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AM ACC 3/4/2016

Industry and Association News - There are no clips to report at this time.

Chemical Management News

(ACC Mentioned) A Chemical Shell Game: How DuPont Concealed the Dangers of the New Teflon Toxin
Mar 3, 2016 | The Intercept
By Sharon Lerner

Mark Strynar and Andrew Lindstrom walked down the muddy bank of the Cape Fear River toward the water, sampling equipment in hand.
(ACC Mentioned) EPA Prefers Senate Version of TSCA Reform -- With Reservations
Mar 4, 2016 | E&E Daily
By Sam Pearson

A pending Senate plan to update the nation's chemical policy may pose a stronger foundation for final legislation, according to new comments from U.S. EPA Administrator Gina McCarthy.
(ACC Mentioned) EPA Voices Preferences on TSCA-Reform Bills
Mar 4, 2016 | BNA Daily Environment Report
By Pat Rizzuto

The Environmental Protection Agency prefers the clarity of the chemical safety standard provided in the Senate's bill to update the Toxic Substances Control Act compared to the uncertainty that could be created by the..
EPA Largely Prefers Senate’s Chemical Safety Bill
Mar 3, 2016 | The Hill - E2 Wire
By Timothy Cama

The Obama administration prefers many aspects of the Senate’s chemical safety reform bill to those in matching House legislation, it told leading lawmakers.
On Toxic Chemical Bills, Administration Prefers Senate's
Mar 4, 2016 | CQ Roll Call
By Jeremy Dillon

As Congress negotiates over two bipartisan versions of legislation meant to update the nation’s toxic chemical review laws, the Obama administration has backed a vast majority of the Senate’s proposal...
EPA and Business Find Much to Like in Senate’s TSCA Reform Bill
Mar 3, 2016 | Environmental Defense Fund
By Richard Denison

In the last day, two news outlets, Politico (“Administration largely sides with Senate negotiators in TSCA talks”) and CQ (“On Toxic Chemical Bills, Administration Prefers Senate's”), published articles about two letters...
Why Is Our Government Working for the Private Good Over the Public Good?
Mar 4, 2016 | Truth-Out

It's been more than two years since a massive chemical spill in West Virginia left regulators puzzled over basic questions like, how toxic is this chemical?
EPA Drops Dioxin in IRIS Agenda
Mar 4, 2016 | BNA Daily Environment Report
By Brian Dabbs

The Environmental Protection Agency dropped a carcinogenicity analysis on 2,3,7,8-tetrachlorodibenzo-p-dioxin, also referred to as dioxin, from its Integrated Risk Information System Agenda (IRIS) in December...
ECHA to Minimize Changes to REACH Guidance for Now
Mar 4, 2016 | BNA Daily Environment Report
By Stephen Gardner

The European Chemicals Agency said it would minimize any changes to REACH guidance after May, to provide stability in the two years before the last REACH registration deadline, which falls on May 31, 2018.
EPA Confirms Health Risks from Widely Used Cleaning Solvent
Mar 4, 2016 | E&E News PM
By Sam Pearson

A dry cleaning solvent previously flagged by health officials as a likely carcinogen poses a threat to women of childbearing age and workers, U.S. EPA said today.
Chemical Data Rule Guidance for Toll Companies
Mar 4, 2016 | BNA Daily Environment Report

The Environmental Protection Agency issued guidance to help toll manufacturers complete the Chemical Data Reporting (CDR) rule submissions they must provide the agency between June and September.

Chemical Security News - There are no clips to report at this time.

Transportation News

Senate Passes Pipeline Safety Bill
Mar 4, 2016 | PoliticoPro - Whiteboard
By Andrew Restuccia and Elana Schor

The Senate passed pipeline safety legislation tonight that reauthorizes the Pipeline and Hazardous Materials Safety Administration, shifting focus to the House.
Pipeline Safety Administration Bill Passes Senate
Mar 4, 2016 | BNA Daily Environment Report
By Ari Natter

The Senate passed legislation that would reauthorize the Pipeline and Hazardous Materials Safety Administration by unanimous consent March 3, after lawmakers who had been objecting to the legislation dropped their holds on the bill.
Huge Expected Hike in Freight Shows Investment Needs -- DOT
Mar 4, 2016 | E&E News PM
By Ariel Wittenberg

The amount of freight traversing the nation's transportation network is expected to grow 40 percent in the next 30 years, according to estimates released today by the Bureau of Transportation Statistics.
Group Asks Lawmakers to Push for Updated Fire Safety Regulations
Mar 4, 2016 | The Hill - E2 Wire
By Lydia Wheeler

The Industrial Packaging Safety Alliance, known as PackSafe, is appealing to lawmakers for help getting the Obama administration to update its safety regulations for flammable liquids.

Energy and Environment News

(ACC Mentioned) Michigan Governor Appeals FEMA Denial of Flint-Related Aid
Mar 4, 2016 | BNA Daily Environment Report

Michigan Gov. Rick Snyder (R) appealed March 3 the Federal Emergency Management Agency's denial of certain emergency protective aid related to the Flint drinking water crisis as major chemical manufacturers...
Chief Justice Roberts Denies Bid for Mercury Rule Stay
Mar 4, 2016 | BNA Daily Environment Report
By Patrick Ambrosio

U.S. Supreme Court Chief Justice John Roberts Jr. declined to stay implementation and enforcement of the Environmental Protection Agency's Mercury and Air Toxics Standards for power plants...
CPAC Panels Call for 'Another Justice Scalia' to Kill Rule
Mar 4, 2016 | E&E Daily
By Amanda Reilly

Conservatives vowed yesterday to place "another Justice [Antonin] Scalia" on the Supreme Court to ensure that the Obama administration's carbon rule for power plants would not survive legal challenges.
Attorneys Suing over CWA 'Jurisdiction' Determinations Tout Broad Support
Mar 3, 2016 | InsideEPA
By David LaRoss

Attorneys suing to win a Supreme Court ruling that would allow pre-enforcement judicial review of regulators' findings for when waters are covered by the Clean Water Act (CWA) are touting a slew of amicus briefs as showing...
Resolution Sets 50 Percent Clean Energy Target by 2030
Mar 4, 2016 | BNA Daily Environment Report
By Anthony Adragna

Thirty Democratic senators and more than 100 House lawmakers backed an “aspirational but achievable” resolution March 3 that called for more than 50 percent of U.S. electricity production to come from clean...
Texas, Utility Groups Sue EPA over Haze Emissions Plan
Mar 3, 2016 | InsideEPA

Texas and electric utility industry groups have filed suit against EPA opposing the agency's federal plan for curbing regional haze in national parks and wilderness areas in Texas and Oklahoma...

Industry and Association News - There are no clips to report at this time.

Chemical Management News

(ACC Mentioned) A Chemical Shell Game: How DuPont Concealed the Dangers of the New Teflon Toxin

Mar 3, 2016 | The Intercept

By Sharon Lerner

Mark Strynar and Andrew Lindstrom walked down the muddy bank of the Cape Fear River toward the water, sampling equipment in hand. It was the summer of 2012, and the scientists, who both work for the Environmental Protection Agency, were taking the first steps in what would be more than two years of detective work. The Cape Fear winds its way for over 200 miles through North Carolina before flowing into the Atlantic, but Strynar and Lindstrom were focused on a 20-mile stretch that runs from a boat dock outside Fayetteville south to the little town of Tar Heel. About halfway between the two points, on the western bank of the river, sits a large plant built by DuPont.
Fayetteville Works, as the sprawling site is called, previously manufactured C8, a chemical that DuPont used for more than 50 years to make Teflon and other products. After a massive class-action lawsuit revealed evidence of C8’s links to cancer and other diseases, DuPont agreed in a deal with the EPA to phase out its use of the chemical. But Strynar and Lindstrom were among many scientists who feared that DuPont and the other companies that used C8 might have swapped it out for similar compounds with similar problems. To see if they were right — and whether any of these replacements might have ended up in the river — they took water samples from the Cape Fear, some upstream the plant, others from points below its outflow.
Perfluorooctanoic acid, commonly known as PFOA or C8, is a “perfluorinated” chemical, which means that its base includes carbon chains attached to fluorine atoms. Because the fluorine-carbon bond is one of the strongest in chemistry, these compounds are incredibly stable, which makes them useful in industry. But that stability also makes them endure in the environment. Indeed, C8, which has recently been detected in upstate New York, in Vermont, and in Michigan’s Flint River, among other places, is expected to remain on the earth long after humans are extinct. And evidence suggests that many of its replacements are just as persistent.
The potential permanence of the problem was only one reason the EPA team was mucking around on the banks of the Cape Fear River. There were short-term dangers, too. Strynar and Lindstrom knew well that the Cape Fear is a source of drinking water and that if perfluorinated chemicals — known as PFCs — had contaminated the river, they would soon make their way into human bodies. Strynar had spent eight years documenting the presence of these molecules in fish, food, air, house dust, and humans. Lindstrom, an expert on measuring PFCs in the environment who has worked for the EPA for more than two decades, had also been documenting the steady proliferation of the chemicals. Both knew that the potential for contamination around the plant was great, because C8 had spread into the water around many of the facilities that made and used it, including plants in West Virginia, Minnesota, New Jersey, Alabama, Germany, and Japan. According to data from the Centers for Disease Control, 99.7 percent of Americans already had C8 in their blood.

