified by the PSC, specific transmission solutions will be received, evaluated, selected and become eligible for cost recovery.
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'Strong' California Microbead Bill Paved Way for National Ban
Jan 6, 2016 | Chemical Watch
By Kelly Franklin
The recent federal law banning plastic microbeads has preempted several state-level bans that would have allowed for biodegradable plastics to remain in rinse-off cosmetics (CW 4 January 2015).
Unlike microbead measures passed in states such as Illinois and Wisconsin, which provided an exemption for biodegradable plastics, the federal measure (HR 1321) more closely mirrors California's recently passed law, which bans all plastic microbeads (CW 12 October 2015).
According to Blake Kopcho, oceans campaigner at the Center for Biological Diversity, California was a “battleground state” for microbeads legislation, and “the community of activists and organisations engaged there felt we won the battle.”
This, he said, eased the passage of a national rule that excluded the biodegradable exemption: “If we hadn't succeeded in California, if we weren't able to settle a strong law, that would likely have been reflected in the federal bill.”
Environmental advocacy groups have criticised the so-called “Illinois model” of microbead bills, passed in many states, for failing to define “biodegradable”. This ambiguity allowed manufacturers to replace plastic microbeads with alternatives that will not necessarily degrade under typical use, they argued (CW 31 July 2014).
Several industry groups had protested against the plastic microbead definition proposed in California's bill (AB 888), saying, in a coalition statement, that it would “have the perverse effect of stifling innovation and slowing the transition to more environmentally friendly alternatives”.
Yet during the development of the California law, a pathway for seeking authorisation of biodegradable plastics was not agreed by industry and lawmakers. The resulting act banned all plastic microbeads in rinse-off cosmetics.
The federal bill sailed through the House (CW 8 December 2015) and Senate (CW 21 December 2015), following the passage of California's law. And it was supported by several industry trade groups, which had previously spoken out against California's plastic microbeads definition.
The Grocery Manufacturers Association, which was part of the coalition opposing California's bill, said that it was “pleased” with the approval of the federal rule “because it establishes national uniformity for policy related to these ingredients”.
The Consumer Healthcare Products Association, which also opposed it, said that it “supports efforts to phase out microbeads for the appropriate products, within appropriate timelines and that enable headroom for innovation; and the new federal law does this”.
According to Mr Kopcho, industry valued having a uniform microbead policy across the nation more than advocating an exemption for biodegradable plastics.
The federal Act bans the manufacture of rinse-off cosmetic products containing microbeads – defined as “solid plastic particle that is less than five millimetres in size and is intended to be used to exfoliate or cleanse the human body or any part thereof” – by 1 July 2017, and their sale after 1 July 2018.
Microbeads in leave-on cosmetics will not be covered by the law, nor are other possible consumer sources, such as cleaning products.
A spokesperson for the House Energy and Commerce Committee said that it may consider legislation addressing these areas as the new law is implemented.
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Jan 6, 2016 | Chemical & Engineering News
By Britt E. Erickson
Three perfluoroalkyl ethyl containing substances that repel grease and water can no longer be used to coat paper that comes into contact with food sold in the U.S., on Jan. 4. FDA’s action comes in response to a 2014 petition by environmental and public health groups that claim the chemicals are linked to cancer and birth defects.
The substances have been used in microwave popcorn bags, pizza boxes, fast-food wrappers, and other paper food packaging. The chemicals have not been made in the U.S. since 2011. But food packaging that contains the compounds could be made in other countries and imported into the U.S., FDA says.
The basis for FDA’s action is new toxicity data for substances which are structurally similar to these compounds. “There is no longer a reasonable certainty of no harm from the food-contact use of these food-contact substances,” the agency says.
The groups that petitioned FDA welcome the ban but say it is just a small step toward improving U.S. food safety. FDA’s action does nothing to stop food packaging companies from using nearly 100 related chemicals that may also be hazardous, , one of the petitioners.
“We know very little about the safety of these next-generation perfluorinated compounds in food wrappers,” says David Andrews, senior scientist at EWG. “But their chemical structure is very similar to the ones that have been phased out,” he says. “Limited safety testing that has been done suggests they may have some of the same health hazards.”
The Natural Resources Defense Council, which also signed the 2014 petition, is urging FDA to quickly act on filed last year that asks the agency to ban used in food, claiming they too cause cancer.
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Formulators Progress on Safe-Use Information for Mixtures
Jan 6, 2016 | Chemical Watch
By Emma Chynoweth
European chemical formulator associations have published a document that aims to address the significant challenge of communicating substance-based, REACH safe-use information for mixtures down the supply chain.
The document, Sector-specific approaches towards developing and communicating information for the safe use of mixtures, has been developed by the Downstream Users of Chemicals Coordination (Ducc) group.
The safe use of mixtures (Sumi) approach, described in the document, takes information on uses of mixtures as its starting point. It aims to:provide realistic and meaningful information, based on sector-level knowledge;improve standardisation and harmonisation by using the same template; andsimplify information, making it easier for end users to apply.
Each Sumi links to a specific worker exposure determinant (Swed). Sweds are also being developed, at sector level, to describe how workers are exposed, during typical uses, as well as to assess risks and determine safe operating conditions and risk management measures. Sumis will extract the information relevant to end users, which can be attached to the safety data sheet (SDS) to meet REACH obligations.
Under REACH, downstream users must provide their professional and industrial users with information on the hazards and safe use – including operating conditions and risk management measures – of any mixtures that meet the classification criteria. This can be done in various ways through the SDS.
According to the Ducc document, a formulator will have to identify the correct Swed for the sector of use of its mixture. Then the selected Swed should be validated against the exposure scenarios, received for substances in the mixture. If correct, the formulator can identify the corresponding Sumi, and append it to the mixture’s SDS.
Various options are suggested if the Swed is deemed to be wrong.
Ducc points out that as Sumis are linked to worker exposure determinants, environmental factors are not accounted for. Formulators handling mixtures, classified for environmental hazards, may have to include additional information.
The work was conducted under the Echa Chemical Safety Report/Exposure Scenario roadmap – and is known as the bottom-up approach (GBB November 2015). A top-down approach, being developed by the European Chemical Industry Council (Cefic) and the German Chemical Industry Federation (VCI), is based on information on the substances in a mixture that contribute to exposure for each endpoint.
Ducc expects formulators’ sector associations to develop Sweds and Sumis, based on information they have or can collect from their end users – the first Sumis should be published in the first half of 2016.
It has ten associations that are members, ranging from detergents, cosmetics and fragrances, to paints, adhesives and construction chemicals, among others.
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The Lawyer Who Became DuPont’s Worst Nightmare
Jan 6, 2016 | New York Times Magazine
By Nathaniel Rich
Rob Bilott was a corporate defense attorney for eight years. Then he took on an environmental suit that would upend his entire career— and expose a brazen, decades-long history of chemical pollution.
Just months before Rob Bilott made partner at Taft Stettinius & Hollister, he received a call on his direct line from a cattle farmer. The farmer, Wilbur Tennant of Parkersburg, W.Va., said that his cows were dying left and right. He believed that the DuPont chemical company, which until recently operated a site in Parkersburg that is more than 35 times the size of the Pentagon, was responsible. Tennant had tried to seek help locally, he said, but DuPont just about owned the entire town. He had been spurned not only by Parkersburg’s lawyers but also by its politicians, journalists, doctors and veterinarians. The farmer was angry and spoke in a heavy Appalachian accent. Bilott struggled to make sense of everything he was saying. He might have hung up had Tennant not blurted out the name of Bilott’s grandmother, Alma Holland White.
White had lived in Vienna, a northern suburb of Parkersburg, and as a child, Bilott often visited her in the summers. In 1973 she brought him to the cattle farm belonging to the Tennants’ neighbors, the Grahams, with whom White was friendly. Bilott spent the weekend riding horses, milking cows and watching Secretariat win the Triple Crown on TV. He was 7 years old. The visit to the Grahams’ farm was one of his happiest childhood memories.
When the Grahams heard in 1998 that Wilbur Tennant was looking for legal help, they remembered Bilott, White’s grandson, who had grown up to become an environmental lawyer. They did not understand, however, that Bilott was not the right kind of environmental lawyer. He did not represent plaintiffs or private citizens. Like the other 200 lawyers at Taft, a firm founded in 1885 and tied historically to the family of President William Howard Taft, Bilott worked almost exclusively for large corporate clients. His specialty was defending chemical companies. Several times, Bilott had even worked on cases with DuPont lawyers. Nevertheless, as a favor to his grandmother, he agreed to meet the farmer. ‘‘It just felt like the right thing to do,’’ he says today. ‘‘I felt a connection to those folks.’’
The connection was not obvious at their first meeting. About a week after his phone call, Tennant drove from Parkersburg with his wife to Taft’s headquarters in downtown Cincinnati. They hauled cardboard boxes containing videotapes, photographs and documents into the firm’s glassed-in reception area on the 18th floor, where they sat in gray midcentury-modern couches beneath an oil portrait of one of Taft’s founders. Tennant — burly and nearly six feet tall, wearing jeans, a plaid flannel shirt and a baseball cap — did not resemble a typical Taft client. ‘‘He didn’t show up at our offices looking like a bank vice president,’’ says Thomas Terp, a partner who was Bilott’s supervisor. ‘‘Let’s put it that way.’’
Terp joined Bilott for the meeting. Wilbur Tennant explained that he and his four siblings had run the cattle farm since their father abandoned them as children. They had seven cows then. Over the decades they steadily acquired land and cattle, until 200 cows roamed more than 600 hilly acres. The property would have been even larger had his brother Jim and Jim’s wife, Della, not sold 66 acres in the early ’80s to DuPont. The company wanted to use the plot for a landfill for waste from its factory near Parkersburg, called Washington Works, where Jim was employed as a laborer. Jim and Della did not want to sell, but Jim had been in poor health for years, mysterious ailments that doctors couldn’t diagnose, and they needed the money.
DuPont rechristened the plot Dry Run Landfill, named after the creek that ran through it. The same creek flowed down to a pasture where the Tennants grazed their cows. Not long after the sale, Wilbur told Bilott, the cattle began to act deranged. They had always been like pets to the Tennants. At the sight of a Tennant they would amble over, nuzzle and let themselves be milked. No longer. Now when they saw the farmers, they charged.
Wilbur fed a videotape into the VCR. The footage, shot on a camcorder, was grainy and intercut with static. Images jumped and repeated. The sound accelerated and slowed down. It had the quality of a horror movie. In the opening shot the camera pans across the creek. It takes in the surrounding forest, the white ash trees shedding their leaves and the rippling, shallow water, before pausing on what appears to be a snowbank at an elbow in the creek. The camera zooms in, revealing a mound of soapy froth.
‘‘I’ve taken two dead deer and two dead cattle off this ripple,’’ Tennant says in voice-over. ‘‘The blood run out of their noses and out their mouths. ... They’re trying to cover this stuff up. But it’s not going to be covered up, because I’m going to bring it out in the open for people to see.’’
The video shows a large pipe running into the creek, discharging green water with bubbles on the surface. ‘‘This is what they expect a man’s cows to drink on his own property,’’ Wilbur says. ‘‘It’s about high time that someone in the state department of something-or-another got off their cans.’’
At one point, the video cuts to a skinny red cow standing in hay. Patches of its hair are missing, and its back is humped — a result, Wilbur speculates, of a kidney malfunction. Another blast of static is followed by a close-up of a dead black calf lying in the snow, its eye a brilliant, chemical blue. ‘‘One hundred fifty-three of these animals I’ve lost on this farm,’’ Wilbur says later in the video. ‘‘Every veterinarian that I’ve called in Parkersburg, they will not return my phone calls or they don’t want to get involved. Since they don’t want to get involved, I’ll have to dissect this thing myself. ... I’m going to start at this head.’’
