Preview Newsletter
ACC PM 3/17/16
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(ACC Mentioned) House Oversight Committee to Investigate IRIS Programme
Mar 17, 2016 | Chemical Watch
By Kelly Franklin
The US House of Representative’s Committee on Oversight and Government Reform has requested the EPA furnish documents to help it “better understand the current state” of the agency’s Integrated Risk Information System (IRIS) programme. -
Grocery Manufacturers of America Found Guilty of Money Laundering in GMO Campaign
Mar 17, 2016 | Triple Pundit
By Jan Lee
Companies may have a voice in Washington, D.C. following the Citizens United decision. But in Washington state, when company-funded organizations shield donors’ identities, it’s called money laundering. -
Regulation Must Better Promote Innovation, Say Green Chemistry Experts
Mar 17, 2016 | Chemical Watch
By Leigh Stringer
Chemical policies can curb the pace of innovation and prevent the commercialisation of greener chemical compounds, say two leading green chemistry experts. -
Federal Panel Backs Industry Calls To Weaken EPA's Proposed RMP Rule
Mar 17, 2016 | Inside EPA
By Dave Reynolds
A federal panel that weighed the costs to small businesses of EPA's proposed revisions to the Risk Management Plan (RMP) facility safety rule is urging EPA to weaken proposed requirements for third-party audits and incident reviews, and to justify new hazard analysis, backing industry claims the proposal will impose unnecessary burdens. -
CPSC Commissioner: State Toy Regulations Bring 'Chaos'
Mar 17, 2016 | Chemical Watch
By Kelly Franklin
A US Consumer Product Safety Commission (CPSC) commissioner says state-level regulation of children’s products creates “confusion” and “chaos”. -
Medical Device Industry Could Face New Reporting Requirements
Mar 17, 2016 | Chemical Watch
By Catherine Cooney
A US Senate committee has unanimously voted for legislation, requiring manufacturers of reusable medical devices to submit additional efficacy, labelling and disinfection data to the FDA. -
US EPA Seeks Additional Safer Choice Reviewers
Mar 17, 2016 | Chemical Watch
The US EPA’s Safer Choice programme is seeking additional third-party profilers (TPP). -
Echa Round-Up
Mar 17, 2016 | Chemical Watch
Echa has published a searchable list, containing all the information on the harmonised classification and labelling of hazardous substances. -
Work Continues to Align REACH and OELs
Mar 17, 2016 | Chemical Watch
By Philip Lightowlers
Echa has proposed a workplan for discussion with DG Employment’s Scientific Committee on Occupational Exposure Limits (Scoel), to review and identify technical inconsistencies in the regulation of compounds under REACH, and in occupational exposure limits (OELs). -
Five Myths About Asbestos In Schools
Mar 17, 2016 | Environmental Working Group
By Megan Boyle
Your kids spend most of the day at school, and you may be surprised at what they could be breathing in their classrooms, cafeterias, hallways and gymnasiums: deadly asbestos fibers. -
Observers: Judge Garland Typically Deferential to EPA
Mar 17, 2016 | BNA Daily Environment Report
By Rebecca Wilhelm
Chief Judge Merrick Garland, President Barack Obama's nominee to fill the U.S. Supreme Court seat left vacant by the death of Justice Antonin Scalia, has generally been deferential to Environmental Protection Agency regulations, legal observers told Bloomberg BNA March 16. -
Energy Bust Powers Down Generator Sales
Mar 17, 2016 | Wall Street Journal
By James R. Hagerty and Bob Tita
Brandon Millican, who owns construction businesses in Malta, Mont., spotted an opportunity several years ago when shale-oil production soared in western North Dakota. He bought three Caterpillar Inc. generators for roughly $138,000 each and rented them to oil-production firms needing mobile electric power for their equipment. -
Pipeline Safety Regulator to Roll Out New Natural Gas Plan Today
Mar 17, 2016 | Politico Pro - Whiteboard
By Elana Schor and Andrew Restuccia
The Pipeline and Hazardous Materials Safety Administration today plans to roll out a long-awaited safety rule that expands assessment and repair protocols to new natural gas pipeline segments, agency sources told POLITICO. -
Oil Company Shuts All N.M. Injection Wells, Faces Fines
Mar 17, 2016 | E&E Energywire
A Texas oil company has followed orders and shut down all New Mexico wastewater injection wells while investigations continue into a spill near Eunice, N.M. -
Supreme Court Poised To Weigh Taking Suit Testing NAAQS Plan Mandates
Mar 17, 2016 | Inside EPA
By Stuart Parker
The Supreme Court is poised to consider at a March 18 conference whether to hear Ohio's appeal against a lower court's ruling that the state says contradicts EPA policy and other courts' precedent on the types of pollution controls states must impose, and when they must impose them, to comply with federal ambient air standards. -
EPA Cites SoCal Regulators for Violating Clean Air Act
Mar 17, 2016 | E&E Greenwire
By Debra Kahn
U.S. EPA is joining state officials in criticizing a Southern California air agency for failing to reduce air pollution as much as it could.