What Lindstrom and Strynar didn’t know was exactly what DuPont had used to replace C8 and whether it was escaping the plant. The river water was their key to finding out. By comparing the samples from above and below the plant’s outflow, they could determine which chemicals may have entered the river at that point.
Strategic sampling was the easy part. Figuring out the exact chemical structure of those molecules would require more ingenuity. Ultimately, it would take a team of 10 scientists from five different institutions more than a year to figure out the structure of the PFCs they found in the river — using a mass spectrometer, which produced spiky graphs depicting the exact weight and features of each molecule, software that uses the masses of compounds to generate likely chemical formulas, and painstaking searches of chemical databases and public records for descriptions of new PFCs to compare against their findings. Altogether, the scientists found 12 new PFCs, including one discovered in the files of the West Virginia Department of Environmental Protection, which in 2011 approved DuPont’s use of a C8 replacement at its Washington Works factory in Parkersburg. That was the same facility that had caused massive C8 contamination of drinking water linked to severe health problems among the local population.
After analyzing the molecules, Strynar and Lindstrom concluded that “a new generation of replacement compounds is now out in the environment,” they wrote in response to questions from The Intercept. These new chemicals likely had “the same chemical performance properties” as the older generation of PFCs, like C8. “This would also suggest,” they wrote, “that their toxicity and environmental persistence are likely to be similar as well.”
17,585 Secret Chemicals
When companies want to begin making and selling a new chemical, they are required to file a written notice with the EPA. But current regulations do not mandate that any particular health or safety studies be performed, and according to a 2007 report from the EPA, only 15 percent of new chemical notices contain any information about the materials’ impact on health. Moreover, chemical manufacturers are permitted to claim that various parts of the information they give the EPA are “confidential business information,” or CBI. About 95 percent of new chemical notifications, according to a 2005 Government Accountability Office report, include information that is protected as a trade secret, a figure the EPA confirmed as still “generally accurate.”
Even the very name and structure of a chemical, which are essential to tracking its presence in food, water, and the rest of the environment and determining how it affects humans, can be claimed as CBI. The 12 chemicals Strynar and Lindstrom’s team painstakingly identified are just the tip of a mysterious and dangerous iceberg. Manufacturers have used the CBI shield to withhold the names and identities of 17,585 of the chemicals now registered with the EPA.
The allowance for certain confidentiality claims, which is written into the law, is based on the idea that if companies are forced to reveal the exact nature of a chemical, other companies will be able to duplicate it, depriving the original manufacturer of the opportunity to profit from its research and development investment. In response to past criticism of CBI claims, the American Chemistry Council has said that “balanced confidentiality laws help protect the trade secrets that foster innovation and create jobs.”
But claiming information as CBI means that it’s not only withheld from competitors within industry but also from the general public, manufacturers who use the chemicals in their products, independent scientists who study the impact of these substances on humans and the environment, and most EPA staff, only a fraction of whom have CBI clearance.
“CBI hinders our ability to capture emerging pollutants and make sure the public is safe,” said David Andrews, senior scientist at the Environmental Working Group, whose 2009 report publicly raised the problems posed by the growing list of secret chemicals. “Scientists can’t search for contaminants if they don’t know what they’re looking for.”
The secrecy surrounding DuPont’s C8 replacement, which is sold under the commercial name GenX, left Strynar and Lindstrom in a bizarre situation. Although they work for the EPA’s National Exposure Research Lab, they didn’t have access to all the information they needed to determine whether people were being exposed to the chemical and, if so, whether that exposure posed an environmental risk. They might have applied for CBI clearance, but because those privy to such business secrets are by law forbidden from sharing them, they wouldn’t have been able to reveal what they learned. Compounding the absurdity of their situation, a recent records search has revealed that although the chemical identity of the replacement was initially shielded as CBI, DuPont had declassified it by 2011. As a result, its generic identification number was switched to a traceable number, and information about the chemical was theoretically public. But because there had been no announcement of the declassification and no publication of the traceable number until after Strynar and Lindstrom began their research, no one — including the two EPA scientists — was able to access information about it. And so they had to spend many months and many taxpayer dollars sleuthing out information that was readily available to some of their colleagues within the EPA.
As it turned out, GenX was present in the river.
Sanitized Documents
After a manufacturer tells the EPA about a new chemical it would like to introduce, the agency has 90 days to respond. While it most often simply accepts these new creations and rarely forbids companies from bringing them to market, in about 10 percent of new chemical applications since 1979 and about 40 percent of the notices submitted last year, the agency gave its version of a yellow light, requiring some sort of testing or restrictions on the production of the substance. These requests often take the form of consent orders. Publicly available versions of these documents are often riddled with redactions meant to protect confidential trade secrets.
For instance, a consent order for three PFCs issued in 2006, after the phase-out of C8 was announced, bears the stamp, “EPA SANITIZED,” and notes that critical details such as “company identity, specific chemical identities, production volumes, manufacturing process, processing and use information, and other information” have been scrubbed from it on the grounds of CBI.
The absence of this information makes what does come to light in the rest of the document particularly disturbing. The consent order for the three chemicals acknowledges that the EPA is concerned they “could cause lung effects” and notes that they may degrade into substances that “will persist in the environment, could bioaccumulate or biomagnify, and could be toxic (“PBT”) to people, wild mammals and birds.” These factors taken together, the consent order concludes, “raise concerns for potential adverse chronic effects in humans and wildlife.”
Despite these concerns, the EPA allowed the three replacement chemicals to enter the market in 2006 with the provision that the company perform reproductive, toxicity, and carcinogenicity tests of the chemicals’ effects on rats. Because the testing was required only if the company made or imported more than a certain amount of the chemicals — and because that “trigger amount” was withheld as CBI — it’s unclear if the company ever reached that limit or if the testing was ever done.
When asked about this document, the EPA provided the following response: “Based on concerns raised during the review of three alternative chemicals, a consent order was put in place (and later modified) that requires certain fate testing (i.e., hydrolysis, photolysis and biodegradation studies) to be completed in 2016 and 2017. The data will allow us to better understand the degradation rate of the chemicals.”
Regrettable Substitutions
Several dangerous chemicals have been replaced by what environmentalists call “regrettable substitutions,” molecules that are often just slightly tweaked versions of the originals and pose similar problems. After PCBs were associated with health problems, including lowered immune response and developmental issues, the chemicals that replaced them also proved to be toxic. And in perhaps the most notorious recent example, bisphenol S (BPS), an additive to plastic used for water bottles and sippy cups, turned out to have many of the same dangerous characteristicsas the close chemical cousin it replaced, bisphenol A (BPA).
But while PCBs had only a handful of replacements, and BPA had one primary substitute, the phasing out of PFOA and other PFCs based on 8-carbon chains has led to the introduction of a much larger number of chemicals.
Between 2006 and 2011, after manufacturers agreed to phase out longer-chain PFCs, chemical companies notified the EPA of their intent to introduce some 150 chemicals to replace them, according to research conducted by the Environmental Defense Fund in 2012. At least 125 of those chemical names were claimed as confidential.
Over the past decade, the EPA has reviewed more than 300 proposed alternatives to C8, according to a written response the agency provided to questions from The Intercept. Of those applications, 0.9 percent were not accepted; 67.1 percent were subject to consent orders, which often require additional testing of the chemical; and 18.5 percent were withdrawn by the submitter, “often in the face of regulatory action.”
The manufacture of just one of these compounds can result in many byproducts, which themselves can be dangerous. Several of the 12 PFCs Strynar and Lindstrom found in the Cape Fear River may have been created through the process of making GenX.
While Strynar and Lindstrom were searching the river for signs of DuPont’s C8 replacement, a PhD student in Europe confirmed the chemical structure of GenX in a surprising place. Zhanyun Wang, whose dissertation focused on PFCs, was at a conference in Munich in 2012 when he met a DuPont employee who told him that the formula for GenX had been printed in a brochure.
When Wang, now an environmental scientist who spends much of his professional life tracking down and sharing hidden information about dangerous chemicals, got home from the conference, he easily found a copy of the brochure on the DuPont website. The formula of GenX — CF3CF2CF2OCF(CF3)COOH.NH3— was right there on Page 2. He told me he assumed that its publication was a mistake but went ahead and included the formula in a 2013 paper that included a roundup of replacements for long-chain PFCs.
Shortly after his paper came out, Wang ran into some colleagues who worked for DuPont. “They were not happy,” Wang recalled. “But then they found out it was from their documents so there was nothing they could do.”
Confidential A and B
Recently, CBI claims have hobbled the EPA’s efforts to move forward with the regulation of a group of flame retardants known as brominated phthalates clusters (BPCs). These chemicals were introduced to replace older flame retardants that accumulate in humans and the environment, and were banned in some states after being linked to developmental problems, hormone disruption, and cancer.
Like the older flame retardants, BPCs are present in furniture, electronics, and some baby items. Although researchers have only recently begun studying BPCs, they have already raised some of the same red flags, and have linked the newer flame retardants to DNA damage and hormone disruption. Chemtura, one of the companies that made the previous generation of flame retardants, is also producing at least two of these new chemicals and together with two other manufacturers made somewhere between 1 and 10 million pounds of one BPC in 2011, according to the Chemical Data Reporting Database.
In 2013, the EPA began to officially assess the risks posed by BPCs, but in August 2015 it published a document known as a “data needs assessment,” which concluded that the agency still needed more data. The report reveals how much information the flame retardant industry has withheld from the scientific community. Consider two of the chemicals, listed in the August report only as “Confidential A” and “Confidential B.”
The consent order for Confidential A sums up the problem well: As with other consent orders, this document is heavily redacted, with the name of the chemical, its manufacturer, intended uses, and production quantities all withheld as confidential business information. The few details that do emerge are alarming. For instance, the document notes that the chemical raises concerns about “liver and kidney toxicity” and carcinogenicity in humans, as well as toxicity to fish and aquatic life, while also acknowledging that Confidential A will be used in consumer goods and may be “persistent, bioaccumulative, and toxic.”
Nevertheless, the EPA allowed Confidential A to enter the market in 2009 with the provision that the unnamed company perform additional tests to determine whether the chemical affects reproduction and development in rats. These tests, too, were tied to a trigger level that was claimed as a secret. (According to EPA documents, as of August 2015 the trigger level had not been reached.) The consent order for Confidential A also warns the manufacturer against making “predictable or purposeful release” of the chemical into “the waters of the United States.” But, as we know from Strynar and Lindstrom’s experience, the ability to determine whether the chemical has in fact been released hinges on first figuring out what it is.
Perhaps more disturbing is what happened with Confidential B, a chemical that “sailed through the New Chemicals program,” according to comments on the report that the Environmental Defense Fund submitted to the EPA on January 20, 2016. Despite the fact that the unknown chemical is so worrisome that it made it onto a shortlist of chemicals the EPA is investigating, the agency apparently didn’t require its mysterious manufacturer to perform any health testing. In 2015, according to the EPA’s August data needs assessment, Confidential B was grouped among chemicals that were produced in volumes greater than 1 million pounds.
When asked for comment, the EPA noted that it hasn’t received any new test data on Confidential B “because the production volumes are too small” and pointed out that the agency now typically bans the manufacture and import of new BPCs “until up front testing can be conducted and reviewed.” Asked to resolve the inconsistency, the EPA insisted that “for Confidential B, the production value is not greater than 1 million pounds.”
We don’t know much more about the named BPCs. For instance, the production data entry for a chemical known as TBB, one of the seven flame retardants listed in a supplement to the EPA’s report, is essentially devoid of information. The name of the production site, the amount produced domestically, the amount exported, and, as with Confidential A, the amount produced overall, have all been claimed as CBI.
“By calling production volume data CBI, they’re obscuring the extent of how prevalent a chemical is — and how prevalent exposure is,” said Eve Gartner, a staff attorney at Earthjustice, who submitted comments about the BPC data needs assessment to the EPA on behalf of the Natural Resources Defense Council, the Washington Toxics Coalition, and Earthjustice in January. Without this data, said Gartner, the EPA can’t do its job.
“EPA had a legal obligation to find out more about the toxicity of these chemicals and it failed to do that,” said Gartner. “And now it can’t do a risk assessment that might lead to regulation. That means many more years in which people, children, firefighters — everyone — is being exposed to toxic chemicals.” Indeed, while the regulatory process has been stalled, the environmental concentration of two BPCs known as TBB and TBPH has been doubling every year in urban areas and every 1.6 years in rural areas, according to a 2012 article in Environmental Science Technology.
While Gartner admits that some confidentiality claims, including those for the production volume, may fall into a legal gray area, others are plainly violations of the law. The Toxic Substances Control Act (TSCA), which lays the groundwork for chemical regulation, makes it clear that health studies cannot be protected as CBI. Yet, in 2012, Chemtura submitted more than 12 health studies to the EPA that it claimed as CBI.
The EPA did not dispute that it allowed health studies to be submitted as confidential business information, but wrote in a response to questions from The Intercept that it made summaries of the studies public. The agency statement also noted that “EPA is currently following our established process to review these and other submissions and declassify unwarranted CBI claims.”
When asked for comment, Chemtura did not dispute that it claimed the studies as confidential, but said in a statement that “providing information as Confidential Business Information to protect proprietary technical information is in full legal compliance with what is allowed under Federal regulations.” Chemtura also wrote that it strongly disagrees “with the characterization that there is something wrong with confidentiality claims.”
