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(ACC Mentioned) CBCS Student Leads Charge to Ban Plastic Bags in Crested Butte
| Crested Butte News
By Dawne Belloise
With the smile and enthusiasm of someone not yet tainted or daunted by the world, Benjamin Swift, a Crested Butte Community School senior, is determined to make a difference in the quality of his local environment and the world. -
House, Senate Close in on Toxics Bill Minus PCB Off-Ramp
Mar 3, 2016 | BNA Daily Environment Report
By Ari Natter
The Senate Environment and Public Works Committee is reviewing the House's proposed changes to an update of the Toxic Substances Control Act and is close to resolving differences between the two chambers' bills, Sen. Jim Inhofe (R-Okla.) told Bloomberg BNA March 2. -
Administration Largely Sides with Senate Negotiators in TSCA Talks
Mar 3, 2016 | PoliticoPro
By Darren Goode
The Obama administration appears to be largely siding with the Senate in bicameral talks aimed at overhauling a landmark chemical safety law while mostly sidestepping one of the most contentious unresolved issues, according to a newly disclosed letter providing the most detailed window into its views to date. -
TSCA Bars Tort Claims for PCBs, Monsanto Successor Says
Mar 3, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The existing Toxic Substances Control Act and a House bill that would update the law bar toxic tort claims involving polychlorinated biphenyls (PCBs), according to newly circulated legal documents filed in a case involving a corporate successor to PCB-maker Monsanto (Pharmacia LLC v. Ageas Ins. Ltd., E.D. Tex., No. 2:15-cv-920, brief filed, 11/19/15). -
Uncommon EPA Notice Extends PMN Review Time
Mar 3, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency needs more time to review information about a new solvent that chemical manufacturers would like to make in or import into the U.S., according to a March 2 Federal Register notice (81 Fed. Reg. 10,858). -
Freight Train Spills Ethanol in N.Y. Derailment
Mar 3, 2016 | BNA Daily Environment Report
A 16-car train derailment in upstate New York has resulted in a hazardous materials spill of ethanol, prompting the evacuation of nearby residences, Gov. Andrew M. Cuomo (D) announced March 2. -
Train Leaks Ethanol After Derailing in N.Y.: New Safety Tech Coming
Mar 3, 2016 | The Christian Science Monitor
By Lucy Schouten
A 16-car train went off its tracks near Lake Erie on Wednesday, and more than 50 homes in Ripley, N.Y., were evacuated as officials worked to contain leaking fuel. -
Flexibility Will Save Clean Power Plan, McCarthy Says
Mar 3, 2016 | BNA Daily Environment Report
By Rebecca Kern
Flexibility built into the Clean Power Plan should inoculate the rule from challenges brought by states and industry groups, Environmental Protection Agency Administrator Gina McCarthy said, predicting the carbon dioxide standards for power plants would drive technological innovation. -
EPA Tells SCOTUS No Reason to Delay Air Pollution Rule
Mar 3, 2016 | The Hill - E2 Wire
By Devin Henry
The Obama administration told the Supreme Court on Wednesday that it shouldn’t delay an Environmental Protection Agency (EPA) air pollution rule as several states requested last month.
Industry and Association News - There are no clips to report at this time.
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Transportation News
Energy and Environment News
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(ACC Mentioned) CBCS Student Leads Charge to Ban Plastic Bags in Crested Butte
| Crested Butte News
By Dawne Belloise
With the smile and enthusiasm of someone not yet tainted or daunted by the world, Benjamin Swift, a Crested Butte Community School senior, is determined to make a difference in the quality of his local environment and the world.
Google searching the combined words “environment,” “disaster” and “plastic bags” will lead to a plethora of horrific images and statistics in every country, choking out both marine and land life and clogging up landfills and oceans. Plastic is a by-product of consumer convenience and the influential plastics industry is the same as the oil industry since plastic is a petroleum product. The raw truth is, plastic is an environmental disaster that grows larger every day. There are immense swirling garbage patches the size of islands caught in the ocean currents and the debris is as indigestible as poison for animals and marine life, not to mention that wildlife gets caught and entangled in its snare. It doesn’t go away because it doesn’t biodegrade.
Swift’s environmental activism started a couple of years ago when he was moved by a documentary his 10th grade biology class watched—in his words, a really powerful film, End of the Line.