Industry and Association News - There are no clips to report at this time.
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Environment News
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(ACC Mentioned) House Oversight Committee to Investigate IRIS Programme
Mar 17, 2016 | Chemical Watch
By Kelly Franklin
The US House of Representative’s Committee on Oversight and Government Reform has requested the EPA furnish documents to help it “better understand the current state” of the agency’s Integrated Risk Information System (IRIS) programme.
The IRIS programme identifies and characterises potential health hazards presented by chemicals. These assessments are designed to be used to inform federal, state and international health agencies.
But the scientific quality of the programme’s chemical assessments has come under criticism. In 2011, Congress ordered the EPA to implement recommendations, issued by the National Academy of Sciences (NAS), to address these problems.
But in a letter to EPA head, Gina McCarthy, last week, the committee says progress in adopting the NAS recommendations has been "slow". For example, EPA has yet to release a draft guidance handbook for the development of IRIS assessments.
The letter also says the IRIS multi-year agenda, released in December, provides only "limited" details on timeframes for completing chemical assessments and is "unclear" on whether the NAS recommendations will be fully implemented, for substances currently under assessment.
The committee has asked the EPA to furnish documents and information:
demonstrating that the recommendations from the 2011 and 2014 NAS reports have been fully implemented;
showing a timeline for implementing outstanding NAS recommendations;
related to the draft IRIS handbook, including plans for its peer review and/or completion;
involving the peer review process for guidance documents that were developed to assist EPA in implementation of NAS recommendations (such as assessment protocol); and
dealing with EPA’s nomination of substances for IRIS review and/or process for reevaluating substances that have already been reviewed.
In 2014, the National Research Council (NRC) – a branch of the NAS – said the EPA had made “substantial improvements” to the programme since the its first recommendations were issued in 2011.
In a progress update last May, the EPA reported that it had, over the previous three years, worked to "strengthen and streamline" the programme, and "improve transparency and create efficiencies”.
But in response to the May 2015 report, the American Chemistry Council (ACC) countered that “more tangible signs of progress are needed, before everyone can be assured that the agency is doing the very best job it can to build greater confidence that its assessments can be used to inform federal and state chemical management decisions.”
The ACC said the programme was falling short in:
providing a transparent and robust problem formulation and scoping process;
establishing “clear and objective criteria” in data review; and
incorporating stakeholder input into its decisions.
The EPA has until 22 March to furnish the requested documents.
https://chemicalwatch.com/45773/house-oversight-committee-to-investigate-iris-programme
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Grocery Manufacturers of America Found Guilty of Money Laundering in GMO Campaign
Mar 17, 2016 | Triple Pundit
By Jan Lee
Companies may have a voice in Washington, D.C. following the Citizens United decision. But in Washington state, when company-funded organizations shield donors’ identities, it’s called money laundering.
Last week, a superior court judge found the Grocery Manufacturers of America guilty of acting to conceal the names of companies that donated to a controversial campaign to oppose legislation that would have required the labeling of foods containing genetically modified organisms (GMO) in Washington in 2013.
According to Thurston County Superior Court Judge Anne Hirsch’s summary ruling, the GMA was found guilty of violating Washington state’s public campaign finance laws when it accepted $14 million in donations from its members for its “Defense of Brands fund” (DOB) and then donated $11 million of the donations to another campaign fund called “No on 522” without disclosing the original donors.
