Preview Newsletter
PM ACC 2/19/2016
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(ACC Mentioned) U.S. Specialty Chemicals Year off to Soft Start
Feb 19, 2016 | Powder Bulk Solids
The Specialty Chemicals Market Volume Index, a tool created by the American Chemistry Council (ACC), fell in January, dropping 0.5 percent on a three-month moving average (3MMA) basis after a 0.1 percent decline in December. -
Comparing the TSCA Reform Bills
Feb 19, 2016 | Chemical Watch
By Richard Denison
The Toxic Substances Control Act (TSCA) turns 40 this year. When it was enacted in 1976, many envisioned it as a wholesale solution to managing the health and environmental safety of chemicals across their lifecycles. -
Kaiser Permanente: Managing Chemicals of Concern
Feb 19, 2016 | Chemical Watch
By Kelly Franklin
Kaiser Permanente has recently committed to phasing out the use of per- and polyfluorinated chemicals (PFCs) in its furnishings, removing flame retardants from furniture and banning 15 antimicrobials from the built environment. -
Toxic Trade: Lead Paint Worldwide
Feb 19, 2016 | Safer Chemicals, Healthy Families
By Jim Vallette
If you are outraged by the lead poisoning of children in Flint, Michigan, take a look at what’s happening just 250 miles to the east, near Toronto, where a Canadian company continues to produce lead compounds and distribute... -
Global Chemicals Agenda: Looking to 2020 and Beyond
Feb 19, 2016 | Chemical Watch
By Leigh Stringer
In the run up to last year’s ICCM4, emphasis was placed on turning discussion into action. -
ICCA: A Year of Strengthened Partnerships
Feb 19, 2016 | Chemical Watch
By Mark Rohr
For the International Council of Chemical Associations (ICCA), 2016 will be the year of building and strengthening partnerships in three key areas, so we can continue to capitalise on the momentum and recognition we earned... -
Unep: 2016 is a Window of Opportunity
Feb 19, 2016 | Chemical Watch
By Achim Halpaap
Last year, we witnessed the adoption of landmark international agreements in the areas of sustainable development and climate change. -
Phasing Out Microbeads
Feb 19, 2016 | Chemical Watch
By Leigh Stringer
Consumer support for banning plastic microbeads has grown globally over recent years. This has prompted policy makers and the industries that use them to take action. -
EPA Launches Dual Efforts to Weigh Health Risks Of Using Synthetic Turf
Feb 19, 2016 | InsideEPA
By Dave Reynolds
EPA is launching dual efforts to weigh the health risks associated with the use of tire crumb rubber in synthetic turf athletic fields, with the agency's Region 9 advising California on the state's pending review of the risks... -
Influential Toxicology Journals Accused of Pro-Industry Bias
Feb 19, 2016 | E&E Greenwire
Two influential toxicology journals are being used as mouthpieces of the chemical industry, according to critics, and their articles are used in court defenses and in fighting regulatory efforts. -
REACH Enforcement: Latest Findings
Feb 19, 2016 | Chemical Watch
By Geraine Roberts
Last year, Echa’s Enforcement Forum published a report on the third REACH En-Force project. Eugen Anwander, deputy chair of Echa’s Enforcement Forum, answers questions posed by Chemical Watch on the report’s findings. -
Echa: Laying the Groundwork for 2018
Feb 19, 2016 | Chemical Watch
By Geert Dancet
Although 2016 has just begun, here at Echa, our eyes are already fixed on the horizon of 2018. We are heading at full tilt toward our destination of collecting information on all chemicals in the EU market. -
EPA Enforcement Priorities Emphasize Drinking Water, Overburdened Communities
Feb 19, 2016 | PoliticoPro - Whiteboard
By Annie Snider and Alex Guillen
EPA says it will focus more of its enforcement efforts on water pollution over the next three years. -
What's Next for States? ClimateWire's Holden Discusses Latest Moves, Reactions
Feb 19, 2016 | E&E TV
Are states following calls for regulators to "put their pencils down" on crafting Clean Power Plan compliance mechanisms? On today's The Cutting Edge, ClimateWire reporter Emily Holden breaks down the latest state reactions. -
Scalia's Death 'Puts All the Action' in D.C. Circuit
Feb 19, 2016 | E&E Greenwire
By Robin Bravender
When it comes to the Clean Power Plan, the death of Supreme Court Justice Antonin Scalia may have dramatically elevated a lower court's importance -- at least in the short term. -
Scalia and Chevron: It's Complicated
Feb 19, 2016 | E&E Greenwire
By Robin Bravender
In 1989, Supreme Court Justice Antonin Scalia -- then a recent arrival on the bench -- delivered an emphatic endorsement of a court practice of deferring to agencies' expertise. -
Enforcement Push Targets Toxic Industrial Pollution
Feb 19, 2016 | E&E Greenwire
By Sean Reilly and Tiffany Stecker
U.S. EPA plans to put fresh emphasis on cutting toxic air emissions from hazardous waste producers as well as keeping industrial pollutants out of lakes and waterways under its latest three-year cycle... -
High Court Case on CWA Findings Might Alter Jurisdiction More Than Rule
Feb 19, 2016 | InsideEPA
By Bridget DiCosmo
A pending Supreme Court ruling on whether regulators' findings that waters are jurisdictional under the Clean Water Act (CWA) are subject to pre-enforcement review might alter the scope of the water law more than EPA's contested... -
Advocates Cite ESPS Stay in Bid For GHG Limits At Existing Oil & Gas Sites
Feb 19, 2016 | InsideEPA
By Bridget DiCosmo
Environmentalists are citing the Supreme Court's stay of EPA's power plant existing source performance standards (ESPS) as bolstering their push for the agency to issue first-time limits on the greenhouse gas (GHG) methane... -
Lawmakers Uge Oversight on Cap-and-Trade Revenue Spending
Feb 19, 2016 | E&E Climatewire
By Anne C. Mulkern
More scrutiny is needed into how California is spending some of the $3.1 billion generated by its cap-and-trade program for carbon emissions, several lawmakers said yesterday.
Industry and Association News
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Energy and Environment News
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(ACC Mentioned) U.S. Specialty Chemicals Year off to Soft Start
Feb 19, 2016 | Powder Bulk Solids
The Specialty Chemicals Market Volume Index, a tool created by the American Chemistry Council (ACC), fell in January, dropping 0.5 percent on a three-month moving average (3MMA) basis after a 0.1 percent decline in December.
Weakness in 2015 was centered in oilfield chemicals and a few other segments that, combined, weighed on overall volumes. Of twenty-eight specialty chemical segments monitored, only ten expanded in January, with none experiencing large gains (1 percent and over) in market volumes.
The overall specialty chemicals volume index was off 2.7 percent year-over-year (Y/Y) also on a 3MMA basis. Year-earlier comparisons were generally in the 4 percent to 6.8 percent range during 2012-2014 but since February they have fallen below that range as the downturn in the oil and gas sectors affected headline volumes. In addition, the strong U.S. dollar has adversely affected a number of export-oriented customer industries. Still, on a Y/Y basis, gains are fairly widespread among most market and functional specialty chemical segments. With few exceptions, however, year-earlier comparisons have been moderating.
Specialty chemicals are materials manufactured on the basis of the unique performance or function and provide a wide variety of effects on which many other sectors and end-use products rely. They can be individual molecules or mixtures of molecules, known as formulations. The physical and chemical characteristics of the single molecule or mixtures along with the composition of the mixtures influence the performance end product. Individual market sectors that rely on such products include automobile, aerospace, agriculture, cosmetics and food, among others.
Specialty chemicals differ from commodity chemicals. They may only have one or two uses, while commodities may have multiple or different applications for each chemical. Commodity chemicals make up most of the production volume in the global marketplace, while specialty chemicals make up most of the diversity in commerce at any given time, and are relatively high value with greater market growth rates. Some areas where specialty chemicals are used include adhesives, cleaning materials, cosmetic additives, construction materials, food additives, fragrances and detergents
This data is the only timely source of market trends for twenty-eight market and functional specialty chemical segments. Chemistry directly touches over ninety-six percent of all manufactured goods, and trends in these specialty chemical segments provide a detailed view of trends in manufacturing. The data also sheds light on how various consumer end-use markets are performing compared to others in the marketplace. -
Comparing the TSCA Reform Bills
Feb 19, 2016 | Chemical Watch
By Richard Denison
The Toxic Substances Control Act (TSCA) turns 40 this year. When it was enacted in 1976, many envisioned it as a wholesale solution to managing the health and environmental safety of chemicals across their lifecycles. Its intended reach was enormous, addressing the testing of chemicals; review and regulation of their production, processing, use and disposal– those both entering and already on the market; tracking and information collection on chemicals in commerce; and sharing of chemical safety information with the public while protecting legitimately proprietary information.
Embracing reform
In the four decades since TSCA’s adoption, despite enormous changes in the use of chemicals and our state of knowledge about their potential hazards and exposures, the law’s core provisions have never been amended. Today there is widespread recognition that virtually all of the law’s intended elements have fallen short of the mark and that it desperately needs a top-to-bottom makeover. The chemical industry has at last embraced reform, after recognising it faces a crisis in confidence over the safety of chemicals – among the public, in the states, and in the marketplace – that only a stronger federal system can help to alleviate.
So it is good news that the US Congress is closer than ever to reforming TSCA. Each house of Congress has passed its own bipartisan reform bill, and members have voiced optimism about reconciling the differences to get a final bill to the President’s desk this year.
Still, challenges remain. The two bills are quite different in scope and content. The Senate bill is comprehensive, and would amend most sections of the current law. It arose through extensive negotiations over the past three years, advancing in stages and gaining support as changes were made to address remaining concerns. The House bill is far slimmer, makes more surgical changes to current law, and went from first draft to final passage in under three months. In order to speed the process, provisions were included only where quick agreement could be reached by negotiators.
Addressing key flaws
Both bills address some of the key flaws in current law. They give the EPA authority to require testing, using orders rather than time-consuming rulemakings. They ensure cost does not enter into safety evaluations of chemicals in use and specify that vulnerable populations are to be protected. They eliminate the main hurdle that has prevented the EPA from regulating, even known dangers such as asbestos. They require industry to justify new confidential business information (CBI) claims, which expire after ten years if not rejustified, and provide states and health professionals access to CBI.
But the Senate negotiators went further, finding common ground even on some of the thorniest issues that must be addressed in order to build a credible new system that can restore public confidence. Key among these provisions, only the Senate bill removes the Catch-22 requiring the EPA to show evidence of risk or high exposure to require testing. Of the two, only it:
upgrades how the EPA reviews new chemicals, requiring an affirmative safety finding before market entry;requires that all chemicals in active commerce be identified and subject to safety reviews;
excludes cost considerations from all settings where the EPA judges the safety of both new and existing chemicals;
requires the EPA to review CBI claims and requires existing as well as new claims to hide chemical identities be justified and subject to time limits; and
mandates that the EPA collect fees from companies to defray costs of all major programme activities.
Several provisions in the House bill would weaken current law. The bill requires the EPA to review quickly any chemical any company requests, even at the expense of chemicals EPA prioritises for review, which are relegated to a slower track. In contrast, the Senate bill strictly caps industry requests and ensures they don’t get preferential treatment. The House bill would allow companies to hide from the public the identities of chemicals in health studies they submit to the EPA, which current law precludes.
