Preview Newsletter
ACC PM 3/1/16
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(ACC Mentioned) Udall Seeks Update of Federal Chemical Rules
Mar 1, 2016 | Las Cruces Sun-News
By Walter Rubel
Hundreds of new chemicals are brought onto the market every year for use in a wide variety of products that we come into contact with on a daily basis, without ever having to pass a safety review from the federal government. -
Supreme Court Vacancy May Jeopardise Chemical Regulation Reform
Mar 1, 2016 | Chemistry World
By Rebecca Trager
Concerns have been raised that the increasingly nasty fight underway in Congress over the appointment of a new supreme court judge to replace the notably conservative Antonin Scalia could jeopardise efforts to finally reform the outdated 40-year-old legislation that governs the US’s chemicals policy. -
US SEC Gets Extension on Filing Conflict Minerals Petition
Mar 1, 2016 | Chemical Watch
By Kelly Franklin
The Securities and Exchange Commission (SEC) has won an extension on filing a petition for Supreme Court review of a decision that struck down a disclosure mandate in the US conflict minerals rule. -
Chemical Safety Bill Could Help Protect Monsanto Against Legal Claims
Mar 1, 2016 | The New York Times
By Eric Lipton
Facing hundreds of millions of dollars in lawsuits, the giant biotechnology company Monsanto last year received a legislative gift from the House of Representatives, a one-paragraph addition to a sweeping chemical safety bill that could help shield it from legal liability for a toxic chemical only it made. -
Nationwide Poll Finds Overwhelming Support For Stronger Cosmetics Regulation
Mar 1, 2016 | Environmental Working Group
By Christine M. Hill
Americans overwhelmingly want the government to ensure the safety of the personal care products they buy, according to a new national poll released today by the Mellman Group and American Viewpoint. -
Echa Urges 2018 Registrants to Organise Their Siefs
Mar 1, 2016 | Chemical Watch
By Geraint Roberts
Echa is urging companies that intend to register substances, under the 2018 deadline, to contact their fellow registrants and organise their Siefs as soon as possible. -
Texas Wants Appeal of EPA Haze Plan to be Heard in Regional Court
Mar 1, 2016 | E&E Energywire
By Mike Lee
Texas' top lawyer has sued U.S. EPA over the agency's plan to reduce haze from power plant emissions and is asking to keep the case out of Washington. -
Industry Groups Slam Key Provision in Draft Pipeline Safety Bill
Mar 1, 2016 | Politico Pro - Whiteboard
By Andrew Restuccia and Elana Schor
Industry groups are threatening to oppose the House's bipartisan draft pipeline safety legislation over a provision that would allow environmentalists and other members of the public to take the Pipeline and Hazardous Materials Safety Administration to court over alleged regulatory inaction. -
EPA Officials Eye New Fracking Research Priorities As Study Draws To End
Mar 1, 2016 | Inside EPA
EPA Office of Research & Development (ORD) officials are eyeing new research priorities for better characterizing the potential impacts of hydraulic fracturing on health and environment, including proposed budget increases to support studies aimed at better understanding potential ecosystem effects and emissions of air toxics and ozone precursors. -
Industry Groups Ask Judges to Reconsider Jurisdiction Ruling
Mar 1, 2016 | E&E Greenwire
By Tiffany Stecker
A coalition of agriculture, building and other industry groups yesterday asked a federal appeals court to reconsider a decision on the Obama administration's contentious Clean Water Rule, requesting that the court's full panel of active judges rehear the case. -
Researchers Say Big Emissions Cuts are in the Small Stuff
Mar 1, 2016 | E&E Climatewire
By Umair Irfan
Some of the biggest insurgent energy technologies stand to be the least visible by design, researchers said at the Advanced Research Projects Agency-Energy's annual summit yesterday.
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(ACC Mentioned) Udall Seeks Update of Federal Chemical Rules
Mar 1, 2016 | Las Cruces Sun-News
By Walter Rubel
Hundreds of new chemicals are brought onto the market every year for use in a wide variety of products that we come into contact with on a daily basis, without ever having to pass a safety review from the federal government.
Some 80,000 new chemicals have made their way into building materials, household products, furnishings, consumer goods, and a multitude of other items without federal oversight in the past four decades, U.S. Sen. Tom Udall said.
“Every year in the United States, 750 to 1,500 new chemicals come on the market,” Udall said. “And, they get to just come on.”
The Toxic Substances Control Act of 1976, which regulates chemical use, is the only one of the environmental protection laws passed in the 1960s and 1970s that has yet to be updated, Udall said, who has successfully pushed forward a Senate bill to address the issue.
As a compromise to get that bill passed, it was agreed that some 56,000 chemicals would be grandfathered in, Udall said, meaning they would not be subject to regulation under the new law.
The original law was written to protect chemical companies, not consumers. Before the EPA can restrict the use of any chemical it must factor in the potential costs of regulation and pick the “least burdensome” method for the company.
From 1976 until 1991, only five chemicals were banned under TSCA, Udall said.