Instead, say court documents, the trade group representing global food, beverage and consumer products companies listed the donations to the fund as donated by itself. The funds were used to lobby against proposed legislation (Initiative 522) that would have required companies to label foods that contained GMOs.
“In enacting the public campaign finance laws, the people of Washington directed that they be interpreted liberally, to promote transparency and full disclosure to the voters,” the decision states. “By its actions creating the DOB account, the GMA violated the spirit and letter of Washington’s public campaign finance laws.”
The court declined at this point to rule on whether the GMA’s actions to break the law were intentional. The state attorney’s office, which launched the case, argued that the act was indeed intentional and has asked the court to impose “a significant penalty, and triple that.” The GMA, on the other hand, insisted that while it was intentional in its effort to hide the identity of its donating members, it wasn’t intentionally trying to violate the spirit of the law. “The distinction is significant,” said the court, “in that an intentional violation of the law allows the court to impose treble damages,” in accordance with Washington’s public campaign finance laws.
The case will now proceed to trial, based on those disputed facts. For the GMA, which has already been found guilty of violating the state’s stringent campaign finance laws, the size of the penalty can be substantial if it is found to have deliberately done so.
Among the documents that were submitted by the state attorney’s office were minutes from GMA’s finance and audit committee meeting that discuss the strategy behind creating the DOB account: “By doing so, state GMO related spending will be identified as having come from GMA, which will provide anonymity and eliminate state filing requirements for contributing members,” the Washington state attorney’s office revealed. State law requires the name and address of all campaign contributors.
The GMA, which was founded in 1909, has more than 300 member companies. The organization has taken several steps in recent years to shield the identity of its members and no longer provides a listing of its membership on its website. However, court documents show that Pepsico, Coca-Cola, Campbell Soup Co. and General Mills were among the top contributors to the DOB account, providing funds that the state attorney’s office alleges later were used as campaign funds to fight the failed GMO-labeling Initiative 522.
The GMA has been accused of using the Winner & Mandabach campaign strategy, named after the California campaign consulting firm founded in the 1980s that “specializes in ballot measure campaigns,” known for its intense blitz of TV campaign messages and high success rate. The ballot was defeated by a margin of 38,046 in 2013.
At the center of the upcoming trial, however, will likely be not only whether the GMA intentionally broke the law, but also its objection to being defined as a “political committee” representing individual contributors. According to the deposition of a consultant, Evelyn Lopez, defining the GMA as a political committee “is problematic both for the GMA and for the state. [That] was the reason that the GMA … set up this Defense of Brands Account, so that there would be a place to put money that could be used for political purposes.”The question is whether that explanation will be enough to convince the court that the GMA wasn’t trying to deceive voters when it broke the law.
http://www.triplepundit.com/2016/03/gmo-gma-money-laundering/
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Regulation Must Better Promote Innovation, Say Green Chemistry Experts
Mar 17, 2016 | Chemical Watch
By Leigh Stringer
Chemical policies can curb the pace of innovation and prevent the commercialisation of greener chemical compounds, say two leading green chemistry experts.
John Warner, co-founder of the 12 principles of green chemistry and president of the Warner Babcock Institute, and David Constable, director of the American Chemical Society’s Green Chemistry Institute, told Chemical Watch's Global Business Briefing that innovation is often left behind when industry, instead, spends time and effort "fighting" regulation.
Mr Constable says chemical policies often “stifle innovation”. This can be because industry is concerned that a new regulation will come along and prevent the commercialisation of a new compound, or it will argue that there are no alternatives and will “fight to keep what they have”.
In the US, he says, little progress is made in the high-volume chemical manufacturing industry unless a regulation exists, but most effort is focused on defeating regulations in court.
In the EU, meanwhile, REACH has only pushed the most hazardous chemicals to China, India and “other nations where regulations are on the books, but are not enforced”.
“Yes, REACH has banned a few chemicals from the EU, but that is the only market being affected. Banning a chemical does not promote green chemistry but it does occasionally bring a chemical that has fewer issues associated with it,” he says.
Chemical regulations, he adds, generally take a “one-chemical-at-a-time” approach. “In the US, apart from the Toxic Substances Control Act (TSCA), there has been no substantive movement of chemicals legislation promoting systemic changes towards green chemistry.”