The law allows us to make a claim of confidentiality in order to protect our investments. Companies invest a lot of money in the development and manufacture of its products. This investment comes in many forms: research, physical testing, construction of manufacturing plants, product registrations, toxicology testing, marketing and advertising are among the many investments a company can make. These investments form proprietary information which is a barrier to entry for other companies. Giving away your investments to competitors is an unsustainable business practice for companies who seek to be successful. In the case of toxicology data, competitors have and do use public information they obtain to register competing “copycat” products against the data originators. Technical data is a valuable asset, and care should be taken in how companies distribute that intellectual property.
Gartner worries that the agency’s acceptance of Chemtura’s inappropriate CBI claim — and apparent failure to notice that the EPA itself was violating the law — signals a much bigger problem. “Nobody blinked an eye at EPA,” said Gartner. “It raises a lot of questions. How many other health and safety studies have been submitted to the agency and claimed as CBI?”
It’s impossible to answer Gartner’s question, since the information needed to determine whether a CBI claim is justified is itself often confidential.
Flame Retardant Dust
Part of the problem is the weakness of the law. TSCA indicates that companies should have to prove that disclosure of the information they’re claiming as CBI would likely “cause substantial harm to the business’s competitive position.” But while the EPA can face hefty fines if it violates a company’s confidentiality, TSCA offers no way to penalize companies that make false confidentiality claims. The EPA has helped companies declassify documents and encourages them to review their confidentiality claims through “the CBI Voluntary Challenge” and, in 11 cases, has disallowed CBI claims, according to an agency spokesperson. But it has never punished a company for a false claim.
Environmental researchers need to be resourceful — and lucky — to penetrate the obscurity created by CBI. Heather Stapleton, a scientist at Duke University who studies household dust, was able to show that two of the BPC flame retardants were widespread in the environment only because one of her colleagues happened to suggest that a new chemical she noticed in a dust sample might be a component of Firemaster 550, a flame retardant made by Chemtura. Luckily for Stapleton, the colleague happened to have — and share with her — a sample of the product, which isn’t readily available to scientists. Stapleton was able to match the molecules in it to those in the product sample.
Stapleton’s discovery might have ended there. But after giving a talk about her research, a furniture manufacturer who was in the audience gave her a letter from Chemtura saying that the company’s prenatal development studies of its product had found “some effects.” The letter went on to assure the manufacturers that the risk was “negligible,” despite the findings, since the product didn’t leak into the environment.
But Stapleton’s work proved otherwise. The chemical was clearly making its way into the environment if it was showing up in dust samples. Alarmed, she asked Chemtura for its health studies of Firemaster 550. Stapleton said the company declined to supply them (Chemtura told me that it has no record of Stapleton requesting the studies), and so she asked the EPA for any data it had on the product. “They mailed me a CD that had 800 pages and 90 percent was blocked out for CBI,” Stapleton told me recently. “I couldn’t make heads or tails of that document.”
According to a statement from the EPA, the agency declassified the company name, chemical names, and individual ingredients of Firemaster 550 in 2010, and this information is now available in the public docket.
So Stapleton decided to use some of her remaining Firemaster 550 sample to study the product’s health effects, exposing pregnant rats to varying doses of the substance and observing the health of their offspring. She found that exposure could have clear effects on the rats’ babies, which were more likely to become obese and show signs of anxiety. Female rats whose mothers were exposed to Firemaster 550 were more likely to experience early onset of puberty, and males whose mothers were exposed at levels lower than the company deemed safe had an increased rate of heart defects. Stapleton also concluded that Firemaster 550 is an endocrine disruptor.
Substantial Risk Reports
Independent research on the health effects of the replacements for C8 and longer-chain perfluorinated compounds has only recently begun in earnest. But several studies already indicate problems similar to those linked to C8, which include immune disorders, reproductive problems, and two kinds of cancer.
The most worrisome health information comes from industry itself. Chemical manufacturers are required by Section 8 (e) of the Toxic Substances Control Act to report any information to the EPA that “reasonably supports the conclusion that” a substance they make or use “presents a substantial risk of injury to health or the environment.” But the critical information in these 8 (e) reports can also be claimed as confidential. Last year, the Environmental Working Group reviewed more than 100 Section 8 (e) reports that had been submitted for perfluorinated chemicals between 2007 and 2015 and found that, among the 85 percent in which the chemical’s name was withheld, “reported health effects of exposure included death; maternal and developmental toxicity; degeneration and necrosis of the kidneys; chromosome aberrations; changes to the weight of the heart, kidney, liver, thymus, spleen, prostate, ovaries and adrenal glands; lethargy; and irregular breathing.”
The EPA has possessed evidence of the health effects of DuPont’s C8 replacement, GenX, since at least April 2006, when DuPont filed the first of 16 Section 8 (e) reports about the chemical. Some of those reports reference a 2009 consent order, which The Intercept obtained through a Freedom of Information Act request. That document — in which the specific identity of the replacement chemical and a closely related salt molecule, their production volume, manufacturing process and sites, processing, use, and other information have been withheld as CBI — lays out the agency’s many concerns about DuPont’s C8 replacement. It notes, for instance, that it has evidence that the chemical and its salt are toxic to lab animals and cause mutations in mammalian and human cells. The document also lays out concerns that the molecules “will persist in the environment, could bioaccumulate, and be toxic (“PBT”) to people, wild mammals, and birds”; that “there is high concern for possible environmental effects over the long-term”; and that “EPA has human health concerns for the PMN substances.”
An analysis of the 8 (e) reports, which are based on DuPont’s experiments on lab animals, shows that GenX presents some of the very same health problems that C8 does, including changes in the size and weight of animals’ livers and kidneys, alterations to their immune responses and cholesterol levels, weight gain, reproductive problems, and cancer.
In response to inquiries from The Intercept, DuPont declined to comment, noting that GenX is now a product of Chemours. Chemours responded that “extensive safety testing was conducted” on GenX. “Data suggests that it is not a developmental, reproductive, or genetic toxicant, or a human carcinogen.” (See “New Teflon Toxin Causes Cancer, Kidney Disease in Lab Animals” for the complete text of Chemours’ response.)
Due to CBI claims, it’s impossible to determine the amounts of the new PFCs that are being manufactured and used in the United States. Without this information and with little monitoring of their presence in the environment, exposure levels are similarly indeterminate. DuPont’s filings in Europe estimate production of GenX at between 10 and 100 tons each year. GenX, however, is only one of the company’s new PFCs. Chemours, the chemical company spun off by DuPont in July 2015, has many additional new formulations of surfactants and repellents for use in textiles, firefighting foam, and leather. Other chemical companies have developed their own substitutes. 3M, which supplied C8 to DuPont for many years, uses a product called ADONA. Solvay, Asahi, Dow Corning, and numerous companies in Japan and Europe have also come up with their own formulations. Zhanyun Wang estimates that tens of thousands of tons of fluorinated alternatives are now produced worldwide.
In May 2015, a group of scientists issued the Madrid Statement, which called for limiting production of all perfluorinated chemicals (regardless of the length of their molecules) based on their persistence and toxicity. The scientists noted that little information has been made public about how poisonous the replacement chemicals are to humans or animals, but that longer-chain PFCs have been shown to cause “liver toxicity, disruption of lipid metabolism, the immune and endocrine systems, adverse neurobehavioral effects, neonatal toxicity and death, and tumors in multiple organ systems” in lab animals and are associated with “testicular and kidney cancers, liver malfunction, hypothyroidism, high cholesterol, ulcerative colitis, lower birth weight and size, obesity, decreased immune response to vaccines, and reduced hormone levels and delayed puberty” in people. And a 2014 study in Environmental Research has already linked one of the C6 replacement molecules, PFHxA, with a health problem that does not seem to be linked to other PFCs — a liver disorder known as Gilbert Syndrome.
There is one way these “shorter-chain” variations seem to be better than the originals they’re replacing. Many of them, though not all, remain in the human body for less time. According to one 2011 document from the European Food Safety Authority, 3M reported that the half-life of its chemical ADONA was between 12 and 34 days in the bodies of three workers. In contrast, it takes humans about four years to clear half of the C8 from their bodies. Although it takes months for lab animals to rid themselves of C8, DuPont has claimed that with GenX, “virtually complete elimination from the body occurs in 12-24 hours.”
But as C8 replacements become increasingly ubiquitous, this improvement may be moot. “Even if it stays for just days,” said Wang, a chemical “still has possibility to cause damage.” Because the replacements are already so widespread, he said, “we’ll keep eating them and drinking them, so we’ll have continuous exposure. And if the environmental concentration in food and water keeps going higher because of increased use, then concentrations in our bodies will also go up.”
Asked for comment, 3M provided the following statement: “We believe that these shorter-chain compounds do not present health risks at the levels they are typically found in the environment.”
In terms of how long they’ll persist in the environment, the new chemicals are just as bad as the C8 they’re meant to replace. Like C8, GenX is extremely stable and will likely persist indefinitely. As A. Michael Kaplan, DuPont’s then-director of regulatory affairs, put it in one of the 8 (e) reports the company submitted to the EPA in 2010, “The biodegradation of the test substance was 0%.”
“It will take thousands of years to break down — or maybe longer,” Wang said of GenX. 3M’s ADONA, he said, will also endure indefinitely. “The company claims that this replacement degrades, but actually it doesn’t.” Indeed, most of the new replacement PFCs — or, in the case of the longer-chain molecules, the substances they degrade into — won’t ever break down. “We’re replacing a super-persistent chemical with super-persistent chemicals.”
Resetting the Clock
It took half a century from the introduction of C8 into commercial use for the public to catch on about its dangers. In part because the EPA has yet to issue binding regulation that could require polluters to be held financially responsible for their mess, most of the contamination from that chemical is still in our environment. The earlier flame retardants that BPCs are replacing — and the dangerous chemicals they degrade into — also remain with us.
Now, with the introduction of next-generation replacement chemicals, industry has reset the clock. In addition to the C8 and the phased-out flame retardants in our water, soil, and air, we are being exposed to hundreds of other chemicals, many of which could endure forever.
DuPont referred to C8 as an “essential processing aid.” Chemours, which has inherited DuPont’s PFC business, notes that its newer generation of fluoropolymer resins, manufactured using GenX, is “critically important.” The company website points out that its products are used to provide cable and internet service, more efficient cars, and “insulation for cabling that is essential for safety, security and performance in buildings, data centers, ships and aircraft.”
But while PFCs are used to make some very useful products, they’re also in many others that are not essential, including food packaging, clothing,make-up, workout gear, and outdoor equipment, such as hiking clothes and tents, which means that nature lovers may be unwittingly spreading the contamination to remote places when they travel. Clearly, many if not all of these products could be manufactured without using PFCs.
The American Chemistry Council insists that “flame retardants provide an important layer of fire protection and help save lives.” But as the Chicago Tribune has reported, the trade organization has used phony customer watchdog groups and bogus claims to make the case for the necessity of flame retardants. Not only do the chemicals provide no meaningful protection from fire, as the Tribune’s reporting made clear, they can actually increase smolder propensity, as California officials noted when the state was doing away with its requirement that furniture makers inject the flame retardants into cushions. Some scientists also insist there is no scientific justification for the current practice of putting flame retardants in electronics. The American Chemistry Council did not respond to our requests for comment.
Although it’s technically possible to rid the environment of some PFCs, the process of finding, extracting, and disposing of them is practically out of reach in most of the world. Most countries won’t be able to pay for it, and the few that can, including the U.S., are unlikely to undertake this incredibly difficult and expensive task.
Rewriting the Law on Toxins
This should be the ideal time to be grappling with the enduring impact of unsafe chemicals. Congress is in the midst of revisiting our lax national chemical safety law, the Toxic Substances Control Act, and reform billshave passed both the House and the Senate. But lawmakers have already missed the opportunity to close one gaping legal hole that allows unsafe chemicals to enter the market, since neither of the bills now being considered would require companies to submit specific safety data before new chemicals are approved for use.
Nor does either bill really fix the confidentiality problem. The Senate’s bill would make some improvements on CBI, requiring the EPA to review past and future confidentiality claims that mask a chemical’s identity, as well as at least a quarter of the CBI claims for other types of information. But the House bill does not mandate any CBI review or lay out penalties for companies that make false claims. And in one important respect, TSCA “reform” could be a step backward: The House bill would allow companies to claim chemical identity in health studies as CBI.
As Congress dickers over reconciling the two TSCA reform bills, the regrettable replacements are accumulating all around us. The researchers who have made it their business to chase after those chemicals meanwhile struggle to keep pace. Stapleton, the researcher at Duke, is raising money to conduct a larger version of her experiment with Firemaster 550, which was criticized for its small sample size. Stapleton’s lab at Duke also runs apublic testing program so that people can send in foam samples from their furniture to determine whether it contains dangerous flame retardants.
Wang, for his part, has become increasingly frustrated with the lack of awareness of the irreversible PFC contamination. Time, he says, is running out. “We need to reduce the emissions as fast as possible and evaluate whether uses are essential.” To his great frustration, however, most of his colleagues who work with PFCs are still focused on C8.
Strynar and Lindstrom, the EPA researchers in North Carolina, are hoping their discoveries will spur medical researchers to investigate the health effects of the PFCs they discovered in the Cape Fear River. They themselves have begun to work on developing methods to measure the chemicals, and to test methods for removing them from drinking water. Their research will likely continue for years.