Preemption
Both bills would increase TSCA’s preemption of state authority. The Senate bill would generally preclude imposition of new restrictions during EPA review of a chemical, but limits that period to a few years and provides waivers for states to act. Once the EPA takes final action, preemption under the House bill is much broader: it would extend to new as well as existing chemicals, and nullify state disclosure, monitoring and reporting requirements explicitly preserved under the Senate bill.
While work remains, we simply must seize the best opportunity in 40 years to overhaul America’s badly broken chemical safety system. If we squander it or adopt only piecemeal solutions, the crisis in confidence will remain and we will subject another generation to risks from exposures to toxic chemicals that could have been prevented.
Further comparisons of the two bills.
The views expressed in contributed articles are those of the expert authors and are not necessarily shared by Chemical Watch.
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Kaiser Permanente: Managing Chemicals of Concern
Feb 19, 2016 | Chemical Watch
By Kelly Franklin
Kaiser Permanente has recently committed to phasing out the use of per- and polyfluorinated chemicals (PFCs) in its furnishings, removing flame retardants from furniture and banning 15 antimicrobials from the built environment.
Phasing out chemicals of concern, however, is not new to the company. In 2004, it phased out the use of PVC and fly ash in carpet backing at its hospitals and medical offices, and in 2010 it replaced vinyl lettering with a digital printing process.
Yet despite its experience in phasing out substances, the process – from identifying substances of concern through to their removal from its building projects – remains challenging. Every chemical substitution or elimination brings with it new problems, and fresh opportunities for creative collaboration across the company and through the supply chain.
Targeting substances
The process begins with the identification of a substance to be targeted for removal. Internally, Kaiser Permanente has several committees, which may flag potential issues within the products it sources, and the company’s research division also devotes time to studying the effects that certain chemicals have on human health.
NGOs also play a big part in the development of the company’s strategy for identifying substances to remove, according to Jennifer MacDaniel, facilities planning and design project principal. Such sources as ChemSec, which publishes the Substitute It Now List (SINList), and the Green Science Policy Institute, have helped put problematic chemicals on its radar in the past.
Other external cues may come from the government. The healthcare provider has collaborated with the University of California and Veteran Health Affairs (VA) hospital systems to see what steps they are taking on chemicals management too.
But the signal to target a new substance can really come from anywhere, said Ms MacDaniel.
For example, she said that the idea of tackling PFCs was sparked when she attended a conference, in which Ikea discussed its goal to phase out the use of fluorinated chemicals for use as water- and stain-repellents.
Kaiser Permanente has several committees, which may flag potential issues within the products it sources, and the company’s research division devotes time to studying the effects that certain chemicals have on human health
“If Ikea can do it, Kaiser Permanente can do it,” she thought.
Returning from the conference, Ms MacDaniel found that the company’s environmental stewardship team had also been looking into fluorinated chemicals, so work began to explore the phase-out.
Building a story
When a potential substance is identified, research begins internally because establishing where the substance is to be found, in the built environment, is a crucial step.
For building products, Kaiser Permanente has used such tools as the online search library, provided by thePharos Project, to help ascertain where those substances might occur. It also has established asustainability scorecard for its vendors to complete. The form, in use since 2010, includes a section for them to declare chemicals present in their products, such as substances targeted by the company, as well as included in third-party lists like California’s Proposition 65.
It takes, says Ms MacDaniel, about six months of “back and forth with businesses” to get a clear picture of where the substances are, whether vendors’ existing suppliers will be able to source the necessary materials and if a substitution is possible.
Vendor collaboration
Once armed with a broader knowledge of where the substance crops up, the next step is to begin conversations with vendors to ask: ‘Are you willing to remove them?’
Initial conversations can be challenging, she says. When first approaching one furniture vendor about the goal of removing PFCs, it responded that there were only two viable materials that avoided all of Kaiser Permanente’s substances of concern.
But after a two-hour conversation, discussing all of the different aspects and possible approaches, “we walked away with a plan,” said Ms MacDaniel.
And with more than ten years of chemicals management, the process of working with suppliers to phase out chemicals has improved over time: “They’re used to it,” she says.
Creative solutions
When the company makes a commitment to phasing out a substance of concern, it issues an internal bulletin – no longer than two pages in length – detailing why they are seeking to avoid the substance, and in what applications its use will no longer be permitted.
Once released, Ms MacDaniel says that she gets “daily phone calls” from designers and consultants, asking: “How do I do this?”
For example, the phase-out of PFCs has presented a unique challenge, as many textile manufacturers have struggled to find a non-fluorinated alternative that offers the durability and water- and stain-repellency of fluorinated substances. As a result Kaiser Permanente has begun to explore options that allow them to avoid chemical upholstery treatments entirely.
An option under consideration is a non-woven furniture covering that provides a wipeable surface that doesn’t contain PFCs. However, the material offers limited choice in terms of texture, colour, and pattern compared with what is available in traditionally treated fabrics, which can present an aesthetic challenge for maintaining the company’s desired look and feel.
According to Ms MacDaniel, designers have consequently begun to experiment with architectural imagery on walls, new lighting fixtures, different artwork, and new carpeting as possible ways to make the alternative materials fit with the brand. She noted that the designers are using any tools available to them to “achieve this environment where it feels comfortable, but it doesn’t feel clinical”.
None of these solutions are perfect, she said, but they are the best available options in the absence of replacement substances. “We are in a transition, and we hope that we’re moving the market in the right direction,” she added.
Shifting the marketplace
Kaiser Permanente is a founding member of the Healthier Hospitals Initiative (HH), a collaborative effort between leading healthcare providers and NGOs to reduce the environmental footprint of healthcare facilities. According to the company, it is also “a strategic partner and member of Practice Greenhealth and Health Care Without Harm, working to advance the mission and goals of greening the healthcare sector through sharing of experiences and best practices.” These initiatives contain a variety of chemicals management measures that have begun to attract participation from a growing group of healthcare providers – who bring with them increased purchasing power.
For example, the “healthy interiors” goal of the HH Safer Chemicals Challenge calls for the removal of flame retardants, PFCs, antimicrobials, PVCs and formaldehyde in at least 30% of purchased furniture, by participating companies. A list of furniture manufacturers which can meet this goal was recently published, featuring such major vendors as Herman Miller, Knoll and La-Z-Boy.
Health Care Without Harm says that this announcement represents “part of a broader movement away from chemicals of concern in healthcare”, and evidence that HH “pushes the market to offer safer furnishings”.
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Toxic Trade: Lead Paint Worldwide
Feb 19, 2016 | Safer Chemicals, Healthy Families
By Jim Vallette
If you are outraged by the lead poisoning of children in Flint, Michigan, take a look at what’s happening just 250 miles to the east, near Toronto, where a Canadian company continues to produce lead compounds and distribute them worldwide for use in paints and plastics.
Long after most of us have thought lead pigments were no longer in commerce, Dominion Colour continues to manufacture, for export, large volumes of them. Dominion is the world’s largest producer of lead pigments, and it is fighting to maintain its toxic trade. The company is trying get an exemption from a European Union ban on two lead pigments, sparking outrage from global public health groups including the European Environmental Bureau, Occupational Knowledge International,RightOnCanada.ca, and the international NGO network, IPEN.[1]
Last year, according to shipping records examined by the Healthy Building Network, Dominion Colour exported over 950 metric tons (that’s over two million pounds) of pigments, mainly to Asia. Shipments have continued apace this year. Dominion made five shipments of lead pigments in the first five weeks of 2016, totaling 140 metric tons, to China, Indonesia, Malaysia, and Thailand.[2] The latter three countries have no restrictions on the use of lead paints in homes, schools, or childcare facilities.
Perry Gottlesfeld, executive director of Occupational Knowledge International has been a leading campaigner against the global trade in lead pigments and the ongoing use of lead paint. His campaign moved AkzoNobel, the world’s largest paint company, to stop making lead paint in 2011. “The good news is that with a concerted effort we’ve been able to get paint companies to reformulate. It’s always less expensive to reformulate than to abate,” said Gottlesfeld.
But other companies continue to use lead pigments, decisions that will impact people many decades into the future. Three of the ten largest paint companies in the world – PPG, Sherwin-Williams, and Valspar – still make and distribute lead paint in developing countries, said Gottlesfeld.[3]
The plastics industry also is a major consumer of lead pigments, he added. HBN’s examination of shipping records confirmed that many Dominion Colour pigment consignees supply the plastics and rubber industries; a couple of these firms are located in the United States.
The countries importing Dominion’s lead pigments, in return, export plastic products to North America, completing a circle of toxic trade. Since October 2012, the US Consumer Products Safety Commission has issued 2,192 violation notices for products that exceeded US laws on lead in paint and children’s products.[4] The vast majority of these products were imported from China. Given these rates of detection, it seems inevitable that pigments exported by Dominion Colour come back to North America in plastic products, including building materials, that are not routinely tested for lead.
Gottlesfeld and several Canadian public health organizations have urged Dominion Color to stop producing lead pigments, but “they have not committed to any of the things we’ve asked them to do.” He urged readers to sign an ongoing petition, and to use other social media tools, to pressure Sherwin-Williams, PPG, and Valspar to stop making and distributing lead paint in developing countries around world.
“The ongoing sale of lead pigments and paint around the world,” said Gottlesfeld, “is particularly outrageous when you consider that average blood lead levels in developing countries are about 5 to 10 times higher than levels seen during the crisis in Flint, Michigan.”
Citations:
“Canadian Company Opposing EU Efforts to Eliminate Lead Paint.” Right On Canada, February 2, 2016.. http://www.rightoncanada.ca/?p=3405.
“Dominion Colour,” database records, Panjiva.com, 2015-2016.
Personal communication.
“Violations.” US Consumer Product Safety Commission, January 20, 2016. Accessed February 12, 2016.http://www.cpsc.gov/en/Recalls/Violations/
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Global Chemicals Agenda: Looking to 2020 and Beyond
Feb 19, 2016 | Chemical Watch
By Leigh Stringer
In the run up to last year’s ICCM4, emphasis was placed on turning discussion into action.
The conference president, and Kenya’s principal secretary at its environment ministry, Dr Richard Lesiyampe, urged all stakeholders of the Strategic Approach to International Chemicals Management (Saicm) to “commit, to cooperate, to be aware and to take ownership of the work that needs to be done”.
Stressing this point further, deputy minister of environmental affairs in South Africa, Barbara Thompson, insisted on “less talk, more implementation”.
Five resolutions, and a long list of associated planned actions, were agreed over the course of the conference, held between 28 September and 2 October in Geneva, Switzerland, with many concluding that enhanced engagement and stronger collaboration between stakeholders is required if the 2020 goal of sound chemicals management globally is to be realised.
To recap, stakeholders discussed, and set out, a work plan for the next four years to achieve the 2020 goal. A number of important issues were addressed, including:
the sound management of chemicals and waste in the context of the sustainable development goals (SDGs);
implementation, towards the achievement of the 2020 goal;sound management of chemicals and waste beyond 2020;
available funding to support the Strategic Approach; and
emerging policy issues (EPIs)
The conference has been held every three years and oversees progress towards the 2020 goal with a view to minimising the negative impacts of chemicals on human health and the environment. Breaking down these topics, Chemical Watch reports on some of the work being carried out to advance the resolutions agreed upon.