The video cuts to a calf’s bisected head. Close-ups follow of the calf’s blackened teeth (‘‘They say that’s due to high concentrations of fluoride in the water that they drink’’), its liver, heart, stomachs, kidneys and gall bladder. Each organ is sliced open, and Wilbur points out unusual discolorations — some dark, some green — and textures. ‘‘I don’t even like the looks of them,’’ he says. ‘‘It don’t look like anything I’ve been into before.’’
Bilott watched the video and looked at photographs for several hours. He saw cows with stringy tails, malformed hooves, giant lesions protruding from their hides and red, receded eyes; cows suffering constant diarrhea, slobbering white slime the consistency of toothpaste, staggering bowlegged like drunks. Tennant always zoomed in on his cows’ eyes. ‘‘This cow’s done a lot of suffering,’’ he would say, as a blinking eye filled the screen.
‘‘This is bad,’’ Bilott said to himself. ‘‘There’s something really bad going on here.’’
Bilott decided right away to take the Tennant case. It was, he says again, ‘‘the right thing to do.’’ Bilott might have had the practiced look of a corporate lawyer — soft-spoken, milk-complected, conservatively attired — but the job had not come naturally to him. He did not have a typical Taft résumé. He had not attended college or law school in the Ivy League. His father was a lieutenant colonel in the Air Force, and Bilott spent most of his childhood moving among air bases near Albany; Flint, Mich.; Newport Beach, Calif.; and Wiesbaden, West Germany. Bilott attended eight schools before graduating from Fairborn High, near Ohio’s Wright-Patterson Air Force Base. As a junior, he received a recruitment letter from a tiny liberal-arts school in Sarasota called the New College of Florida, which graded pass/fail and allowed students to design their own curriculums. Many of his friends there were idealistic, progressive — ideological misfits in Reagan’s America. He met with professors individually and came to value critical thinking. ‘‘I learned to question everything you read,’’ he said. ‘‘Don’t take anything at face value. Don’t care what other people say. I liked that philosophy.’’ Bilott studied political science and wrote his thesis about the rise and fall of Dayton. He hoped to become a city manager.
But his father, who late in life enrolled in law school, encouraged Bilott to do the same. Surprising his professors, he chose to attend law school at Ohio State, where his favorite course was environmental law. ‘‘It seemed like it would have real-world impact,’’ he said. ‘‘It was something you could do to make a difference.’’ When, after graduation, Taft made him an offer, his mentors and friends from New College were aghast. They didn’t understand how he could join a corporate firm. Bilott didn’t see it that way. He hadn’t really thought about the ethics of it, to be honest. ‘‘My family said that a big firm was where you’d get the most opportunities,’’ he said. ‘‘I knew nobody who had ever worked at a firm, nobody who knew anything about it. I just tried to get the best job I could. I don’t think I had any clue of what that involved.’’
At Taft, he asked to join Thomas Terp’s environmental team. Ten years earlier, Congress passed the legislation known as Superfund, which financed the emergency cleanup of hazardous-waste dumps. Superfund was a lucrative development for firms like Taft, creating an entire subfield within environmental law, one that required a deep understanding of the new regulations in order to guide negotiations among municipal agencies and numerous private parties. Terp’s team at Taft was a leader in the field.
As an associate, Bilott was asked to determine which companies contributed which toxins and hazardous wastes in what quantities to which sites. He took depositions from plant employees, perused public records and organized huge amounts of historical data. He became an expert on the Environmental Protection Agency’s regulatory framework, the Safe Drinking Water Act, the Clean Air Act, the Toxic Substances Control Act. He mastered the chemistry of the pollutants, despite the fact that chemistry had been his worst subject in high school. ‘‘I learned how these companies work, how the laws work, how you defend these claims,’’ he said. He became the consummate insider.
Bilott was proud of the work he did. The main part of his job, as he understood it, was to help clients comply with the new regulations. Many of his clients, including Thiokol and Bee Chemical, disposed of hazardous waste long before the practice became so tightly regulated. He worked long hours and knew few people in Cincinnati. A colleague on Taft’s environmental team, observing that he had little time for a social life, introduced him to a childhood friend named Sarah Barlage. She was a lawyer, too, at another downtown Cincinnati firm, where she defended corporations against worker’s-compensation claims. Bilott joined the two friends for lunch. Sarah doesn’t remember him speaking. ‘‘My first impression was that he was not like other guys,’’ she says. ‘‘I’m pretty chatty. He’s much quieter. We complemented each other.’’
They married in 1996. The first of their three sons was born two years later. He felt secure enough at Taft for Barlage to quit her job and raise their children full-time. Terp, his supervisor, recalls him as ‘‘a real standout lawyer: incredibly bright, energetic, tenacious and very, very thorough.’’ He was a model Taft lawyer. Then Wilbur Tennant came along.
The Tennant case put Taft in a highly unusual position. The law firm was in the business of representing chemical corporations, not suing them. The prospect of taking on DuPont ‘‘did cause us pause,’’ Terp concedes. ‘‘But it was not a terribly difficult decision for us. I’m a firm believer that our work on the plaintiff’s side makes us better defense lawyers.’’
Bilott sought help with the Tennant case from a West Virginia lawyer named Larry Winter. For many years, Winter was a partner at Spilman, Thomas & Battle — one of the firms that represented DuPont in West Virginia — though he had left Spilman to start a practice specializing in personal-injury cases. He was amazed that Bilott would sue DuPont while remaining at Taft.
‘‘His taking on the Tennant case,’’ Winter says, ‘‘given the type of practice Taft had, I found to be inconceivable.’’
Bilott, for his part, is reluctant to discuss his motivations for taking the case. The closest he came to elaborating was after being asked whether, having set out ‘‘to make a difference’’ in the world, he had any misgivings about the path his career had taken.
‘‘There was a reason why I was interested in helping out the Tennants,’’ he said after a pause. ‘‘It was a great opportunity to use my background for people who really needed it.’’
Bilott filed a federal suit against DuPont in the summer of 1999 in the Southern District of West Virginia. In response, DuPont’s in-house lawyer, Bernard Reilly, informed him that DuPont and the E.P.A. would commission a study of the property, conducted by three veterinarians chosen by DuPont and three chosen by the E.P.A. Their report did not find DuPont responsible for the cattle’s health problems. The culprit, instead, was poor husbandry: ‘‘poor nutrition, inadequate veterinary care and lack of fly control.’’ In other words, the Tennants didn’t know how to raise cattle; if the cows were dying, it was their own fault.
This did not sit well with the Tennants, who began to suffer the consequences of antagonizing Parkersburg’s main employer. Lifelong friends ignored the Tennants on the streets of Parkersburg and walked out of restaurants when they entered. ‘‘I’m not allowed to talk to you,’’ they said, when confronted. Four different times, the Tennants changed churches.
Wilbur called the office nearly every day, but Bilott had little to tell him. He was doing for the Tennants what he would have done for any of his corporate clients — pulling permits, studying land deeds and requesting from DuPont all documentation related to Dry Run Landfill — but he could find no evidence that explained what was happening to the cattle. ‘‘We were getting frustrated,’’ Bilott said. ‘‘I couldn’t blame the Tennants for getting angry.’’
With the trial looming, Bilott stumbled upon a letter DuPont had sent to the E.P.A. that mentioned a substance at the landfill with a cryptic name: ‘‘PFOA.’’ In all his years working with chemical companies, Bilott had never heard of PFOA. It did not appear on any list of regulated materials, nor could he find it in Taft’s in-house library. The chemistry expert that he had retained for the case did, however, vaguely recall an article in a trade journal about a similar-sounding compound: PFOS, a soaplike agent used by the technology conglomerate 3M in the fabrication of Scotchgard.
Bilott hunted through his files for other references to PFOA, which he learned was short for perfluorooctanoic acid. But there was nothing. He asked DuPont to share all documentation related to the substance; DuPont refused. In the fall of 2000, Bilott requested a court order to force them. Against DuPont’s protests, the order was granted. Dozens of boxes containing thousands of unorganized documents began to arrive at Taft’s headquarters: private internal correspondence, medical and health reports and confidential studies conducted by DuPont scientists. There were more than 110,000 pages in all, some half a century old. Bilott spent the next few months on the floor of his office, poring over the documents and arranging them in chronological order. He stopped answering his office phone. When people called his secretary, she explained that he was in the office but had not been able to reach the phone in time, because he was trapped on all sides by boxes.
‘‘I started seeing a story,’’ Bilott said. ‘‘I may have been the first one to actually go through them all. It became apparent what was going on: They had known for a long time that this stuff was bad.’’
Bilott is given to understatement. (‘‘To say that Rob Bilott is understated,’’ his colleague Edison Hill says, ‘‘is an understatement.’’) The story that Bilott began to see, cross-legged on his office floor, was astounding in its breadth, specificity and sheer brazenness. ‘‘I was shocked,’’ he said. That was another understatement. Bilott could not believe the scale of incriminating material that DuPont had sent him. The company appeared not to realize what it had handed over. ‘‘It was one of those things where you can’t believe you’re reading what you’re reading,’’ he said. ‘‘That it’s actually been put in writing. It was the kind of stuff you always heard about happening but you never thought you’d see written down.’’
The story began in 1951, when DuPont started purchasing PFOA (which the company refers to as C8) from 3M for use in the manufacturing of Teflon. 3M invented PFOA just four years earlier; it was used to keep coatings like Teflon from clumping during production. Though PFOA was not classified by the government as a hazardous substance, 3M sent DuPont recommendations on how to dispose of it. It was to be incinerated or sent to chemical-waste facilities. DuPont’s own instructions specified that it was not to be flushed into surface water or sewers. But over the decades that followed, DuPont pumped hundreds of thousands of pounds of PFOA powder through the outfall pipes of the Parkersburg facility into the Ohio River. The company dumped 7,100 tons of PFOA-laced sludge into ‘‘digestion ponds’’: open, unlined pits on the Washington Works property, from which the chemical could seep straight into the ground. PFOA entered the local water table, which supplied drinking water to the communities of Parkersburg, Vienna, Little Hocking and Lubeck — more than 100,000 people in all.
Bilott learned from the documents that 3M and DuPont had been conducting secret medical studies on PFOA for more than four decades. In 1961, DuPont researchers found that the chemical could increase the size of the liver in rats and rabbits. A year later, they replicated these results in studies with dogs. PFOA’s peculiar chemical structure made it uncannily resistant to degradation. It also bound to plasma proteins in the blood, circulating through each organ in the body. In the 1970s, DuPont discovered that there were high concentrations of PFOA in the blood of factory workers at Washington Works. They did not tell their workers this. In 1981, 3M — which continued to serve as the supplier of PFOA to DuPont and other corporations — found that ingestion of the substance caused birth defects in rats. After 3M shared this information, DuPont tested the children of pregnant employees in their Teflon division. Of seven births, two had eye defects. DuPont did not make this information public.
In 1984, DuPont became aware that dust vented from factory chimneys settled well beyond the property line and, more disturbing, that PFOA was present in the local water supply. DuPont declined to disclose this finding. In 1991, DuPont scientists determined an internal safety limit for PFOA concentration in drinking water: one part per billion. The same year, DuPont found that water in one local district contained PFOA levels at three times that figure. Despite internal debate, it declined to make the information public.
(In a statement, DuPont claimed that it did volunteer health information about PFOA to the E.P.A. during those decades. When asked for evidence, it forwarded two letters written to West Virginian government agencies from 1982 and 1992, both of which cited internal studies that called into question links between PFOA exposure and human health problems.)