Then in 1991, the federal appeals court in New Orleans struck down efforts by the EPA to regulate asbestos, ruling the agency had not considered alternative regulation that would have been less burdensome to the industry.
At that point, the EPA essentially just gave up, Udall said.
“The (court) made it so burdensome to deal with that the EPA just threw up its hands and said, ‘we’re not doing anything.’ So now you have 20-plus years of not doing anything,” Udall said.
No chemicals have been banned since that ruling.
It is estimated that some 20 million people in the United States, and millions more worldwide, are at risk of developing mesothelioma because of exposure to asbestos. Yet, 40 years after that link was discovered, asbestos is still not banned in the United States.
Other agencies have specific duties. The Food and Drug Administration regulates chemicals used in food. The Agriculture Department regulates pesticides. But the EPA is the catch-all. And for the last 40 years it hasn’t caught much.
Senate bill
In the final days before senators went home at the close of 2015, the Senate passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act unanimously on a voice vote. Udall and Sen. David Vitter, R-Louisiana, were co-sponsors.
Lautenberg, a Democratic senator from New Jersey, had begun the effort several years ago. Udall, who had been on the committee working on the bill, took over leadership after Lautenberg’s death in 2013.
About six month before the Senate vote, the House of Representatives passed HR 2576, the TSCA Modernization Act of 2015. The goal now is to reach a compromise on the two bills through a conference committee, Udall said
An analysis by the Environmental Defense Fund compares the two bills. Both create a process to review old chemicals that came onto the market without review, as well as new chemicals. Both place safety above economic interests. In general, the House bill is more narrow than the Senate bill, but is not as restrictive against state action.
Negotiations have already started between House and Senate leaders to try to reconcile the competing bill, a spokeswoman for Udall said. It is hoped they will be able to work out a compromise by late spring or summer.
New Mexico's House members were divided as to which bill was stronger, but all agreed that there was a dire need for reform.
“TSCA was originally passed 40 years ago. Since that time, there have been major advancements in chemical manufacturing as well as chemical safety," said Rep. Steve Pearce, R-Hobbs, who represents southern New Mexico. "Both the House and Senate bills aim to update this legislation to provide consumers with safe choices, while also giving manufacturers the regulatory clarity they need to expand and create jobs. This will result in empowering the free market and protecting the consumer.”
Paul Stoddard, a spokesman for Rep. Ben Ray Lujan, D-Nambe, notes that he serves on the House Energy and Commerce Committee, which passed the House bill, 47-0. Lujan supports the House version of the bill, Stoddard said.
A statement from Rep. Michelle Lujan Grisham, D-Albuquerque, indicated she would be more open to part of the Senate bill.
"The congresswoman appreciates Senator Udall’s efforts to forge a compromise to reform our chemical safety law that is clearly outdated," the statement said. "As this legislation moves forward, Representative Lujan Grisham will look to ensure that it creates a more workable regulatory structure while protecting consumers."
Over the years, larger states such as California and New York have responded to the lack of federal oversight by establishing their own agencies. But states like New Mexico simply don’t have the resources.
“New Mexico has nothing now,” Udall said. “So were relying on what other states do. But the reality is we don’t have the federal protection, so you need something for all of the states to feel comfortable with.”
The chemical industry, which in the past has opposed new regulations, is now on board because it wants one uniform law, rather than having to comply with different laws in different states, Udall said.
The American Chemistry Council and National Association of Chemical Distributorsboth put out statements of support following the Senate vote.
“Today’s vote puts us on the doorstep of finally reforming an outdated law in a way that will build confidence in the U.S. chemical regulatory system, protect human health and the environment from significant risks and meet the commercial and competitive interests of the U.S. chemical industry and the national economy,” said Eric Byer, Chemical Distributors president.
Help from Hollywood
Two recent movies have helped to highlight the current situation, Udall said.
“The Human Experiment,” produced by Sean Penn, is a documentary that tells the stories of people who believe they have been damaged by exposure to chemicals and shows how difficult it is to hold chemical companies accountable.
“Toxic Hot Seat” is based on an investigative series by the Chicago Tribune into the use of toxic chemicals in flame retardants used in household furniture.
At about the same time, the New York Times ran a lengthy story on perfluorooctanoic acid, a chemical used in the production of Teflon, and the damage done to a rancher living near the plant when the chemical was dumped into the river.
“The public was concerned to start with, and then that’s driven public opinion. There is a push from the public to do something,” Udall said. “I make the argument to New Mexicans, you’re not being protected at all. You don’t have an EPA on these issues. And that’s very true.”
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Supreme Court Vacancy May Jeopardise Chemical Regulation Reform
Mar 1, 2016 | Chemistry World
By Rebecca Trager
Concerns have been raised that the increasingly nasty fight underway in Congress over the appointment of a new supreme court judge to replace the notably conservative Antonin Scalia could jeopardise efforts to finally reform the outdated 40-year-old legislation that governs the US’s chemicals policy.
Since Scalia’s death on 13 February, Republican leaders in the Senate have made it clear that they intend to stonewall the supreme court appointment process by refusing to hold hearings on any candidate until the next President is sworn in in January 2017. The ensuing backlash has caused some to worry that even high-priority items such as reform of the Toxic Substances Control Act (TSCA) legislation, which passed the House and Senate nearly unanimously in December, could fall apart as gridlock grips Capitol Hill.