EPIs and other issues of concern
There were five emerging policy issues discussed, and calls for action on highly hazardous pesticides and environmentally persistent pharmaceutical pollutants:
Lead in paint
Since the conference, a Unep project on promoting the elimination of the use of lead paints in China and Africa has begun. This will include conducting studies on lead in paint and will continue promoting the exchange of information and raising awareness of the issues.
Government officials and stakeholders from 15 African countries joined forces in Addis Ababa in December, last year, and agreed to cooperate to phase out the use of lead in paint by 2020.
Unep is expected to publish a global report on progress made on establishing lead limits in paints at the second meeting of the United Nations Environment Assembly (Unea2), which will be held in Nairobi in May.
Chemicals in products (CiP)
Unep’s CiP programme – which aims to ensure stakeholders have greater access to information on chemicals in products - was welcomed by the conference and participation was encouraged, as set out in one of the resolutions. Steps to move it forward include, finalising the terms of reference of the steering group and putting in place a dedicated website, which will act as an information portal on activities and progress.
There was also a call for further engagement from downstream users in the process of achieving sound chemicals management. In addition, the invitation is set out in the OOG, which aims to provide direction and priorities, and identify activities for all Strategic Approach stakeholders to take towards the 2020 goal.
“There is a need for stronger engagement and increased assumption of responsibility by downstream entities, in particular industries, to address the distribution and use of chemicals in the manufacture of products and throughout their lifecycle, and for a more extensive approach to stewardship,” it says.
Nanotechnologies and manufactured nanomaterials
The United Nations Institute for Training and Research (Unitar) is continuing to coordinate e-learning courses that offer an introduction to nanomaterials safety. A fourth round of the course is expected this year.
The organisation is also working with national, regional, and global partners to help address nano-related challenges. Services to develop capacity are also under consideration. These include:
coordination and organisation of additional regional workshops on nanosafety;
implementation of additional country-specific nanosafety projects;
collaboration with regional networks of nano experts;further public awareness raising (for example through Unitar’s nano e-learning course) and briefing sessions;
revising and updating the guidance document, Developing a national nanotechnology policy and programme;
continuing to enhance collaboration with the OECD on nano, as well as other participating organisations of the Inter-Organisation Programme for the Sound Management of Chemicals (IOMC).
Hazardous substances in the lifecycle of electrical and electronic products
The United Nations Industrial Development Organization (Unido), in partnership with other IOMC organisations and relevant stakeholders, were called on to develop and finalise the 2016–2020 workplan, as set out in the note by the Saicm secretariat. The group will do this by:soliciting comments and input on the workplan from Strategic Approach stakeholders;revising the workplan on the basis of comments received, and including indicators of progress; anddeveloping a report, using the obtained comments and indicators, that will be considered at ICCM5.
Endocrine disrupting chemicals
Various guidance materials on assessing EDCs, and reducing exposure, are being developed. The OECD is disseminating those for assessing EDCs and is also developing new communication material. Unep, meanwhile, is developing documents offering information on how to reduce environmental exposure to potential and known EDCs, in different settings. The materials are currently being finalised by a small working group. Also of relevance, the World Health Organization’s (WHO) expert meeting on early avoidable environmental exposures (including EDCs) is scheduled for mid-June.
SDGs and beyond 2020
While the EPIs received considerable attention, the SDGs, and their relevance to the Strategic Approach, were stressed throughout the conference. The UN summit for the adoption of the post-2015 development agenda was held in September, in New York, the week prior to ICCM4. Three of the goals – those covering health, water, and sustainable consumption and production – are of direct relevance to chemicals.
A number of representatives welcomed their adoption as an opportunity to set sound chemicals management firmly within the wider context of global development. And some agreed that the sound management of chemicals and waste would make a significant contribution to many targets within the SDGs, such as health and well-being, gender equality, sustainable agriculture and industry, poverty eradication, decent work for all and marine pollution.
Moving things forward, an international expert workshop on the integrated national implementation of SDGs and international chemicals and waste agreements will be held in April, through a collaboration of Unep, the Basel, Rotterdam and Stockholm (BRS) Conventions Secretariat, Unitar and the IOMC.
In addition, an intersessional process has been initiated to consider the Strategic Approach and the sound management of chemicals and waste beyond 2020, with the first meeting expected by early 2017. This will include an independent evaluation of it. The aim, says Achim Halpaap, head of Unep’s chemicals and waste cluster, is to provide information to ICCM5 participants to deliberate on and take an informed decision on future plans.
Funding
Dr Lesiyampe invited the conference to identify “new and non-traditional donors” to supplement the financial and technical support, provided by the Global Environment Facility and the Special Programme, both of which will replace the previous mechanism, the Quick Start Programme (QSP). This, he said, would support institutional strengthening at the national level.
The conference acknowledged “with concern” that the scale of resources available from all sources, including through financial support mechanisms, the QSP, which is now closed for new contributions, and the Global Environment Facility, is insufficient to achieve the goal of sound management of chemicals in developing countries.It was also debated whether the Special Programme, a funding mechanism to support countries in implementing actions under Saicm, but also the Basel, Rotterdam, Stockholm and Minamata Conventions, would be sufficient.
As specified in the OOG, Strategic Approach stakeholders must take steps to implement an integrated approach to financing chemicals and waste, and engage a broader base of donors to support implementation of the Overarching Policy Strategy to the year 2020. This includes financing to sustain the work of the Strategic Approach secretariat to support stakeholders throughout this period.
Multi-sectoral engagement
The conference noted the value of a voluntary, multi-sectoral and multi-stakeholder approach to engaging all the necessary participants.
The OOG notes: Greater awareness and the involvement of various sectors – in particular health, agriculture, labour and industry – as well as public interest groups, in policy deliberation, development and implementation - are critical in providing an informed basis for the sound management of chemicals at the national level, and also at the regional and global levels.
In January, for example, the WHO executive board considered a report by the WHO Secretariat on the role of the health sector in the sound management of chemicals. As a result, a resolution on this issue is being developed and will be considered by the 69th World Health Assembly in May. The secretariat has been working to coordinate webinars with the regions, and NGO sectoral focal points, to promote Saicm implementation. The webinars are providing an opportunity to exchange relevant scientific and technical information, to promote discussions, cooperation and coordination and to review progress.
The first meeting of the Saicm Bureau, under the new presidency of Germany, is scheduled to take place in Jordan, in March.
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ICCA: A Year of Strengthened Partnerships
Feb 19, 2016 | Chemical Watch
By Mark Rohr
For the International Council of Chemical Associations (ICCA), 2016 will be the year of building and strengthening partnerships in three key areas, so we can continue to capitalise on the momentum and recognition we earned, last year, as global solutions providers.
The first area, where partnerships will continue to play a key role, is implementing the Strategic Approach to International Chemicals Management (Saicm). Saicm’s multi-stakeholder approach has led to collaboration that may not otherwise have been possible. In 2016, the ICCA looks forward to strengthening our partnership with Unep so that we can continue to work together to fulfil our shared vision for sound chemicals management practices, in countries that currently cannot implement them alone. We expect this work will go beyond industry’s contributions to tackling global problems and highlight the important work that we do in providing real, tangible solutions.
For example, Saicm has the potential to do more than just strengthen protections for human health and the environment. Sound chemicals management can also help promote innovation. Since the vast majority of manufactured goods depend on chemistry, the sound management of chemicals can help provide business opportunities and a foundation for broader economic growth. In 2016, ICCA members look forward to continuing to create capacity for innovation and economic growth, in the countries that need it most, by helping to advance sound chemicals management programmes like Responsible Care and the Global Product Strategy.
The second area where partnerships will be critical is in our efforts to expand the reach of Responsible Care. With the recent adherence of China, Myanmar, Sri Lanka and Vietnam to the programme, the number of ICCA member associations in 2015 grew to 59. ICCA membership could exceed 60 this year, with the addition of new partners in Egypt and Croatia. Last year, we also began outreach in the African region, introducing Responsible Care to Ghana, Kenya and Tanzania. Capacity building activities in other countries will follow in the near future. In 2016, by continuing to strengthen industry partnerships with governments and between nations, we can bring the values of Responsible Care to the countries that need it most.
Finally, partnerships that foster mutual understanding will play a critical role in creating a regulatory environment that promotes innovation and protects human health and the environment. Today, consensus is growing that sound science should prevail over fear and speculation when it comes to designing effective, sensible health and environmental policies. At the same time, some governments continue to entertain proposals that are based on research that is inconsistent, unreliable and lacks the kind of scientific integrity needed to help policy makers make sound decisions.
Through a united effort by governments, academia and industry, stakeholders have made considerable progress in ensuring the very best methods, tests and data continue to drive policy decisions. I believe that, by working together to improve chemical screening and testing, the global community can develop and implement policies that are based on the best available science, and that give people more confidence in the safety of the chemicals, used to make everyday products.
Thanks to public-private partnerships, the development of new products that improve people’s lives, initiatives such as Responsible Care and the Global Product Strategy – combined with our actions and expertise to continuously improve performance – global chemical manufacturers have made great strides in expanding sound chemicals management practices and have helped to improve social and economic conditions around the globe.
In my outlook last January, I wrote that 2015 would be the year in which the global chemical industry raised the curtain on the role we can play in tackling the world’s biggest challenges. Two values that are important to me are accountability and transparency; they guide the way my company, Celanese, does business, and they are two areas in which we members of the ICCA are stepping up our performance. I believe it’s important that I update readers on whether we followed through on our commitment last year.
ICCA brought industry CEOs together with senior leaders from Unep, governments and civil society to highlight the relaunch of the Responsible Care Global Charter.
I believe we did. And there was no better place to test our performance than on the global stage.
First, at the fourth International Conference on Chemicals Management (ICCM4) in Geneva last October, we demonstrated how the global chemical industry fulfils its commitment to sustainable development and sound chemicals management. We brought industry CEOs together with senior leaders from the United Nations Environment Programme (Unep), governments and civil society to highlight the relaunch of the Responsible Care Global Charter, signed by more than 90% of the top 100 chemical manufacturers in the world. We also signed a new partnership agreement with Unep to help strengthen chemicals management around the world, particularly in countries that don’t have the capacity to do it alone.
Second, at the 2015 Paris Climate Conference, also known as COP-21, we highlighted the many ways in which chemical products enable greater carbon efficiency throughout the economy. For every unit of greenhouse gas (GHG) emitted in manufacturing chemicals, more than two units of GHG can be avoided when those chemicals are used in energy-saving products and technologies.
Yes, 2015 was a strong year for promoting chemistry solutions. While ICCA members are proud of the progress we’ve made in putting those solutions into practice, we are also acutely aware of the challenges that lie ahead. That doesn’t mean we aren’t optimistic, however, because we have good reason to be.
The views expressed in contributed articles are those of the expert authors and are not necessarily shared by Chemical Watch.
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Unep: 2016 is a Window of Opportunity
Feb 19, 2016 | Chemical Watch
By Achim Halpaap
Last year, we witnessed the adoption of landmark international agreements in the areas of sustainable development and climate change. These are likely to have a significant and transformative impact on international chemicals management and the chemical industry. This year, momentum for the implementation of these agreements is building, creating new opportunities to advance the achievement of the internationally agreed 2020 goal for the sound management of chemicals and waste, and to engage in innovative thinking about chemical management beyond 2020.