By the ’90s, Bilott discovered, DuPont understood that PFOA caused cancerous testicular, pancreatic and liver tumors in lab animals. One laboratory study suggested possible DNA damage from PFOA exposure, and a study of workers linked exposure with prostate cancer. DuPont at last hastened to develop an alternative to PFOA. An interoffice memo sent in 1993 announced that ‘‘for the first time, we have a viable candidate’’ that appeared to be less toxic and stayed in the body for a much shorter duration of time. Discussions were held at DuPont’s corporate headquarters to discuss switching to the new compound. DuPont decided against it. The risk was too great: Products manufactured with PFOA were an important part of DuPont’s business, worth $1 billion in annual profit.
But the crucial discovery for the Tennant case was this: By the late 1980s, as DuPont became increasingly concerned about the health effects of PFOA waste, it decided it needed to find a landfill for the toxic sludge dumped on company property. Fortunately they had recently bought 66 acres from a low-level employee at the Washington Works facility that would do perfectly.
By 1990, DuPont had dumped 7,100 tons of PFOA sludge into Dry Run Landfill. DuPont’s scientists understood that the landfill drained into the Tennants’ remaining property, and they tested the water in Dry Run Creek. It contained an extraordinarily high concentration of PFOA. DuPont did not tell this to the Tennants at the time, nor did it disclose the fact in the cattle report that it commissioned for the Tennant case a decade later — the report that blamed poor husbandry for the deaths of their cows. Bilott had what he needed.
In August 2000, Bilott called DuPont’s lawyer, Bernard Reilly, and explained that he knew what was going on. It was a brief conversation.
The Tennants settled. The firm would receive its contingency fee. The whole business might have ended right there. But Bilott was not satisfied.
‘‘I was irritated,’’ he says.
DuPont was nothing like the corporations he had represented at Taft in the Superfund cases. ‘‘This was a completely different scenario. DuPont had for decades been actively trying to conceal their actions. They knew this stuff was harmful, and they put it in the water anyway. These were bad facts.’’ He had seen what the PFOA-tainted drinking water had done to cattle. What was it doing to the tens of thousands of people in the areas around Parkersburg who drank it daily from their taps? What did the insides of their heads look like? Were their internal organs green?
Bilott spent the following months drafting a public brief against DuPont. It was 972 pages long, including 136 attached exhibits. His colleagues call it ‘‘Rob’s Famous Letter.’’ ‘‘We have confirmed that the chemicals and pollutants released into the environment by DuPont at its Dry Run Landfill and other nearby DuPont-owned facilities may pose an imminent and substantial threat to health or the environment,’’ Bilott wrote. He demanded immediate action to regulate PFOA and provide clean water to those living near the factory. On March 6, 2001, he sent the letter to the director of every relevant regulatory authority, including Christie Whitman, administrator of the E.P.A., and the United States attorney general, John Ashcroft.
DuPont reacted quickly, requesting a gag order to block Bilott from providing the information he had discovered in the Tennant case to the government. A federal court denied it. Bilott sent his entire case file to the E.P.A.
‘‘DuPont freaked out when they realized that this guy was onto them,’’ says Ned McWilliams, a young trial lawyer who later joined Bilott’s legal team. ‘‘For a corporation to seek a gag order to prevent somebody from speaking to the E.P.A. is an extraordinary remedy. You could realize how bad that looks. They must have known that there was a small chance of winning. But they were so afraid that they were willing to roll the dice.’’
With the Famous Letter, Bilott crossed a line. Though nominally representing the Tennants — their settlement had yet to be concluded — Bilott spoke for the public, claiming extensive fraud and wrongdoing. He had become a threat not merely to DuPont but also to, in the words of one internal memo, ‘‘the entire fluoropolymers industry’’ — an industry responsible for the high-performance plastics used in many modern devices, including kitchen products, computer cables, implantable medical devices and bearings and seals used in cars and airplanes. PFOA was only one of more than 60,000 synthetic chemicals that companies produced and released into the world without regulatory oversight.
‘‘Rob’s letter lifted the curtain on a whole new theater,’’ says Harry Deitzler, a plaintiff’s lawyer in West Virginia who works with Bilott. ‘‘Before that letter, corporations could rely upon the public misperception that if a chemical was dangerous, it was regulated.’’ Under the 1976 Toxic Substances Control Act, the E.P.A. can test chemicals only when it has been provided evidence of harm. This arrangement, which largely allows chemical companies to regulate themselves, is the reason that the E.P.A. has restricted only five chemicals, out of tens of thousands on the market, in the last 40 years.
It was especially damning to see these allegations against DuPont under the letterhead of one of the nation’s most prestigious corporate defense firms. ‘‘You can imagine what some of the other companies that Taft was representing — a Dow Chemical — might have thought of a Taft lawyer taking on DuPont,’’ Larry Winter says. ‘‘There was a threat that the firm would suffer financially.’’ When I asked Thomas Terp about Taft’s reaction to the Famous Letter, he replied, not quite convincingly, that he didn’t recall one. ‘‘Our partners,’’ he said, ‘‘are proud of the work that he has done.’’
Bilott, however, worried that corporations doing business with Taft might see things differently. ‘‘I’m not stupid, and the people around me aren’t stupid,’’ he said. ‘‘You can’t ignore the economic realities of the ways that business is run and the way clients think. I perceived that there were some ‘What the hell are you doing?’ responses.’’
The letter led, three years later, in 2006, to DuPont’s reaching a $16.5 million settlement with the E.P.A., which had accused the company of concealing its knowledge of PFOA’s toxicity and presence in the environment in violation of the Toxic Substances Control Act. (DuPont was not required to admit liability.) At the time, it was the largest civil administrative penalty the E.P.A. had obtained in its history, a statement that sounds more impressive than it is. The fine represented less than 2 percent of the profits earned by DuPont on PFOA that year.
Bilott never represented a corporate client again.
The obvious next step was to file a class-action lawsuit against DuPont on behalf of everyone whose water was tainted by PFOA. In all ways but one, Bilott himself was in the ideal position to file such a suit. He understood PFOA’s history as well as anyone inside DuPont did. He had the technical and regulatory expertise, as he had proved in the Tennant case. The only part that didn’t make sense was his firm: No Taft lawyer, to anyone’s recollection, had ever filed a class-action lawsuit.
It was one thing to pursue a sentimental case on behalf of a few West Virginia cattle farmers and even write a public letter to the E.P.A. But an industry-threatening class-action suit against one of the world’s largest chemical corporations was different. It might establish a precedent for suing corporations over unregulated substances and imperil Taft’s bottom line. This point was made to Terp by Bernard Reilly, DuPont’s in-house lawyer, according to accounts from Bilott’s plaintiff’s-lawyer colleagues; they say Reilly called to demand that Bilott back off the case. (Terp confirms that Reilly called him but will not disclose the content of the call; Bilott and Reilly decline to speak about it, citing continuing litigation.) Given what Bilott had documented in his Famous Letter, Taft stood by its partner.
A lead plaintiff soon presented himself. Joseph Kiger, a night-school teacher in Parkersburg, called Bilott to ask for help. About nine months earlier, he received a peculiar note from the Little Hocking water district. It arrived on Halloween day, enclosed in the monthly water bill. The note explained that an unregulated chemical named PFOA had been detected in the drinking water in ‘‘low concentrations,’’ but that it was not a health risk. Kiger had underlined statements that he found particularly baffling, like: ‘‘DuPont reports that it has toxicological and epidemiological data to support confidence that exposure guidelines established by DuPont are protective of human health.’’ The term ‘‘support confidence’’ seemed bizarre, as did ‘‘protective of human health,’’ not to mention the claim that DuPont’s own data supported its confidence in its own guidelines.
Still, Kiger might have forgotten about it had his wife, Darlene, not already spent much of her adulthood thinking about PFOA. Darlene’s first husband had been a chemist in DuPont’s PFOA lab. (Darlene asked that he not be named so that he wouldn’t be involved in the local politics around the case.) ‘‘When you worked at DuPont in this town,’’ Darlene says today, ‘‘you could have everything you wanted.’’ DuPont paid for his education, it secured him a mortgage and it paid him a generous salary. DuPont even gave him a free supply of PFOA, which, Darlene says, she used as soap in the family’s dishwasher and to clean the car. Sometimes her husband came home from work sick — fever, nausea, diarrhea, vomiting — after working in one of the PFOA storage tanks. It was a common occurrence at Washington Works. Darlene says the men at the plant called it ‘‘Teflon flu.
In 1976, after Darlene gave birth to their second child, her husband told her that he was not allowed to bring his work clothes home anymore. DuPont, he said, had found out that PFOA was causing health problems for women and birth defects in children. Darlene would remember this six years later when, at 36, she had to have an emergency hysterectomy and again eight years later, when she had a second surgery. When the strange letter from the water district arrived, Darlene says, ‘‘I kept thinking back to his clothing, to my hysterectomy. I asked myself, what does DuPont have to do with our drinking water?’’
Joe called the West Virginia Department of Natural Resources (‘‘They treated me like I had the plague’’), the Parkersburg office of the state’s Department of Environmental Protection (‘‘nothing to worry about’’), the water division (‘‘I got shut down’’), the local health department (‘‘just plain rude’’), even DuPont (‘‘I was fed the biggest line of [expletive] anybody could have been fed’’), before a scientist in the regional E.P.A. office finally took his call.
‘‘Good God, Joe,’’ the scientist said. ‘‘What the hell is that stuff doing in your water?’’ He sent Kiger information about the Tennant lawsuit. On the court papers Kiger kept seeing the same name: Robert Bilott, of Taft Stettinius & Hollister, in Cincinnati.
Bilott had anticipated suing on behalf of the one or two water districts closest to Washington Works. But tests revealed that six districts, as well as dozens of private wells, were tainted with levels of PFOA higher than DuPont’s own internal safety standard. In Lubeck, the Kigers’ district, the water tested positive for PFOA at seven times the limit. All told, 70,000 people were drinking poisoned water. Some had been doing so for decades.
But Bilott faced a vexing legal problem. PFOA was not a regulated substance. It appeared on no federal or state list of contaminants. How could Bilott claim that 70,000 people had been poisoned if the government didn’t recognize PFOA as a toxin — if PFOA, legally speaking, was no different than water itself? In 2001, it could not even be proved that exposure to PFOA in public drinking water caused health problems. There was scant information available about its impact on large populations. How could the class prove it had been harmed by PFOA when the health effects were largely unknown?
The best metric Bilott had to judge a safe exposure level was DuPont’s own internal limit of one part per billion. But when DuPont learned that Bilott was preparing a new lawsuit, it announced that it would re-evaluate that figure. As in the Tennant case, DuPont formed a team composed of its own scientists and scientists from the West Virginia Department of Environmental Protection. It announced a new threshold: 150 parts per billion.
Bilott found the figure ‘‘mind-blowing.’’ The toxicologists he hired had settled upon a safety limit of 0.2 parts per billion. But West Virginia endorsed the new standard. Within two years, three lawyers regularly used by DuPont were hired by the state D.E.P. in leadership positions. One of them was placed in charge of the entire agency. ‘‘The way that transpired was just amazing to me,’’ Bilott says. ‘‘I suppose it wasn’t so amazing to my fellow counsel in West Virginia who know the system there. But it was to me.’’ The same DuPont lawyers tasked with writing the safety limit, Bilott said, had become the government regulators responsible for enforcing that limit.
Bilott devised a new legal strategy. A year earlier, West Virginia had become one of the first states to recognize what is called, in tort law, a medical-monitoring claim. A plaintiff needs to prove only that he or she has been exposed to a toxin. If the plaintiff wins, the defendant is required to fund regular medical tests. In these cases, should a plaintiff later become ill, he or she can sue retroactively for damages. For this reason, Bilott filed the class-action suit in August 2001 in state court, even though four of the six affected water districts lay across the Ohio border.