‘There is a danger that a lot of important things could fall by the wayside,’ says former SenatorByron Dorgan. ‘Even under ideal circumstances, the Congress seems unable to make much progress on things. Added to that now [is] the issue of the replacement for Justice Scalia – it is going to be a poisonous atmosphere,’ he tells Chemistry World.
Dorgan, who served as a member of the Senate Democratic leadership for 16 years, says the TSCA reform legislation appeared poised for passage earlier this year, but the supreme court fight has created waves. ‘It puts at risk a lot of things that people are hoping to achieve,’ states Dorgan, who is a senior fellow at the Bipartisan Policy Center, which advocates for two-party solutions to key issues. He suggests that it is unlikely that this current rift between the two political parties will allow legislators to move forward with pending business, such as updating the TSCA.
However, there are hopeful signs. Democratic leaders in the Senate announced on 23 February that, despite anger over their political opponents’ tactics, they will not seek leverage by holding up regular spending bills in the Senate. ‘It was a real threat that this could potentially create yet another obstacle to TSCA reform, but now it is pretty clear that this won’t slow down TSCA,’ says Ben Dunham, who helped to negotiate a bipartisan bill to modernise the TSCA.
‘The Democrats won’t completely shut down the Senate over the supreme court vacancy issue and will continue to move forward on major legislation in areas where there is bipartisan support,’ states Dunham. He reiterates that the TSCA reform legislation under consideration in Congress does have ‘strong bipartisan support’ and is ‘a high priority’ for of those on both sides of the aisle.
Nevertheless, Dunham says progress has been sluggish when it comes to negotiating a final TSCA reform bill and getting it through both chambers of Congress so that Obama can sign it into law. ‘It has been a little slower going than we had anticipated,’ he states, ‘but it sounds like real negotiations have begun now and things could move a lot more quickly in the next couple of weeks.’
But the pressure is on. Congress’ current legislative calendar is shorter than normal, ending in July because of the elections in November. Although it is harder to do ‘real legislating’ in an election year, Dunham says there are ‘signs of real progress’.
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US SEC Gets Extension on Filing Conflict Minerals Petition
Mar 1, 2016 | Chemical Watch
By Kelly Franklin
The Securities and Exchange Commission (SEC) has won an extension on filing a petition for Supreme Court review of a decision that struck down a disclosure mandate in the US conflict minerals rule.
If the SEC petitions for certiorari, it will be only for a reconsideration of the provision of the DC Circuit Court’s August decision that a company cannot be required to describe its products as “not been found to be ‘DRC-conflict free’”.
Julie Murray, attorney for Public Citizen – representing Amnesty International – says “whether or not the SEC files a cert petition, companies will continue to be responsible for investigating and disclosing various information about the use of conflict minerals in their supply chains.”
The Dodd-Frank Act of 2010 requires companies to conduct due diligence on whether “3TG” minerals in their products have contributed to the funding of armed groups in the Democratic Republic of Congo (DRC) conflict region. 3TG materials are: tin; tungsten; gold; and tantalum.
The National Association of Manufacturers challenged a provision of the rule requiring companies to designate if products were found to be “conflict-free”. It argued that this constituted compelled speech, in violation of the Constitution.
The court struck down the mandate in a 2014 ruling. This decision was reaffirmed in an appeals court last August.
In November, the court denied a petition filed by the SEC and Amnesty International as an intervening organisation for a rehearing en banc.
With the court’s extension, the SEC will have until 7 April to submit its cert petition to challenge the August decision.
Amnesty International does not have knowledge of whether the SEC plans to file a petition. The SEC did not respond to a request for comment by the time of publishing.
If the petition is not filed, or is denied, the case will be remanded to a district court for further proceedings, pursuant to the DC Circuit’s August decision, says Ms Murray.
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Chemical Safety Bill Could Help Protect Monsanto Against Legal Claims
Mar 1, 2016 | The New York Times
By Eric Lipton
Facing hundreds of millions of dollars in lawsuits, the giant biotechnology company Monsanto last year received a legislative gift from the House of Representatives, a one-paragraph addition to a sweeping chemical safety bill that could help shield it from legal liability for a toxic chemical only it made.
Monsanto insists it did not ask for the addition. House aides deny it is a gift at all. But the provision would benefitthe only manufacturer in the United States of now-banned polychlorinated biphenyls, chemicals known as PCBs, a mainstay of Monsanto sales for decades. The PCB provision is one of several sticking points that negotiators must finesse before Congress can pass a law to revamp the way thousands of chemicals are regulated in the United States.
“Call me a dreamer, but I wish for a Congress that would help cities with their homeless crises instead of protecting multinational corporations that poison our environment,” said Pete Holmes, the city attorney for Seattle, one of six cities suing Monsanto to help cover the costs of reducing PCB discharge from their sewers.