“It was about the global overfishing crisis, how the oceans are completely over-ravaged by irresponsible commercial fishing practices.”
There were many takeaways from the movie but one of the things consumers can do is eat lower on the food chain, meaning smaller species of fish like sardines, mackerel or salmon as opposed to tuna or swordfish. The basic concept is, if you eat lower in the food chain, the fish that are eating phytoplankton or plants, rather than the larger fish that are eating the smaller fish, then there’s a more direct energy flow from plants and sunlight to the human eating the fish, so there’s less wasted energy,” Swift explains.
After watching the movie he started a website, eatsmallfish.org, with the intention of educating and influencing people to eat lower on food chain. “I feel the solution is to be knowledgeable about whether the products you are eating are sustainable,” Swift says. He directs those interested to the Monterrey Bay Aquarium’s seafood watch list of what’s green to eat and what’s not. “With eatsmallfish.org, the fish that I mentioned, like mackerel, sardines, etc., pertain to the oceans, but trout is considered a small fish too if you’re thinking of the mountains,” Swift assures local anglers.
His interest in banning single-use plastic bags goes hand-in-hand with growing up in the outdoor lifestyle of Crested Butte and his drive to protect the place he loves. “The plastic bag is something that I’ve felt is wasteful, useless and unnecessary. It irked me for quite a few years, especially after I watched Bag It,” Swift says of the documentary that exposes the environmental catastrophe that plastic has caused worldwide.
“It’s narrated by a man from Telluride who explores all the plastic bag issues, and exposes that plastic bags are really superfluous, clog oceans, are eaten by ocean life, and it extends to not just bags but all plastic packaging and materials. The bags are just the starting off point,” the teen says.
Swift’s local goal is to get a town ordinance, a regulation banning single-use plastic bags, and he points out that there are already eight towns in Colorado who have regulations or outright bans. “My ultimate goal is to have an ordinance, to have heavy regulation or a ban in Crested Butte and if that could extend to Gunnison, that would be even better.”Benjamin Swift. photo by Lydia Stern
Swift admits that perhaps the impact of plastic is not super-apparent on a local level, unless you go down to the landfill outside of Gunnison, where plastic bags litter the sagebrush all around the landfill.
When the young activist went to that landfill last fall to take photos, he was turned away at the gate; the attendant told him he couldn’t photograph the garbage area because they had a media policy. “I couldn’t get past the gate but I saw plastic bags all around the general vicinity. Inmates from the Gunnison jail are brought in occasionally to clean up the wayward bags, but the bags in the landfill, any plastic bags thrown away, aren’t really disposed of. They go to the landfill but they’re not kept out of the natural environment.”
Swift, in his research, found that plastic does technically break down but it doesn’t decompose. Rather than biodegrading, plastic photo-degrades, which, because of the UV rays of the sun, breaks plastic down into tiny particles that can get into the oceans and marine life, small chunks of plastic that fish and aquatic life can consume. It all adds to the toxicity level present in sea life.
There are much bigger chunks as well that find their way into the sea; gyres, a circular current in the ocean, catch and hold not only these microplastic particles, but larger plastic items like bottles, caps, whole bags. Any sort of trash gets caught in these gyres and creates islands of plastic trash such as the Great Pacific Garbage Patch.
Another of the serious issues created by plastic debris is that in some areas plastic outnumbers plankton. “When sea birds or fish stomachs or marine stomachs are opened you’ll find toxins and plastics and unpleasant chemicals and waste,” Swift says.
Swift sees the plastic dilemma as a complex issue with a relatively simple solution; however, he feels that there are big players involved in the continuing cycle. For example, oftentimes plastic is “down-cycled,” which means a bottle is recycled into a new product that can’t be recycled again because consumers, and therefore manufacturers, want pure plastic to make perfectly clear products. Swift feels that the American Chemistry Council (ACC) and the plastic manufacturers the ACC represent have ties to big oil corporations that want to continue to capitalize on their products.
The products to be down-cycled tend to go to Asia, where underpaid workers sort through it for a melt-down and recycle process. “It’s better than nothing,” Swift says, “but it’s melted in open vats so all the fumes go into the atmosphere and that’s not good for climate change and air quality.”
Swift outlines three facets of his program—recycle, reusable bags, and education. “I created a logo in conjunction with other Crested Butte Community School students and printed it on reusable bags,” which tout a “Plastic Bag Free CB” moniker.