Meanwhile the E.P.A., drawing from Bilott’s research, began its own investigation into the toxicity of PFOA. In 2002, the agency released its initial findings: PFOA might pose human health risks not only to those drinking tainted water, but also to the general public — anyone, for instance, who cooked with Teflon pans. The E.P.A. was particularly alarmed to learn that PFOA had been detected in American blood banks, something 3M and DuPont had known as early as 1976. By 2003 the average concentration of PFOA in the blood of an adult American was four to five parts per billion. In 2000, 3M ceased production of PFOA. DuPont, rather than use an alternative compound, built a new factory in Fayetteville, N.C., to manufacture the substance for its own use.
Bilott’s strategy appeared to have worked. In September 2004, DuPont decided to settle the class-action suit. It agreed to install filtration plants in the six affected water districts if they wanted them and pay a cash award of $70 million. It would fund a scientific study to determine whether there was a ‘‘probable link’’ — a term that delicately avoided any declaration of causation — between PFOA and any diseases. If such links existed, DuPont would pay for medical monitoring of the affected group in perpetuity. Until the scientific study came back with its results, class members were forbidden from filing personal-injury suits against DuPont.
A reasonable expectation, at this point, was that the lawyers would move on. ‘‘In any other class action you’ve ever read about,’’ Deitzler says, ‘‘you get your 10 bucks in the mail, the lawyers get paid and the lawsuit goes away. That’s what we were supposed to do.’’ For three years, Bilott had worked for nothing, costing his firm a fortune. But now Taft received a windfall: Bilott and his team of West Virginian plaintiff lawyers received $21.7 million in fees from the settlement. ‘‘I think they were thinking, This guy did O.K.,’’ Deitzler says. ‘‘I wouldn’t be surprised if he got a raise.’’
Not only had Taft recouped its losses, but DuPont was providing clean water to the communities named in the suit. Bilott had every reason to walk away.
He didn’t.
‘‘There was a gap in the data,’’ Bilott says. The company’s internal health studies, as damning as they were, were limited to factory employees. DuPont could argue — and had argued — that even if PFOA caused medical problems, it was only because factory workers had been exposed at exponentially higher levels than neighbors who drank tainted water. The gap allowed DuPont to claim that it had done nothing wrong.
Bilott represented 70,000 people who had been drinking PFOA-laced drinking water for decades. What if the settlement money could be used to test them? ‘‘Class members were concerned about three things,’’ Winter says. ‘‘One: Do I have C8 in my blood? Two: If I do, is it harmful? Three: If it’s harmful, what are the effects?’’ Bilott and his colleagues realized they could answer all three questions, if only they could test their clients. Now, they realized, there was a way to do so. After the settlement, the legal team pushed to make receipt of the cash award contingent on a full medical examination. The class voted in favor of this approach, and within months, nearly 70,000 West Virginians were trading their blood for a $400 check.
The team of epidemiologists was flooded with medical data, and there was nothing DuPont could do to stop it. In fact, it was another term of the settlement that DuPont would fund the research without limitation. The scientists, freed from the restraints of academic budgets and grants, had hit the epidemiological jackpot: an entire population’s personal data and infinite resources available to study them. The scientists designed 12 studies, including one that, using sophisticated environmental modeling technology, determined exactly how much PFOA each individual class member had ingested.
It was assured that the panel would return convincing results. But Bilott could not predict what those results would be. If no correlation was found between PFOA and illness, Bilott’s clients would be barred under the terms of the agreement from filing any personal-injury cases. Because of the sheer quantity of data provided by the community health study and the unlimited budget — it ultimately cost DuPont $33 million — the panel took longer than expected to perform its analysis. Two years passed without any findings. Bilott waited. A third year passed. Then a fourth, a fifth, a sixth. Still the panel was quiet. Bilott waited.
It was not a peaceful wait. The pressure on Bilott at Taft had built since he initiated the class-action suit in 2001. The legal fees had granted him a reprieve, but as the years passed without resolution, and Bilott continued to spend the firm’s money and was unable to attract new clients, he found himself in an awkward position.
‘‘This case,’’ Winter says, ‘‘regardless of how hugely successful it ends up, will never in the Taft firm’s mind replace what they’ve lost in the way of legal business over the years.’’
The longer it took for the science panel to conduct its research, the more expensive the case became. Taft continued to pay consultants to interpret the new findings and relay them to the epidemiologists. Bilott counseled class members in West Virginia and Ohio and traveled frequently to Washington to attend meetings at the E.P.A., which was deciding whether to issue advisories about PFOA. ‘‘We were incurring a lot of expenses,’’ Bilott says. ‘‘If the scientific panel found no link with diseases, we’d have to eat it all.’’
Clients called Bilott to say that they had received diagnoses of cancer or that a family member had died. They wanted to know why it was taking so long. When would they get relief? Among those who called was Jim Tennant. Wilbur, who had cancer, had died of a heart attack. Two years later, Wilbur’s wife died of cancer. Bilott was tormented by ‘‘the thought that we still hadn’t been able to hold this company responsible for what they did in time for those people to see it.’’
Taft did not waver in its support of the case, but the strain began to show. ‘‘It was stressful,’’ Sarah Barlage, Bilott’s wife, says. ‘‘He was exasperated that it was lasting a long time. But his heels were so dug in. He’s extremely stubborn. Every day that went by with no movement gave him more drive to see it through. But in the back of our minds, we knew that there are cases that go on forever.’’
His colleagues on the case detected a change in Bilott. ‘‘I had the impression that it was extremely tough on him,’’ Winter says. ‘‘Rob had a young family, kids growing up, and he was under pressure from his firm. Rob is a private person. He didn’t complain. But he showed signs of being under enormous stress.’’
In 2010, Bilott began suffering strange attacks: His vision would blur, he couldn’t put on his socks, his arms felt numb. His doctors didn’t know what was happening. The attacks recurred periodically, bringing blurry vision, slurred speech and difficulty moving one side of his body. They struck suddenly, without warning, and their effects lasted days. The doctors asked whether he was under heightened stress at work. ‘‘Nothing different than normal,’’ Bilott told them. ‘‘Nothing it hadn’t been for years.’’
The doctors ultimately hit upon an effective medication. The episodes ceased and their symptoms, apart from an occasional tic, are under control, but he still doesn’t have a diagnosis.
‘‘It was stressful,’’ Bilott says, ‘‘not to know what the heck was going on.’’
In December 2011, after seven years, the scientists began to release their findings: there was a ‘‘probable link’’ between PFOA and kidney cancer, testicular cancer, thyroid disease, high cholesterol, pre-eclampsia and ulcerative colitis.
‘‘There was relief,’’ Bilott says, understated nearly to the point of self-effacement. ‘‘We were able to deliver what we had promised to these folks seven years earlier. Especially since, for all those years, DuPont had been saying that we were lying, trying to scare and mislead people. Now we had a scientific answer.’’
As of October, 3,535 plaintiffs have filed personal-injury lawsuits against DuPont. The first member of this group to go to trial was a kidney-cancer survivor named Carla Bartlett. In October, Bartlett was awarded $1.6 million. DuPont plans to appeal. This may have ramifications well beyond Bartlett’s case: Hers is one of five ‘‘bellwether’’ cases that will be tried over the course of this year. After that, DuPont may choose to settle with every afflicted class member, using the outcome of the bellwether cases to determine settlement awards. Or DuPont can fight each suit individually, a tactic that tobacco companies have used to fight personal-injury lawsuits. At the rate of four trials a year, DuPont would continue to fight PFOA cases until the year 2890.
DuPont’s continuing refusal to accept responsibility is maddening to Bilott. ‘‘To think that you’ve negotiated in good faith a deal that everybody has abided by and worked on for seven years, you reach a point where certain things were to be resolved but then remain contested,’’ he says. ‘‘I think about the clients who have been waiting for this, many of whom are sick or have died while waiting. It’s infuriating.’’
As part of its agreement with the E.P.A., DuPont ceased production and use of PFOA in 2013. The five other companies in the world that produce PFOA are also phasing out production. DuPont, which is currently negotiating a merger with Dow Chemical, last year severed its chemical businesses: They have been spun off into a new corporation called Chemours. The new company has replaced PFOA with similar fluorine-based compounds designed to biodegrade more quickly — the alternative considered and then discarded by DuPont more than 20 years ago. Like PFOA, these new substances have not come under any regulation from the E.P.A. When asked about the safety of the new chemicals, Chemours replied in a statement: ‘‘A significant body of data demonstrates that these alternative chemistries can be used safely.’’
Last May, 200 scientists from a variety of disciplines signed the Madrid Statement, which expresses concern about the production of all fluorochemicals, or PFASs, including those that have replaced PFOA. PFOA and its replacements are suspected to belong to a large class of artificial compounds called endocrine-disrupting chemicals; these compounds, which include chemicals used in the production of pesticides, plastics and gasoline, interfere with human reproduction and metabolism and cause cancer, thyroid problems and nervous-system disorders. In the last five years, however, a new wave of endocrinology research has found that even extremely low doses of such chemicals can create significant health problems. Among the Madrid scientists’ recommendations: ‘‘Enact legislation to require only essential uses of PFASs’’ and ‘‘Whenever possible, avoid products containing, or manufactured using, PFASs. These include many products that are stain-resistant, waterproof or nonstick.’’
When asked about the Madrid Statement, Dan Turner, DuPont’s head of global media relations, wrote in an email: ‘‘DuPont does not believe the Madrid Statement reflects a true consideration of the available data on alternatives to long-chain perfluorochemicals, such as PFOA. DuPont worked for more than a decade, with oversight from regulators, to introduce its alternatives. Extensive data has been developed, demonstrating that these alternatives are much more rapidly eliminated from the body than PFOA, and have improved health safety profiles. We are confident that these alternative chemistries can be used safely — they are well characterized, and the data has been used to register them with environmental agencies around the world.’’
Every year Rob Bilott writes a letter to the E.P.A. and the West Virginia D.E.P., urging the regulation of PFOA in drinking water. In 2009, the E.P.A. set a ‘‘provisional’’ limit of 0.4 parts per billion for short-term exposure, but has never finalized that figure. This means that local water districts are under no obligation to tell customers whether PFOA is in their water. In response to Bilott’s most recent letter, the E.P.A. claimed that it would announce a ‘‘lifetime health advisory level for PFOA’’ by ‘‘early 2016.’’
This advisory level, if indeed announced, might be a source of comfort to future generations. But if you are a sentient being reading this article in 2016, you already have PFOA in your blood. It is in your parents’ blood, your children’s blood, your lover’s blood. How did it get there? Through the air, through your diet, through your use of nonstick cookware, through your umbilical cord. Or you might have drunk tainted water. The Environmental Working Group has found manufactured fluorochemicals present in 94 water districts across 27 states (see sidebar beginning on Page 38). Residents of Seattle; Wilmington, Del.; Colorado Springs; and Nassau County on Long Island are among those whose water has a higher concentration of fluorochemicals than that in some of the districts included in Rob Bilott’s class-action suit. The drinking water in Parkersburg itself, whose water district was not included in the original class-action suit and has failed to compel DuPont to pay for a filtration system, is currently tainted with high levels of PFOA. Most residents appear not to know this.
Where scientists have tested for the presence of PFOA in the world, they have found it. PFOA is in the blood or vital organs of Atlantic salmon, swordfish, striped mullet, gray seals, common cormorants, Alaskan polar bears, brown pelicans, sea turtles, sea eagles, Midwestern bald eagles, California sea lions and Laysan albatrosses on Sand Island, a wildlife refuge on Midway Atoll, in the middle of the North Pacific Ocean, about halfway between North America and Asia.