However, a recent report by NGO ChemSec says regulation is the "strongest driver for innovation" because it provides industry with an incentive to create safer substances. The report also cites a 2013 report by the Centre for International Environmental Law (Ciel), which argues that stricter laws for hazardous chemicals help to bring safer chemicals to the market.
Mr Warner says that if a company doesn't believe it is capable of coming up with a safer alternative, its "only option is to fight the regulations”.
Regulation can also create issues around investing in new technologies, says Mr Warner. "There are some investment firms which have policies that stop them from investing in anything that is associated with a substance or technology that is being considered for regulatory action." For example, a firm may not invest in a new technology because the technology that it could potentially replace is under regulatory consideration.
Focus on education
The other big problem, says Mr Warner, is that colleges and universities are still not teaching students green chemistry. “If chemists were fully trained in green chemistry and only made non-toxic, environmentally benign and sustainable technologies, we would not need chemicals policy,” he says. “We are, of course, so far away from this being a reality.”
Many programmes in the US have voluntary offerings for students who are particularly interested in green chemistry, but there are no requirements. “Therefore, corporations who want to do green chemistry may not have employees with the correct skill set,” he says.
https://chemicalwatch.com/45785/regulation-must-better-promote-innovation-say-green-chemistry-experts
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Federal Panel Backs Industry Calls To Weaken EPA's Proposed RMP Rule
Mar 17, 2016 | Inside EPA
By Dave Reynolds
A federal panel that weighed the costs to small businesses of EPA's proposed revisions to the Risk Management Plan (RMP) facility safety rule is urging EPA to weaken proposed requirements for third-party audits and incident reviews, and to justify new hazard analysis, backing industry claims the proposal will impose unnecessary burdens.
The proposed rule, which EPA released Feb. 25 and published in the March 13 Federal Register, does not appear to reflect the recommendations from the small business advocacy review (SBAR) panel, says a source with a coalition of labor and environmental groups that has petitioned the agency to require facilities to use inherently safer technologies (IST).
The proposal would require certain facilities to conduct third-party audits after accidents, analyze certain facility incidents and consider whether IST, usually alternative chemicals or processes, will improve facility safety, among other changes.
But the SBAR panel in its Feb. 19 report recommends EPA make several changes to the proposal that industry officials have urged.
"EPA should explore regulatory alternatives and provide flexibility where appropriate," the panel says in the executive summary of the SBAR report.
Although EPA is required to respond to the SBAR report, the coalition source says the agency will likely consider the report as public comments and respond to its recommendations when the agency releases a final rule.
The source also says that SBAR panels often back industry arguments, given that the three-member panel is comprised of representatives from the U.S. Small Business Administration's Office of Advocacy and the White House Office of Management and Budget, which both focus on economic concerns, as well as one member from EPA.
The Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act requires federal agencies to consider the impacts of proposed rules that will affect a significant number of companies.
EPA's proposed rule revising RMP is part of a broad federal effort to implement President Obama's Executive Order 13650 that seeks to bolster the safety and security of industrial facilities through improved coordination, as well as revised policies and standards. Obama issued the order Aug. 1, 2013, after an ammonium nitrate explosion at a fertilizer facility in West, TX, killed 15 people, including first responders, and injured more than 200 others.
Industry and advocacy groups have raised competing criticisms of the proposed revisions with industry sources arguing new requirements for hazard analysis could open the door for government to second-guess facilities' processes, and would raise cost concerns, while advocacy groups say the changes focus on accident response rather than prevention.
Specifically, industry sources have told Inside EPA that proposed requirements for companies to conduct third-party audits after releases and assess the feasibility of IST raise personnel and cost concerns, while a coalition of environmental and labor groups says requiring facilities to use IST is the only way to ensure in reduction in accidents.
SBAR Report
In the SBAR report, the federal panel recommends that EPA include in the proposal small businesses' "suggestions for additional flexibility, where appropriate," and take comment on a variety of other alternatives that would limit the proposal's impact on small businesses.
The panel backs industry concerns that certain provisions may be costly and unnecessary, and urges EPA to "streamline" requirements for the independence for third-party auditors. The panel also recommends that EPA narrow the proposed requirement for conducting root cause analysis to only after releases instead of after releases and other incidents that could have caused a release.