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(ACC Mentioned) EPA Prefers Senate Version of TSCA Reform -- With Reservations

Mar 4, 2016 | E&E Daily

By Sam Pearson

A pending Senate plan to update the nation's chemical policy may pose a stronger foundation for final legislation, according to new comments from U.S. EPA Administrator Gina McCarthy.
In a letter sent to congressional negotiators earlier this year, McCarthy for the first time weighed in on some aspects of the pending bills. Two differing versions -- H.R. 2576, or the "Toxic Substances Control Act Modernization Act," and S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act" -- have both cleared their respective chambers, and lawmakers are trying to figure out how to blend the two proposals into something that can reach President Obama's desk.
Lawmakers must make sure a final bill to update the nation's chemical policy includes a clear definition of what the bar is to determine if a chemical is unsafe, known as the safety standard. The final legislation also needs to have strong deadlines for EPA to complete reviews of chemicals and work through more than 60,000 substances already in use that have never been formally evaluated for safety, McCarthy wrote.
The comments by McCarthy are EPA officials' broadest attempt to explain what they think of the ongoing legislative activity on the issue since a 2009 document containing a set of what the agency called principles for TSCA reform (E&E Daily, Sept. 30, 2009). That document later became a sort of blueprint as lawmakers worked in the earlier stages of crafting legislation.
The input is "intended to assist Congress in reconciling the two pieces of legislation," McCarthy wrote.
The existence of the McCarthy letter was first reported in Politico yesterday.
Though boosters of the Senate bill touted EPA's letter as a strong case to move forward with the plan, a House aide said it was not so simple.
The letters showed the growing consensus around the Senate bill, argued Richard Denison, a senior scientist at the Environmental Defense Fund, which has backed the bill since its introduction.
"Of course the goal is to get to the best law possible," Denison wrote in a blog post yesterday. "EDF is confident that legislators on both sides of the aisle, in both chambers of Congress, are working hard to reach agreement on a strong bill to send to the president. The opportunity has never been so near at hand, if Congress can just finish the job."
The House aide said lawmakers on the Energy and Commerce Committee had already worked to incorporate McCarthy's suggestions. Lawmakers of both parties had sent a joint proposal to the Senate last Friday but have not received a response, the aide said.
Though lawmakers have made optimistic comments about the negotiations for months, talks have not progressed beyond the staff level, the aide said.
Among the changes in the new House proposal are adding previously left-out sections to the House bill to cap the number of industry-requested evaluations, expand the mechanism to collect fees and update the system of evaluating new chemicals. It also would add a method to revisit old claims of confidential business information that may no longer have a legal basis, the aide said.
The American Alliance for Innovation, a coalition of industry groups, also wrote to lawmakers last week on how to reform the 39-year-old chemicals law. The group said its member organizations preferred parts of both bills.
"TSCA is an extremely complicated statute, and care should be taken as you combine the two bills," the group wrote.
The letter was signed by dozens of industry groups, including the American Chemistry Council, American Coatings Association, American Farm Bureau Foundation, American Petroleum Institute and National Association of Chemical Distributors.
The trade groups argued, among other things, for maintaining "strong preemption" of state laws and removing language to expedite the evaluation of persistent, bioaccumulative and toxic chemicals, or PBTs. A chemical's PBT properties -- a list that includes flame retardants, asbestos and perfluorinated chemicals such as perfluorooctanoic acid, or C8 -- should be treated as simply "one criterion in the prioritization process," the groups wrote.
In the House, lawmakers tried to take a more limited approach to overhauling TSCA to avoid political division. Meanwhile, boosters of the Senate bill, which was introduced by Sens. David Vitter (R-La.) and Tom Udall (D-N.M.), have touted it as more comprehensive.
Differing language
The bills contain key differences over how they set up a revamped chemical program, including what deadlines EPA would face during implementation, how fees would be collected and how much input chemical companies would have in EPA's selection of chemicals for scrutiny.
Because so many chemicals were grandfathered in under the 1976 law, both bills try to set up a method by which EPA will prioritize them into high- or low-priority chemicals, to save its resources for the most troublesome substances.
Under S. 697, the agency is to complete or begin at least 20 high-priority assessments within three years and complete or begin 25 high-priority assessments within five years. The bill also specifies that EPA must add new chemicals to the high-priority list when it completes review of a chemical on the list.
On this point, McCarthy wrote, EPA prefers the Senate bill, which "provides certainty about the progress that the EPA is required to make reviewing chemicals."
McCarthy also said the Obama administration favors the Senate bill's handling of a requirement in existing law that the agency take the "least burdensome" action to reduce exposure to a toxic chemical. That high bar has made it highly difficult for EPA to restrict the use of chemicals over the years, even when significant research exists showing that Americans are exposed to a harmful substance.
Both bills try to revise the provision to make it clear that EPA does not need to consider the cost to industry when it finds the public is at risk.
Under the Senate bill, EPA would have to weigh the costs and benefits of alternatives to its proposed action to manage a chemical's risk and incorporate this into a statement on any proposed rule, which could be reviewed by a court. But under the House bill, the agency said, it would be to argue simply that a proposed action is cost effective or that it is not cost effective but necessary.
To figure this out, EPA could only use information found to be "reasonably ascertainable," McCarthy wrote, which would create implementation problems.
EPA said it prefers the Senate's handling of this issue because it "expressly provide[s] that they do not extend the EPA's analytical burden beyond what can be practicably accomplished, based on reasonably available information."
McCarthy also warned that the House bill failed to provide enough flexibility to EPA regarding how it prioritizes chemicals. The House bill would let companies flag their own chemicals for high-priority review, while the Senate bill would limit these evaluations and makes companies pay for them.
"Without a meaningful cap or similar measures, manufacturer priorities have the potential to overrun the EPA's chemicals management program and prevent the agency from addressing chemicals with greater potential risks," McCarthy wrote.
EPA slams Vitter-backed sections
Though EPA's top official reserved most of her praise for the Senate bill, she also criticized some aspects of the legislation for creating what she said would be unnecessary new reporting requirements for EPA.
McCarthy wrote that the Senate bill would "impose on the EPA" burdensome requirements to develop new procedural rules. These sections, though, have been praised by many Republicans and business interests.
McCarthy wrote EPA "strongly prefers the House bill" on sections that mandate the agency finalize within two years guidelines for the use of science in chemical assessments. The section of the Senate bill sets unnecessarily specific language for unnecessary rulemakings, the letter said.
At a news conference on the bill last year, Vitter cited the science standards as a provision he wouldn't give up on the bill. Vitter has moved aggressively against EPA in other contexts to bar the use of what he calls "secret science," though EPA maintains there is no such thing.
"As we give EPA more authority, we wanted to make sure that they acted with that authority in a completely transparent way that's science-based, based on completely sound science, and I think there are significant protections in that regard in the bill," Vitter said.
These provisions could cause "unnecessarily slow progress on more substantive issues" and tie up EPA in litigation over the procedures, McCarthy wrote. She said EPA already has these kind of safeguards in place and the House bill appropriately lets the agency craft these rules "to the extent necessary."

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(ACC Mentioned) EPA Voices Preferences on TSCA-Reform Bills

Mar 4, 2016 | BNA Daily Environment Report

By Pat Rizzuto

The Environmental Protection Agency prefers the clarity of the chemical safety standard provided in the Senate's bill to update the Toxic Substances Control Act compared to the uncertainty that could be created by the different standards that could be set under the House's TSCA modernization bill, according to a letter the EPA's administrator has sent members of Congress.
The EPA also prefers the regulatory approach the Senate bill would require for new chemicals and its strategy for funding the agency's oversight of chemicals, EPA Administrator Gina McCarthy wrote in the Jan. 20 letter to members of Congress obtained by Bloomberg BNA March 3.
The agency, however, “strongly prefers” the implementation provisions of the House's TSCA Modernization Act (H.R. 2576) rather than the “pressing deadlines” required by the Senate's Frank R. Lautenberg Chemical Safety for the 21st Century Act, McCarthy said. The Senate bill was numbered S. 697, but it was approved unanimously in December as S. Admt. 2932 to H.R. 2576.
“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 said in the letter.
The administration hasn't publicly voiced a preference for either the House or Senate bill making McCarthy's letter of particular interest.
Many industries could have the products they make or use affected if Congress approves, and the president signs, a bill that would revise TSCA for the first time since 1976. TSCA oversees chemicals in commerce, meaning it can help determine the chemicals, plastics and other materials available to companies that make the consumer and industrial products society relies upon. The law also affects human health and the environment through the decisions the EPA makes about what chemicals may enter commerce.
Chemicals in Commerce Called Key
Requirements TSCA imposes on the EPA, however, have meant the agency has had limited success obtaining toxicity, exposure and other data it would need to oversee the safety of chemicals already in commerce or to regulate those chemicals in commerce with uses that pose health or environmental risks.
Public confidence in the U.S. regulatory system has waned over the years, the American Chemistry Council said.
States and retailers, such as Wal-Mart Stores Inc. and the Target Corp., have stepped into the regulatory vacuum, for example, by barring certain chemicals from their jurisdictions or shelves.
Similar to other recent analyses of the TSCA-reform bills, the EPA's letter doesn't endorse one chamber's bill over the other although it supported more provisions of the Senate's bill than the House's. The Senate bill resulted from more than two years of negotiations among Republicans and Democrats led by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.).
The EPA's letter described provisions of each bill it prefers and tied its preferences to TSCA-reform principles the agency released in 2009 (187 DEN A-9, 9/30/09).
EPA Describes Aspects It Likes
The EPA also described aspects of both bills it supports, such as their proposed elimination of TSCA's “least burdensome” requirement. The law's mandate that the EPA select the least burdensome regulatory option to manage a risk was a key aspect of the U.S. Court of Appeals for the Fifth Circuit ruling in 1991 that overturned the agency's regulation that would have severely restricted uses of asbestos (Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 33 ERC 1961 (5th Cir. 1991)).
As the EPA did, state organizations, state attorneys general and the American Alliance for Innovation, a coalition of more than 150 trade associations, have voiced support and opposition in recent weeks to divergent positions in the two chambers' bills or issued general priorities.
More than 21,000 state legislators across the country signed onto a March 2 letter circulated by the Union of Concerned Scientists.
Provisions Needed
“A good chemical safety law must include enforceable deadlines for the Environmental Protection Agency (EPA) to act on the most dangerous chemicals, “ the letter said. Additionally, the state legislators' letter called for the following:
“It must provide the agency with the resources to do its job.
“It must give the states the most flexibility to address chemical dangers that the EPA has not yet acted on.
“It must ensure that vulnerable populations, such as workers, people living in fence-line communities, the elderly and pregnant women, are adequately protected.
“And it must allow the EPA to use its legal authority to use the best available science without interference from Congress.”
Twelve state attorneys general circulated their analysis of the two bills Jan. 21 (06 DEN A-2, 1/11/16).
The Environmental Council of the States circulated an analysis on Jan. 7 (06 DEN A-2, 1/11/16).
Industry Alliance: Take Care in Merging Bills
In a Feb. 29 letter to House and Senate leaders, the American Alliance for Innovation didn't specifically identify whether the priorities it supports in a merged TSCA-reform bill are in the House bill, Senate bill or both.
It instead urged Congress to take care as it combines the two bills.

“Simply cutting and pasting sections of one bill into another without considering effects on the remaining pieces of the final product could be confusing and problematic,” the alliance said.

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EPA Largely Prefers Senate’s Chemical Safety Bill

Mar 3, 2016 | The Hill - E2 Wire

By Timothy Cama

The Obama administration prefers many aspects of the Senate’s chemical safety reform bill to those in matching House legislation, it told leading lawmakers.
The Environmental Protection Agency (EPA) outlined its thoughts on the competing bills in a January letter, obtained by The Hill, to the lawmakers negotiating a resolution between the bills.
Both bills aim to improve upon the Toxic Substances Control Act of 1976, under which it has been extraordinarily difficult for the EPA to actually ban any harmful substances, such as asbestos.
The EPA found a lot to like in the Senate’s bill, often preferring its provisions on various issues over the House’s.
“The administration appreciates that Congress took a comprehensive look at TSCA when it developed its reform bills,” the EPA said.
Also on Thursday, Democratic presidential hopeful Hillary Clinton weighed in on the controversy over toxic chemical reform and criticized key pieces of the House’s legislation.
The EPA’s letter, first reported by Politico, said the Senate’s bill looked better than the House version on setting deadlines for the EPA’s action, eliminating the requirement that the “least burdensome” potential regulations be enacted, funding the EPA’s activities and investigating how newly developed chemicals are treated.
But the House took a better approach on issues like the implementation requirements put upon the EPA, the agency said in its letter.
The EPA stopped well short of endorsing either chamber’s bill, and it thanked both the House and Senate for the effort.A House aide said Reps. Fred Upton (R-Mich.) and Frank Pallone Jr. (D-N.J.), the leaders of the Energy and Commerce Committee, sent an offer to the Senate last week as the first formal step in negotiating toward a bill. The offer would resolve many of the big issues that the EPA identified, including putting a cap on manufacturer-initiated risk evaluations, expanding EPA funding for the program and a mechanism for safety decisions on new chemicals.
The Senate passed its bill in December, and the House bill passed last summer.
Clinton used the recent drinking water contamination problem in Hoosick Falls, N.Y., Thursday to push for better chemical regulation.
“We need a strong TSCA modernization that will allow EPA to evaluate the thousands of hazardous chemicals in use today for health and environmental risks; improve consumer confidence and give the public accurate information about the risks of different substances; and set effective federal standards while still allowing for leadership at the state level,” she said.
“What we don’t need is a TSCA modernization bill with special carve-outs protecting companies from liability for known carcinogens, like PCBs, which were banned in the original law back in 1976. The House bill has such a loophole, and it should be removed,” Clinton added.
The House bill includes a provision to reduce liability for companies that used to manufacture polychlorinated biphenyls (PCBs). Monsanto Co. used to produce nearly all of the nation’s PCBs, and is the target of multiple lawsuits, The New York Times reported.