“Now customers can make a donation, a recommended $1 to $3, for purchase at four stores around town and they get a reusable bag to use in place of plastic. And locally, if a townie or tourist forgets their bags they can borrow a reusable one and return it to one of the four stores. So far Chopwood Mercantile, The Mountain Store, Mountain Earth, and Donita’s are all participating in the program but hopefully more will come on board. We’re looking into sponsorship where the business can get their name on the bag,” Swift says.
He notes that the funding for the original purchase of the 350 reusable bags came from GenerationOn, a granting organization for youth community projects. Swift applied and received their $500 grant, which got the program off the ground.
In his effort to educate people about the destructive nature of plastic bags, Swift has written some letters to the editor as well as promoted showings of the movie Bag It, which initially motivated him to action. There’ll be another showing of that documentary on Sunday, February 21, 6:30 p.m. at the Ann Zugelder library in Gunnison.
“It’s inspiring and fun to watch. Many of the pictures can be on the depressing side, because it is, but Jeb Berrier [the narrator] is a very comical character and he brings an element of fun to the movie, and you actually feel that the audience is more receptive and more empowered to act rather than being solely overwhelmed,” Swift says.
Swift states that according to the National Resources Defense Council, the average American family takes home 1,500 plastic shopping bags every year. Americans use and dispose 100 billion single-use plastic shopping bags yearly. And those numbers don’t include plastic product packaging. America’s 100 billion plastic bag habit requires 12 million barrels of oil a year.
“Something that gives me hope is that large cities like Los Angeles have a fee on plastic bags. That’s a town of millions,” Swift says and feels, “and if they can do it, it should be no problem for us, and really, we have no excuse not to. San Francisco, LA, Chicago, and New York all have restrictions and Hawaii is the first state to have an outright ban on single-use plastic bags.”
He’s also adamant that the problem is totally unnecessary and can be easily remedied, “It takes a very small lifestyle change to start using reusable bags, or for that matter, not buying bottled water or just bringing your own coffee mug to the coffee shop. Plastic bags are such a big problem, I find it pretty ridiculous that humans can’t take some relatively small steps to improve the situation.”
On a positive note, Swift is encouraged. “There’s been lots of enthusiasm about the Plastic Bag Free CB program so I’m hopeful it will continue after I graduate. I definitely plan on continuing the fight with environmental issues, climate change being of paramount importance, whether I’m in Crested Butte or elsewhere. Wherever I am, I’ll continue.”
For questions or information and to get involved or donate email benjamin@eatsmallfish.org and there’s a Facebook page “Plastic Bag Free CB.” You are encouraged to email or call your Town Council members to relay your feelings on a proposal for Plastic Bag Free CB.
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House, Senate Close in on Toxics Bill Minus PCB Off-Ramp
Mar 3, 2016 | BNA Daily Environment Report
By Ari Natter
The Senate Environment and Public Works Committee is reviewing the House's proposed changes to an update of the Toxic Substances Control Act and is close to resolving differences between the two chambers' bills, Sen. Jim Inhofe (R-Okla.) told Bloomberg BNA March 2.
“We are almost there,” Inhofe, the chairman of the committee, said.
The bill likely would drop a House provision that some attorneys say would indemnify Monsanto and its successors from liability for damages caused by polychlorinated biphenyls (PCBs), Donnelle Harder, a spokeswoman for Inhofe, told Bloomberg BNA March 2.
“I would not imagine it [the final bill] would include that, but all of that is still in negotiations,” Harder said.
Harder referred to a provision the New York Times described in a Feb. 29 article. It said the House's TSCA Modernization Act would bar toxic tort claims against Monsanto that stem from the company's role as the primary U.S. producer of the now-banned fire-suppressing chemicals.
Pharmacia LLC, a successor to Monsanto, has argued in court briefs that the provision in the House bill and TSCA itself bar tort actions involving PCBs (see related story).
“Both versions of the bill narrow the ability of a corporation to rely upon compliance with federal TSCA regulation as the sole law governing its regulated chemicals,” Charla Lord, a Monsanto spokeswoman, told Bloomberg BNA in an e-mail. “The House version simply preserves the framework that has been in effect since passage of TSCA for chemicals that were regulated before any changes to the legislation.”