The panel asks EPA to provide evidence explaining why it changed its 1996 opinion that considering IST in process hazard assessments was unlikely to yield benefits.
The panel says proposed requirements for increasing coordination with local emergency planning committees (LEPC) "is likely to be one of the most costly requirements of the EPA modernization" plan. The agency should better detail coordination requirements, the panel says, including by clarifying requirements for facilities that make a good faith effort.
Similarly, the panel recommends that EPA clarify that a proposed requirement for conducting an emergency response exercise does not require participation by local responders for a facility to fulfill its obligation.
Panelists also ask that EPA seek comment on alternatives to proposed revisions, including whether to eliminate the proposed requirement for third party audits or narrow its scope to facilities that have major accidents with off-site impacts.
Additionally, the report suggests that EPA take comment on alternatives suggested by the panel's private sector advisors, such as eliminating proposed requirements for root cause analysis and consideration of IST, limiting the IST analysis to the design phase of new processes, or exempting facilities that produce small batches of chemicals from the requirement to assess the feasibility of IST.
IST Assessments
In an interview with Inside EPA, officials with the Society of Chemical Manufacturers & Affiliates (SOCMA), say the requirement to assess IST, which industry has long opposed, is especially burdensome on facilities that produce lower volumes of chemicals because they change processes more frequently, and would have to conduct more frequent assessments.
Additionally, a SOCMA source argues that EPA has failed to adequately justify such an extensive overhaul of the RMP rule and should focus on enforcing the rule's existing requirements.
EPA took comment last fall on a proposal to establish three new national enforcement initiatives, including targeting accidents and spills at industrial facilities, along with reducing industrial water pollution, and reducing air toxics at the community level.
SOCMA officials also said that in addition to the proposed auditing and analysis requirements, the groups' comments may also focus on ensuring that the agency's plan for increased sharing of facility information with LEPCs ensures that security of facility data, as well as on the agency's estimates of the proposal's potential costs to industry.
http://insideepa.com/daily-news/federal-panel-backs-industry-calls-weaken-epas-proposed-rmp-rule
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CPSC Commissioner: State Toy Regulations Bring 'Chaos'
Mar 17, 2016 | Chemical Watch
By Kelly Franklin
A US Consumer Product Safety Commission (CPSC) commissioner says state-level regulation of children’s products creates “confusion” and “chaos”.
In remarks at a recent Toy Industry Association’s (TIA) conference, Commissioner Ann Marie Buerkle said the patchwork of state and federal regulations "creates such confusion, it creates such chaos. As a consumer, it's so confusing and disruptive … it really does need to be addressed.”
Several states, including Washington and Oregon, have implemented rules that impose stricter limits for certain substances of concern than those required at the federal level.
Five counties in New York have also moved to ban specific substances in children’s products.
In one instance, she said legislators were “kind of reluctant” not to act on a bill that had “safe kids” in its title. “That reference really concerns a legislator, because they don’t want to be known as the one who doesn’t care about kids.”
The commissioner told industry representatives that educating state legislators on CPSC’s role is essential: “The federal government, CPSC, has taken care of it. There’s no need to create this confusion, and create stricter standards or standards unique to a county.”
But Holly Davies, toxics policy coordinator at Washington state’s Department of Ecology - which oversees the Washington Children’s Safe Products Act (CSPA) - told Chemical Watch: “There continues to be an essential role for state-level chemical regulations, both to address local issues of importance and to respond quickly to emerging toxic threats.”
She notes that Washington was among the first to ban bisphenol A (BPA) in child cups, and has been a leader in restricting the use of flame retardants. Furthermore, the 2008 passage of the Washington CSPA “helped advance” the federal Consumer Products Safety Improvement Act (CPSIA), said Ms Davies. “While uniform standards are important and worth pursuing, states have shown that they can move quickly and pave the way for national agreements or action by federal agencies.”
Burden reduction
Also covered in the CPSC commissioners’ remarks was progress made on reducing regulatory burdens.
Congress’s 2011 passage of Public Law 112-28, which awarded the CPSC additional powers, gave the Commission increased discretion over enforcement of the Consumer Products Safety Act (CPSA). It also directed the agency to seek ways to reduce the burdens imposed by third-party testing.
Regarding this effort, CPSC Commissioner Robert Adler told the TIA: “I think we’ve made great progress, but we’re continuing to work on it.”