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On Toxic Chemical Bills, Administration Prefers Senate's

Mar 4, 2016 | CQ Roll Call

By Jeremy Dillon

As Congress negotiates over two bipartisan versions of legislation meant to update the nation’s toxic chemical review laws, the Obama administration has backed a vast majority of the Senate’s proposal over the language included in the House measure.
In a Jan. 20 letter sent to leaders of the Senate Environment and Public Works and House Energy and Commerce committees, EPA Administrator Gina McCarthy voiced support for much of the Senate’s version of the bill (S 697) to update the Toxic Substances Control Act (PL 94-469), especially in comparison to the House’s version (HR 2576) .
The letter marks the first official confirmation of the administration’s position on how the two bills, directly affecting the EPA’s chemical review process, should merge during the conference process.
“The lack of a workable safety standard, deadlines to review and act on all existing chemicals, and a consistent source or funding are all fundamental flaws in TSCA that should be addressed,” McCarthy wrote.
The overhaul of TSCA is intended to help the EPA more regulate chemicals that have entered the marketplace since the law’s inception. The original 1976 law has led to restrictions on just five chemicals and has prevented only four new chemicals from going to market — even as 23,000 new chemicals were introduced.
In an effort to institute a more understandable and consistent review process for new chemicals, EPA advocated that the finalized bill have direct language defining the safety standard, which the Senate version has and the House version lacks.
Other major differences between the bills involve the prioritization for reviews of new chemicals by the EPA, how the EPA pays for the reviews, and how to divide the state versus federal statute and enforcement responsibilities.
On the prioritization issue, the administration expressed concerns over industry control of which chemicals should be reviewed and when the reviews should occur. According to McCarthy, the EPA should “have the authority to prioritize chemicals for review based on relevant risk and exposure considerations.”
However, both the House and Senate versions included language that would enable industry to identify which chemicals deserve review — something that could overrun the EPA with chemical reviews. The EPA backed the Senate’s version, though, because it placed a cap on industry requests.
“Without a meaningful cap or similar measures, manufacturer priorities have the potential to overrun the EPA's chemicals management program and prevent the agency from addressing chemicals with greater potential risks,” McCarthy said in the letter.
The EPA also backed the Senate’s industry fee implementation plan. That provision sets the cap on fees the industry pays to offset the EPA's costs in conducting the reviews at $25 million, while the House only gave EPA the ability to collect fees for industry-requested reviews, not for reviews initiated by the EPA.
“The Administration prefers the Senate bill's funding provisions, which explicitly add new fee collection authority for the costs of reviewing confidential business information (CHI) claims, reviewing notices under section 5, making prioritization decisions, conducting and completing safety assessments, and conducting rulemakings,” McCarthy said.
She added that the EPA should have “broad authority” to use the fees to cover costs of agency actions in specific reviews, rather than relying on the appropriations process.
The letter said the administration favors an approach that would ensure the greatest regulatory certainty while also ensuring states have flexibility to keep their existing chemical laws intact. The issue caused delays with the bill as Sen. Barbara Boxer, D-Calif., fought provisions that could have caused federal pre-emption of stricter California laws.
“Assuming the flaws in TSCA that have prevented effective federal action are addressed in reform legislation, the Administration supports an approach to preemption that provides a consistent regulatory regime for industry while allowing appropriate additional actions by the states,” the letter said.
EPA is not the only agency backing the majority of the Senate bill in the negotiations. Industry, as seen via a letter sent Wednesday from the American Alliance for Innovation, a group representing over 150 trade organizations, pushed for similar provisions on prioritization and fee collections, although it disagreed with the pre-emption portion, pushing for national standards instead.

“The Senate’s TSCA reform bill was a major step forward toward fixing what has long been a broken system, and these letters of support show that businesses and public health experts alike agree on incorporating the Senate’s comprehensive approach into any final legislation,” said Sen. Jeff Merkley, D-Ore., in a statement. “It is my hope that we can move quickly to protect Americans from the toxic chemicals that appear in the products we come into contact with every day.”

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EPA and Business Find Much to Like in Senate’s TSCA Reform Bill

Mar 3, 2016 | Environmental Defense Fund

By Richard Denison

In the last day, two news outlets, Politico (“Administration largely sides with Senate negotiators in TSCA talks”) and CQ (“On Toxic Chemical Bills, Administration Prefers Senate's”), published articles about two letters recently issued on pending TSCA reform bills in the Senate and House. Both articles are well worth reading but are behind a paywall, so I’m providing a brief summary and links to the letters here for those without access to these Hill publications.
One letter was signed by EPA Administrator Gina McCarthy on behalf of the Administration. It identifies provisions in each bill that EPA prefers or has concerns about, based on the Administration’s TSCA reform principles.
The other letter was drafted by the American Alliance for Innovation (AAI), a large coalition of business interests, which provides a list of its “conference priorities.” (While it does not directly cite either bill, it identifies provisions AAI seeks to retain in or jettison from the final bill.)
These two letters are the latest in a series of comparisons of the two measures by interested parties, issued as House and Senate negotiators look to reconcile differences between them. We have blogged previously on the preferences and concerns expressed by two groups of state authorities (links to their assessments are provided in that post).
While the documents differ with respect to the scope of issues they address, the common characteristic of all four is that each identifies significantly more provisions they prefer in the Senate bill’s more comprehensive approach, compared to House bill.
Of course the goal is to get to the best law possible. EDF is confident that legislators on both sides of the aisle, in both chambers of Congress, are working hard to reach agreement on a strong bill to send to the president. The opportunity has never been so near at hand, if Congress can just finish the job.

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Why Is Our Government Working for the Private Good Over the Public Good?

Mar 4, 2016 | Truth-Out

It's been more than two years since a massive chemical spill in West Virginia left regulators puzzled over basic questions like, how toxic is this chemical? Does it pose a threat to pregnant women and children? How long will this chemical stay in the environment, or in people's bodies?
The reason we couldn't answer those questions was simple.
Chemicals that were invented or discovered before 1976 - thousands and thousands of chemicals that were developed in the early 20th century - were simply "grandfathered in" to the Toxic Substances Control Act (ToSCA) of 1976 and presumed safe until proven dangerous.
See more news and opinion from Thom Hartmann at Truthout here.
There was a massive public outcry in response to the Elk River chemical spill, and Congress quickly took up action to reform and strengthen the ToSCA.
So, more than two years later, how's that new legislation coming along?
If you happen to be on the board of a multibillion dollar agrichemical giant called Monsanto, it's going great!
Not so much though, if you happen to be a private citizen who actually wants accountability when corporations poison communities or expose them to cancer-causing chemicals.
Right in the middle of the sweeping new chemical safety bill that Congress is working out, Republicans in the House of Representatives have added one paragraph that would save Monsanto, and only Monsanto, hundreds of millions of dollars in lawsuits.
The clause relates to "PCBs," which are non-flammable Monsanto-produced chemicals that were used extensively in electronics, caulk, paints, pesticides and thermal insulation in buildings for most of the 20th century.
Starting in the 1930s, Monsanto manufactured nearly all of the 1.25 billion pounds of PCBs that were produced and sold in the United States.
In 1977, Monsanto stopped producing PCBs because of health concerns, and the EPA banned the chemical with few exceptions in 1979.
PCBs don't break down easily though: They stay in the environment and in sewage systems, they accumulate in the fat tissues in animals and humans, and they cause health problems like cancer.
Just last year, cities and school systems tried to sue Monsanto for hundreds of millions of dollars to get them to pay part of the cost to reduce PCB levels in sewer discharge and in construction caulk to meet federal and state regulations.
At the same time, another group of individuals with non-Hodgkins lymphoma related to PCB exposure sued Monsanto for damages.
If the House version of the new chemical safety bill passes into law though, those cities and schools will be stuck with the bill to clean up Monsanto's cancer-causing chemical, and individuals will be stuck with the bill to treat the cancers that the chemical caused.
That's a real possibility, because our government has stopped working for the public good, and now it works mostly to line the coffers of multibillion dollar corporations.
Thanks to the court rulings in Citizens United, Buckley v. Valeo and Santa Clara County v. the Southern Pacific Railroad, Monsanto is technically a person, and the money that Monsanto spends to put their shills in Congress is technically "free speech."
But these corporations apparently aren't happy with being seen as merely being equal to living, breathing human beings under the law.
No, they also use their incredible financial resources to go to court to make sure that certain laws just don't apply to them.
Right now, Monsanto is suing the state of California to make sure that consumers in California don't know that Roundup is probably cancerous.
Under a California law that was passed by ballot initiative back in 1986, it is illegal for businesses to knowingly expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving a clear and reasonable warning, and the discharge of such chemicals into a source of drinking water is prohibited.
Just makes sense right? Companies should tell consumers when they're being exposed to dangerous chemicals, and those chemicals should be kept out of people's drinking water.
Meanwhile, the World Health Organization's (WHO) International Agency for Research on Cancer found in 2015 that glyphosate, the main ingredient in Roundup, is "probably carcinogenic."
So this should be an open and shut case.
Monsanto produces a chemical that's recognized as cancerous, and the law says that they have to label products that contain cancerous chemicals.
But Monsanto is suing, saying that it's unconstitutional for a state agency to use findings from any international organization.
And that's just flat-out insane, because WHO research and the international exchange of public health data is critical to answering questions like "is this chemical linked to cancer?"
The fact is that these corporations don't really care about public health, they care about their bottom line.
They figure that it's cheaper to sue the state of California than to potentially lose out on sales by telling people about the fact that chemicals like those in Roundup can cause cancer.
And that's the same reason why Monsanto pays to get Monsanto-friendly politicians into Congress.
Buying elections might be expensive, but owning lawmakers who can write loopholes is cheaper than paying out hundreds of millions of dollars in lawsuits.
Our government should be protecting people's health, not corporate bottom lines.
We need a government that we can count on to inform us about health risks and protect us, because not everyone is a scientist, not all science is created equal and people just don't have the time to research every chemical that they're exposed to.
We need a government that we can trust to protect us from corporations that only care about shareholder profits, even when their products are killing Americans.
That's why it's time to repeal Citizens United and to pass a constitutional amendment that makes it clear that a corporation is not a person and money is not speech, because our government should work on behalf of the living, breathing citizens of this country.

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EPA Drops Dioxin in IRIS Agenda

Mar 4, 2016 | BNA Daily Environment Report

By Brian Dabbs

The Environmental Protection Agency dropped a carcinogenicity analysis on 2,3,7,8-tetrachlorodibenzo-p-dioxin, also referred to as dioxin, from its Integrated Risk Information System Agenda (IRIS) in December, prompting environmental and health advocates to criticize the agency for failing to follow through on roughly a quarter century of research.
The EPA told Bloomberg BNA, however, the agency continues to study cancer and non-cancer risks for dioxin on a site-by-site basis, and a former high-ranking official said a cancer assessment would do little to change industry behavior that leads to dioxin release.
“We have had reasonable clean-up guidance out there for a long time, and that seems to be serving the purpose,” Bill Farland, Colorado State University professor and former EPA lead on the dioxin reassessment, told Bloomberg BNA in late February. “I would not have expected great changes with a cancer re-assessment, particularly as general population background levels continue to decline in the US.”
The EPA IRIS program released a non-cancer health assessment of dioxin, an inadvertent combustion by-product, in 2012. The EPA previously classified dioxin as a probable human carcinogen, and many stakeholders suggest a cancer re-assessment wouldn't substantially alter earlier EPA evaluations of the chemical. Federal and state authorities have released numerous guidance documents for the chemical relating to industry communications with the public, waste management and carcinogen estimations, among other safety considerations.
Still a Disappointment
Still, the EPA failure to develop a reassessment is a grave disappointment, dioxin expert and Environmental Stewardship Concepts President Peter deFur told Bloomberg BNA March 3.
“So much effort went into this reassessment, and then the EPA turned over and said ‘we're not going to be doing a cancer review,' ” deFur said. “The positive impact would have been there's no longer any hesitancy or doubt on the risk.”
Dioxin is a toxic substance that causes reproductive and developmental problems, as well as damage to the immune system and interference with hormones, the EPA said. The chemical also has caused several environmental crises, including the Times Beach, Mo., contamination in 1983.
Science director at the Center for Health, Environment and Justice, Stephen Lester, went further, accusing the EPA of failing threatened communities.
“This decision affects people who are exposed to dioxin at hundreds of communities across the United States,” Lester told Bloomberg BNA in late February. “Without a final cancer assessment, federal and state health agencies will either ignore the cancer risk or use cancer risk values that are not as stringent and health protective as the draft cancer numbers were and would likely have been in the final cancer document.”
Safeguards Remain
Despite the lack of a cancer reassessment, the EPA continues to put in effect safeguards to protect the public from dioxin risks, EPA spokeswoman Melissa Harrison told Bloomberg BNA March 3.