‘‘We see a situation,’’ Joe Kiger says, ‘‘that has gone from Washington Works, to statewide, to the United States, and now it’s everywhere, it’s global. We’ve taken the cap off something here. But it’s just not DuPont. Good God. There are 60,000 unregulated chemicals out there right now. We have no idea what we’re taking.’’
Bilott doesn’t regret fighting DuPont for the last 16 years, nor for letting PFOA consume his career. But he is still angry. ‘‘The thought that DuPont could get away with this for this long,’’ Bilott says, his tone landing halfway between wonder and rage, ‘‘that they could keep making a profit off it, then get the agreement of the governmental agencies to slowly phase it out, only to replace it with an alternative with unknown human effects — we told the agencies about this in 2001, and they’ve essentially done nothing. That’s 14 years of this stuff continuing to be used, continuing to be in the drinking water all over the country. DuPont just quietly switches over to the next substance. And in the meantime, they fight everyone who has been injured by it.’’
Bilott is currently prosecuting Wolf v. DuPont, the second of the personal-injury cases filed by the members of his class. The plaintiff, John M. Wolf of Parkersburg, claims that PFOA in his drinking water caused him to develop ulcerative colitis. That trial begins in March. When it concludes, there will be 3,533 cases left to try.
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A Lawyer's Long Path From Corporate Defender to DuPont Foil
Jan 6, 2016 | E&E - Greenwire
By Nathaniel Rich
Environmental lawyer Rob Bilott went from defending chemical companies to taking on one of the largest, DuPont.
Bilott's first plaintiff, Wilbur Tennant, in what became massive class-action litigation against DuPont over discharges of toxic chemicals from its Parkersburg, W.Va., facility, knew Bilott through family connections years earlier.
He said cows on his recently sold farm were acting deranged, and his brother was suffering from an unknown health problem. But DuPont's influence in the small town made finding help difficult.
"Every veterinarian that I've called in Parkersburg, they will not return my phone calls or they don't want to get involved," Tennant said.
The suit was eventually filed in 1999 in the U.S. District Court for the Southern District of West Virginia. They later learned DuPont had discharged an unknown chemical, PFOA or perfluorooctanoic acid, which the company referred to as C8. By 1990, the company had dumped 7,100 tons of the chemical into a landfill that drained onto Tennant's land.
Bilott settled the case on behalf of Tennant but sent the evidence he uncovered to U.S. EPA, prompting DuPont to unsuccessfully seek a gag order against him. The disclosure triggered EPA to reach a settlement in 2006 with DuPont for $16.5 million under the Toxic Substances Control Act. In the years since, 3,535 plaintiffs have filed personal-injury lawsuits against DuPont over the discharges, with the first reaching trial last year (Greenwire, Oct. 8, 2015).
"There was a reason why I was interested in helping out the Tennants," Bilott said. "It was a great opportunity to use my background for people who really needed it" (Nathaniel Rich, New York Times, Jan. 6).
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Calif. Utility Erects Huge Screens to Block Leak's Oily Mist
Jan 6, 2016 | E&E - Energywire
By Louis Sahagun
The major natural gas leak near a Los Angeles suburb is now combating a new problem: oily mist.
As thousands evacuate the Porter Ranch area, Southern California Gas Co. is trying to plug the gas leak and is now also putting a 60-foot section of mesh over where gas trickles up through the soil to try to stop water droplets contaminated by the gas from drifting into neighboring areas.
SoCal Gas spokeswoman Trisha Muse said the screens near the leaky wellhead are meant to catch droplets of brine solution that "may have contained trace amounts of oil naturally occurring within the leaking well's reservoir."
While the leak started Oct. 23, the droplet problem started Nov. 13 after SoCal Gas pumped fluids into the well that came back up and created mist. The company issued a warning for people to stay inside for only that day. Now, the brine pumped is coming back up again through another route, and many residents are finding small, dark-brown spots covering houses, cars and exposed surfaces.
SoCal Gas said in a letter that its toxicologist and medical expert found that "the residue contained heavier hydrocarbons (similar to motor oil) but does not pose a health risk." However, it did offer to cover cleaning costs.
SoCal Gas expects to finishing drilling down to fix the leak in about three months, but in the meantime, it's providing alternate housing for thousands in the Porter Ranch area and trying to keep up with the mounting legal battles coming from residents of the affluent area (Louis Sahagun, Los Angeles Times, Jan. 4).
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Leak Wreaks Havoc on L.A. Neighborhood
Jan 6, 2016 | E&E - Greenwire
By James Nash
The Los Angeles neighborhood of Porter Ranch remains mostly deserted as every day enough methane to fill the Empire State Building spews from the nation's fourth-largest underground natural gas storage facility.
Most of the 30,000 residents along the north rim of the San Fernando Valley have evacuated because of the massive leak from the storage field that Southern California Gas Co., a subsidiary of San Diego company Sempra Energy, said could take two months to cap (EnergyWire, Jan. 5).
"Life there is not on hold -- it's on the edge and it's on the brink of pandemonium," said Mitchell Englander, Porter Ranch's representative on the Los Angeles City Council. "People are living with fear, uncertainty and doubt."
Southern California Gas has set up a storefront in a nearby mall to assist residents with relocation, air filtration and claims, but Los Angeles city officials and some residents have already filed lawsuits.
With company stocks down 8.2 percent since the leak started in October 2015, Sempra could need to use all of its at least $1 billion insurance policy to cover costs.
The leak comes as California tries to crack down on greenhouse gas emissions.
"We overregulate virtually every industry in California, yet we have some of the softest regulations on natural gas storage fields," Englander said. "It's astonishing to me" (James Nash, Bloomberg/Fuel Fix, Jan. 5).
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EPRI's Lee Discusses Efforts to Address Cyberthreats Facing E.U. Member Countries
Jan 6, 2016 | E&E TV
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Annabelle Lee, senior technical executive and a cybersecurity expert at the Electric Power Research Institute. Annabelle, thank you for joining me.
Annabelle Lee: You're welcome.
Monica Trauzzi: Annabelle, you were recently appointed by the European Commission to a cybersecurity panel that will assess cyber requirements for E.U. member countries. What is the EC's cybersecurity situation currently? And what are the specific threats that this panel is going to be taking a look at?
Annabelle Lee: The group, it's the Energy Expert Cybersecurity Panel Expert Group, is a group of 15 individuals that they selected. I am the only American on the team. We all submitted our applications, and then they selected the group. The European, the situation in Europe is different from the United States. In the United States, we have regulatory requirements for the bulk power system. It's called the North American Electric Reliability Corporation Critical Infrastructure Protection Standards. Europe does not have any comparable requirements on the bulk power system. They do have privacy requirements, and U.S. states have privacy requirements.
So they are looking at from a European Commission and an E.U. perspective of do we need regulations? What type of policy do we need? So they are very interested in getting input from experts on cybersecurity and looking at what best practices, recommendations and so on. So that is the goal of this group.
Monica Trauzzi: And a recent study by the E.U. Agency for Network and Information Security found that between 25 and 30 percent of E.U. member states have not addressed issues relating to cybersecurity yet. Why do you think that nearly a third of E.U. countries have not paid closer attention to this point?
Annabelle Lee: That NISA group I have participated in a number of their working groups, the utilities, and this is true around the world. If you look at the electric infrastructure in contrast to the information technology infrastructure, the -- some of the larger devices have been around, they've been deployed for 40 to 50 years. Fifty years ago we didn't worry about cybersecurity, or if you brought it up people would have probably said, what's that? What are you considering? And if you look at, again, the older technology, the transformers and generators, that was not an issue.
With the new technology, it is an issue. And as the grid is modernized, and I'll generically use that phrase, around the world, then you need to start worrying about cybersecurity. There still is legacy equipment in the United States that is 40 years old, 50 years old that has no cybersecurity in it. And when you then implement the new technology that has cybersecurity capabilities and features ... cyber capabilities and you have to deal with cybersecurity, then you need to figure out how do we put this legacy equipment with the new equipment and address cybersecurity. Because some of this older equipment, also, you can't implement cybersecurity on it. It won't. It won't operate.
So it's -- yeah, it's a difficult issue for all of the control systems. And you can't just go out and replace this equipment. The larger devices are very expensive. They're millions of dollars. And the lead time for a lot of the equipment can be one and a half, two years. So you can't just say, well, we'll just go out and replace everything. That doesn't work.
Monica Trauzzi: So as the grid becomes more sophisticated, then is there truly a way to avoid the risk?
Annabelle Lee: You cannot avoid the risk. If you look at all of, everything that we do, we drive cars. There are risks driving cars. There are risks with everything we do. You need to look at the risk and make decisions. And cybersecurity is one area of risk. If you look at utilities, they deal with financial risk, public perception risk. All different areas of risk. This is another area of risk they need to make decisions.
They also cannot spend all of their funds on cybersecurity. They have to do other things with the funding. It's required by the utilities. And so what they do is prioritize the risk, prioritize the vulnerabilities. You look at your highest-priority systems and then you make decisions about which ones do you want to look at from a cybersecurity perspective, which ones do you want to address the potential vulnerabilities and threats.
Monica Trauzzi: So as you look at the range of energy sources used among E.U. member countries, what is the unique risk posed by nuclear generation?
Annabelle Lee: Nuclear, I focus more on the electric side of this. I am not an expert on the nuclear side. We do have a representative on this panel that is an expert on the nuclear side of it. I focus more on the transmission and, and nonnuclear generation and distribution.
Monica Trauzzi: So you were in Brussels last month.
Annabelle Lee: Yes.
Monica Trauzzi: For the first --
Annabelle Lee: First meeting. Yep.
Monica Trauzzi: First panel meeting. What were your takeaways? I mean, how much can you share about what was discussed?
Annabelle Lee: OK. Yeah, so obviously the, the details of the meeting and the working groups is going to be held within the group as we're working on all the various drafts and so on. I think, I think the takeaways, it's a very strong group of individuals. We're in cybersecurity in electric sector, and it's a small community, so I knew a lot of the people in the room. It's, it's a very impressive group of individuals. People are committed to addressing the cybersecurity risk. The other side, and people say, well, gee, if there are all these risks with cybersecurity why are you modernizing the grid? If you look at the new technology, you look at renewable and so on, there's so much new capability and functionality that we want to take advantage of. You can only do that with the new technology. So you need to address cybersecurity as you're deploying all of this new technology.
I think the takeaway is everybody is really committed. There are two working groups. I lead one of the working groups. We have our first call next Monday. And what we're going to be focusing on in general as a group is looking at what's out there that we can use. Let's not just start over and say, gee, there's nothing we can use in terms of guidance or best practices. Let's look at what's there, and we're going to be putting together strategy for the European Commission to help them as they consider how they want to move forward in addressing cybersecurity.
Monica Trauzzi: It's a fascinating topic. I thank you for coming on the show.
Annabelle Lee: It's great. Great.
Monica Trauzzi: Yeah, more to come on this.
Annabelle Lee: Thank you.
Monica Trauzzi: Thanks.
Annabelle Lee: More to come. Thank you.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
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Environmentalists Petition EPA To Revisit Hudson River Sediment Cleanup
Jan 6, 2016 | InsideEPA
Several environmental groups are petitioning EPA to revisit a massive dredging cleanup remedy in the Hudson River to address polychlorinated biphenyls (PCBs), challenging the agency on its decision to effectively deem the completed dredging project protective and pointing to federal trustees' "serious concerns" over the cleanup's adequacy.
While EPA has not yet responded to the petition, agency officials -- partially responding to the concerns -- say they will launch a five-year review of the cleanup remedy in early 2016 and will boost opportunities for public involvement in that review.