The new agenda: from adoption to implementation
A short recap: in September 2015, world leaders adopted the 2030 agenda for sustainable development and agreed on a shared vision of the world we want to see by then. Given their prevalence in the global economy and value chains, chemicals (and their sound management) are a key factor for achieving the sustainable development goals (SDGs). In fact, there is probably not a single SDG that could be fully implemented without sound chemicals and waste management.
For the chemicals and waste cluster, this means a commitment under SDG 12 on sustainable consumption and production (and other goals) to reducing emissions to air, water and soil; promoting the use of safe chemicals and chemical alternatives; minimising the use of toxic substances in production and consumption; preventing or reducing the generation of hazardous and other wastes; and safely managing them. To advance analysis and action in this area, an international expert workshop on the integrated national implementation of SDGs and international chemicals and waste agreements will be held in April 2016, through the collaboration of Unep, the BRS Secretariat, Unitar and the Inter-Organisation Programme for the Sound Management of Chemicals (IOMC).
A second landmark agreement is that of Paris 2015, adopted by the UN Climate Change conference in December of that year. Many connections exist between climate change and the safe use of chemicals. The chemical industry is, for example, a major energy user, as well as an innovator of energy and emission-reducing technology solutions. The new climate change agreement creates an opportunity for the industry, while addressing its legacies, to help advance a low carbon economy, based on sustainable science, technologies and products. This may allow a leap forward in key sectors supplied by the chemical industry, such as energy, buildings, agriculture, mobility etc.
International chemicals management
Under the Strategic Approach to International Chemicals Management (Saicm), momentum is building to implement key decisions, adopted at the International Conference on Chemicals Management (ICCM4) in September 2015. An important outcome of ICCM for Unep was the adoption of the chemicals in products programme (CiP). This year, the programme will become operational and Unep is looking forward to companies and stakeholders actively engaging. Concerning the future of Saicm, under the intersessional process leading up to ICCM5 in 2020, an independent evaluation of the strategic approach has been initiated. The aim is to provide information to ICCM5 on which to base deliberations and help to make an informed decision on the future strategy for the sound management of chemicals and waste, beyond 2020. The first meeting of the Saicm bureau, under the new presidency of Germany, is scheduled to take place in Jordan, in March.
Minamata Convention on Mercury
The seventh session of the intergovernmental negotiating committee on mercury (INC7) will be held from 10-15 March in Jordan, with regional consultations on 9 March. INC7 is preparing for the entry into force of the Minamata Convention and the first meeting of the Conference of the Parties (COP). It has provisionally adopted items, which include draft guidance to assist parties reporting on supply and trade, on the identification of individual stocks of mercury, on BAT/BEP in relation to Article 8 on emissions, and draft guidance to the GEF on overall strategies, policies, programme priorities.
BSR Conventions
The Basel, Rotterdam and Stockholm (BRS) Conventions continue to promote the environmentally sound management (ESM) of chemicals and waste. This year, an independent assessor will complete a review of the synergy arrangements for the BRS Conventions. The synergies process has been ongoing since 2004 and resulted in the merging of the secretariats in 2012.
Under the Stockholm Convention, the Committee on Effectiveness Evaluation will meet twice in order to check whether the convention is meeting its goals and to identify room for improvement. The evaluation is based on data from the Global Monitoring Plan for persistent organic pollutants (POPs) and national reports, submitted by the parties. The Stockholm Convention POPS Review Committee and Chemical Review Committee (CRC) of the Rotterdam Convention will meet back-to-back in September in Rome in order to agree on recommendations for the listing of additional chemicals.
Under the Rotterdam Convention, an intersessional working group is expected to meet in July to consider options for improving the process for addressing chemicals, when the COP was unable to reach consensus on their listing. Several such chemicals, recommended for listing by the CRC, are still awaiting a decision by the COP.
The open-ended working group of the Basel Convention will meet in May, in Nairobi, to continue its work on the technical guidelines for the environmentally sound management (ESM) of POPs and e-wastes and implementation of a roadmap for promoting waste prevention and minimisation, among other measures. The Implementation and Compliance Committee (ICC) will meet in June in Nairobi to consider specific submissions for 12 parties, facing compliance issues, and provide guidance to assist parties in implementing the convention.
UN Environment Assembly (Unea)
This year, the Unea will convene for the second time in May. This Unep body represents the highest level of governance in international environmental affairs. It demonstrated a strong interest in chemicals and waste management during its first meeting, held in 2014, and is expected to pass a resolution on this topic again. Unea2, with its overarching theme ’Delivering on the environmental dimension of the post-2015 development agenda’, will be one of the first high-level intergovernmental fora, following the adoption of the SDGs and the Paris agreement. It will be preceded by the Global Major Groups and Stakeholders Forum (GMGSF).
A high-level segment will bring together ministers from all UN member states and will include a multi-stakeholder dialogue, under a call for ’healthy environment – healthy people’. This thematic focus will allow all relevant actors to identify concrete tools available for an integrated and universal approach towards achieving the SDGs – including those related to critical areas, such as air quality, healthy ecosystems, chemicals, waste and others that may emerge in the preparatory process – as well as to develop strategic partnerships to address ongoing and emerging environmental issues.
One topic scheduled fo review at Unea2 is the integrated approach to financing sound management of chemicals and waste. This was conceived with the aim of supporting efforts at the national and international levels to secure sustainable, predictable, adequate and accessible financing. It includes three mutually reinforcing components: mainstreaming of the sound management of chemicals and waste into development planning; industry involvement; and dedicated external finance, including a special programme to support institutional strengthening, at the national level, to fund implementation of international chemicals agreements. The executive board of the special programme held its first meeting in February. Equally important, the topic of waste management at the global, regional and national levels is likely to receive significant attention by Unea2.
Reflections on the future
As the world’s population reaches eight billion, the demand for food, manufactured goods and improved access to clean water and energy continues to grow. Chemicals play a key role in addressing development needs and affect the lives of billions of people, for example, through consumer products, pharmaceuticals, housing materials and agriculture, to name only a few.
To help strengthen the analytical and scientific underpinning of the sound management of chemicals, Unep is taking steps to prepare a second edition of the Global Chemicals Outlook, with an expert consultation scheduled in April. The overall goal of the meeting is to provide advice on a range of aspects relevant for preparing GCO-II, including identification of strategically relevant chemicals management topics, considered to be of value in considering a post 2020 global approach to chemical management. This would have as its ultimate goal the advancement of the sustainable management of chemicals in a sustainable development context.
As we reflect on the future of chemicals management, the concept of sustainable chemistry is gaining momentum, given its potential to catalyse transformative change in the chemical industry. In order to fulfil its promise, however, it needs to cover all three dimensions of sustainable development: economic, social and environmental, and advance solutions to address core chemical management challenges. Equally important is the question, how can sustainable chemistry contribute towards addressing challenges, faced by developing countries, and be further developed globally, through engagement of all countries and key stakeholders?
Unep is ready to work with partners in scaling-up analysis and action to advance the sound management of chemicals and waste in 2016. There are less than five years left to reach the 2020 goal. Let us collectively take advantage of the window of opportunity the 2020 sustainable development agenda and Saicm are providing.
David Ogden from the BRS Secretariat contributed to this article.
The views expressed in contributed articles are those of the expert authors and are not necessarily shared by Chemical Watch.
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Feb 19, 2016 | Chemical Watch
By Leigh Stringer
Consumer support for banning plastic microbeads has grown globally over recent years. This has prompted policy makers and the industries that use them to take action. Global personal care companies in particular have taken note of the environmental concerns, raised by researchers and NGOs, with many announcing commitments to phasing them out.
Since 2013, studies on the environmental impact of plastic microbeads have been published and NGO campaigns on the issue have surfaced, with much of the focus on the personal care products that contain them. As a result, national legislation is starting to emerge around the world. The US, for example, has recently banned the sale and use of plastic microbeads in “rinse-off” cosmetics. Canada, meanwhile, has proposed that microbeads should be added to its list of toxic substances. And in Europe, the Netherlands is pushing for an EU-wide ban, while the Swedish Chemicals Agency (Kemi) has proposed a national ban.
To stay ahead of regulation, industry has started to take action too. Unilever, for example, one of the world’s biggest consumer goods companies, completed the phase-out globally by 1 January 2015 using “suitable alternatives”.
Others, such as Johnson & Johnson and Procter & Gamble, have committed to their phase out by 2017. In its statement on microbeads, Johnson & Johnson says it has stopped developing new products containing polyethylene microbeads and has conducted environmental safety assessments of alternatives. Procter & Gamble’s pledge covers its toothpastes and cleansers, with a focus to eliminate polyethylene microbeads.
Alternatives and the science
Commonly defined as synthetic polymer particles, plastic microbeads range from 0.1µm to 5mm in size. They are most commonly found in personal care and cleaning products, printer toners and in industrial products such as plastic blasting and medical applications. Because of their size, they can bypass water treatment systems and accumulate in rivers, lakes and the ocean.
Researchers have concluded that microbeads have adverse effects on the aquatic environment and also absorb toxins, such as dioxins, and make their way into the food cycle.
Alternatives are being assessed and in many cases used to replace plastic microbeads. These alternatives come in the form of natural, such as apricot shells or cocoa beans, or biodegradable plastics.
The latter is being debated on whether it is an effective substitute, with some NGOs and community campaigns criticising certain legislation, such as those imposed by some US states, for including a “biodegradable loophole”. They argue that this allows manufacturers to replace petroleum-based plastic microbeads with “bioplastic” beads that don’t biodegrade in the ocean.
Nonprofit organisation, 5Gyres, says that currently there is no biodegradable plastic that has been proven safe for the environment. Promising materials exist, it says, such as PHAs (Polyhydroxy- alkanoates) which are broken down “relatively quickly” by bacteria in aquatic environments.
“But before we start flushing a new type of plastic microbead down the drain and into our waterways in staggering quantities, we need a clear understanding of what its impacts will be on the natural environment,” it says.
The organisation has accused some companies, such as Johnson & Johnson, for denouncing US state bills that ban biodegradable plastics, like California’s AB 888 bill.
“By supporting microbead bans at the state and federal level, corporations appear as environmentally friendly, but in reality, corporations only support microbead bans that contain the biodegradable loophole, and are aggressively lobbying against comprehensive bans in states like New York, Minnesota and Connecticut,” it says on its website.
The Personal Care Products Council (PCPC) executive vice president of government affairs, John Hurson, told Chemical Watch that the industry is not ready, at a legislative level, to defend biodegradable alternatives.
He says that this is because “there is currently a lack of consensus over which internationally recognised standard test guidelines should be used to test biodegradability of alternatives”. However, he says the industry wants to “preserve this possibility” as it moves forward and the science develops.
Once the scientific backing for these bioplastic alternatives has been firmly established, the industry will return to this issue, says Mr Hurson, and will then “work on these state laws to see if we can start using these alternatives”.
What do companies need to do to replace microbeads?