PCBs, banned in 1979, were used for decades to resist fires in electrical transformers and other equipment. The chemicals, however, cause cancer and harm the immune system, reproductive system, nervous system and endocrine system, among other parts of the body, according to the Environmental Protection Agency.
House Perspective
An aide to the House Energy and Commerce Committee told Bloomberg BNA the provision was added to H.R. 2576 to preserve regulations the EPA already issued addressing PCBs. The question of whether the provision would bar toxic torts did not arise, the aide said.
The two bills being merged are the TSCA Modernization Act (H.R. 2576), which sailed through the House June 23, 2015, on a 398-1 vote, and the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which the Senate passed by voice vote Dec. 17, 2015. Prior to the vote, the Senate bill was designated S. 697, but it passed as a substitute amendment (S. Admt. 2932) to H.R. 2576.
The House and Senate bills that would update TSCA for the first time since it became law in 1976 are supported by companies that include 3M, BASF and the Dow Chemical Co.
Monsanto began lobbying efforts on the bills in the third quarter of 2015.
Inhofe: Hopeful About Wrapping Up TSCA Soon
Among the differences between the two bills are approaches to state chemical program preemption, how to handle confidential business information and how the EPA should address new chemicals.
“My colleagues and I are hopeful that we will be able to wrap up TSCA soon,” Inhofe said in a statement provided to Bloomberg BNA.
“Members and staff have been working for a long time to reform this law, and I am hopeful that we will have a product soon for Congress to send to the president's desk.”
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Administration Largely Sides with Senate Negotiators in TSCA Talks
Mar 3, 2016 | PoliticoPro
By Darren Goode
The Obama administration appears to be largely siding with the Senate in bicameral talks aimed at overhauling a landmark chemical safety law while mostly sidestepping one of the most contentious unresolved issues, according to a newly disclosed letter providing the most detailed window into its views to date.
EPA Administrator Gina McCarthy did not draw any firm lines in the sand in a recent letter outlining her agency's views on several technical but important details, but EPA indicated a clear preference for many aspects of the Senate's more comprehensive update to the 1976 Toxic Substances Control Act.
"The lack of a workable safety standard, deadlines to review and act on existing chemicals, and a consistent source of funding are all fundamental flaws in TSCA that should be addressed," McCarthy wrote in the previously unreported Jan. 20 letter to negotiators in both chambers obtained by POLITICO. Those concerns are among those better handled in a bill the Senate adopted by voice vote in December, according to the letter.
McCarthy largely avoided taking a firm position on how the bill should address existing state-level chemical safety laws, one of the stickiest issues in the negotiations.
There has been little movement in talks between the two chambers this year, though sources on both sides of the Capitol remain optimistic. House negotiators last week sent over an offer that barely budged from their starting position, according to a Senate aide involved in the talks. A primary area of dispute is the extent to which state laws should be preempted, as well as the difference in scope between the Senate TSCA update and a far-narrower bill the House approved 398-1 last June.
McCarthy's letter included a seven-page analysis from EPA officials detailing their views on the two bills, in most cases favoring the Senate version (S. 697) over the House bill (H.R. 2576). The letter provides more detail than has been available to date on the administration's views because the White House never released a formal statement of administration policy before either the House or Senate bill passed last year.
EPA lauded several provisions found only in the Senate bill, including its requirements for the agency to regulate new chemicals and language to strengthen civil and criminal enforcement authorities. EPA did say it “strongly prefers” additional flexibility the House would give the agency to develop new policies because meeting the Senate's "document generation requirements may unnecessarily slow progress on more substantive issues."
McCarthy's letter largely sidesteps one of the most contentious aspects of the ongoing negotiations: the extent to which TSCA reform should preempt state chemical safety laws. EPA was silent on whether a final bill should include Senate language that would "pause" state-level regulations on particularly dangerous chemicals while the agency determines how best to act on them, and how easily states could receive a waiver from that pause.
“The administration supports an approach to preemption that provides a consistent regulatory regime for industry while allowing appropriate additional actions by the states,” EPA wrote, highlighting California’s Proposition 65 among the laws that should be protected and suggesting ways to improve preemption provisions in both chambers' bills.
An EPA spokeswoman confirmed the authenticity of the letter but declined to comment further.