But they refuse to halt the decommissioning of infrastructure used to dredge contaminated river sediment for the past several years, saying in a Dec. 18 letter that "under the terms of the consent decree, [responsible party] General Electric [(GE)] would vigorously dispute any Agency decision to suspend its decommissioning work."
At issue is the adequacy of EPA's decision regarding the dredging remedy for the Hudson River PCBs Superfund Site. Environmentalists have long argued for more extensive dredging of toxic PCB hotspots in the Hudson, particularly as GE last fall neared the end of its more than $1 billion, six-year sediment cleanup of the river. Environmentalists, backed by natural resource trustees' findings, have argued additional dredging could accelerate the cleanup.
GE for six years up until the fall of 2015 has dredged the Upper Hudson River to remove more than 2.6 million cubic yards of sediment contaminated with PCBs stemming from two electrical capacitor manufacturing plants that operated along the river for decades, according to the company. EPA required the Superfund cleanup, estimating that GE had discharged 1.3 million pounds of PCBs into the river.
The Hudson River dredging project is widely considered unprecedented in terms of the scope of contamination and technical challenges it involves, with GE claiming it is one of the biggest and most "logistically complex" cleanups in the country's history.
The Dec. 17 petition from five environmental groups to EPA was triggered after the agency declared in November the success of GE's dredging operations, and gave approval for decommissioning the dewatering facility and other critical infrastructure supporting dredging operations. The petitioners are the Natural Resources Defense Council, Hudson River Sloop Clearwater, Riverkeeper, Scenic Hudson and the Sierra Club, Atlantic Chapter.
"This approval constituted a de facto determination by EPA that the dredging remedy selected in the [ROD] had been satisfactorily completed and that this remedy is protective of human health and the environment," the petitioners say. But they contend that determination "was arbitrary and capricious."
'Continuing Danger'
The groups say that determination "was made in the face of compelling evidence that the PCBs remaining in the Hudson constituted a real and continuing danger and that the completed dredging had not resulted in conditions that were sufficiently protective of human health and the environment." They point out that conclusion on the continuing danger of PCB contamination was reached by the National Oceanic and Atmospheric Administration (NOAA), a federal natural resource trustee for the river, in a recent technical evaluation examining the efficacy of EPA's cleanup remedy for PCB-laden sediment in the river.
"Ultimately, the NOAA analysis concluded that high levels of PCBs will remain in the river, and in Hudson River fish, generations longer than expected unless further dredging is conducted," the petitioners say.
The petitioners ask for EPA to immediately undertake a review of the remedy, including all new information, and based on that evaluation, follow through with requiring additional dredging to remove PCB sediment as needed to protect human health and the environment.
The environmental groups met with EPA officials in early December on the matter, and outlined their continuing concerns in a Dec. 10 letter.
In response, EPA waste chief Mathy Stanislaus and Region 2 Administrator Judith Enck say in their Dec. 18 letter to the groups that the agency will begin its second five-year review of the remedy in early 2016, "increase opportunities for public involvement and, if practicable, complete the review earlier than April 23, 2017," the date by which it had previously committed to finish the review.
"We agree that it is important for the next review to include an assessment of current river conditions, including post-dredging sediment, water and fish data," the officials say.
They say they recently met with federal and state trustees to discuss fish sediment and water column sampling to be conducted by GE as part of a project assessing recovery of the river.
Five-Year Review
The agency has "carefully considered NOAA's concerns" and plans to consult with the trustees on scoping, data collection and other preparations for the upcoming five-year review, they say.
In their Dec. 10 letter, the groups also argue that EPA should not "certify completion of the remedy under current circumstances, which include: new information about significantly higher-than-expected pre-remedial PCB concentrations; the substantially lower-than-expected rate of natural recovery in Hudson River sediments; the projected decades of delay in achieving the remedial action objectives for fish; and other issues an appropriate or more comprehensive Five Year Review might reveal."
But the EPA officials say they disagree with the assumptions underlying the request. EPA has no plans to certify GE's completion of the remedy until the summer of 2017, after the five-year review report is completed. They note that several remedial actions have yet to be completed, such as demobilizing the sediment processing facility and reconstructing habitat areas. Only after that will GE be able to preliminarily state whether the remedial action is complete, and following that, the consent decree requires a series of steps before EPA can certify completion of the remedy, the EPA letter says.
Stanislaus and Enck in the letter say they will respond separately to the petition.
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Republicans Still Hunting a Way Forward on Landmark Climate Deal
Jan 6, 2016 | E&E- Climatewire
By Jean Chemnick
If Republicans are preparing to launch an offensive against the historic climate change agreement the Obama administration struck in Paris last month, they're being awfully quiet about it.
While die-hard congressional opponents of President Obama's climate policies did respond to the mid-December news that nearly 200 nations had accepted a long-sought deal, those statements were fewer and less vitriolic than expected -- especially considering that the White House was claiming the accord as a cornerstone of the president's climate legacy.
An analysis by the advocacy group Climate Hawks Vote, released soon after the deal was finalized on Dec. 12 in the French capital, found 10 Republican senators and 18 Republican congressmen released statements criticizing it. Some important names were not on that list -- including Senate Foreign Relations Chairman Bob Corker (R-Tenn.). Reached for comment, his staff said that the committee is "continuing to examine the best way forward to ensure Congress plays its appropriate role."SPECIAL SERIES
Paris Climate Talks provides in-depth coverage of the 21st U.N. summit to forge a new global agreement to reduce carbon dioxide emissions. Visit the special report.
That's not to say that the agreement didn't register in Washington. But Republicans who did weigh in tended to argue that the deal is mostly politically binding and barely worth the 31 pages of paper it's printed on. Rather than articulating a plan for how to defeat it over the coming months, GOP lawmakers hint at a much more passive strategy in which a Republican president is elected, walks away from the agreement and never looks back.
A handful of committees on both sides of Capitol Hill are expected to hold hearings on the Paris agreement and the domestic policies that support it during the congressional session that begins this week in the House and next week in the Senate. But so far, Republicans haven't outlined a plan to wrest control of the agreement away from an administration that insists it has signed off on one that does not require Senate approval.McConnell: Paris just a 'planning document'
There could, however, be some fireworks.
Senate Environment and Public Works Chairman James Inhofe (R-Okla.) has pledged to renew his demand that the administration supply lead climate negotiator Todd Stern to address his committee -- despite the fact that it is not viewed to have jurisdiction over the State Department. The House Energy and Commerce; Science, Space and Technology; and Appropriations committees are among others also expected to exercise oversight.
Rep. Ed Whitfield (R-Ky.), who had planned to lead a House delegation to the Paris talks until votes interfered, penned an op-ed in The Washington Examiner a week after the deal was finalized, minimizing it as a "signal" of Obama administration preferences rather than a treaty.
Sen. James Inhofe (R-Okla.) may hold hearings on the Paris climate change agreement.Photo by Sue Ogrocki, courtesy of AP Images.
"While some may claim the resulting deal is a grand triumph, the bottom line is that this was a nonbinding political document that does not impose any new obligation on the United States," Whitfield wrote, adding that Obama "misled the international community in Paris."
Senate Majority Leader Mitch McConnell (R-Ky.) dismissed it as "nothing more than a long-term planning document."
The agreement for the most part does not obligate the United States under international law -- though it does include some procedural components that are legally binding and that the administration says are supported by prior treaties.
Its architecture is the result of heavy negotiating by Secretary of State John Kerry and climate negotiator Stern, who carried to Paris a mandate of avoiding an agreement that would require Senate advice and consent -- a condition that would have made U.S. participation impossible. In fact, the U.S. delegation delayed adoption of the deal until what it says was a typo stating that developed parties "shall" take future steps to bring down their absolute emissions was corrected. The language was changed to the less-mandatory "should" before it was approved by parties (ClimateWire, Dec. 14, 2015).
While the weaker wording made it harder for Republicans to claim the Obama administration had improperly obligated the United States to deliver reductions not authorized by Congress, many then panned the deal as toothless and inconsequential.
Inhofe, who skipped the conference, citing a packed pre-holiday floor schedule, called the resulting deal a "desperate effort" by the administration to claim international buy-in for an unpopular domestic climate agenda.A big deal or a nothingburger?
The State Department's end run around the Senate had long been expected, but Republicans thought they had a strategy in place going into Paris that would at least make it embarrassing for the Obama administration.
House and Senate majorities pledged in November that they would withhold international climate aid during the coming appropriations battle pending submittal of an agreement. Sen. John Barrasso (R-Wyo.) and Inhofe spearheaded a letter signed by most of their GOP colleagues informing Obama of their plans to withhold the funds, and Sen. Mike Lee (R-Utah) introduced a resolution making Green Climate Fund (GCF) funding contingent on the submittal (ClimateWire, Nov. 19, 2015).
That leverage evaporated when Obama signed a long-term omnibus spending bill into law before Christmas, which the State Department says will allow it to supply the $500 million the United States promised toward the United Nations' Green Climate Fund for fiscal 2016. While Washington must pass another spending bill by October, the timing right before this year's presidential election makes passage of a stopgap bill likely. So future battles over the GCF will probably have to wait until there is a new occupant in the White House -- if they happen at all.
That timing could also derail perennial Republican efforts to attach riders to next year's spending bills aimed at scuttling other aspects of Obama's domestic climate agenda, as well, including EPA's Clean Power Plan.
"Their strategy didn't work," said Karen Orenstein, a senior analyst at Friends of the Earth, of the Republican effort to use the "power of the purse" to hamper the Paris talks. She argued that having failed to stop the GCF funding, Republicans who once decried the deal as an approaching economic catastrophe now seem bent on minimizing its importance.
"They're backtracking," she said. "The content of what they're debating hasn't changed. If it was a big deal then, it should be a big deal now."
Barrasso seemed to split the difference. He did not reiterate his call to withhold GCF funding in a speech on the Senate floor after Paris, but he cast the agreement as both meaningless and potentially harmful.
"Parts of the agreement can do damage to our jobs and our economy," he said. "At the same time, important parts are not binding on other countries."The inconvenient truth of Paris: hard to undo
The relatively muted response to Paris on the part of many Republicans coincided with a general GOP outcry over a Government Accountability Office finding on Dec. 14 that EPA improperly promoted its controversial water rule on social media.
Whitfield, who heads a key Energy and Commerce subcommittee, joined with other committee Republicans on a Dec. 17 letter admonishing EPA to steer clear of using "similar shenanigans" in promoting its climate rules.
RL Miller of Climate Hawks Vote said a brief analysis showed that between two and three times as many Republicans commented on the Twitter "propaganda" finding as weighed in on the Paris agreement. She said this indicated to her that the radio silence was not due simply to the awkward timing of the conference in the midst of efforts to move a budget and oil exports bill and before Christmas.
"It's not a question of them being too busy and too caught up in other things; they just don't have anything to say," she said.
Alden Meyer, director of strategy and policy at the Union of Concerned Scientists, said the Paris agreement is inconvenient to Republicans because it contradicts their favorite talking point that the Obama administration is acting alone to curb emissions in ways that will damage the U.S. economy. It is also futile, he said.
"It's not like they can do something that can undo Paris," he said.
Even the components of the U.S. pledge to cut emissions 26 to 28 percent below 2005 levels by 2025 appear to be safe from congressional intervention right now.Looking for the next fight
Congress passed Congressional Review Act resolutions late last year to kill EPA's power plant carbon rules, but Obama refused to sign them. And it seems unlikely that this year's abbreviated legislative session will produce successful legislation to roll back the marquee climate rules when previous efforts to do so have failed.