According to US trade body, the Personal Care Products Council, reformulating a product, especially over-the-counter (OTCs) products, can take up to five years. Beth Lange, PCPC chief scientist, says that there are a lot of steps involved and many technical experts that need to be included in the process. “You need to ensure the human health and environmental safety of the ingredient and that the product is going to continue performing the desired application. You need to consider the stability testing requiements because consumers expect their products to be stable in their bathroom counters for years,” she says. The research and development phase of identifying and testing a potential alternative can take up to 18 months. Many questions need to be answered, says Ms Lange, such as does it meet safety standards, is it compatible with the other ingredients and can the supplier provide the ingredient in the same quantities and quality required. Once identified, the alternative is added to the product and tested. This phase, says the PCPC, can take up to a year. The tests look to see if the reformulated product is stable to light, temperature and during storage and transport. Other questions raised include: does the new product have the same attributes as the original and can the new formula be made in the same factory? Meeting safety and regulatory standards is next. This can take another year and involves ensuring that the correct labelling is used and whether any additional consumer studies are required. The manufacturing and marketing phase is then carried out. The challenge here is to plan for the phase out of the current product and manufacture and distribute the new one. This can take another 12 months depending on the ingredient, says the PCPC.
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EPA Launches Dual Efforts to Weigh Health Risks Of Using Synthetic Turf
Feb 19, 2016 | InsideEPA
By Dave Reynolds
EPA is launching dual efforts to weigh the health risks associated with the use of tire crumb rubber in synthetic turf athletic fields, with the agency's Region 9 advising California on the state's pending review of the risks and EPA separately launching an inter-agency panel to "comprehensively examine" the safety of crumb rubber.
Federal and state agencies are facing increasing calls to assess potential health risks to children from playing on synthetic turf fields or playgrounds containing crumb rubber, after EPA confirmed several years ago that the fields contain toxic chemicals, including lead and the known carcinogen benzene, and that playing on them results in exposures that merit further study.
Rep. Frank Pallone, Jr. (D-NJ) announced Feb. 12 that EPA and other federal agencies are launching a federal review of potential health risks of crumb rubber athletic fields to address reports that children who play on synthetic turf have developed non-Hodgkin lymphoma and other blood cancers.
The multi-agency action plan calls for EPA and other federal agencies, including the Centers for Disease Control and Prevention, and the Consumer Product Safety Commission, to conduct research to identify chemicals in crumb rubber fields, fill knowledge gaps and engage parents, coaches and state agencies to assess risks.
Pallone, in the Feb. 12 statement, backed the new federal action plan as a significant step toward understanding risks of synthetic turf, and said he hoped the effort would yield a conclusive answer on whether crumb rubber is safe.
"Parents who are sending their kids off to play soccer and football on turf fields deserve peace of mind that these fields are safe," he said.
But one member of the Scientific Advisory Panel (SAP) advising the study California's Office of Health Hazard Assessment (OEHHA) is conducting of the risks of synthetic turf warned during a Feb. 8 SAP meeting in Sacramento, CA, that wide variability in crumb rubber fields will make a definitive conclusion difficult.
"Even with the best research we can do, we cannot have a completely definitive resolution," Amy Kyle, a professor of environmental health sciences at the University of California Berkeley, said of the OEHHA study. "In the end, there is going to be some level of uncertainty."
Planned Study
Pallone's announcement of the federal action plan comes as EPA is already advising OEHHA's planned study of the risks of synthetic turf. Late last year, an EPA spokesman said the agency would assist OEHHA in designing the state study and analyzing findings.
The announcement came shortly after a bipartisan panel of House lawmakers, including Pallone, pressed EPA on whether it had conducted additional testing since determining in 2013 that risks from the turf are unclear.
During the Feb. 8 SAP meeting, OEHHA sought input from the California advisors on the study's design and received public comments from an EPA Region 9 official on the study's scope. The Region 9 official backed the SAP's calls for the OEHHA study to consider a variety of exposure pathways, as well as field conditions and uses.
OEHHA staff told the SAP that in planning the study state officials have consulted with several other agencies, including EPA, the National Toxicology Program and the New York State Department of Health.
OEHHA's study will seek to address gaps in prior research and identify and analyze chemicals released from fields that contain crumb rubber, monitor air above the fields for inhalant risks, and evaluate whether certain age groups are more susceptible to risks from chemicals in the turf, among other goals.
Staff told advisors that OEHHA has $2.8 million to finish the study, though additional funding is possible.
OEHHA officials said the study will include sampling of both indoor and outdoor fields of varying ages in different parts of the state. Staff sought SAP input on what chemicals to focus on, how best to collect air samples, and how to select fields for sampling, as well as how many samples to collect from each field.
Advisors urged OEHHA to consider a variety of exposure pathways and cautioned that biofluids used in laboratory tests should be representative of human sweat and saliva. Additionally, panelists said the OEHHA study should also consider exposures to biocides applied to synthetic turf fields. The panel also cautioned OEHHA to consider degradation over time from heat and sun exposure, as well as the changing ingredients in recycled tires used in synthetic turf.
"How well have we assessed the likelihood that this problem will change over time?" Kyle asked. "To what extent do you expect this mixture will change?"
Exposure Pathways
In public comments, Marcus Aguilar, of EPA Region 9, backed advisors' calls for consideration of multiple exposure pathways and scenarios, including through multiple sports, and to consider exposures to adults as well as children. Aguilar said OEHHA should also assess chemical exposures through blood, resulting from skin abrasion.
Aguilar noted that production of tires includes plasticizers, which may include endocrine disrupting chemicals.
The SAP also heard comments from advocacy groups who called for restrictions on synthetic turf fields while studies of potential risks are pending, and from recycled tire industry officials who argued the review should weigh any risks from synthetic turf against those of natural fields, which studies have shown also pose risks of chemical exposure.
Robina Suwol of California Safe Schools called for a moratorium on new installations of synthetic turf fields containing tire crumb while the review is under way. She also urged OEHHA to study potential human health and environmental risks from other uses of recycled tire crumb, including on sidewalks, pathways or mats.
In comments emailed to the panel, other advocates urged OEHHA to conduct an epidemiological study of human health outcomes, including cancer, to athletes playing on synthetic turf fields that contain tire crumb rubber.
Michael Peterson, of the environmental consulting firm Gradient, speaking on behalf of the Recycled Rubber Council, said OEHHA should assess samples of natural turf fields to provide a baseline to assess findings from synthetic turf. Peterson said studies have found metals and polycyclic aromatic hydrocarbons in natural fields.
In response to public comments, advisors cautioned that testing of natural fields would dramatically increase the scope of OEHHA's review, but generally agreed some form of control to help interpret findings would be needed.
Similarly, advisors said an epidemiological study would strain state resources. SAP Chairman John Balmes said OEHHA should move forward with the planned study of exposures and health risks from synthetic turf, but also consider whether an epidemiological study may be warranted in the future, provided OEHHA has sufficient resources.
"The study that is being planned is the right first step toward understanding the exposure and variability," Balmes said, noting a good epidemiological study would not be possible without an understanding of exposures and health outcomes. He added, "I think some parallel consideration of whether an epidemiological study could be undertaken down the road is reasonable."
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Influential Toxicology Journals Accused of Pro-Industry Bias
Feb 19, 2016 | E&E Greenwire
Two influential toxicology journals are being used as mouthpieces of the chemical industry, according to critics, and their articles are used in court defenses and in fighting regulatory efforts.
Critical Reviews in Toxicology and Regulatory Toxicology and Pharmacology are part of prestigious international organizations and are indexed by the National Institutes of Health, but an analysis by the Center for Public Integrity found that half the research published by scientists at the consulting firm Gradient Corp. since 1992 appeared in these two journals. The editorial boards of both journals are filled with scientists and lawyers who have been or are employed by industry.
"The harm is that it actually muddies the independent scientific literature," said Jennifer Sass, a senior scientist at the Natural Resources Defense Council. "They're stacking their weight on their side of the scale."
But journal employees strongly deny any assertions of bias.
"There is this prevailing issue, which is really unfortunate, that anything supported by industry is tainted," said David Warheit, a Critical Reviews board member and scientist with the Chemours Co., which manufactures titanium dioxide, an ingredient in sunscreen. "Perceptions pervade everything" (Jie Jenny Zou, Center for Public Integrity, Feb. 18).
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REACH Enforcement: Latest Findings
Feb 19, 2016 | Chemical Watch
By Geraine Roberts
Last year, Echa’s Enforcement Forum published a report on the third REACH En-Force project. Eugen Anwander, deputy chair of Echa’s Enforcement Forum, answers questions posed by Chemical Watch on the report’s findings.
Chemical Watch: What would you say are the key findings from the project, for companies and national enforcement agencies (NEAs)?
Eugen Anwander: The group of only representatives (ORs) has the highest non-compliance rate with their registration obligations (34%) and, as a consequence, the affected importers (In the report, these importers are the “importing downstream user”.) are potentially pushed into non-compliance without being aware.
In addition to this, ORs, and the importers covered by them, do not have consistent information related to the registration of a substance. Twenty three percent of such inconsistencies even result in importers failing to specify the correct OR for their substance(s). While REF-3 has identified those inconsistencies related to the registration status, it can be expected that consistency in the supply chain for the related safe use information for registered substances – for example, risk management measures (RMMs) and operational conditions (OC) (this will be addressed in REF-5 in 2017) – will also pose even more difficulties for ORs and importers.
Consequently, the information chain between ORs and importers needs to become much more transparent, and to be strengthened, while both need to seek better direct cooperation and information exchange, and the regulator needs to review the current OR instrument stipulated in Article 8 (see below).
Importers, not covered by an OR, need much greater awareness of the principle ‘no data, no market’, because this group has a high risk of non-compliance with its registration duties (15 %).
Given these findings on importers in general, and on ORs, the NEAs are advised to seek implementation of the successfully developed enforcement methodology of REF-3 in their national context and daily inspection routine, (utilising import data available at customs services, performing interlinked inspections, covering consistency checks at ORs and related importers, at the same time).
The unexpectedly high proportion of non-compliant companies from the chemical industry and chemical distribution sectors (34% and more), as well as the continued non-compliance of SMEs, needs to be addressed by the companies and industry stakeholders concerned. In addition, the project results reveal that only a very limited number of actors are so called free riders, those in systematic breach with the REACH registration requirement.
Once the e-disclosure portal becomes operational, companies would need to register with the system and promptly disclose their violations online
CW: Do you think the project has given you any ideas for improving OR enforcement that could be useful for the 2017 REACH Review?
EA: In terms of Article 8 and the necessary transparency of the related information chains (importer – OR – non-EU manufacturer), both the companies and the NEAs face the same problems. This is especially true for the importers, which suffer most from non-transparent arrangements with an OR, particularly when the OR for a substance is not known to them. Such situations always create a problem for the importer, as – given the design of REACH and of Article 8 – the importers will end up in breach of the registration duties, once a registration of a given substance by an OR is not relevant for, or not applicable to, them. REF-3 has shown that typically ORs have their required registrations in place. However, if the latter do not observe the specific duties of Article 8 (for example, that of keeping up-to-date records on importers and tonnages), the importers are likely to be in breach of the REACH registration obligations.
In a nutshell, the current design of Article 8 results in pushing importers into being in breach with REACH, once the related ORs neglect their specific duties. This often happens when importers have no specific information about the relevant situation at the OR.