The House and the Senate last year both passed versions of legislation to replace the 40-year-old Toxic Substances Control Act, a law that theEnvironmental Protection Agency acknowledged had become so unworkable that as many as 1,000 hazardous chemicals still on sale today needed to be evaluated to see if they should be banned or restricted.
Democrats and Republicans — along with the chemical industry and even some environmentalists — agree that the pending legislation would be a major improvement over existing law. But from legal liability shields to state-based regulatory authority, the House and Senate versions have major differences to resolve. The remaining disputes revolve around the basics of pre-emption: Who gets to sue? And who gets to regulate the chemical industry?
A Monsanto spokeswoman said the company had received no special treatment from the House or the Senate.
“Monsanto does not consider either version of the bill, with respect to the effect on preemption, to be a ‘gift,’ ” the spokeswoman, Charla Lord, said.
Already, attorneys general and top environmental regulators from 15 states have written to leaders in Congress demanding changes.
“Our future work depends on striking the right balance to strengthen the U.S. Environmental Protection Agency’s abilities and funding, without limiting state powers in creating and enforcing needed protections,” said aletter, obtained by The New York Times, sent by the top environmental regulators in California, Connecticut, Minnesota, New Hampshire, New York, Oregon, Washington and West Virginia.PhotoTires embedded in the bank of the Duwamish River in Seattle. The river contains PCBs and other pollutants. CreditDavid Ryder for The New York Times
Some of the most vociferous objections relate to the so-called Monsanto Clause. The provision does not mention the company by name, but between the early 1930s and 1977, Monsanto manufactured almost all of the 1.25 billion pounds of PCBs sold in the United States.
The chemicals were initially admired for their ability to prevent fires and explosions in electrical transformers and other equipment. But as the use of PCBs skyrocketed nationwide in products as varied as paints, pesticides and even carbonless copy paper, evidence mounted that they were contaminating the environment and potentially causing health problemsincluding cancer and immune-system complications. The E.P.A. banned their production in 1979.
PCB litigation has surged in the last year as cities and school systems struggle to comply with directives from federal and state regulators to reduce PCB levels in sewer discharge and in caulk once used to construct schools. Separately, a group of individuals who received diagnoses of a form of cancer known as non-Hodgkin’s lymphoma sued Monsanto last year, claiming the company should pay damages.
The Senate Environment and Public Works Committee, in a June reportaccompanying its version of the legislation, asserted that neither existing toxic chemical law nor any revisions pending in Congress should be seen as a way to “pre-empt, displace or supplant” the right to sue for damages in lawsuits like the ones filed against Monsanto.
The House also voted to preserve the right to sue if individuals or local governments believe they have been harmed by a chemical, regardless of future federal regulations of the substance. But a critical paragraph added to the House bill in late May made sure past regulatory requirements by the E.P.A. would continue to disqualify legal claims, and it specifically referred to the section of the 1976 toxic chemical law governing PCBs, giving Monsanto clearer authority in the future to ask judges to dismiss lawsuits filed against it.
Congressional aides involved in the drafting said the language was inserted at the request of Republican staff members at the House Energy and Commerce Committee. One Republican committee aide disputed any suggestion that this was a gift to Monsanto, but he said he was not allowed to discuss the issue on the record.
And Ms. Lord, the Monsanto spokeswoman, said the company did not ask for the change.
But by November, Monsanto was clearly aware of the provision. Arguing before a federal court in Texas, a lawyer representing Monsanto cited the House language to say that certain of the legal claims against the company’s past PCB business should be dismissed.
“The House bill specifically exempts PCBs,” ensuring that protection from lawsuits would continue “after the passage of the new law,” the lawyer argued, even though the provision remained locked in negotiation.
The House provision is now drawing protests from local officials suing Monsanto to try to recover costs associated with PCB cleanups, and from lawyers who are trying to collect damages for individuals with health problems linked to PCB exposure, including non-Hodgkin’s lymphoma.
“Taxpayers and public entities would be left holding the bag to pay hundreds of millions of dollars if not billions of dollars cleaning up Monsanto’s PCBs,” said John Fiske, one of the lawyers representing the six cities suing to collect money from the company to help cover cleanup costs. Monsanto has not yet argued that the cities are barred from suing, but Mr. Fiske says he is certain that if the legislation passes, the company will make that argument.
Ms. Lord says Monsanto bears no responsibility for cleanup costs in cities like Seattle, San Jose and San Diego.
“PCBs served an important fire-protection and safety purpose,” she said in a written statement. “If these products were improperly disposed of, Monsanto is not responsible.”
And A. Elizabeth Blackwell, the lawyer representing Monsanto who cited the House language in the Texas lawsuit, says the provision would merely preserve the protection the company believes it already has against claims brought under state law.
“The claims are currently pre-empted,” she said. “It can’t make them any more pre-empted. So how can it be helpful?”
Monsanto registered to lobby on the chemical safety legislation last July, just after the House passed its version.
The Democratic state attorneys general from California, Hawaii, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Oregon, Rhode Island, Vermont and Washington are mainly concerned with the power that states will retain to regulate chemicals once the revised law passes.