“In the absence of an IRIS cancer slope factor for dioxin, the Superfund program utilizes alternative peer-reviewed sources of cancer toxicity values,” Harrison said. “At sites where there is a potential human health risk from dioxin exposures, we evaluate the potential risk for both cancer and non-cancer health effects.”

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ECHA to Minimize Changes to REACH Guidance for Now

Mar 4, 2016 | BNA Daily Environment Report

By Stephen Gardner

The European Chemicals Agency said it would minimize any changes to REACH guidance after May, to provide stability in the two years before the last REACH registration deadline, which falls on May 31, 2018.
ECHA said March 2 the “majority” of its guidance would be subject to a “moratorium on updates” during the two years, but that changes might be required if any modifications of the REACH regulation take place, or if ECHA upgrades its information technology systems through which REACH registration dossiers are submitted.
In some cases, changes to registration-related guidance would be completed only after the moratorium start date of May 31, 2016, but an update on this would be issued closer to the moratorium start date, ECHA said.
Under REACH (Regulation No. 1907/2006 on the registration, evaluation and authorization of chemicals), chemicals manufactured in, or imported into, the European Union must be registered with ECHA. Hazardous substances and high volume substances produced or imported in volumes of 1,000 metric tons or more per year were required to be registered before Dec. 1, 2010, and substances in the 100-1,000 metric ton range were required to be registered before June 1, 2013.

The third and final deadline will involve substances in the 1-100 metric ton range and is expected to involve many smaller and specialty chemical companies that might be less prepared than their larger counterparts for the REACH registration requirements.

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EPA Confirms Health Risks from Widely Used Cleaning Solvent

Mar 4, 2016 | E&E News PM

By Sam Pearson

A dry cleaning solvent previously flagged by health officials as a likely carcinogen poses a threat to women of childbearing age and workers, U.S. EPA said today.
EPA examined the chemical n-propyl bromide, also known as 1-Bromopropane or 1-BP, under its Work Plan Chemicals program. The program is the agency's attempt to make the most of its existing authorities under the Toxic Substances Control Act of 1976 to regulate chemicals already on the market, even as it pushes Congress to pass an update to the 39-year-old law.
The agency's draft risk assessment, released today, of the chemical found acute risks to women of childbearing age, who may suffer reproductive harm and developmental problems for their offspring.
The substance is used in some spray adhesives, in dry cleaning and spot cleaning applications, and for degreasing, EPA said.
Workers who are repeatedly exposed to the chemical also face health risks. The exposure may harm workers' nervous systems, as well as their kidneys, livers and reproductive systems, the agency said. It could also cause lung cancer.
Last month, the National Institute of Occupational Safety and Health, part of the Department of Health and Human Services, released for public comment a draft document on workers' exposure to 1-BP. It plans to hold a public meeting March 30 in Cincinnati to discuss its findings.
The Agency for Toxic Substances and Disease Registry has also conducted its own investigation of how 1-BP works at different durations of exposure.
According to EPA data, the chemical was imported by Dow Chemical Co. and Special Materials Co. in 2011. It was manufactured at an Albemarle Corp. site in Magnolia, Ark., at undisclosed amounts and by another company that listed its identity as confidential business information. The agency said in a prepublication copy notice of the report that more than 15 million pounds of 1-BP were produced or imported to the United States in 2011.
EPA previously finalized a rule last year to require companies to report emissions of 1-BP under the Emergency Planning and Community Right-to-Know Act over the opposition of Albemarle (E&ENews PM, Nov. 20, 2015).
A spokeswoman for the company couldn't be reached for comment today.
The agency said consumers can avoid harm from products containing 1-BP by reviewing product labels to determine whether the chemical is present and only using these products outdoors, in ventilated areas and while wearing gloves. Users also need to ensure they do not inhale fumes from products containing 1-BP, the agency said.
"This draft assessment will provide workers and consumers with critical information about the risks associated with using 1-BP in these applications," Jim Jones, EPA's assistant administrator for chemical safety and pollution prevention, said in a statement.
Jones added that the assessment was peer-reviewed and defended it as "the best available science in evaluating this chemical."
EPA's findings are a required step if the agency wants to ban the chemical under Section 6 of TSCA. To do so, the agency must later find that 1-BP presents an unreasonable risk to the public and that its action is the least burdensome option for producers of the substance. Legislation to update TSCA under review in the House and Senate may alter the standard EPA faces to implement a ban.
EPA could also reach out to companies in the hope they will agree on their own to stop making 1-BP.
The draft assessment will be subject to a 60-day public comment period once it is published in the Federal Register.

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Chemical Data Rule Guidance for Toll Companies

Mar 4, 2016 | BNA Daily Environment Report

The Environmental Protection Agency issued guidance to help toll manufacturers complete the Chemical Data Reporting (CDR) rule submissions they must provide the agency between June and September. Toll manufacturing involves one company contracting with a second company to make a specific chemical exclusively for the first company. Toll manufacturers operate chemical production facilities that are among those subject to the CDR. Under that regulation, chemical manufacturing facilities that made or imported 25,000 pounds or more of a chemical—in certain cases 2,500 pounds or more—in 2012, 2013, 2014 or 2015 must submit production volume and other information to the EPA between June 1 and Sept. 30. The toll manufacturing guidance, posted online March 1, is one of six factsheets the agency has released in 2016 to help chemical manufacturers comply with the CDR. The six factsheets are available athttp://www.epa.gov/chemical-data-reporting.

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Chemical Security News - There are no clips to report at this time.

Transportation News

Senate Passes Pipeline Safety Bill

Mar 4, 2016 | PoliticoPro - Whiteboard

By Andrew Restuccia and Elana Schor

The Senate passed pipeline safety legislation tonight that reauthorizes the Pipeline and Hazardous Materials Safety Administration, shifting focus to the House.
The bill, S. 2276, got bogged down in a behind-the-scenes fight over the transparency of the industry's emergency response plans for pipeline leaks or accidents.
In a bid to ensure greater oversight of the plans, Sen. Ed Markey included a provision in the bill that allows lawmakers on the committees with jurisdiction over PHMSA to review unredacted versions of the plans.
But industry groups and several Republicans worried that the Democrat's provision could make it easier for the unredacted plans to leak, potentially making it easier for terrorists to target pipeline infrastructure. After more than a week of tense talks over the provision, GOP opponents of the measure agreed to drop their holds on the bill in hopes that the issue can be worked out in conference.
The Senate bill reauthorizes PHMSA until fiscal year 2019 and requires the Transportation secretary to provide Congress with regular updates on the status of several long-delayed PHMSA rulemakings.
A House discussion draft of the PHMSA bill released by the Energy and Commerce Committee does not include Markey's provision. But House Republicans are already balking at language in the draft that would allow the public to sue PHMSA over alleged regulatory inaction, and some are also skeptical of a Democratic push -- also supported by PHMSA — to give the agency authority to impose emergency restrictions on the entire industry after a disaster.

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Pipeline Safety Administration Bill Passes Senate

Mar 4, 2016 | BNA Daily Environment Report

By Ari Natter

The Senate passed legislation that would reauthorize the Pipeline and Hazardous Materials Safety Administration by unanimous consent March 3, after lawmakers who had been objecting to the legislation dropped their holds on the bill.
In addition to reauthorizing PHMSA through 2019, the SAFE PIPES Act (S. 2276), would require the agency to address 16 outstanding mandates required by a 2012 law before initiating most other new rulemakings (38 DEN A-22, 2/26/16).
“For families, consumers, workers, and businesses across our nation, the safety and security of our extensive pipeline network must remain a top priority,” Sen. Deb Fischer (R-Neb.), the bills sponsor said in a statement. “The bill we passed today will enhance the safety of these pipelines through stronger congressional oversight and necessary improvements to PHMSA.”
Lawmakers who blocked the bill from moving last week agreed to drop their objections after a compromise was reached on how the bill treats redacted proprietary information contained in risk management plans, a Senate aide said on background.
“We were working through some stuff, and we got it all worked through,” Fischer said in an interview prior to the vote.
Other Provisions Outlined
Other highlights of the Senate bill, which is supported by groups representing companies such as Cheniere Energy Inc. and Kinder Morgan Inc., include that it would lower maximum funding levels for the pipeline safety program, give the agency “direct hire” authority to help fill open inspector positions and require the promulgation of standards for underground natural gas storage facilities.
It also would establish federal standards for underground natural gas storage facilities like the one owned by Southern California Gas Co. that leaked methane in Aliso Canyon, California.
A House version of the bill, which was unveiled in draft form, was the subject of a March 1 hearing by the House Energy and Commerce Subcommittee on Energy and Power (41 DEN A-4, 3/2/16).

Authorization for the Pipeline and Hazardous Materials Safety Administration's pipeline safety programs lapsed Sept. 30.

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Huge Expected Hike in Freight Shows Investment Needs -- DOT

Mar 4, 2016 | E&E News PM

By Ariel Wittenberg

The amount of freight traversing the nation's transportation network is expected to grow 40 percent in the next 30 years, according to estimates released today by the Bureau of Transportation Statistics.
By 2045, freight moving on all modes of transportation, including airplanes, ships, pipelines, rails and trucks, is projected to reach 25 billion tons. The value of freight in the system is also expected to increase by 92 percent to $37 trillion.
By comparison, 18 billion tons of goods, worth roughly $19.2 trillion, was transported in the nation's network during 2015.
Transportation Secretary Anthony Foxx said the projections "affirm" the need for investment in the transportation sector.
"Freight is the stuff that helps us live our lives, and it's the commodities and products that drive our economy," he wrote on his blog. "It has to move."
Foxx noted that the transportation reauthorization bill passed in December contains multiple provisions to increase the nation's freight capacity, but said President Obama's $98 billion fiscal 2017 budget request is needed to prepare the nation for the future.
"It's a forward-looking proposal that would set America on a steady course for decades to come," he wrote.
Obama's proposal was panned by Republicans in Congress, who called it "dead on arrival" (E&E Daily, Feb. 5).
DOT's projections show that trucks are the most-used method for transporting freight, moving 64 percent of tonnage in 2015. That tonnage is expected to grow 44 percent by 2045.
The department also predicts that the mix of commodities will change over the next 30 years, with energy commodities' tonnage expected to fall from 38 percent to 31 percent of total tonnage by 2045, largely due to increased demand for other goods.

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Group Asks Lawmakers to Push for Updated Fire Safety Regulations

Mar 4, 2016 | The Hill - E2 Wire

By Lydia Wheeler

The Industrial Packaging Safety Alliance, known as PackSafe, is appealing to lawmakers for help getting the Obama administration to update its safety regulations for flammable liquids.
PackSafe has asked members of Congress to encourage the Occupational Safety and Health Administration (OSHA) to align its regulations with the National Fire Protection Association’s safety requirements for the transportation and warehousing of hazardous and flammable liquids.
“We’re reaching out to members of Congress because of OSHA’s unwillingness to act on something we see as reasonable enforcement and upkeep of existing regulations,” said John McQuiad, the group’s senior adviser.
PackSafe claims confusion over the current regulatory framework threatens the safety of workers, the public and the environment.
“When a product is shipped, rules from the Department of Transportation govern the type of container selected, but when that same product arrives on the warehouse floor, it’s under OSHA’s jurisdiction,” McQuaid said.
In June the group sent a letter to OSHA asking it to update its rule. A month, later OSHA responded. In the letter to PackSafe, OSHA’s Director of Standards and Guidance William Perry said it would be a “complex undertaking” to update the rules.