In light of the project findings, Article 8 seems unbalanced in terms of rights and duties of the relevant actors. It seems that the specific situation of the importer is not properly addressed. While the importer is pushed into having full responsibility when the ORs neglect their obligations according to Article 8, they are not provided with sufficient rights and powers to be able to influence the compliance of their OR. As a minimum, REACH should stipulate an explicit right to know the identity of the OR for a given substance and to be informed about the relevant records on tonnages. This seems important in order to guarantee a minimum of legal certainty in Article 8 for importers and to ensure that NEAs can properly enforce it.
Concrete regulatory proposals are provided in Section 5 of the report in the form of recommendations 3.1 and 3.4 to the Commission.
CW: Did the project look to see which ORs belong to the Only Representative Organisation (ORO) and which did not?
EA: NEAs do not have any particular reason to carry out detailed investigations on ORO membership at the visited ORs. Thus, no original results on ORO membership are available. However, the aggregated data set collected from member state inspections allows for a general conclusion that, during the second phase of REF-3, the inspections at ORs involved one third of the companies that are listed as members of ORO.
CW: The executive summary says there is a “low number” of identified free riders that do not register their substances at all. Can you be more precise, and break it down by type of company (importer, OR etc)?
EA: When investigating free riders, one needs to establish a working definition of “free riding”. In REF-3, a conservative approach is taken and a free rider is defined as a duty holder that is required to (pre-) register two or more substances but none of the substances had been (pre-registered).
It is outlined , on page 27 of the report, that 29 out of 1,169 companies inspected could be identified as “free riders”, with none of the required registrations (2%). This is a clear indication that inspectors cannot find high numbers of companies in systematic breach of the principle ‘no data, no market’. The low proportion also shows that there is no specific need for inspectorates to focus, as a priority, on tracking free riders in the market. However, it must be noted that the proportion, among all companies which are in breach of the duty to register for at least one of their substances, is considerable (29/107, 27%). Thus, once a substance is identified as not having the required registration, the project findings recommend that inspectors extend their compliance checks to the complete substance portfolio of the company.
Given the low figure of free riders identified, the Forum did not break this down into different REACH roles as the related statistics are likely to show high uncertainties.
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Echa: Laying the Groundwork for 2018
Feb 19, 2016 | Chemical Watch
By Geert Dancet
Although 2016 has just begun, here at Echa, our eyes are already fixed on the horizon of 2018. We are heading at full tilt toward our destination of collecting information on all chemicals in the EU market.
The last registration deadline, at the end of May 2018, will be a global milestone in the safe use of chemicals. This obligation applies to all chemicals manufactured in, or imported into, the EU above one tonne per year. Last year, we published the first two steps in registering effectively and will publish four steps, this year, so that small-to-medium sized companies (SMEs) are fully briefed on what they need to do so successfully, by the final deadline.
Stability
The smaller companies will have simpler tools and procedures to follow to register their chemicals. Our plan is to provide stability in terms of tools and guidance for the remaining two years before May 2018.
One challenge that remains is the engagement of downstream users. These companies are the only ones that have an accurate picture of how chemicals are used in practice. Only when manufacturers have this information can they describe uses reliably in their registration dossiers, and provide advice on how to use chemicals safely. Currently, this is a weakness in the quality of information that we have. So, we all need downstream users to undertake their responsibilities and inform manufacturers of chemical uses to make sure that they are taken into account.
And to any manufacturer or importer that has not started work on its registration dossier, my advice is “get moving now”. There are lots of materials online to help you, if it’s your first time. No need to panic – just make a start and follow our online advice.
In January, we launched great improvements in the usability of chemical information on our website. Thanks to the wonders of information technology, we have managed to collate data from thousands of dossiers into single infocards, which give a summary of each substance, its properties and classification and labelling. The next layer of detail - the brief profile - provides more information, and the third layer is the source data provided by companies in their registration dossiers. I trust that this will significantly improve the usability of the massive amount of data in our database. It will also help industry regulators all over the world to advance knowledge and safe use of chemicals.
Registration quality
We are using this information intelligently ourselves to achieve the goals of REACH. First of all, we are evaluating at least 5% of the dossiers in each tonnage band to ensure compliance and quality of the data. We are contacting companies if we find gaps and asking them to update. The quality of registration information is essential for the next steps of risk management.
Together with member states, we will continue screening this data to identify the most important substances in terms of the need for further risk management measures. Our aim is to ensure safety for human health and environment. We are as transparent as possible to keep industry in the picture, and so they are able to react in time and be innovative in substituting hazardous chemicals with safer alternatives. This will lead to improved competitiveness for European industry in the long run because consumers, all over the world, want safer products and reduced exposure to dangerous chemicals in their everyday lives.
All our efforts contribute to Europe’s commitment to fulfil the global sustainable development goals, related to protecting the world from the adverse effects of chemicals. It is a big challenge but achievable as long as we work together towards this common objective.
The views expressed in contributed articles are those of the expert authors and are not necessarily shared by Chemical Watch.
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EPA Enforcement Priorities Emphasize Drinking Water, Overburdened Communities
Feb 19, 2016 | PoliticoPro - Whiteboard
By Annie Snider and Alex Guillen
EPA says it will focus more of its enforcement efforts on water pollution over the next three years.
EPA on Thursday announced two new enforcement initiatives: keeping industrial pollutants from metal processing, mining and other facilities out of the country's waters, and reducing risks at industrial and chemical facilities. Neither were among the priorities EPA proposed September, and come as the drinking water crisis in Flint, Mich., is drawing attention to the plight of poor, undeserved communities.
"These initiatives were chosen so we can better protect communities, especially those overburdened by pollution, and were informed by extensive analysis and public input," Cynthia Giles, who heads EPA's enforcement office, said in a statement.
As EPA's budget has come under the knife, the agency has focused its enforcement efforts on large cases.
The new chemical initiative will target "catastrophic" accidents at industrial facilities, of which there are about 150 each year, according to EPA." The agency will also expand a previous enforcement program going after air toxics and other pollutants that comes from leaks or flares at refineries and other facilities.
Those join longstanding efforts to stanch water pollution from large animal feeding operations and sewage and stormwater overflows, and ensure energy extraction complies with environmental laws, as well as an expanded effort to cut toxic air pollution.
EPA plans to pare back its enforcement program targeting pollution from mineral processing operations because the program has already successfully gone after many of the biggest or highest risk processors.
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What's Next for States? ClimateWire's Holden Discusses Latest Moves, Reactions
Feb 19, 2016 | E&E TV
Are states following calls for regulators to "put their pencils down" on crafting Clean Power Plan compliance mechanisms? On today's The Cutting Edge, ClimateWire reporter Emily Holden breaks down the latest state reactions. She also discusses the emerging divide over carbon trading.
§ The transcript for this video is currently not available.
Story can be found here: http://www.eenews.net/tv/videos/2096/transcript
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Scalia's Death 'Puts All the Action' in D.C. Circuit
Feb 19, 2016 | E&E Greenwire
By Robin Bravender
When it comes to the Clean Power Plan, the death of Supreme Court Justice Antonin Scalia may have dramatically elevated a lower court's importance -- at least in the short term.
When Supreme Court justices ruled to freeze the Obama administration's climate rule earlier this month, many viewed it as a sign that it would ultimately be rejected by the high court (Greenwire, Feb. 9). But with the possibility now that the court could split 4-4 on the case -- upholding a lower court's opinion -- all eyes are on what's happening in the U.S. Court of Appeals for the District of Columbia Circuit.
"In many respects, the death of Justice Scalia puts all the action now in the D.C. Circuit, even though the case is stayed by the Supreme Court order," Ann Carlson, an environmental law professor at UCLA, said today on a conference call.
It remains unclear which political party will ultimately appoint Scalia's successor to the bench, but environmental scholars and advocates have been busy gaming out what all possible scenarios could mean for the fate of the administration's signature climate change rule, which aims to slash greenhouse gas emissions from power plants.
For now, that means scrutinizing the landscape in the D.C. Circuit, which has scheduled oral arguments in the case for early June.
The panel of three judges picked to hear the case include two Democratic appointees and one Republican appointee. "EPA, I think, has got to be feeling pretty relieved at the judges who are on the D.C. Circuit panel," Carlson said.
The D.C. Circuit proceedings could be complicated by the fact that one of those judges -- Sri Srinivasan -- is seen as a contender for Scalia's vacant seat, and experts have been pondering what that might mean for the rule.
If Srinivasan were to be nominated before the arguments, "there's a fair chance that he won't sit on the panel," said Michael Gerrard, a law professor at Columbia University and director of the Sabin Center for Climate Change Law. In that case, the court would designate a different judge to hear the case.
If his nomination were to occur after the argument, "he'll have been on the panel and would presumably join in whatever decision comes out," Gerrard said, meaning he'd be expected to recuse himself from the case if he were eventually confirmed to the Supreme Court.
There is precedent for that in a previous climate case, American Electric Power Co. v. Connecticut, in which Justice Sonia Sotomayor was on the 2nd U.S. Circuit Court of Appeals panel that heard the case. She didn't sign onto the opinion in that case and recused herself when the case went to the Supreme Court.
Carlson added that Srinivasan's role in the D.C. Circuit panel could affect whether he gets nominated in the first place. The administration "may not want to sacrifice him from the D.C. Circuit panel if they don't think he's going to get confirmed anyway," she said.
Election could be ultimate decider
Proponents of the U.S. EPA rule have stressed they don't think the Supreme Court's intervention to stay the rule is an indication of how the justices will ultimately rule on the merits, given that the decision came quickly and the justices didn't have time to fully immerse themselves in the complicated legal arguments.
Still, "I don't think that the stay vote was a good sign for EPA," Carlson added. She noted that Justice Anthony Kennedy, often a swing vote on environmental issues, joined the court's conservative wing in granting the stay.
Gerrard said, "If the same lineup would vote in the same directions on the merits, if and when the case reaches the Supreme Court, it would be a 4-4 tie," with the effect to "leave the lower court decision standing."
The high court could also decide to rehear the case once a ninth justice has been seated, which it has done in the past for controversial cases.
Legal experts are looking ahead to determine what could occur depending on which party clinches the White House.
"By the time the Clean Power Plan gets up to the Supreme Court, assuming that the Supreme Court decides to review any decision by the D.C. Circuit, we will probably have a ninth justice of the Supreme Court," Carlson said, noting that a Democratic appointee would be more likely to swing the court in favor of upholding the Clean Power Plan.
"You could say that the election is really what's going to decide the fate of the Clean Power Plan," she said. "That's assuming that President Obama does not succeed in getting his Supreme Court justice confirmed."
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Scalia and Chevron: It's Complicated
Feb 19, 2016 | E&E Greenwire
By Robin Bravender
In 1989, Supreme Court Justice Antonin Scalia -- then a recent arrival on the bench -- delivered an emphatic endorsement of a court practice of deferring to agencies' expertise.
Speaking to Duke University School of Law that January, Scalia was 2 ½ years into what would become three decades on the court. The topic: judicial deference to agency actions. Deeply interested in administrative law, he'd taught it as a law professor before joining the court.
"Administrative law is not for sissies," he told the Duke audience.
Scalia went on to tout the so-called Chevron doctrine, holding that if Congress has been silent or ambiguous about how to tackle an issue, the courts should defer to an agency's reasonable interpretation of the law.