Recent developments in this area include elimination of some testing requirements for untreated wood in toys, and lead in certain textiles.
According to Mr Adler, many stakeholders have requested that the agency make determinations that totally exclude certain products and materials from third-party testing and certification. That “has certainly been our focus”, he said.
And with respect to phthalates, Mr Adler said the CPSC is “exploring if there is a sure hardness number we can come up with that would exclude people as part of a determination”.
But Commissioner Buerkle said she is “frustrated” by the slow progress: “We haven’t provided, in my opinion, any real relief in third-party testing.”
She said that US regulations produce a barrier to entry for start-ups, and has encouraged the industry to come forward with any ideas that could help reduce these burdens.
https://chemicalwatch.com/45760/cpsc-commissioner-state-toy-regulations-bring-chaos
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Medical Device Industry Could Face New Reporting Requirements
Mar 17, 2016 | Chemical Watch
By Catherine Cooney
A US Senate committee has unanimously voted for legislation, requiring manufacturers of reusable medical devices to submit additional efficacy, labelling and disinfection data to the FDA.
If approved by the full Senate, the Preventing Superbugs and Protecting Patients Act (S 2503) will require manufacturers to submit clear instructions on how to clean and disinfect the devices, as well as efficacy data, as part of the FDA approval process for their product.
Senator Patty Murray (D-Washington) introduced the bill, after her staff completed a year-long investigation into antibiotic-resistant infections outbreaks, linked to closed-channel duodenoscopes used in hospitals across the country.
More than 500,000 procedures using the instruments are done every year in the US, according to the FDA, and many cases of hospital-acquired infection outbreaks were traced back to them. Last year, an outbreak due to duodendoscopes at the UCLA Ronald Reagan Medical Centre affected some 179 patients and caused three deaths.
Senator Murray's report found that some hospital staff were unable to clean the reusable duodenoscopes properly, when following the manufacturer’s instructions.
She urged the US FDA to review its practices, and criticised medical device manufacturers for not owning up to problems soon enough.
“There is much more to do as well to ensure the safety of medical devices like duodenoscopes, and I hope we can build on this step forward, with additional efforts to ensure medical device safety for patients and families in Washington state and across the country,” she said, following the approval of the bill.
A vote on the bill in the full Senate is not expected soon.
https://chemicalwatch.com/45808/medical-device-industry-could-face-new-reporting-requirements
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US EPA Seeks Additional Safer Choice Reviewers
Mar 17, 2016 | Chemical Watch
The US EPA’s Safer Choice programme is seeking additional third-party profilers (TPP).
According to a notice posted in the Federal Register, this in order to help the programme “meet the growing consumer demand for safer products carrying the Safer Choice label”.
Previously know as the Design for the Environment (DfE), the programme aims to promote safer product design and green chemistry alternatives.
TPPs are responsible for collecting performance information, reviewing ingredients against the programme’s criteria and standards, and developing chemical profiles of Safer Choice candidates’ products.
Currently, the programme has two TPPs: NSF International and ToxServices, LLC. It plans to add up to two new profilers this year.
Although the EPA will be accepting applications on an ongoing basis, interested parties must apply by 16 May, to be considered for 2016.
https://chemicalwatch.com/45803/us-epa-seeks-additional-safer-choice-reviewers
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Mar 17, 2016 | Chemical Watch
Testing proposals
Echa has announced consultations on testing proposals, for the following six substances:
1,1'-(p-tolylimino)dipropan-2-ol. Testing is proposed for hazard endpoint of sub-chronic toxicity (90-day): oral;
1-isopropyl-2,2-dimethyltrimethylene diisobutyrate. With a hazard endpoint of reproductive toxicity (prenatal developmental toxicity);
2,2'-(C16-18 (evennumbered, C18 unsaturated) alkyl imino) diethanol. The testing proposal is for reproductive toxicity (extended one-generation reproductive toxicity study);
shale oils. With an endpoint testing proposal for reproductive toxicity (extended one-generation reproductive toxicity study) and sub-chronic toxicity (90-day): oral;
shale oils, heavy. Endpoint testing for reproductive toxicity (two-generation reproductive toxicity) and sub-chronic toxicity (90-day): oral; and
shale oils, light. Reproductive toxicity (extended one-generation reproductive toxicity study) to be tested for, as well as sub-chronic toxicity (90-day): oral.