Opponents of the carbon rules hope to see the courts invalidate them and are seeking a legal stay. Scott Segal of the legal and lobbying firm Bracewell & Giuliani notes that, if granted, a stay would give Congress more time to act -- possibly under a new president.
But the likely scenario seems to be that the courts will decide the fate of the Clean Power Plan, just as next year's presidential election may decide the fate of U.S. participation in the Paris deal. And Congress has scant control over either.
Meyer said Corker's unwillingness to focus his committee's attention and resources on Paris appears pragmatic. The Foreign Relations Committee chairman is a moderate who has said human-caused emissions are contributing to warming.
"To me, it says that Corker understands that there's no political traction here to engage Democrats in the way [the committee] did on the Iran issue, for example," he said. "And he doesn't want to be someone who pursues a partisan-only agenda."
But Segal said Congress may have more tools at its disposal than some believe. For one thing, the tussle over GCF funding may not be over. Last month's spending bill does not contain a prohibition on State Department funds going to fill the adaptation and mitigation fund, but neither does it dedicate funding to it. If the department chooses to redirect funding to the GCF, it may need to ask permission of appropriators, he said. And that could be another opportunity for lawmakers to demand a say on Paris.
"I think there are a lot of people in Congress that would welcome that fight," Segal said.
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Biomass Legal Challenge Fuels Debate on its Carbon Footprint
Jan 6, 2016 | E&E- Cliamtewire
By Elizabeth Harball and Brittany Patterson
New lawsuits from advocates of biomass energy challenging the Clean Power Plan expose a long-standing rift between the Obama administration and the industry over whether biomass can be considered renewable on par with solar and wind.
The industry doesn't know exactly how carbon emissions from burning wood or other plant matter will be counted in state compliance plans under U.S. EPA's recently finalized regulations curbing the power sector's greenhouse gas output.
The final rule, issued in August, sets out a series of requirements for states that want to use biomass to meet emissions reduction targets. They include specifying how biomass emissions will be monitored, reported and audited to ensure that biomass burning doesn't increase the net amount of carbon dioxide entering the atmosphere.
But industry groups are unhappy with this additional legwork. Most maintain that all biomass energy is carbon-neutral because trees take in carbon dioxide as they grow. That position is contested by some environmental groups.
"As long as our forests are sequestering net carbon, it is unnecessary to impose additional and potentially onerous qualifications on biomass, especially without the opportunity for public comment," said Gretchen Schaefer, vice president of communications for the National Alliance of Forest Owners, which filed a lawsuit on Dec. 22.Initial industry optimism soured
One legal challenge from the biomass industry may be put on hold, however, because EPA is still trying to figure out how to measure the net CO2 that ends up in the atmosphere when plant materials are burned for electricity.
The American Forest and Paper Association (AF&PA) and the American Wood Council (AWC), two trade associations that represent wood products manufacturers, also filed a lawsuit challenging the rule; many pulp and paper facilities are powered by burning wood chippings. But those groups yesterday asked the court to put their case on hold pending the a decision by EPA's Science Advisory Board.
The board is actively studying biomass energy's impact on the climate, and is slated to release guidance soon on how those emissions should be counted. That hotly anticipated decision will likely influence how states can use the fuel to reduce their emissions.
However, in both the rule and earlier guidance to the industry, EPA recognizes that some biomass energy can play an important role in controlling CO2 levels in the atmosphere.
"The CPP [Clean Power Plan] creates a pathway for states to use biomass as part of their plans to meet their emission reduction guidelines, and we expect many states to include biomass as a component in their state plans," Janet McCabe, acting EPA assistant administrator of the Office of Air and Radiation, wrote in a November blog post.
"We look forward to reviewing plans that incorporate well-developed forestry and other land management programs producing biomass that can qualify under the guidelines laid out in the CPP, and we are confident that the CPP offers sufficient lead time and flexibility for states to develop approvable programs," she wrote.
In the past, the biomass industry expressed cautious optimism about how the source could be used by states to slash emissions under the Clean Power Plan (ClimateWire, Dec. 3, 2014). But soon after the final rule was announced, the industry's tone shifted. In an August press release, the Biomass Power Association said it was worried about complicated and costly requirements to monitor, report and track types of biomass, or what it calls biomass feedstocks.Do states still have 'a lot of latitude'?
"While we are encouraged with EPA's endorsement of biomass as a compliance tool to fight climate change, we are nonetheless concerned about the added complexity and cost associated with many of EPA's recommendations," said Bob Cleaves, president and CEO of the Biomass Power Association. "EPA should be doing everything possible to allow our sector to compete on a level playing field with other, often highly subsidized sources of energy."
In documents filed yesterday with the court, AF&PA and AWC wrote that "the language of the Clean Power Plan itself, however, is brief and not very specific, and the preamble to the Clean Power Plan confirms that EPA is still developing technical information and guidance that will apply to and inform state and EPA action on state plans that incorporate credit for electricity generation using biomass fuels, as explained above."
The document goes on to state that "aspects of the final rule may be worded unintentionally in a way that states might interpret incorrectly, while other provisions may be unnecessarily vague or ambiguous."
But not everyone agrees that EPA's requirements for biomass are overly burdensome.
The Clean Power Plan "leaves a lot of latitude for states" wanting to use biomass as a compliance option, said David Littell, principal at the Regulatory Assistance Project, a group that is working with energy and air regulators on planning for the EPA climate rule.
"The industry position that all biomass is carbon neutral is just scientifically wrong, but some of the advocates' position that all biomass is bad is also wrong," said Littell. "EPA is taking a balanced approach."
Asked about the biomass industry's recent lawsuit challenging the Clean Power Plan, EPA responded in a statement, "EPA continues to work with states and stakeholders on the role biomass can play in state plans to reduce carbon emissions under the Clean Power Plan. EPA will review the lawsuits."
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White House Vows To Veto House Regulatory Reform Bills
Jan 6, 2016 | InsideEPA
The White House is threatening to veto two regulatory reform bills poised to clear the House this week that would set strict limits on EPA and other agencies' rulemaking activities including new hurdles for settlements imposing deadlines for issuing rules...
In Statements of Administration Policy (SAPs) released Jan. 6, the White House says President Obama “strongly opposes” both H.R. 1155, which would require agencies to repeal or loosen older rules when they enact new ones as well as tightening retrospective review of existing rules. Obama also opposes H.R. 712, which would add public disclosure requirements to increase "transparency" in agencies' regulatory settlements.
With the two bills scheduled for floor debate Jan. 6 and votes expected soon after, the SAPs say that the president's senior advisors would recommend vetoing both bills in their current forms.
The SAP on H.R. 1155 says that bill “would make the process of retrospective regulatory review less productive. Further, the bill also would create needless regulatory and legal uncertainty; increase costs for businesses and State, local and tribal governments; and impede common-sense protections for the American public. Accordingly, the Administration strongly opposes House passage of H.R. 1155 in its current form.”
The pending bills are among many backed by GOP legislators that would add new hurdles to the regulatory process to counter EPA rules and other executive policies they oppose. But the bills have faced near-unanimous opposition from Democrats and the Obama administration, leading to speculation that a coordinated push for their passage in both chambers could wait for the beginning of the next administration in 2017.
H.R. 1155 would establish a congressionally appointed committee to assess the ongoing compliance costs of existing rules and recommend repealing or loosening those that have become outdated or whose costs have become disproportionate to their benefits. Those assessments would also inform a “cut-go” system which follows up on statements in the House's fiscal year 2016 budget bill that backed a “regulatory budget” limiting total compliance from environmental and other rules. Agencies proposing some types of new regulations would have to ease costs from existing rules to make room in the “budget,” using the committee's figures for their decisions.
“The Administration recognizes that the applicability of 'cut-go' in H.R. 1155 is narrower than in other bills being considered in the Congress. Nonetheless, it is essential that agencies have the flexibility to promptly issue new, vital rules. This ability should not be constrained by a Commission's recommendation, or Congressional approval of a list of repealable rules,” the SAP says.
Meanwhile, the White House argues in its SAP on H.R. 712 that its passage “would impose additional, unnecessary procedural requirements that would seriously undermine the ability of agencies to execute their statutory mandates.”
EPA critics have long faulted what they call “sue and settle” pacts through which environmentalists sue the agency to force a deadline for new rulemakings, and EPA then agrees to settlement deadlines for regulatory action to resolve the suits. The agency's opponents say these pacts effectively set its regulatory agenda without congressional or public input and should be open to participation by the public, especially regulated entities -- although a Jan. 14 report from the Government Accountability Office found "limited" impact from the suit on EPA's rules.
H.R. 712 would set new requirements for public participation in settlements between citizen groups and agencies when the agreement includes deadlines for final action on a new or modified rule.
But the White House SAP counters that rather than remedying a “nonexistent problem” of collusion on such settlements, the bill “would serve only to introduce redundant processes for litigation settlements and spawn excessive, expensive, and time-consuming regulatory litigation.
Senate counterparts to H.R. 712 and H.R. 1155 -- which are respectively numbered S. 378 and S. 1683 -- were introduced in 2015 but neither has yet received a committee hearing.
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Jan 6, 2016 | Houston Chronicle
By Editorial Board
It's time to spare Texans the rhetoric and work with the EPA to reduce ozone levels.
Texas Attorney General Ken Paxton recently filed yet another lawsuit against the U.S. Environmental Protection Agency, this time for lowering permissible limits of ozone pollution in U.S. skies. His lawsuit means more Texas taxpayers money will be wasted on yet another needless, politically motivated legal action by one of our Republican officials.
The lawsuit, filed - without irony, apparently - on behalf of the Texas Commission on Environmental Quality, argues that the EPA standard of 70 parts per billion, down from 75 ppb, would have no health benefits and only damage the economy by requiring expensive anti-pollution measures.
The state paid an industry-friendly, Massachusetts-based consulting firm $1.65 million to come up with the conclusion that the new ozone rule is, as Paxton said in a statement, "not supported by scientific data."
The truth is that any decline in ozone levels is helpful, but many scientists and physicians say the EPA ozone standard needs to be dropped to 60 ppb to achieve full health benefits.
Ozone, the haze that enshrouds Houston when sunlight reacts with emissions from cars, power plants and industrial facilities, hurts the environment, aggravates heart and lung ailments and contributes to 7,500 deaths a year in the U.S.OPINIONNick Anderson's best cartoons of 2015Where's the indignation for what African Americans do toNavarrette: After San Bernardino, America shrugsWhat editorial cartoonists are saying about Trump, guns and ISISCorrection
According to the American Lung Association, Houston has the sixth worse ozone pollution in the nation. It has never achieved the old 75 ppb standard, which was set under President George W. Bush.
We oppose the lawsuit, support cleaner air and believe that industry and government should work together to achieve it - and not just the federal government, but the Texas state government.
Absurdly, this is the 23rd lawsuit Texas has filed against the EPA and the 39th overall against the federal government since President Barack Obama took office. Millions of dollars have been wasted and for what?
The simple answer is that it's not for the betterment of Texas, but for our state leaders to score political points with their Republican constituents by opposing the Obama administration at every turn, never mind in this case the consequences for the environment and public health.
Paxton's lawsuits have been accompanied by overblown rhetoric that he's defending "our state from the EPA's harmful and overreaching regulations" and working to "prevent ideologues from gutting the American Dream to advance their own misguided agenda."
Or as one of his spokespersons said a few weeks ago, "It's our duty to defend the rule of law against an aggressive federal government."
It's ridiculous. You're already wasting our money, General Paxton. Spare us the silly rhetoric.
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Ariz. Aims to Narrow Down Clean Power Plan Options
Jan 6, 2016 | E&E - Climatewire
By Emily Holden
Arizona leaders hope to shorten the list of carbon-cutting approaches that the state might pursue to meet its federal emissions goals, officials in Phoenix said yesterday.