"Broad delegation to the executive is the hallmark of the modern administrative state; agency rulemaking powers are the rule rather than, as they once were, the exception; and as the sheer number of modern departments and agencies suggests, we are awash in agency 'expertise,'" he said.
"In the long run, Chevron will endure and be given its full scope," he added, because "it more accurately reflects the reality of government, and thus more adequately serves its needs."
The Chevron doctrine, which sprang from an environmental case decided before Scalia joined the court, is central to environmental law, where cases frequently center on whether agency regulations can be deemed reasonable interpretations of the law.
The doctrine has also been the topic of vigorous debate in legal circles lately. In light of some high-profile opinions -- including the Supreme Court ruling upholding the Obama administration's health care law -- scholars and experts have suggested that the court's conservative wing is looking to chip away at that doctrine, and that the leeway long given to agencies could be in jeopardy.
Environmental advocates have been troubled by several of the court's recent opinions. In the health care case, Chief Justice John Roberts wrote in the majority opinion for the court thatChevron didn't apply because the health care case was "extraordinary" and centered on a question of "deep 'economic and political significance.'"
For some, that opinion forecast trouble for major environmental rules like the Obama administration's Clean Power Plan, which also has major economic and political significance.
Others remained confident Chevron would remain intact, including the Obama administration's top environmental lawyer.
In a speech last November, the head of the Justice Department's Environment and Natural Resources Division, John Cruden, pointed to Scalia's Duke remarks as he argued that "Chevron is not -- in environmental terms -- a dead or endangered species" (Greenwire, Nov. 11, 2015).
So will the absence of Scalia, who died last weekend, mean the court has lost a strong champion of deferring to environmental agencies?
Many legal experts say no.
Scalia "as much as any other judge actually made Chevron what it is today," said Lisa Heinzerling, a law professor at Georgetown University and a former top official in the Obama administration U.S. EPA. But "his views on Chevron, I think, became very complicated in recent years."
In at least two recent cases regarding major Obama administration air pollution rules, she said, "he wrote majority opinions which did not give agencies deference and did not give EPA deference, and seemed to, in my opinion, create a whole different set of rules."
Those cases are the Supreme Court's decisions in cases that scaled back major EPA rules for industrial emissions of greenhouse gases and for power plants' toxic air pollution.
In the greenhouse gas case, Scalia wrote for the majority, finding that EPA had unlawfully interpreted the Clean Air Act when it revised the greenhouse gas emission thresholds that trigger permitting rules for facilities like factories and power plants.
Scalia also wrote the court's 5-4 2015 opinion striking down the administration's rule to limit mercury from power plants, finding that the agency hadn't properly considered costs.
"In both cases, Justice Scalia came out strongly in favor of an overarching interpretive principle that would reject agency interpretations that went against that principle," Heinzerling said. "It's really important," she added, noting that those were the cases cited when challengers of the agency's landmark Clean Power Plan asked the high court to block the rule. The court agreed to halt that climate rule just days before Scalia's death.
"There's every reason to believe that those cases were central to the grant of that stay," Heinzerling added.
By contrast, Case Western Reserve University School of Law professor Jonathan Adler said he doesn't think either of those cases reflected "any backing away from Chevron" by Scalia. He and others pointed to a 2013 telecommunications case opinion written by Scalia, City of Arlington, Texas, v. Federal Communications Commission, as recent evidence that Chevronwas alive and well in the high court.
That opinion "was a fairly full-throated defense of a robust Chevron doctrine," Adler said. He noted that Scalia had expressed "grave doubts" about another type of agency deference regarding "the extent to which there should be deference to agency interpretations of their own regulations -- and I think he indicated that he was ready to curtail or eliminate such deference if the proper case arose."
Others are more skeptical about Scalia's adherence to Chevron.
"Justice Scalia recited adherence to Chevron, but in fact he showed remarkably little deference for EPA in particular," said Michael Gerrard, a law professor at Columbia University and director of the Sabin Center for Climate Change Law.
In the environmental domain, "it seems that in the last few years that the court has been more skeptical of enlargement of agency authority," said Michael Wara, a law professor at Stanford University. "We'll have to see where that goes with a new justice."
If a Democrat appoints the next nominee, he expects "you're going to see a greater willingness to allow agencies to promulgate regulations that are new and maybe regulate new areas."
Click here to read Scalia's 1989 speech.
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Enforcement Push Targets Toxic Industrial Pollution
Feb 19, 2016 | E&E Greenwire
By Sean Reilly and Tiffany Stecker
U.S. EPA plans to put fresh emphasis on cutting toxic air emissions from hazardous waste producers as well as keeping industrial pollutants out of lakes and waterways under its latest three-year cycle of national enforcement initiatives.
The plan, which will run from October through 2019, is designed "to focus time and resources on national pollution problems that impact Americans locally," Cynthia Giles, assistant administrator for enforcement and compliance, said yesterday in a statement. Assembled with the help of public input and extensive analysis, she said, the seven initiatives "were chosen so we can better protect communities, especially those overburdened by pollution."
Two of the initiatives are new. One would increase enforcement on industrial pollution in waterways, focusing on the top-polluting sectors: mining, chemical manufacturing, food processing and primary metals manufacturing.
According to the proposal for this initiative published in the Federal Register in September 2015, the initiative will allow for a "national approach" so that one strategy could apply to address violations from companies operating in multiple states.
The other new priority aims to reduce the risk of accidental releases at industrial and chemical facilities that use and store hazardous substances. Many of those are near low-income and minority communities, and "catastrophic accidents" -- historically around 150 annually -- lead to deaths, injuries, and health and environmental risks, the release said. Under the new initiative, EPA will concentrate on reducing the chances of accidents through "innovative" prevention measures and also work on bettering response capability.
EPA will continue two of its water enforcement initiatives from the last cycle. One will clamp down on raw sewage overflow violations and inadequate stormwater management from municipal sewer systems. The other will focus on pollution from concentrated animal feeding operations, in which large numbers of livestock are held in confined areas.
Also staying on the list are efforts to reduce air pollution from power plants and other especially large polluters and making sure that oil and natural gas producers comply with environmental laws. An ongoing initiative to cut toxic air pollution will be ramped up to encompass violations at plants that generate, store or dispose of hazardous waste.
The list drops one current initiative aimed at curbing pollution from mines and other mineral processing operations. Recent settlements that address some high-risk mineral processing facilities have helped set the stage for reaching agreements at similar operations in the future, EPA said in explaining its decision to return to a "base enforcement" level.
The newly announced list quickly drew criticism from the American Petroleum Institute. In a statement, Howard Feldman, senior director of regulatory and scientific affairs, said refinery emissions have dropped significantly over the last two decades, with oil and gas companies already striving to stay in compliance with laws and regulations.
"These initiatives are chasing after nonexistent problems," Feldman said. The Obama administration "should be encouraging our domestic energy industry rather than challenging it with additional, onerous burdens," he added.
In yesterday's release, EPA officials highlighted "significant progress" in reducing pollution in recent years under the national enforcement initiatives. At the nation's coal-fired power plants, for example, almost 60 percent of individual generating units either have installed required pollution control equipment or are under court order to do so, according to the agency.
But data tucked into fiscal 2017 budget documents sent to Congress earlier this month show an uneven year-to-year record in meeting enforcement targets.
In fiscal 2014, for example, EPA succeeded in reducing, treating or eliminating 140 million pounds of air pollutants, far short of its goal of 350 million pounds. In 2015, however, the agency exceeded its 310 million pound target by reducing, treating or eliminating 430 million pounds of air pollutants, according to the figures.
The story was reversed in its enforcement of water regulations. In 2014, the agency reduced, treated or eliminated 340 million pounds of water pollutants, compared with a 280 million pound target. In 2015, the benchmark was 250 million pounds; EPA actually achieved 90 million pounds.
Hazardous waste enforcement has been a consistent underperformer, with EPA failing to meet its targets -- sometimes by dramatic margins -- for five straight years. In 2015, the agency set a goal of reducing, treating or eliminating 2.4 billion pounds of hazardous waste; the actual number was 500 million pounds.
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High Court Case on CWA Findings Might Alter Jurisdiction More Than Rule
Feb 19, 2016 | InsideEPA
By Bridget DiCosmo
A pending Supreme Court ruling on whether regulators' findings that waters are jurisdictional under the Clean Water Act (CWA) are subject to pre-enforcement review might alter the scope of the water law more than EPA's contested CWA jurisdiction rule, one water attorney says, because it could clear the path for courts across the country to weigh in on the water law's scope.
If the justices -- currently divided 4-4 after the recent death of Justice Antonin Scalia -- hold that the regulators' jurisdictional determinations (JDs) can be judicially reviewable, it could lead to a "significant change" in the scope of the water law given that the findings have been subject to only very limited court review to date, said Neal McAiley, of Miami's White & Case, during a recent environmental law conference in Washington, D.C.
Such a ruling could allow courts across the United States to weigh in on whether they agree with JDs issued by the Army Corps of Engineers under the CWA on which waters fall under the law and which are exempt, he said.
That could make the pending high court case more significant to the water law than the EPA-Corps joint rulemaking designed to clarify the scope of the CWA, McAiley added. The U.S. Court of Appeals for the 6th Circuit has stayed implementation of that rule nationwide while it weighs whether it has authority to hear challenges to the policy, or whether lawsuits over the rule should start in federal district courts where a slew of cases are pending.
The high court will hear oral argument March 30 in Army Corps of Engineers v. Hawkes Co., et al., in which the Corps is appealing a unanimous decision by the 8th Circuit that allowed the peat mining company Hawkes Co.'s suit to move forward despite the government's objections that a JD is not "final action" subject to challenge. The 8th Circuit held that even without direct legal consequences the findings create new hurdles for property owners.
The justices' eventual ruling could therefore resolve whether JDs can be reviewed by the courts even before EPA and Corps regulators take enforcement or permitting action based on their findings. An argument in early spring means the high court could issue the decision before its current term ends on June 30.
McAiley told the American Law Institute-Continuing Legal Education "Environmental Law" conference that if the court finds JDs judicially reviewable and landowners start challenging JDs in courts, it would build up a larger body of case law on federal jurisdictional decisions. That could possibly setting new parameters on what waters can be subject to the CWA, given that the issue has only been before the Supreme Court three times before Hawkes, McAiley said. Hawkes could be "as important if not more important to the scope of [CWA] jurisdiction," he added.
Jurisdictional Determinations
In Hawkes, the Department of Justice (DOJ) on the Corps' behalf has argued in briefing that the JDs are similar to non-binding agency guidance documents that courts have generally found to be exempt from judicial review. DOJ says that if the 8th Circuit's decision stands, it risks allowing suits over EPA and other agencies' guidances, because every such guide is meant to influence regulated parties' actions to some degree.
Attorneys representing developers in Hawkes hope to convince the justices to expand their test for which environmental orders are final action after the landmark unanimous 2013 decision Sackett v. EPA. That decision required pre-enforcement review of CWA compliance orders on the basis that recipients faced enhanced fines when enforcement would eventually begin.
Since the 8th Circuit in Hawkes only addressed the threshold question of whether the findings can be subject to litigation, the high court will not address whether regulators' view of CWA jurisdiction is lawful -- the focus of the final rule which the agencies finalized on June 29, and which is expected to eventually reach the high court.