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Energy and Environment News

(ACC Mentioned) Michigan Governor Appeals FEMA Denial of Flint-Related Aid

Mar 4, 2016 | BNA Daily Environment Report

Michigan Gov. Rick Snyder (R) appealed March 3 the Federal Emergency Management Agency's denial of certain emergency protective aid related to the Flint drinking water crisis as major chemical manufacturers threw their support behind Senate compromise language to help the Michigan city.
“While government and independent experts say the quality of the water is improving, there is a long road ahead for Flint's recovery,” Snyder said in a March 3 news release. “We are continuously working on ways to help the people of Flint recover from this health crisis. Assistance from our federal partners could go a long way in moving Flint forward.”
Snyder requested aid to help address the public health issues sparked by the City of Flint's decision to switch its drinking water source to the Flint River. Lead leached into drinking water from corroded pipes because the city switched its water source without adding corrosion controls, as required by the Safe Drinking Water Act, leaving more than 8,000 children at risk of exposure to high lead levels.
Rafael Lemaitre, a spokesman for the federal agency, confirmed to Bloomberg BNA that FEMA denied Jan. 22 the type of aid requested by the governor because it determined it wasn't appropriate. However, he said in an e-mail the agency is providing direct federal assistance that has translated so far to nearly 2.2 million liters of water, 237,000 water filter replacement cartridges and 56,000 water and pitcher filters to the state for Flint.
Lemaitre declined to give Bloomberg BNA the Jan. 22 denial document. Snyder's office didn't respond to Bloomberg BNA's message requesting the appeal document that it submitted to the federal agency.
Chemical Companies
On Capitol Hill in Washington, the American Chemistry Council has thrown its support behind a Senate drinking water aid package for Flint that is linked to the stalled energy legislation, according to a letter obtained by Bloomberg BNA March 3 (see related story).
The chemicals group told Senate Environment and Public Works Committee Chairman Jim Inhofe (R-Okla.) in the Feb. 26 letter that the Senate should take action now on compromise language introduced by Sen. Debbie Stabenow (D-Mich.), Inhofe and several other senators. Water infrastructure is crucial, not just to public health but also to “virtually all manufacturing,” it said.
“While state and local authorities have primary responsibility for maintaining and operating water treatment and delivery systems, it has become very clear that many states and localities lack the resources needed to maintain even basic water systems in a way that ensures water is clean, safe and continuously available,” Cal Dooley, president of the council, said in the letter. “We urge the Senate to act on this critically important issue.”

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Chief Justice Roberts Denies Bid for Mercury Rule Stay

Mar 4, 2016 | BNA Daily Environment Report

By Patrick Ambrosio

U.S. Supreme Court Chief Justice John Roberts Jr. declined to stay implementation and enforcement of the Environmental Protection Agency's Mercury and Air Toxics Standards for power plants, sending a signal that the court won't widely grant such relief (Michigan v. EPA, U.S., No. 15A886, 3/3/16).
Roberts rejected a request by 20 states, led by Michigan, to stay the mercury standards pending resolution of a yet-to-be-filed petition requesting vacatur of the MATS rule. The unpublished denial, announced March 3 by the Supreme Court's public information office, was issued one day after the Environmental Protection Agency argued that the states had failed to meet the legal requirements for a stay of the mercury rule.
Several attorneys said March 3 that Roberts's decision indicates that the court will reserve its authority to grant stays for extraordinary circumstances where the facts of the case justify such relief. The stay request on the mercury rule was viewed as a test of the court's willingness to stay regulations following its February decision to halt implementation of the Clean Power Plan, the Obama administration's carbon dioxide standards for existing power plants (West Virginia v. EPA, U.S., No. 15A773, 2/9/16;37 DEN A-2, 2/25/16).
Court's Action Dissected
“What this shows is that the court was not seeking to open a new avenue for review of agency rules with its earlier stay grant, but that it would consider each request in its own context and decide if a stay was truly justified by the specific circumstances—the normal course of practice,” James Rubin, a partner at Dorsey & Whitney LLP, told Bloomberg BNA in an e-mail.
EPA spokeswoman Melissa Harrison, in a March 3 e-mail, said the EPA is “very pleased” with Roberts's decision to leave the “practical and achievable” standards in place.
Harrison said the EPA will issue in April a final supplemental rulemaking to address a 2015 Supreme Court ruling, which determined the agency erred when it failed to consider cost in its determination that it is “appropriate and necessary” to regulate power plant emissions under Section 112 of the Clean Air Act (Michigan v. EPA, 135 S. Ct. 2699, 2015 BL 207163, 80 ERC 1577 (2015); 125 DEN A-1, 6/30/15).
When asked about the next step for the state applicants, Andrea Bitely, a spokeswoman for Michigan Attorney General Bill Schuette (R), said the attorney general is still reviewing Roberts's decision to deny the stay.
‘Floodgates' Not Open
While some have predicted that the Clean Power Plan stay would “open up the floodgates” for stay requests to the Supreme Court, Roberts's decision to deny the stay of the mercury rule signals that such relief is “reserved to very serious issues” where the court is concerned that the EPA has gone well beyond its authority, said Richard Alonso, a partner in the Environmental Strategies Group at Bracewell LLP.
“The granting of the stay of the Clean Power Plan was extremely unique because of the legal vulnerabilities of the Clean Power Plan,” Alonso told Bloomberg BNA.
The Supreme Court's 5-4 vote to stay the Clean Power Plan, which was decided before the death of Justice Antonin Scalia, was largely viewed as a signal that the court had serious concerns about the legality of the regulation, which is the centerpiece of the Obama administration's efforts to address climate change (27 DEN A-1, 2/10/16).
Deficiencies Identified
Alonso said that while the Supreme Court in 2015 identified legal deficiencies in the rulemaking process that resulted in promulgation of the MATS rule, those deficiencies weren't of the caliber that would require the Supreme Court to step in and freeze the rule.

While the 2015 Michigan v. EPA decision found a flaw in the EPA's rulemaking process, the Supreme Court left the fate of the regulation up to the U.S. Court of Appeals for the District of Columbia Circuit, which decided in December to remand the rule back to the EPA without vacatur (White Stallion Energy Ctr. LLC v. EPA, D.C. Cir., No. 12-1100, 12/15/15).
Stays Only in ‘Rarest Circumstances.'
Thomas Lorenzen, a partner at Crowell & Moring LLP, said Roberts's rejection of the MATS stay request confirms that a Supreme Court stay is extraordinary relief that will “only be granted in the rarest circumstances.”
The ability to request a stay from the Supreme Court has always been an option for parties that challenge regulations, but those requests have rarely been made because parties are aware that the court would “rarely grant” that type of relief, Lorenzen said.
“That doesn't mean it won't happen, but it's not going to be the usual case,” Lorenzen told Bloomberg BNA. “Ultimately I think the Clean Power Plan is an extraordinary case.”
Both Alonso and Lorenzen agreed that it is possible that the court could see an increase in the frequency of stay requests that it receives on regulations.
Court Sending Signal
Alonso said it may take a few more denials by the Supreme Court for petitioners to get a signal that this is unusual relief that shouldn't be sought for routine environmental litigation. Lorenzen said he wouldn't be surprised to see petitioners try this tactic in the future, but he noted that litigants want to maintain their credibility before the Supreme Court.
“I expect they will avail themselves of it only when they have a good case,” Lorenzen said.
Roberts's decision to decide on the stay request himself, rather than bring the issue to a full vote of the court, does provide the state applicants with another opportunity to seek a stay, if they choose to take that route.
The rules of the Supreme Court allow parties to submit a subsequent stay petition with the court in the event that their initial petition is rejected by a single justice. In the case of the MATS stay request, that petition would need to be submitted to Justice Anthony Kennedy, the most senior justice on the court.
States ‘Could Try' to Submit Petition
Sean Donahue, an attorney who represented the Environmental Defense Fund in litigation over the MATS rule, told Bloomberg BNA in an e-mail that states “could try” to submit another petition to the court, but he said that “seems unlikely.”
Rubin of Dorsey & Whitney said that there isn't likely a majority of the court that would be willing to grant a stay of the MATS rule, given the death of Scalia and the fact that four justices dissented from the 2015 ruling in Michigan v. EPA.
Decision Welcomed by Environmental Advocates
The announcement that the mercury standards will remain in place was welcomed by several congressional Democrats and environmental advocacy groups.
Sanjay Narayan, managing attorney at the Sierra Club's Environmental Law Program, said in a statement that the mercury standards protect the public from a variety of health harms, including irreversible neurological damage in children.
Given that the utility industry has already spent most of the money needed to comply with the standards and that the EPA intends to complete the required cost analysis in April, it “would make no sense” to halt those health protections, Narayan said.

Sen. Barbara Boxer (D-Calif.), ranking Democrat on the Senate Environment and Public Works Committee, said in a statement that it was a “great relief” that the court decided to leave in place a rule that controls emissions that are linked to a variety of health issues, including brain damage in children, cancer and respiratory problems.

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CPAC Panels Call for 'Another Justice Scalia' to Kill Rule

Mar 4, 2016 | E&E Daily

By Amanda Reilly

Conservatives vowed yesterday to place "another Justice [Antonin] Scalia" on the Supreme Court to ensure that the Obama administration's carbon rule for power plants would not survive legal challenges.
At the Conservative Political Action Conference, or CPAC, conservative panelists bashed the rule and President Obama's other climate initiatives as part of an agenda to drive up electricity prices to force a shift away from coal-fired power.
But Scott Pruitt (R), attorney general for Oklahoma, predicted that the Clean Power Plan would survive past the U.S. Court of Appeals for the District of Columbia, making it the Supreme Court conservatives' last chance to kill the program.
"We are not terribly optimistic that ... we're going to win as a collection of states," Pruitt said.
On a 5-4 vote backed by its conservative wing, the Supreme Court last month took the unprecedented step of freezing the Clean Power Plan until litigation over the program is resolved. Less than a week after the decision, the high court's conservative leader, Scalia, passed away.
The D.C. Circuit is scheduled to hear arguments in early June.
Pruitt, who is among the attorneys general challenging the Clean Power Plan, noted that among the last things Scalia did on the Supreme Court was to vote for the stay of the program.
He also charged that Obama had ensured that his rules make it through legal challenges by placing liberal justices on the D.C. appeals court. In the case of a 4-4 tie at the Supreme Court over the Clean Power Plan, the rule would survive.
Pruitt said the best-case scenario for the Clean Power Plan challenge would be for the Supreme Court to keep the case until a new ninth justice is appointed under the next administration.
"This election in November is consequential for many reasons, but the most consequential reason from my estimation is the control of the U.S. Supreme Court going forward," he said. "We must have another Justice Scalia."
Sen. Ron Johnson (R-Wis.), who linked stagnant wages with businesses' increased regulatory burden, promised the Senate would confirm a "Justice Scalia replacement that is like Justice Scalia in 2017," echoing Republican leadership's promises that the Senate will not confirm any replacement that Obama nominates.
"The Republican majority in the Senate will not allow the Supreme Court to flip. You can take that to the bank," Johnson said.
Johnson, who faces a tough re-election fight, further said that there was "no such thing as moderate judges," suggesting that any judges who find the Clean Power Plan to be legal are "super-legislators" not following the Constitution.
Conservative attorneys general said they wouldn't sit idly during the last year of Obama's presidency, suggesting they would continue to oppose any regulations that come out of EPA that they believe overreaches.
Republican Attorney General Leslie Rutledge of Arkansas boasted that she's "been part of six lawsuits against EPA already." Rutledge is also among attorneys general who are challenging the Clean Power Plan.
"As attorney general, I'm not merely going to stand on the dock and wave as the EPA embarks on this voyage to take statutory claim over our nation's economy," she said.
Earlier in the afternoon, members of a panel organized by the Texas Public Policy Foundation skewered the Obama administration's broader climate agenda.
"The administration's goal is to drive up electricity prices," said Nicolas Loris, a fellow at the Heritage Foundation and previously an associate at the Charles G. Koch Charitable Foundation.
Climate change regulations will hurt lower-income families and millennials' chance at finding jobs out of college, argued Megan Toombs, outreach coordinator for the conservative Cornwall Alliance.
Toombs went as far as to suggest that future regulations to address climate change could lead to Americans having to curtail their Internet usage because electricity will become too expensive.
"If you look sort of at the direction that regulations are taking, if they're allowed to continue freely, then I think eventually we could get to that point," she said.
EPA has found that, in the longer term, the Clean Power Plan will lower electricity prices.
Oren Cass, a senior fellow at the Manhattan Institute -- which has promoted natural gas as a driver of carbon reductions -- said that the stay of the Clean Power Plan does nothing to allay the concerns that conservatives have.
"The EPA is a creative regulatory machine with the best environmental lawyers, both internally and from the outside," he said, "who have made their career out of finding ways to choose very old laws and use them to implement policies the American people don't actually support."
Environmental groups have released polling data finding that the majority of Americans support the Clean Power Plan.
Johnson said EPA had taken too much power thanks to the decision in Chevron USA Inc. v. Natural Resources Defense Council Inc., in which the Supreme Court held that courts should give deference to agency interpretations of statutes.
He urged Congress to take another look at the Clean Air Act to better clarify EPA's role.
"It's entirely appropriate," he said, "to get into the Clean Air Act -- and quite honestly any piece of legislation -- and clarify it so that agencies don't have the wherewithal to interpret it themselves."