They argue that the Senate version would block states from taking action on potentially hazardous chemicals for as long as four years while the E.P.A. reviewed them for possible regulation. That, the attorneys general say, could create roadblocks for state reviews already underway on products such as flame retardants in furniture cushions and methylene chloride, a chemical used in paint strippers.
“It could really slow down the pace of progress in the states,” said Ken Zarker, a manager at the Washington State Department of Ecology, which has its own chemical testing and regulation program.
The House bill presents a different issue: It would prevent a state from regulating a chemical if the health risk the state agency was targeting was different from the risk the E.P.A. had already acted on, the attorneys general say. For example, an E.P.A. regulation targeting a cancer threat from a cleaning product could block state officials from regulating the same product to protect consumers from respiratory illnesses.
Despite such concerns, Democrats and Republicans — as well as environmentalists and state officials — want legislation passed this year to replace the current law, which was rendered all but unenforceable by a 1991 court ruling.
That ruling left chemical regulation a patchwork of inconsistent state rules and national efforts by retailers like Target and Walmart to curb the sale of some products under pressure from environmental groups.
That hodgepodge has left few satisfied with the status quo.
Representative Diana DeGette, Democrat of Colorado and one of the lead House negotiators on the legislation, said: “We need to give security to consumers, so they know that dangerous chemicals will be regulated, and certainty to the industry, so it knows how chemicals it sells will be treated.”
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Nationwide Poll Finds Overwhelming Support For Stronger Cosmetics Regulation
Mar 1, 2016 | Environmental Working Group
By Christine M. Hill
Americans overwhelmingly want the government to ensure the safety of the personal care products they buy, according to a new national poll released today by the Mellman Group and American Viewpoint.
The survey found that nearly 70 percent of likely voters believe the government should make certain that chemicals used in personal care products such as makeup, toothpaste and shampoos, are safe and a third mistakenly believe that federal agencies already do so.
The federal Food, Drug, and Cosmetics Act, which is supposed to guarantee the safety of cosmetics, hasn’t been updated since the late 1930s. No other class of products is so widely used by consumers with so few safeguards.
Almost all those surveyed said the government should have authority to recall products found to contain toxic chemicals and that companies should be required to notify federal officials if their products are found to cause harm. Currently, the Food and Drug Administration has no power to recall dangerous personal care products and the agency doesn’t require companies to submit reports of adverse health events.
In a glaring recent example of this yawning regulatory gap, the FDA was unaware until recently that the Guthy-Renker company had received more than 17,000 complaints about adverse effects from consumers who had used its WEN by Chaz Dean cleansing hair conditioner. The company is currently facing a class action lawsuit.
The poll released today follows the introduction by Sens. Dianne Feinstein (D-Calif.) and Susan Collins (R-Maine) of bipartisan legislation to update the nation’s archaic personal care products safety laws.
Their Personal Care Products Safety Act, S.1014, would require companies to ensure that their products are safe before putting them on the market and give the FDA the new authority to protect the public. In addition, it would:Require cosmetics companies to report serious adverse health incidents and give FDA authority to recall dangerous products.Require cosmetic manufactures to ensure that products are made in a clean environment.Require specific labeling and warnings for products that contain ingredients not suitable for all populations.Require companies to register their manufacturing facilities and disclose the ingredients they use to the FDA.
Under the proposed law, the agency would have to do a safety review of five personal card product ingredients and contaminants each year. Manufacturers would pay user fees totaling about $20 million a year to fund the program.
Already, a growing number of cosmetics companies and health and consumer advocates have come together to support the Personal Care Products Safety Act. It’s time to give the FDA the same tools for ensuring the safety of personal care products that it uses to regulate food and drugs.
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Echa Urges 2018 Registrants to Organise Their Siefs
Mar 1, 2016 | Chemical Watch
By Geraint Roberts
Echa is urging companies that intend to register substances, under the 2018 deadline, to contact their fellow registrants and organise their Siefs as soon as possible.
Launching the third phase of its 2018 Roadmap today, the agency reminded companies of the steps they need to take and the information, tools and guidance available on its website. The deadline applies to substances, manufactured or imported by a company in annual volumes of 1–100 tonnes.
“The important thing is we want to get people, in the coming months, to start doing all their contact and interactions with their co-registrants in order to make sure who will co-register, be part of the Sief and be the lead registrant so that Sief formation and first agreement on how it will operate will actually happen this year,” executive director Geert Dancet told Chemical Watch.
Many small firms are still unaware of the approaching registration deadline, said Mr Dancet, and “this is still a concern to us.” It’s clear, he said, “that there are many small companies that don’t even know – if they are importing a substance, for example – that they need to register.”
To address this, last year Echa established a 2018 communicators network to bring together “all the regulators who really wish to push industry to understand, first, whether or not they need to register – and secondly, that they should make a timely decision on whether to register, and if so, to start the Sief formation early enough, particularly for substances only supplied by SMEs.”
Echa continues to oversee and support the network with communication material, said Mr Dancet, “but we also need industry, and especially those associations that represent SMEs, to keep spreading the word.”