The Supreme Court has issued rulings on CWA jurisdiction before that have created legal confusion which prompted the EPA-Corps jurisdiction rule. The court in a 5-4 ruling in 2001 in Solid Waste Agency of Northern Cook County (SWANCC), Petitioner v. United States Army Corps of Engineers, et al. barred regulators from citing the presence of migratory birds as the sole basis for asserting jurisdiction over wholly intrastate waters.
In 2006, the Supreme Court in Rapanos et ux, et al., v. United States, the high court in a 4-4-1 decision produced competing legal tests for determining jurisdiction that led to last year's rule. Scalia wrote in a plurality opinion that the CWA extends only to waters that are "relatively permanent, standing or continuously flowing" or to wetlands that are immediately adjacent to such waters.
Justice Anthony Kennedy wrote an opinion concurring with Scalia's decision but for different reasons. Like Scalia, Kennedy says there should be limits on CWA protections for remote waterbodies, but said waterbodies with a "significant nexus" to navigable waters should still be protected.
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Advocates Cite ESPS Stay in Bid For GHG Limits At Existing Oil & Gas Sites
Feb 19, 2016 | InsideEPA
By Bridget DiCosmo
Environmentalists are citing the Supreme Court's stay of EPA's power plant existing source performance standards (ESPS) as bolstering their push for the agency to issue first-time limits on the greenhouse gas (GHG) methane from existing sources in the oil and gas sector in case the ESPS is ultimately scrapped and its expected GHG cuts do not occur.
While the agency is seeking to regulate the potent GHG methane for the first time under its proposed new source performance standards (NSPS) for new oil and gas sources under Clean Air Act section 111(b), EPA to date has demurred on environmentalists' calls to regulate methane from existing sources under section 111(d) authority. Advocates now say the ESPS stay reinvigorates their push for controls on existing drilling.
Environmentalists have argued that under the Clean Air Act, once EPA sets regulations for new and modified sources under section 111(b), the agency "shall prescribe regulations" that would require states to craft plans for meeting standards for existing sources under section 111(d). EPA has regulated GHGs from new power plants under NSPS authority and also issued the ESPS for existing utilities under section 111(d).
But EPA officials have indicated they will hold off on crafting section 111(d) regulations for the oil and gas sector despite proposing an NSPS to curb emissions of the potent GHG methane from new and modified sources.
Recently, advocates have pointed to a Department of the Interior proposal governing flaring on public lands and Pennsylvania plans for curbing methane from the sector, both of which include existing sources. They say the regulations show an going gap in much-needed regulation of methane from existing activities.
Environmentalists now say the Supreme Court's unexpected 5-4 decision issued Feb. 9 to stay the ESPSpending judicial review "has made it all the more urgent for the Administration to look harder at all sources of greenhouse gases, and propose and finalize a standard on existing sources of methane from the oil and gas industry."
The source adds that the Obama administration is committed to achieving the GHG targets in the Paris climate agreement, "so we feel more strongly than ever that the Administration must address existing sources."
'Emissions Gap'
EPA's proposed rule to cut methane emissions from new sources will still leave an "emissions gap" of 75 million metric tons of carbon dioxide equivalent reduction in methane emissions, environmentalists say. This will prevent the administration from meeting its stated goal of 40-45 percent reduction of methane by 2025, unless it targets existing sources, according to a Clean Air Task Force report issued last month, "Mind the Gap."
"That number also stacks up well" against the ESPS' expected GHG reduction amount of 210-240 million metric tons, the environmentalist says, because addressing both new and existing methane sources from the oil and gas sector could capture up to 120 million metric tons of carbon dioxide equivalent.
A second environmentalist says that while they believe the ESPS rule will ultimately be upheld by the courts despite the stay, "right now, if the administration is looking to do something more the existing [oil and gas] sources should be at the top of the list." If EPA were to pursue such regulations it would "send a strong signal" to the global community that the administration still intends to meet its Paris commitments," the source says.
That source adds that crafting rules under section 111(d) for the oil and gas sector would be legally less complicated than for the power sector, adding that controls for existing sources from the oil and gas sector would be "automechanics, not rocket science," such as plugging of leaks, and "legally not at all novel."
But one energy industry source counters that estimates floated by environmentalists and the administration support strict NSPS rules, arguing that additional new production will increase emissions significantly but "that argument runs counter to historical data."
Most wells now and virtually all wells by 2025 that are not subject to the NSPS (or to voluntary actions before the NSPS) are marginal wells that produce -- not emit -- about 22 thousand cubic feet per day," the source says. The reason for environmentalists' push for existing source rules "isn't emissions, it's coverage -- part of the 'keep it in the ground' strategy," the source adds, saying that small wells cannot afford the controls or leak detection and repair programs and would likely shutdown. -
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Lawmakers Uge Oversight on Cap-and-Trade Revenue Spending
Feb 19, 2016 | E&E Climatewire
By Anne C. Mulkern
More scrutiny is needed into how California is spending some of the $3.1 billion generated by its cap-and-trade program for carbon emissions, several lawmakers said yesterday.
Democrats and Republicans on the state Senate's Committee on Budget and Fiscal Review agreed that they wanted more oversight of the money that's automatically allocated to fixed categories. Gov. Jerry Brown (D) in 2014 struck a deal with the Legislature that lets him take 60 percent of program proceeds for sectors that include development of a high-speed rail line; upgrades to intercity rail; and building low-income housing near subways, light rail and bus lines.
The Legislature allocates the rest of the money. But some lawmakers said at a hearing yesterday that they wanted proof the programs funded through Brown's budget were reducing greenhouse gas emissions, the goal of the program.
Republicans on the committee were especially critical.
"It alarms me, the continuous appropriation," said Jim Nielsen, vice chairman of the committee. He said he wanted to find some kind of mechanism by which the Legislature could suspend the automatic allocations "for cause." He added, "This cannot be a blank check on and on and on."
Democratic Sen. Fran Pavley, the sponsor of the state's climate law, A.B. 32, said she didn't disagree with Nielsen.
"We can adjust priorities," Pavley said. "It's always in the legislative purview to not just sign off."
'Is there some temperature stick?'
Brown's (D) draft fiscal 2016-17 budget proposes spending $3.1 billion in cap-and-trade revenues. That total includes $700 million from last year that was not spent and $2.4 billion that's expected to be generated from auctions this coming fiscal year.
Under the program, business with the highest greenhouse gas emissions must secure allowances to cover their pollution. Those allowances are sold at auctions held by the state. Revenue from the sales is supposed to go to programs that meet the goals of the state's climate law and fill other benefits like job creation.
The Legislative Analyst's Office (LAO), a nonpartisan fiscal watchdog, at the hearing said that the governor's office had not given the Legislature sufficient details to be able to evaluate the programs suggested for funding.
"The key takeaway, based on our review of the [governor's] proposal, is that the administration doesn't provide a lot of information that really helps the Legislature really prioritize amongst all the various programs that are in the administration's expenditure package," said Ross Brown, principal fiscal and policy analyst with the LAO.
The LAO suggested that the Legislature create a committee of experts to review expenditures and whether funded programs are meeting goals for greenhouse gas reductions.
The governor's office next month is due to issue a report that will discuss how programs funded my cap-and-trade proceeds are operating and the resulting greenhouse gas emissions reductions. But state Sen. Richard Pan (D) said there need to be objectives set up at the beginning, with a review afterward on whether those have been met. State Sen. Richard Roth (D) agreed.
"How do we determine whether we're winning or we're losing?" he asked the LAO's Brown. "Do we wait until 2030 or 2050? Is there some temperature stick I can hold up in the air and read and understand that I've met my target? And all the while, we're spending $3 billion, or $1 billion, or $2 billion a year."
LAO warns of shifting pollution
Administration officials pushed back against the idea that there weren't data on what has been achieved by the programs funded under the continuous allocation.
Under the deal with Gov. Brown, 35 percent of that money has gone to "sustainable housing," homes built near transit. Those developments must also offer units for lower-income residents. The money in some cases is filling a gap left when the state eliminated redevelopment, a mechanism for improving blighted neighborhoods, ClimateWire reported last year (ClimateWire, Aug. 26, 2015).
Randall Winston, acting executive director with the Strategic Growth Council, which allocates those funds, said the $400,000 for sustainable housing in the 2014-15 funding cycle cuts greenhouse gas emissions the equivalent of taking 140,000 cars off the road.
The state's Clean Vehicle Rebate Project gives people money for buying electric and other zero- and low-emissions cars. In January of last year, the state had issued 30,000 rebates, which resulted in 113,000 metric tons of emission reductions, said Matt Almy, assistant program budget manager with the Department of Finance. The program in 2014 and last year was funded with cap-and-trade money.
Brown with LAO also cautioned that the way the money is being spent might not result in the highest amount of greenhouse gas reductions. The bulk of the proceeds goes to programs in areas that already are covered by the program's "cap," which forces companies to lower their emissions.
Using auction revenues for efforts in those same areas might just shift where pollution occurs instead of shrinking it further, the LAO said.
For example, distributors of motor fuels must procure allowances for emissions tied to in-state gasoline and diesel sales. Meanwhile, the state -- using auction revenues -- funds those rebates for electric cars. Sales of EVs lower demand for gasoline. If less gasoline is sold, fuel distributors need to buy fewer allowances. So greenhouse gases aren't cut in two places. In contrast, spending the money on landfill diversions or waste digesters could result in greenhouse gas emissions reductions additional to those under the cap, Brown said.
Brown admin touts revenue's broad benefits
State Sen. Mark Leno (D), chairman of the committee, said that Brown had touched on "one of the most fundamental concerns of the entire cap-and-trade program."
"How will we best be able to document whether we are reducing greenhouse gas emissions by the investments we are making?" Leno asked.
Brown said that it's "a difficult thing to assess" because the cap-and-trade program operates as a market and gives businesses a lot of flexibility in how they achieve the required emissions reductions. He said he did not have an immediate answer but that the LAO and Legislature should both think about strategies to get the answer.
"We do think it's an important area to think about and continue to look at ways for the Legislature to be confident in programs it's funding," Brown said.
Brown's administration representatives said it is important not to look at the spending of cap-and-trade proceeds through a narrow lens. While using the cap alone to get reductions is the lowest-cost route, spending the funds on chosen programs produces multiple co-benefits, said Almy with the Department of Finance.
Putting money toward forest health means trees absorb and reduce greenhouse gases, he said. It also helps avoid additional wildfires, which create emissions. There's a public safety benefit from fewer fires. Biomass energy can be made from harvested trees, and jobs are created by tree removal.
"You can't just look at it from the emissions reduction benefit," Almy said. "You have to look at it holistically."
Sen. Nielsen asked about cap and trade's effect on gasoline prices. Fuel distributors first came under the cap last January, a move the oil companies and many in the GOP protested.
Brown with the LAO said that given the current price of allowances, motorists are paying 10 cents more per gallon of gasoline because of cap and trade.
Sen. Pavley said the state needs to address transportation, because emissions from that sector are the largest culprit in climate pollution. They represent almost 40 percent of total California greenhouse gases.
Using cap-and-trade money to invest in biofuels creates competition and "would help keep petroleum prices down," Pavley said.
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