Preemption of state laws is the top priority for the chemical industry, which views TSCA reform as a replacement for the patchwork of existing state laws. But protecting those laws has been a top priority for Sen. Barbara Boxer (D-Calif.) and some environmental groups who worry about gaps in the regulatory safety net if states are prevented from controlling how chemicals are used before EPA can step in. Similarly, a Jan. 19 letter from 12 state attorneys general, including California and New York, highlights where they prefer either House or Senate preemption language but also stress they "strongly believe that preemption of state actions beyond that of existing TSCA is counterproductive."
"I think [EPA] made a political assessment that they would not be strengthening their hand in other parts of the bill that deal explicitly with federal authority if they got crosswise with" either side in that fight, said David Goldston, government affairs director at the Natural Resources Defense Council, which opposes the Senate preemption language.
Richard Denison of the Environmental Defense Fund, which has long backed the Senate bill, said the agency is just focusing on "the issues that are directly relevant to EPA,” such as ensuring TSCA reform does not interfere with federal air and water laws, while staying out of peripheral fights.
Meanwhile, the industry is stepping up its call for strong preemption language. The American Alliance for Innovation, a coalition of 151 industry and business groups, sent a letter and detailed wish-list to negotiators Monday that is closest to the preemption approach adopted in the Senate bill.
Both the EPA and industry groups identified more provisions they prefer in the Senate bill than in the House bill, Denison said after reviewing the documents. The same is true, he said, of a Jan. 7 analysis of the two bills by the Environmental Council of the States.
But those appeals were not reflected in House negotiators' first substantive offer in the negotiations that they sent to the upper chamber Friday, according to Senate aides. But it "at the very least now opens the door for negotiation," one Senate aide said. Aides to lead House negotiators, including bill sponsor Reps. John Shimkus(R-Ill.), Energy and Commerce Chairman Fred Upton and Rep. Frank Pallone (D-N.J.), the committee's top Democrat, were unavailable for comment on the negotiations.
"The House is still sticking with the House position," one Senate aide said. "I don’t think any of these letters has moved the needle much."
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TSCA Bars Tort Claims for PCBs, Monsanto Successor Says
Mar 3, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The existing Toxic Substances Control Act and a House bill that would update the law bar toxic tort claims involving polychlorinated biphenyls (PCBs), according to newly circulated legal documents filed in a case involving a corporate successor to PCB-maker Monsanto (Pharmacia LLC v. Ageas Ins. Ltd., E.D. Tex., No. 2:15-cv-920, brief filed, 11/19/15).
If the House's TSCA Modernization Act (H.R. 2576) is accepted, school systems, cities, water utilities and other institutions that have filed claims against Monsanto and its spinoff companies seeking to recoup expenditures for cleaning up PCBs could not prevail, Melanie Benesh, legislative attorney for the Environmental Working Group, told Bloomberg BNA March 2.
Benesh publicized EWG's concerns in a blog the organization wrote after a Feb. 29 New York Times article discussed the House provision.
Monsanto released a blog rebutting claims in the New York Times article; its comments also applied to EWG's assertions.
The House provision “does not benefit the former Monsanto, or any chemical manufacture, from any legal responsibilities regarding PCBs. And, it doesn't take away anyone's right to hold manufacturers and/or those who use and dispose of chemicals liable for their products,” Monsanto's blogsaid.
“The House version simply preserves the framework that has been in effect since passage of TSCA for chemicals that were regulated before any changes to the legislation,” Monsanto said.
Monsanto's Offshoot
At issue are claims made in a lawsuit Pharmacia LLC, a successor to Monsanto, filed with the U.S. District Court for the Eastern District of Texas.
Pharmacia is seeking a court ruling in its favor, or “declaratory judgment,” to resolve existing and threatened claims against the company from individuals diagnosed with non-Hodgkin's Lymphoma stemming from their exposure to PCBs. For nearly four decades, the company was the primary U.S. manufacturer of PCBs supplied to companies making electrical equipment, transformers and other machinery to suppress fires, Pharmacia says in court documents.
Pharmacia's attorney Jennifer Truelove from McKool Smith did not reply to an e-mailed request for comment. An attorney for Monsanto also could not be reached immediately on March 2.
Toxic Torts Preempted, Pharmacia Says
Over the past several decades, the Environmental Protection Agency issued a number of TSCA regulations controlling the use, disposal and other aspects of PCBs, according to EPA and Pharmacia documents.