Following the recent publication of the implementing Regulation on data sharing, Echa plans to issue a draft update of the guidance at the end of May – just before its self-imposed guidance moratorium takes effect – and to issue the final version in December.
The agency intends to have a draft or final update of all registration relevant guidance on its website, before the effective date of the guidance moratorium. This includes what is required in the context of nanomaterials.
However, once the REACH annexes are endorsed, a more thorough change in the guidance may be required. The agency will make this judgement, when it has the finalised text from the European Commission.
Finalising guidance on data sharing on registration will take a whole year because of the Regulation’s provisions on the “one substance, one registration” (Osor) principle; also because of changes Echa is making to the dossier completeness check process. But the draft versions, said Mr Dancet, “will give very good orientation on the forthcoming changes because usually only marginal issues of interpretation are discussed after this stage.”
Mr Dancet described the Commission’s delay in amending the REACH annexes, in order to address nanomaterials, as a “disturbing factor, which we are disappointed with” because “there is a real risk that nothing can happen in time for the 2018 registration deadline.”
Nevertheless, Echa is updating relevant guidance, such as on registration and information requirements, to clarify what may be needed for nanomaterials. This, said Mr Dancet, is based on its own experiences of assessing dossiers where nanoforms of substances and their uses have been identified.
It will be aimed at “those registrants that nevertheless want to proactively comply, and agree with us that nanoforms are already covered by REACH.”
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Texas Wants Appeal of EPA Haze Plan to be Heard in Regional Court
Mar 1, 2016 | E&E Energywire
By Mike Lee
Texas' top lawyer has sued U.S. EPA over the agency's plan to reduce haze from power plant emissions and is asking to keep the case out of Washington.
The suit caps years of conflict over how best to cope with the emissions, which are blamed for reducing visibility in national parks. Texas has argued since 2009 that there's little the state can do without imposing burdensome costs on the electric generation industry.
The federal agency wants utility companies to impose emissions controls at coal-fired power plants. EPA turned down Texas' state implementation plan and wrote its own plan in 2014.
Texas Attorney General Ken Paxton (R) asked the 5th U.S. Circuit Court of Appeals to review the EPA plan.
Under the Clean Air Act, regulations that have a national impact have to be reviewed in the U.S. Court of Appeals for the District of Columbia Circuit. Texas is arguing that the implementation plan isn't "nationally applicable" and can be reviewed in the 5th Circuit, which covers Texas, Louisiana and Mississippi.
EPA rejected that argument in its response to comments on the plan, saying that final agency actions have to be heard at the appeals court in Washington.
It could be a crucial point, since the 5th Circuit, based in New Orleans, has historically been more conservative than the D.C. Circuit.
EPA's rule requires states to reduce emissions haze in national parks and other "Class I airsheds" to their natural condition by 2064. EPA has said Texas power plants are creating haze in the Big Bend National Park, Guadalupe Mountains National Park and Wichita Mountains Wildlife Refuge in Oklahoma.
But the plan filed by the Texas Commission on Environmental Quality would have taken more than a century -- until 2155 -- to clear the air. The TCEQ plan argued that the state's power plants "had already been brought under effective emissions control requirements" and that the haze in the national parks is coming from Mexico and Central America (Land Letter, Feb. 26, 2009).
The EPA plan would require 14 units at seven coal-fired power plants to install scrubbers or take other steps to reduce their sulfur dioxide emissions by 230,000 tons annually.
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Industry Groups Slam Key Provision in Draft Pipeline Safety Bill
Mar 1, 2016 | Politico Pro - Whiteboard
By Andrew Restuccia and Elana Schor
Industry groups are threatening to oppose the House's bipartisan draft pipeline safety legislation over a provision that would allow environmentalists and other members of the public to take the Pipeline and Hazardous Materials Safety Administration to court over alleged regulatory inaction.
The Association of Oil Pipe Lines and the American Petroleum Institute "would find it difficult to support" the legislation over the provision, AOPL President Andrew Black said in testimony to a House Energy and Commerce subcommittee.
Industry groups and Republicans have railed against the use of what they call "sue and settle" provisions empowering challenges to regulatory agencies such as EPA, arguing that activists use them to prod the agency into stronger regulations. Black warned that environmentalists could use the PHMSA bill language to "circumvent public participation with settlement agreements negotiated in private."
The American Gas Association and the Interstate Natural Gas Association of America also raised red flags about the language.
"The industry believes that would undermine and weaken federal regulatory oversight and could cause market uncertainty," AGA said in a statement. "Moreover, dedicating resources and time to litigation or complying with a court order could diminish PHMSA’s ability to work on other Congressional priorities, thus negatively impacting pipeline safety."
The provision in question is in brackets in the draft bill, indicating that its inclusion in the final version is in flux.
PHMSA chief Marie Therese Dominguez said at a hearing today that she would be open to suggestions "on how to best frame that particular provision."
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EPA Officials Eye New Fracking Research Priorities As Study Draws To End
Mar 1, 2016 | Inside EPA
EPA Office of Research & Development (ORD) officials are eyeing new research priorities for better characterizing the potential impacts of hydraulic fracturing on health and environment, including proposed budget increases to support studies aimed at better understanding potential ecosystem effects and emissions of air toxics and ozone precursors.