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Attorneys Suing over CWA 'Jurisdiction' Determinations Tout Broad Support

Mar 3, 2016 | InsideEPA

By David LaRoss

Attorneys suing to win a Supreme Court ruling that would allow pre-enforcement judicial review of regulators' findings for when waters are covered by the Clean Water Act (CWA) are touting a slew of amicus briefs as showing broad support for their case, and predicting a win despite the death of Justice Antonin Scalia.
During a March 3 press call, attorneys for the respondents in Army Corps of Engineers v. Hawkes Co., et al.,said they are “confident” that the eight-member high court will rule against the Corps even without Scalia, who was often a strident critic of CWA policies, based in part on the landmark 2012 case Sackett v. EPA, where the justices agreed that CWA compliance orders crafted by EPA could be challenged in court before enforcement.
“The fact that this was a unanimous decision suggests that even with the loss of Justice Scalia who passed away recently and who authored the Sackett decision, it is not likely to have an effect on the case,” said attorney Reed Hopper, representing the peat mining company Hawkes in its bid for judicial review of the CWA findings.
Hawkes and its allies that have filed amicus briefs are hoping to extend the Sackett precedent to cover CWA jurisdictional determinations (JDs), which are regulators' formal findings on whether particular waterbodies are “waters of the United States” subject to federal controls and permit requirements.
Courts have long held that JDs are not “final action” subject to suit because they carry no legal consequences, requiring property owners to instead seek a CWA permit and then challenge its terms, or to raise jurisdiction as a defense against an enforcement action.
But the U.S. Court of Appeals for the 8th Circuit held in a unanimous ruling for Hawkes that JDs create practical consequences for recipients, leading the Corps to appeal the issue to the Supreme Court.
Along with the company's own arguments calling for the high court to allow pre-enforcement suits over JDs, attorneys on the March 3 call touted the fact that at least 15 amicus briefs have been filed on Hawkes' behalf, while no third parties have asked the justices to rule for the Corps.
“[W]hen taken together, [the amicus briefs] send an overwhelming message to the Court: justice requires that Hawkes, and all landowners, have access to the courts when they face an overreaching, land-grabbing federal government,” Hawkes attorney Matt Miller says in a March 2 blog post.
Pre-Enforcement Review
Many of the amicus briefs, including two filed by separate groups of states, argue that rejecting pre-enforcement review of JDs would upset the CWA's federalist structure by allowing federal agencies to claim ever-growing authority over waters that would otherwise be solely under state control.
“As this Court has recognized, whether brought by States in their capacity as landowners or by other property owners, these kinds of lawsuits are an important bulwark against federal encroachment,” says a March 2 brieffiled by 23 states, led by Ohio and West Virginia.
That argument echoes the separate brief filed the same day by North Dakota, Alaska, Colorado, South Dakota, Idaho and Nebraska, where they argued that JD challenges will be needed to stop EPA and the Corps from claiming expanded CWA jurisdiction under either their controversial joint rule defining the scope of the law, or another policy with the same goals.
Likewise, the California Farm Bureau Federation, with other Golden State agriculture and business groups, argue in their own March 2 brief that courts hearing JD challenges is the only way to protect private landowners from the fundamental “vagueness” of the CWA. The water law as written applies to “waters of the United States” -- a notoriously vague category that regulators and courts have struggled to define.
“[T]he tremendous uncertainty that ordinary people already face in trying to understand how they can structure their conduct so as to comply with the Act would only get worse. For a statute whose violation imposes potential criminal penalties, such uncertainty is constitutionally intolerable,” the California groups argue.
'Practical Effects'
Other amicus parties echo Hawkes' claim that even though there are no distinct penalties under the water law for JD recipients who disregard the regulators' findings, they still carry significant practical impacts requiring immediate judicial review, such as hurting a property's resale value and pressuring owners not to fill marginal wetlands.
“Without a doubt, the presence of federally designated wetlands on a parcel of property can constrain its use and considerably impact its value,” the National Association of Home Builders argues in its brief to the high court.
The National Federation of Independent Business argues in its amicus brief that after receiving a JD “most small business property owners will feel compelled to either abandon whatever development plans they might have in mind, or to pursue a federal permit to carry-out those plans. Either way, their constitutionally protected common law property rights are infringed, as if the property was deemed subject to a federal conservation easement.”
Other briefs argue that the Corps is trying to assert what amounts to legislative and judicial authority as the sole arbiter of which waters are jurisdictional.
For instance, the Center for Constitutional Jurisprudence argues in its amicus brief that without the possibility of judicial review of JDs, regulators will be able to effectively rewrite the scope of the water law.
“Without judicial review, the Corps can force a property owner to abandon his property. If the owner decides to pursue the permit, the Corps controls the length and cost of the process. . . . This combination of executive, legislative, and judicial power allows the Corps to expand its jurisdiction beyond the reach of Congressional intent without ever having to face judicial review,” the Center argues.
'Interpretive Rules'
The Ohio Chamber of Commerce and other Buckeye State groups in their brief seek to counter the Department of Justice's claim on behalf of the Corps in a Jan. 22 merits brief that allowing court review of JDs will discourage agencies from releasing their findings, depriving land owners of clarity on regulators' view of the CWA.
The Chamber argues that such an outcome is impossible, because the Administrative Procedure Act requires agencies to provide interpretations of their rules and governing statutes in response to any reasonable request.
“The Corps cannot categorically refuse petitions from landowners requesting jurisdictional determinations, regardless of whether judicial review is available,” it says.
Rather, a ruling for the Corps would give agencies precedent to deny all judicial review of such interpretive rules, the Chamber continues. “[T]he government seeks to shrug off the vital remaining check on the power of agencies to issue interpretative rules with significant coercive effects: the right of judicial review,” its brief says.
Oral argument in Hawkes is scheduled for March 30.

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Resolution Sets 50 Percent Clean Energy Target by 2030

Mar 4, 2016 | BNA Daily Environment Report

By Anthony Adragna

Thirty Democratic senators and more than 100 House lawmakers backed an “aspirational but achievable” resolution March 3 that called for more than 50 percent of U.S. electricity production to come from clean and carbon-free sources by 2030.
The resolution, introduced by Sen. Ben Cardin (D-Md.) and Reps. John Delaney (D-Md.) and Ben Lujan (D-N.M.), offers a blueprint and standard to show the rest of the world and the private sector that the U.S. will continue to push toward greater use of clean energy, Cardin and Delaney told reporters.
“There have been lots of points of history where Congress was the last group to get the joke, if you will, and I think this is going to be that issue,” Delaney said. “Because the rest of the world and the rest of the country is largely much more advanced on their thinking than Congress is on the whole.”
The resolution, supported by senior Democrats like Senate Minority Leader Harry Reid (Nev.) and Assistant Democratic Leader James Clyburn (S.C.), also calls for Congress to enact new legislation to support the goal of 50 percent renewable energy production by 2030.
No Republicans currently back the resolution, though Delaney said he would be reaching out to two to three dozen “forward-leaning” House Republicans in hopes of getting their support. Both Cardin and Delaney acknowledged their effort was unlikely to get voted on.
New Frame of Debate
But the Democrats both said they increasingly would highlight the public health, job creation and national security benefits of accelerating the shift to cleaner energy sources.
Delaney called the inclusion of tax credit extensions for the wind and solar industry in a broad government spending package in December 2015 a “game changer.” The Department of Energy estimates the extensions will fuel 53 gigawatts of newly installed renewable energy capacity by 2020 (35 DEN A-4, 2/23/16).
“We have to keep pushing,” Delaney said. “We won't get there on our current trajectory, but our current trajectory has improved a lot” with policies like the Obama administration's Clean Power Plan, which limits carbon dioxide emissions from the power sector, and the tax credit extensions.
The goal of 50 percent clean and carbon-free electricity generation by 2030 has also been a factor in the Democratic presidential primary where both former Secretary of State Hillary Clinton and Sen. Bernie Sanders (I-Vt.) have endorsed it. None of the leading Republican presidential candidates have.

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Texas, Utility Groups Sue EPA over Haze Emissions Plan

Mar 3, 2016 | InsideEPA

Texas and electric utility industry groups have filed suit against EPA opposing the agency's federal plan for curbing regional haze in national parks and wilderness areas in Texas and Oklahoma, which imposes first-time emissions controls on several Texas power plants.
In three lawsuits filed March 1 and 2 in the U.S. Court of Appeals for the 5th Circuit, Texas, power company Luminant and the Utility Air Regulatory Group, which represents numerous large utilities, ask the court to review EPA's Jan. 5 final rule partially rejecting the haze state implementation plans (SIPs) of both Texas and Oklahoma, and replacing them with federal implementation plans (FIPs).
EPA's haze program aims to restore visibility in “Class I” areas such as national parks by 2064 by requiring states to craft SIPs outlining the pollution controls they will impose on industrial sources of haze-forming emissions. If EPA rejects a haze SIP as inadequate, it crafts controls directly for a state with a FIP.
The suits do not state reasons for the litigation but industry groups were critical of the FIP when proposed, saying it departed from principles EPA has previously relied on when approving SIPs. Luminant in comments on the proposed version of the FIP said the proposal “does not reflect the flexibility and discretion that States are granted to determine 'reasonable progress' under the Clean Air Act and EPA's own regional haze regulations.”
Further, Luminant said the proposal treats Texas “differently” than other states and “reflects a drastic shift” in how EPA reviews state regional haze SIPs, adding that the proposal “creates new standards and requirements that EPA has not imposed on other States in review of their SIPs for the first planning period.”
Luminant also argued that under the FIP, Texas would have to demonstrate reasonable progress goals at individual sources, which is “contrary to the statute, regulations, and guidance for reasonable progress,” and that EPA doesn't account for visibility goals that have already been achieved, or that compliance with EPA's Cross-State Air Pollution Rule and the Mercury and Air Toxics Standards will result in lower sulfur dioxide (SO2) emissions.
The Texas Commission on Environmental Quality (TCEQ), the state's air regulator, said in comments on the FIP that “EPA is unjustified in proposing additional controls since the three Class I areas have already achieved better visibility than the goals EPA proposes to set for 2018.” Also, TCEQ says that EPA “inappropriately” found the state had conducted its reasonable further progress analysis incorrectly, when the agency should defer to the state on the issue.
In the rule, the agency disapproved Texas' SIP because it says the state did not propose emissions controls sufficient to ensure reasonable further progress not only in Texas, but also in neighboring Oklahoma.
The agency further disapproved Oklahoma's plan, imposing a FIP for the state with respect to the Wichita Mountains area that receives cross-border pollution from Texas.
Texas in its proposed SIP did not require controls on its power plants beyond existing regulatory mandates, but EPA in the FIP imposes additional controls or control upgrades for SO2, which contributes to particulate matter formation, from 15 electrical generating units at several power plants.
Environmentalists have welcomed the plan for imposing controls they say are long overdue at Texas power plants, but also because they say it marks an important precedent, in that the agency is prepared not only to disapprove flawed SIPs where states -- such as Texas -- make mistakes, but also disapprove the SIPs of other states that are adversely affected by their neighbor's failure to curb emissions.

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