Congress explicitly mandated that PCB regulations promulgated under TSCA preempt state and local regulations, Pharmacia said in an opposition brief it filed Oct. 20.
If EPA has regulated a chemical the statute preempts any state or political subdivisions of it from requirements designed to address alleged injury to health or the environment, the brief said.
“The term ‘requirements’ when used in a preemption clause is a term of art that includes common-law tort actions,” Pharmacia wrote.
The House clearly intends to retain that preemption, the company wrote in a Nov. 19 reply.
Section 7(c) of the House TSCA reauthorization bill (H.R. 2576) states: “Nothing in this act, or the amendments made by this act, shall be construed as changing the preemptive effect of an action taken by the administrator prior to the date of enactment of this act or under section 6(e),” Pharmacia wrote. Section 6(e) of TSCA regulates PCBs.
“Thus the House bill provision above would maintain the status quo with respect to preemption of torts related to PCBs,” Pharmacia wrote.
House Intended to Preserve PCB Exemption
An aid to the House Energy and Commerce Committee told Bloomberg BNA the provision was added to H.R. 2576 to preserve regulations the EPA already has issued addressing PCBs.
The question of whether the provision would bar toxic torts did not arise, the aide said (see related story).
However, to the extent TSCA currently preempts a state or local government's requirements, then the House bill also would retain that preemption, the aide said.
Narrow Changes?
The provision briefly arose at the request of some organizations, the aide said, adding he could not remember which group or groups requested it.
The intent, as evident throughout the House bill, was to make only a few, narrow changes to TSCA to specifically address sections of the law that many different groups have said prevented it from allowing the EPA to effectively manage chemicals in commerce.
In a blog published soon after the New York Times wrote a Feb. 29 article on the House bill provision, the EWG said the section of the House bill “would likely block PCB lawsuits by both state and local governments and citizens. It would essentially prevent states from passing their own laws or regulations on PCBs. It is written so broadly it could even stop states and individuals from suing under negligence, product safety, clean air, and clean water laws for damages related to PCBs. At stake are a staggering amount of human and environmental devastation— and a lot of Monsanto's money,” wrote EWG's Benesh and Alex Formuzis.
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Uncommon EPA Notice Extends PMN Review Time
Mar 3, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency needs more time to review information about a new solvent that chemical manufacturers would like to make in or import into the U.S., according to a March 2 Federal Register notice (81 Fed. Reg. 10,858).
The new chemical review extension is a type of notice that the EPA rarely publishes, because chemical manufacturers typically voluntarily extend the 90-day review time the Toxic Substances Control Act provides for new chemicals or they withdraw the substance from the agency's consideration.
Cycles of Review
The EPA said it needs more time to study the solvent, because it may need to regulate the chemical, known generically as cyclic amide.
The notice, therefore, extends until May 25 the amount of time the EPA has to review a premanufacture notice (PMN) the manufacturer submitted June 19, 2014. The EPA wasn't allowed to disclose the manufacturer's name, which it chose to list as confidential business information.
The agency rarely publishes PMN review extension notices, two attorneys and Ernie Rosenberg, who helped establish EPA's new chemicals, or PMN, program, told Bloomberg BNA March 2.
Under Section 5(c) of TSCA, which addresses new chemicals, the agency can have up to 90 days to decide whether the chemical can enter commerce, said Rosenberg, now president of the American Cleaning Institute.
Although it's not part of the law or implementing regulations, typically—once the EPA realizes it won't complete its review in 90 days—the company that submitted the PMN voluntarily “stops the clock,” or suspends the review period, with or without an indefinite restart, he said.
Manufacturer Already Suspended 90-Day Clock
The cyclic amide solvent maker already voluntarily suspended the 90-day clock at least once, according to EPA's notice.
It's likely the manufacturer no longer wants to keep that clock suspended but would like to get its chemical to market, Martha Marrapese, an attorney with Keller and Heckman LLP told Bloomberg BNA.
Rosenberg said companies negotiate the extent of controls or data the EPA may require as it reviews a new chemical, but he said he isn't aware of any legal case in which a chemical manufacturer has challenged the EPA's controls.
If, during the original 90-day or extended review period, the PMN submitter and the EPA don't come to an agreement as to how to manage the chemical. or the manufacturer fails to withdraw its PMN, then the EPA would have to go to a district court with a proposed order by day 135.