For the past five years, ORD's primary fracking research efforts have focused primarily on assessing the potential impacts to drinking water supplies, which resulted in publication of a series of more than 10 technical reports and EPA's draft assessment, which ORD's Jeff Frithsen calls the "grand synthesis" of the study.
But EPA's efforts to study other potential impacts of hydraulic fracturing have been hindered by budget constraints, Frithsen, associate director for ecology within ORD's National Center for Environmental Assessment, said during a Feb. 18 interview with Inside EPA. The agency's budget proposals from fiscal year 2013 through FY16 sought to expand efforts to look at fracking impacts beyond drinking water, but those increases were rejected in appropriations. The current FY17 budget request also includes boosts to fracking-related research.
EPA is planning to finalize the draft drinking water assessment after considering final recommendations its Science Advisory Board (SAB) is developing. A 2010 federal budget law required EPA to conduct the assessment, which examines findings across five phases of the fracking-water lifecycle for potential impacts: water acquisition, chemical mixing, well injections, flowback and produced water and wastewater management.
The draft assessment, released in June, is not intended to be a quantitative risk assessment, but instead identifies mechanisms by which fracking could potentially impact drinking water, but ultimately says it did not "find evidence that hydraulic fracturing mechanisms have led to widespread, systemic impacts on drinking water resources in the United States."
An SAB panel in a draft Feb. 16 report reflecting panel discussions during a Feb. 1-2 teleconference says the agency's statement "does not clearly describe the system(s) of interest (e.g., groundwater, surface water) nor the definitions of 'systemic' and 'widespread' and should be clarified, and that the agency should discuss the significant data limitations in the draft assessment report and how they affect the major findings.
During the teleconference, the SAB panel wrestled with how the agency should acknowledge documented impacts from fracking to drinking water in certain locations while making clear that these impacts have not been found at most sites -- a question that will inform the panel's eventual final recommendations to the agency.
The panel is slated to meet again by teleconference on March 7.
Research Funding
The FY16 enacted budget did include $3 million in appropriations for studying unconventional oil and gas development in the Appalachian Basin, which includes parts of New York, Pennsylvania, eastern Ohio, West Virginia, western Maryland, eastern Kentucky, western Virginia, eastern Tennessee, northwestern Georgia and northeastern Alabama. Frithsen said the research is "something we are discussing," but that EPA has not yet "come to any details" on that issue.
And the president's FY17 budget proposal released in February proposes an increase of $2.2 million for "new hydraulic fracturing research to focus on understanding and preventing potential impacts on water quality and ecosystems."
That research, which the agency also sought to increase in previous budget proposals but did not secure, is aimed at improving methodology for characterizing potential pathways by which fracking could impact surface water resources not linked to drinking water, ORD's Kevin Teichman told Inside EPA also in a Feb. 18 interview.
In FY16, EPA sought a $3.7 million increase "study potential impacts of hydraulic fracturing on water quality and ecosystems to support sustainable approaches to oil and natural gas development and production, consistent with a 2012 memorandum of understanding between EPA, and the Departments of Energy (DOE) and the Interior.
In a report to Congress DOE floated in December, the agencies say they have collaborated to identify the "substantial work" that is still needed to fully address the research needs outlined in the 2012 MOU, but "Given Congressionally appropriated resources consistent with the President's Budget requests and the Agencies look forward to working together and with others in the future."
The report says the collaborative research will assist with decision making allowing for safe and responsible development of unconventional, or shale, oil and gas resources while protecting health the environment. The research gaps highlighted include additional baseline water quality data, composition of wastewater generated from oil and gas, methane data and groundwater analysis from domestic and public water supply wells, potential risks from naturally occurring radioactive materials, and better identifying the constituents and concentrations of compounds in wastewater to determine the potential toxicity to ecological systems.
Also in the FY17 budget proposal, EPA is seeking an increase of $1.5 million to study of the potential impacts of hydraulic fracturing on air quality, which would "include a focus on air toxics and tropospheric ozone precursors and complements efforts" in the Safe and Sustainable Water Resources research program in ORD to study ecosystem resources.
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Industry Groups Ask Judges to Reconsider Jurisdiction Ruling
Mar 1, 2016 | E&E Greenwire
By Tiffany Stecker
A coalition of agriculture, building and other industry groups yesterday asked a federal appeals court to reconsider a decision on the Obama administration's contentious Clean Water Rule, requesting that the court's full panel of active judges rehear the case.
The groups' petition is a response to the 6th U.S. Circuit Court of Appeals decision last week to move forward with challenges to the water rule, also known as the Waters of the U.S. rule, or WOTUS, in the appeals court. A three-judge panel ruled that federal appellate courts -- not local district courts -- have jurisdiction to hear such challenges under the Clean Water Act (Greenwire, Feb. 22).
The 19 parties, which include the American Farm Bureau Federation, American Petroleum Institute and National Association of Home Builders, wrote in their appeal for an en banc rehearing that keeping the cases in appeals court would amount to "an enormous waste of party and judicial resources" if it turns out the court lacked jurisdiction in the first place.