As states around the country explore different plan formats, Arizona wants to make sure its proposal to reach U.S. EPA's emissions standards is "trading-ready," or would allow power generators to participate in interstate carbon-trading regimes.
The state is likely leaning toward using a mass-based goal to cap carbon output or a rate-based goal that would require natural gas plants and coal plants to achieve different rates of emissions, according to a state Department of Environmental Quality (DEQ) presentation.
While Arizona is challenging the electric-sector regulation in court, the department is working to draft a compliance plan and will request a two-year extension to finalize its proposal by 2018. Arizona's carbon requirements were significantly loosened under the final Clean Power Plan compared with the draft rule.
The state must cut its power-sector emissions rate 34 percent, rather than 52 percent, below 2012 levels by 2030.Time flies when you're carbon modeling
At DEQ's fourth public meeting since EPA released the rule in August, staff briefed power companies, environmental advocates and others on the progress of a technical work group that has been exploring compliance options behind closed doors.
The 15-member group -- which includes representatives from utilities and co-ops, the Arizona Corporation Commission, the governor's energy office, the Environmental Defense Fund, and the Southwest Energy Efficiency Project -- met three times since the last public meeting in November, officials said.
While the group cautioned against settling on a plan type too early, DEQ officials said the state shouldn't wait too long to start moving forward with specifics.
The agency hopes to have a draft of an initial submittal by June, to leave time for public comment and revision before EPA's September deadline.
"We need to really start being able to spend our resources looking toward the future," said Steve Burr, a staffer with DEQ's Air Quality Division. "While it seems like we have so much time, and it's very likely the state's going to get a two-year extension to file its final submission, that time goes very quickly."
Modeling exercises, in particular, can take time.
Arizona is awaiting modeling being developed by the firm Energy Strategies LLC for the Center for the New Energy Economy, which is organizing Western states' CPP talks.
Burr said the state still wants to hear input on the plan type but believes it should be focusing on one and "maybe leaving the others aside for the moment until we see a clear reason not to."
The state will likely include one or two plan options in its initial submission to EPA.
Arizona also is monitoring what other states plan to do to comply, in part because their choices may impact how robust a carbon-trading system emerges among rate- or mass-based states, which cannot trade with each other.
"We are having conversations with all of our sister states, looking around throughout mostly the Western region but also on the East Coast," said Eric Massey, DEQ's Air Quality Division director. "Generally what I would say is that nobody's made up any real minds. Everybody's in the same boat, which is that we're looking at our options."Protecting vulnerable communities
With one of the highest poverty rates in the country, Arizona must also be especially cognizant of vulnerable communities, advocates noted. It also must consider the impacts on tribal populations. Tribal nations that are home to coal plants must meet separate standards laid out by EPA, but they will still be affected by Arizona's plan.
Environmental advocates said the state should be careful to ensure that carbon trading doesn't risk increased fossil fuel power generation or pollution in Arizona or in specific communities. They generally favor a mass-based compliance plan that includes new sources of power in the emissions cap.
In comments to DEQ, a coalition of groups said the state plan should focus on renewable energy and energy efficiency efforts.
The Arizona State Legislature must approve DEQ's final plan, and the agency must provide quarterly updates to lawmakers, according to a bill enacted last year. In the latest summary, the agency noted it has largely been focusing on setting a timeline and work plan for collecting public input, holding meetings and drafting a proposal.
The agency also is finishing comments on EPA's model trading rules, which will be finalized this summer and are the basis of a federal plan that will be imposed on noncompliant states.
Those comments are due Jan. 21, and DEQ requested a deadline extension but does not expect to receive one.
The law requiring quarterly updates from DEQ also established a six-member joint legislative review committee that has held multiple meetings since August, while the full Legislature has been out of session.
The committee has focused on grid reliability and economic concerns, according to meeting notices. Members also toured the coal-fired Apache Generating Station in southeast Arizona in December.
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Ark. Eyes Extension as it Pursues Lawsuit, Compliance
Jan 6, 2016 | E&E - Energwire
By Edward Klump
Arkansas environmental officials signaled yesterday an intention to ask for more time in deciding how the state might comply with U.S. EPA's Clean Power Plan.
The state has until Sept. 6 to submit a plan or make an initial submission with an extension request. If it received an extension, a progress report would be due by Sept 6, 2017, with a final state plan due by Sept. 6, 2018.
"I think this group would agree that submitting that initial submittal and the request for extension is warranted," Stuart Spencer, an associate director in the Office of Air Quality at the Arkansas Department of Environmental Quality (ADEQ), said yesterday during a meeting and conference call with stakeholders.
Spencer added: "Having that be something that's approvable, or something EPA blesses, would be in our best interest."
Arkansas has garnered attention for its planning and discussion around the Clean Power Plan, which aims to reduce carbon dioxide emissions from power plants. Yet it's also a state whose attorney general is challenging the carbon plan through litigation.
Spencer made sure to note that Arkansas is "continuing to pursue a dual track strategy" on EPA's carbon rule, noting both the assessment of the plan and the legal challenge.
The state wouldn't want to communicate any limitation on its options through an initial submission, Spencer said, even if it's not enforceable. A slide mentioned requirements for an extension, including identifying a potential approach or approaches and progress made, explaining why more time is needed and describing opportunities for public comment.
States continue to digest the Clean Power Plan's final version, which was released last year and seeks to cut CO2 emissions from power plants 32 percent by 2030 compared with 2005 levels. Interim goals are set to begin in 2022.
Targets vary, and states can look to develop a rate- or mass-based approach. Regional trading also can come into play. A cap would be put on emissions under a mass-based setup, while a rate-based route would cut emissions to a certain level per megawatt-hour. States without a plan would face a potential federal plan.
Yesterday's meeting of Arkansas stakeholders again took place in the Little Rock area following a gathering in October on the Clean Power Plan. In between, four announced conference calls were held for give and take from groups such as power and manufacturing companies as well as environmental and advanced energy interests.
The calls included a significant focus on a proposed federal plan and model trading rules, with a Jan. 21 comment deadline in mind.Discussing a timeline
Yesterday, some possible preferences were outlined as the state seeks to finalize any comments on that front.
ADEQ suggested, for example, that EPA not restrict itself to being able to impose a single type of federal plan. If EPA does go with one approach, ADEQ said it should do so in advance of a deadline for states to submit state plans and extension requests.
ADEQ also said more liquidity is likely in a market if a broad approach to trading is used for compliance instruments along with limited regulatory hurdles. At the same time, the agency said a reliability mechanism should be considered in a federal plan.
In December, Spencer mentioned discussions with members of the Midcontinent States Environmental and Energy Regulators group and noted that he'd seen interest in mass-based setups (EnergyWire, Dec. 17, 2015).
Chuck Barlow, speaking for Entergy Corp., a major power provider, said yesterday that Arkansas doesn't necessarily need to feel pressure to get complicated work completed by September if it can get an extension request together.
ADEQ officials and others also took time yesterday to discuss milestones that lie ahead.
A potential schedule of meetings for Arkansas stakeholders in March and May emerged, with another meeting possible in June or July. Officials cited a need to carve out time for public comment on an initial Clean Power Plan filing that might include an extension request. Arkansas also may move around its meeting locations on the plan to help reach other parts of the state.
Another factor is what's known as Arkansas Act 382 of 2015, which created a procedure for development and approval of a state strategy to comply with the Clean Power Plan. Spencer said the act doesn't require a state plan but notes that such a plan is preferred to a federal one.
The state has said it's exploring the least-cost option. Spencer said state legislators or the governor would need to support an Arkansas state plan. He said there's some question as to whether an initial submittal would need approval, but he said lawmakers would be kept informed.
Last year's act also seeks a revision of a state plan before submission if it would lead to a significant rate increase or unreasonable reliability risk, according to Spencer.
"'Significant' is not defined. 'Unreasonable' is not defined," Spencer said. "So those are kind of floating around out there. We'll find out what they mean when we get to them -- if we get to them."
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We're Finding Out More and More About the Worrisome Link Between Fracking and Health
Jan 6, 2016 | Business Insider
By Jeremy Berke
A new study in the journal Nature published on Wednesday confirms an opinion long held by experts: that chemicals in fracking fluids and wastewater can pose serious risks for reproductive and developmental health.
This comes on the heels of a Toxicology and Applied Pharmacology study from October, which first analyzed the connection between the toxicity of solids dissolved in fracking fluids and changes in the cells of mammals.
The authors of that study found elevated levels of harmful barium and strontium (metallic chemical elements) in cells exposed to the fracking fluid and wastewater, which were linked to the growth of malignant tumors.
The new study, in Nature, takes this one step further, by analyzing 240 of the known chemicals in fracking fluids. The evidence they found is shocking: 43% of the analyzed chemicals havereproductive toxicity, and are linked to problems including birth defects, infertility, reduced semen quality, and miscarriages. And 40% of the analyzed chemicals pose problems for developmental health, which can stunt fetal development and may cause premature or delayed sexual development later in life.
Hydraulic fracturing, or fracking, is a method used to release oil and natural gas from tight rock formations deep underground. Fluids are injected deep into the earth at pressures high enough to fracture the rock surrounding the oil and natural gas deposits, allowing the fuel a clear path to the surface.
The fluids — toxic slurries of water and volatile organic compounds like benzene — are the primary cause of health impacts when they leach into groundwater supplies used for drinking due to improper storage, disposal, or work-site accidents.
It's a crucial sticking point for an industry that's had massively positive economic impacts across the U.S.
An Environmental Protection Agency (EPA) report on fracking safety released this past June that first looked at the effects of fracking fluid on drinking water found that the amount of contaminated drinking water wells was slight when compared with the overall number of fracked wells.
However, the EPA study does admit that insufficient long-term data on pre and post fracking water quality could have limited their results.
The Nature study, then, plays a critical role by highlighting exactly which chemicals in fracking fluids and wastewater are harmful. This will allow the EPA and other regulatory agencies to include these toxic chemicals in future analyses, and ultimately create up-to-date safe drinking water standards in fracking areas.
Though the hydraulic fracking industry is seen as a boon for American energy production, it's had a tough year. From numerous reports of earthquakes in Oklahoma, to the methane-spewing fields of West Texas, it's evident that we need more research to get a better understanding of fracking's negative health impacts.
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America Has Been Lied to About Climate Change
Jan 6, 2016 | Washington Post
By Robert Brulle
Future generations will look back on our tepid response to global climate disruption and wonder why we did not act sooner and more aggressively. Climate change will adversely impact present and future generations, as well as all species on Earth. Our moral obligation to protect life requires us to act.
Yet even after the recently completed United Nations climate conference, we are still on track for dangerous levels of climate change. Why haven’t we acted sooner or more aggressively? One answer can be found in the split over the veracity of climate science.
Robert Brulle is a professor of sociology and environmental science at Drexel University in Philadelphia. He is co-editor of “Climate Change and Society: Sociological Perspectives.“
Recent scholarship documents the coordinated efforts of conservative foundations and fossil fuel corporations to promote this uncertainty. Amplified by conservative media, this campaign of disinformation and omission has significantly altered the nature of the public debate and led to political polarization around the issue, making meaningful legislative action nearly impossible.
These findings are supported by recent investigative news reports, which show that since the 1970s, top executives and scientists in the fossil fuel industry have been well aware of the evidence that their products amplified climate-warming emissions. They conducted their own extensive research on the topic and participated in ongoing scientific discussions. The American Petroleum Institute, an industry trade group, even circulated the results to its members. By 1978, a senior executive at ExxonMobil proposed creating a worldwide “CO2 in the Atmosphere” research and development program to determine an appropriate response.
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