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Freight Train Spills Ethanol in N.Y. Derailment
Mar 3, 2016 | BNA Daily Environment Report
A 16-car train derailment in upstate New York has resulted in a hazardous materials spill of ethanol, prompting the evacuation of nearby residences, Gov. Andrew M. Cuomo (D) announced March 2. Two of the cars on a Norfolk Southern Corp. freight train that derailed late March 1 in Ripley, N.Y., leaked ethanol, leading to the evacuation as “a precautionary step,” Cuomo said. The town is about 60 miles southwest of Buffalo, N.Y. The cause of the accident isn't clear, and no injuries have been reported, Cuomo said. The state Transportation Department is working with the Federal Railroad Administration to determine the cause. The governor said he had dispatched officials from the state Department of Homeland Security and Emergency Services and the state Department of Environmental Conservation to help contain the spill and provide support to hazmat teams patching the leak. Cuomo and other state officials have been pressing the federal government and freight carriers on rail transportation safety related to shipment of crude oil through the state (232 DEN A-14, 12/3/15).
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Train Leaks Ethanol After Derailing in N.Y.: New Safety Tech Coming
Mar 3, 2016 | The Christian Science Monitor
By Lucy Schouten
A 16-car train went off its tracks near Lake Erie on Wednesday, and more than 50 homes in Ripley, N.Y., were evacuated as officials worked to contain leaking fuel.
The Norfolk Southern train was carrying fuel, and two of the 16 derailed cars began leaking ethanol when a patched puncture and gasket gave way. The sheriff reported no injuries, and crews from Norfolk Southern were preparing to remove any soil contaminated by the fuel leak, spokesman Dave Pidgeon told Reuters.
The Associated Press reported that the derailment has interrupted Amtrak passenger service between Chicago and New York City. Amtrak said the eastbound Lake Shore Limited is being stopped Wednesday at Cleveland while the westbound train is being halted at Buffalo. Buses are being used to ferry passengers in both directions to stations in the two cities.
"We want to make sure we get life back to normal, train traffic back to normal, as soon as we can, but we have to do this safely," said Pidgeon.
Norfolk Southern trains derailed on 608 occasions in 2015, meaning the company accounted for almost 11 percent of derailing accidents nationwide that year, according to Department of Transportation statistics. The railroad company had the third-highest number of derail incidents in the nation but declined from 2014, as it is one of the largest rail companies in the country.
In the New York derailment on Wednesday, a timeline for clean-up has not yet been announced. One car spilled plastic pellets, but a derailed propane car did not leak.
Derailments, and sometimes even explosions, by trains carrying fuel around the country have shaken local communities multiple times in recent years. These incidents have usually left locals more unnerved than injured, but have occasionally resulted in deaths. The accidents have occurred as the number of trains transporting fuel around the country has increased by 4,000 percent since 2008, according to the Association of American Railroads, a sometimes unnoticed side effect of the growing domestic oil industry.
In February 2015, the federal government announced in a report based on Department of Transportation data that it forecast trains carrying oil and other fuel to derail about 10 times each year over the next two decades, the Associated Press reported.
In response, the Obama administration has created new safety regulations, and Congress passed a transportation bill that, among other things, required trains to install Positive Train Control (PTC). PTC is a GPS technology to help prevent train collisions and over-speed derailments, as well as trains moving into work areas without permission. Thus far, the installation has moved slowly and already missed deadlines, but it remains ongoing, The Christian Science Monitor reported.
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Flexibility Will Save Clean Power Plan, McCarthy Says
Mar 3, 2016 | BNA Daily Environment Report
By Rebecca Kern
Flexibility built into the Clean Power Plan should inoculate the rule from challenges brought by states and industry groups, Environmental Protection Agency Administrator Gina McCarthy said, predicting the carbon dioxide standards for power plants would drive technological innovation.
The Clean Power Plan provides states with the maximum amount of flexibility so that they can adapt to rapid changes in the market for clean energy technology, McCarthy said during a March 2 discussion with Jason Grumet, president of the Bipartisan Policy Center, at the Energy Department's ARPA-E Energy Innovation Summit in Maryland.
“Why wouldn't we allow everybody to develop technologies that get better and better, [develop] more energy efficiency, more renewable energy?” McCarthy said.