The three judges had split on the jurisdiction question. Judge David McKeague's majority opinion was joined by a lukewarm concurring opinion from Judge Richard Griffin, who said he wouldn't have ruled for the government except he felt bound by a 2009 precedent in National Cotton Council v. EPA. Both judges were appointed by President George W. Bush.
This split, with Judge Damon Keith's dissenting opinion, highlights the uncertainty behind the decision and leaves it ripe for an en banc review, the petitioners argued.
The coalition described the decision as one in which a "number of judges on the court have come to doubt the validity of [its] own precedent," citing a 2010 6th Circuit case.
"Without guidance from the full court, moreover, district courts across the country will be left uncertain of whether they should proceed to the merits of the ... rule challenges filed before them," they wrote.
The Cincinnati-based 6th Circuit decision last week on the procedural question marked a victory for the Obama administration's lawyers, who argued in December that the cases should be heard in appeals court. Challengers of the rule said deliberations should occur at the district level, where states and industry representatives have sued the administration in courts scattered across the United States.
The U.S. EPA-Army Corps Waters of the U.S. rule, which seeks to redefine which streams and wetlands receive automatic protection under the Clean Water Act, triggered dozens of lawsuits after the regulation was finalized last year. The 6th Circuit has put the rule on hold.
The 11th U.S. Circuit Court of Appeals in Atlanta is set to make its own decision on the court jurisdiction question. The court canceled oral arguments nearly two weeks ago pending the 6th Circuit decision. An en banc review might delay the 11th Circuit's moves.
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Researchers Say Big Emissions Cuts are in the Small Stuff
Mar 1, 2016 | E&E Climatewire
By Umair Irfan
Some of the biggest insurgent energy technologies stand to be the least visible by design, researchers said at the Advanced Research Projects Agency-Energy's annual summit yesterday.
Taller wind turbines, more efficient solar panels and more powerful batteries often take center stage in clean energy discussions. But the mundane-seeming products that help do more with less could take the biggest bites out of greenhouse gas emissions and are among the toughest challenges that lie ahead, experts said.
"I would like us all to use less energy without even noticing," said Jennifer Gerbi, a program director at ARPA-E working on energy efficiency in heating, ventilation and air conditioning systems.
She spoke yesterday at the Department of Energy's annual showcase for some its most ambitious and riskiest clean energy projects, hosted in the glass-paneled Gaylord National Resort & Convention Center outside Washington, D.C.
"The 'without even noticing' is the really hard part," Gerbi added.
She observed that 40 percent of energy use in the United States goes toward buildings -- about 40 quadrillion British thermal units, or quads. One quad equals the amount of energy generated by burning 36 million tons of hard coal.
Of that energy used by buildings, half goes toward heating, cooling and ventilation. Making seemingly small improvements, like installing smarter thermostats, could knock off huge amounts of energy consumption, thereby cutting carbon emissions.
Who needs a Mercedes thermostat?
But few homes and offices will upgrade their thermostats if it means a downgrade in comfort or ease of use.
While there are already products like the Nest Thermostat that simplify cutting home heating and cooling, these devices must be even simpler and cheaper before they can make a dent in carbon emissions.
"To me, Nest is the Mercedes of thermostats," Gerbi said. "It's $250. It's beautiful. But it's not going to be in everybody's home. We need something for the 80 percent of people that are not going to buy a Mercedes. We need $10 thermostats that you never have to touch."
Windows are also ripe targets for innovation, according to Eric Schiff, an ARPA-E program director for building efficiency.
"The single-pane windows are the grunting energy hogs of the building envelope," said Schiff. "A third of all windows in the United States are still single-pane windows."
These windows account for 2 percent of energy use in the country, but they're often used in homes and offices that can't afford expensive replacements.
Schiff's program is working to develop windows that resist condensation, insulate against noise, keep occupants comfortable, slot easily into existing frames and are priced so low that you would be foolish not to upgrade.
Avatar meetings -- 'creepy' now, but maybe someday
Researchers are also aiming even further, asking consumers to fundamentally rethink why they even go to the office in the first place.
Jason Rugolo, a program director at ARPA-E, is leading an initiative to improve telework capabilities. He noted that humanity uses 18 quads annually in transportation and questioned whether such movement is necessary.
"Why are we scurrying around the surface of this big, beautiful water ball in space?" he asked.
In many instances, he found that people could work remotely just as effectively as they could on-site. However, global transportation has raised the expectation of face-to-face contact and for meetings that demand a handshake and a smile to seal the deal; a virtual presence may one day suffice and avert billions of tons of carbon emissions.
Right now, though, the technology still falls short.
"I think the reason we're not [meeting online] is because we'd all be cartoons and look kinda creepy," Rugolo said.
He said online avatars would have to a pass their own version of a Turing test, a classical computer science benchmark of whether a computer is indistinguishable from a human user. Once across that line, personal meetings may become as quaint as sending letters in the mail.
"Advanced technologies have gotten us into this mess, and I think advanced technology is going to get us out of it," he said.
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