The strategy lets states “adapt their plans to whatever is best for the economy and job growth and those greenhouse gas reductions that we are looking for in this rule,” she said.
However, Grumet asked whether states need additional guidance on employing that flexibility as they consider their compliance options for the Clean Power Plan (RIN 2060-AR33), which limits carbon dioxide emissions from the power sector in each state.
“When you gave everybody flexibility, they seemed really confused,” Grumet said. “How have you seen the states embracing that flexibility?”
States have sought additional guidance from the EPA on the array of available compliance options, McCarthy said.
“People have been a little bit confused,” she said. “They started asking questions of EPA to try to narrow the choices. They asked us to do a model rule to help with that.”
States Reached Out to Each Other
But over time, the dynamic shifted, and states started reaching out to each other, she said.
“It was a very good idea to leave it that flexible because states started working together,” she said. The Western Governors' Association, as well as state governments in the Northeast and the Mid-Atlantic that have been working together on a regional basis, are learning from each other, she said.
“I think the greatest thing we did about the Clean Power Plan was to never stop talking, to never stop engaging because we learned a lot between proposal and final [rulemaking] that not only made it more legally solid but made it a much, much better proposal and process moving forward,” she said.
States have been divided over whether to continue their compliance efforts after the U.S. Supreme Court stayed the Clean Power Plan's implementation. However, McCarthy has said the EPA will continue to work with willing states on a voluntary basis (29 DEN A-1, 2/12/16).
The U.S. Court of Appeals for the District of Columbia Circuit is set to hear oral arguments in the litigation June 2.
McCarthy Stands Behind Rule
Despite the stay, McCarthy predicted the rule will ultimately survive judicial scrutiny because of the flexibility it provides states, citing the EPA's successful record in defending past agency rules.
“So if this is the first time you've been involved in looking at EPA in the courts, don't sweat it. We do really well, and we're going to do great here,” she said.
Grumet asked if Congress would ever move forward with a carbon pricing legislation.
“The Clean Power Plan will survive, but if you really want to get serious, there's a lot more that we need to do on climate,” McCarthy said.
“I have no doubt that over time you're going to be looking at congressional action, hopefully a positive congressional action that looks at things like carbon pricing,” she said.
McCarthy added that it wouldn't be surprising if state carbon markets, like California's, would eventually “make their way into the federal level.”
Oftentimes work environmental projects start at the state level first and “grudgingly and slowly” make their way to the national level, she added.
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EPA Tells SCOTUS No Reason to Delay Air Pollution Rule
Mar 3, 2016 | The Hill - E2 Wire
By Devin Henry
The Obama administration told the Supreme Court on Wednesday that it shouldn’t delay an Environmental Protection Agency (EPA) air pollution rule as several states requested last month.
Twenty conservatives states asked the Supreme Court to stop a rule on emissions of mercury and other toxic pollutants while the EPA reworks it. The U.S. Court of Appeals for the District of Columbia had previously refused to block the rule, prompting an appeal to the high court.
Obama officials, in a Wednesday filing, said the states didn’t meet the legal standards necessary for a court to order a stay, primarily because the Supreme Court is unlikely to take up a case against the rule and that states won't “suffer irreparable harm” between now and when the EPA expects to finalize the rule in April.
“The requested stay would harm the public interest by undermining reliance interests and the public health and environmental benefits associated with the rule,” the government argued. “The application lacks merit and should be denied.”
The mercury and air toxics (MATS) standards are among the most contentious environmental regulations issued during the Obama presidency, with opponents arguing it’s costly and has caused coal-fired power plants to shut down.
A group of states, led by Michigan, sued over the rule in 2014, and the Supreme Court ruled last year that the Obama administration should have completed a cost-benefit analysis before undertaking the regulatory process for the MATS standards.
The decision did not overturn the regulation, and the circuit court ruled in December that EPA can continue enforcing it while finalizing the analysis, something the EPA says it expects to do by mid-April.
The states requested the Supreme Court stop the rule in February, arguing the court “has already held that the finding on which the rule rests in unlawful and beyond EPA’s statutory authority.”
But the Obama administration said any stay would be unnecessary since it’s so close to finalizing the new cost-benefit analysis.
“This court should allow the rule to remain in effect for the anticipated six-week period that remains until EPA issues its revised ‘appropriate and necessary’ determination in April 2016,” officials argued.
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