The deadline for comments is 28 April.
New PACT substances
The agency has added ten substances to its public activities coordination tool (PACT) for risk management option analysis (RMOA) or hazard assessment.
Of these, it is proposing that two be classified as substances of very high concern (SVHCs):
benzene-1,2,4-tricarboxylic acid 1,2-anhydride, on the grounds that it is a skin and respiratory sensitiser; and
bisphenol A.
The other substances are:
bis(2-ethylhexyl)terephthalate;
glutaraldehyde (1,5-pentanedial);
homosalate;tetraphenyl m-phenylene bis(phosphate);
triclocarban;
undecafluorohexanoic acid;
DINCH; and
4,4'-methylenedi-2,6-xylenol.
Launch of use maps webpage
Echa has advised that templates for developing use maps, and the exposure assessment inputs for workers and consumers (called Sweds and Sceds respectively), are ready to use. Those for the environment are also being finalised (Spercs).
The next step, Echa says, is for downstream user sector organisations to use them to generate or update use maps for their most common uses, and to make these available to registrants. Registrants can then use them when preparing chemical safety reports (CSRs).
This activity is taking place as part of the Echa-stakeholder CSR/ES Roadmap initiative.
IR & CSA guidance update
The agency has sent out draft chapter R 15 consumer exposure assessment, Guidance on Information Requirements and Chemical Safety Assessment (IR &CSA) for Rac, MSC and Forum consultation.
Most of the changes provide additional tools and parameters, to support consumer exposure assessment and exposure scenario building under REACH, or are of an explanatory or editorial nature, it says.
Consultation on Seac draft opinion
Echa is consulting on a Socio-Economic Assessment Committee (Seac) draft opinion on a restriction proposal for octamethylcyclotetrasiloxane (D4), decamethylcyclopentasiloxane (D5).
The UK is proposing that wash-off personal care products shall not contain more than 0.1% of D4, or more than 0.1% of D5.
Deadline for comments is 16 May.
Searchable list of CLH substances
Echa has published a searchable list, containing all the information on the harmonised classification and labelling of hazardous substances.
The official source for the information remains the Official Journal of the European Union.
https://chemicalwatch.com/45672/echa-round-up
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Work Continues to Align REACH and OELs
Mar 17, 2016 | Chemical Watch
By Philip Lightowlers
Echa has proposed a workplan for discussion with DG Employment’s Scientific Committee on Occupational Exposure Limits (Scoel), to review and identify technical inconsistencies in the regulation of compounds under REACH, and in occupational exposure limits (OELs).
The problem came to the fore in 2014, with the reprotoxic solvent 1-methyl-2-pyrrolidone (NMP). Members of Echa’s Risk Assessment Committee (Rac) and Scoel met in October 2015 to look for a scientific solution and resolve the difference between the current OEL and the derived no effect level (Dnel) of the compound – used to define safe exposures in REACH– which is four times lower.
Following Rac’s meeting in early March, chairman Tim Bowmer said that committee members would soon meet with Scoel again, to try and reach a compromise on NMP. A draft workplan for discussions on the wider methodology involved has been prepared for discussion.
Mr Bowmer expects the review of the methodology issue will take, at least, until the end of this year: “It is a more complex issue than just NMP," he told Chemical Watch. "The committees need to align procedures on OEL and Dnel derivation, while bearing other legislation in mind.
“Through a joint task force, the committees have been mandated to compare and contrast their methodologies and look for points of convergence and separation. We can then advise the Commission on steps it might take,” he said.
There are three items on the agenda: inhalation, dermal exposure, and threshold or non-threshold approaches for carcinogens. The task force is scheduled to report on the first two issues this year, and will tackle the third towards the end of the year.
https://chemicalwatch.com/45814/work-continues-to-align-reach-and-oels
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Five Myths About Asbestos In Schools
Mar 17, 2016 | Environmental Working Group
By Megan Boyle
Your kids spend most of the day at school, and you may be surprised at what they could be breathing in their classrooms, cafeterias, hallways and gymnasiums: deadly asbestos fibers.
Asbestos, which can cause cancer and other serious illnesses when inhaled, remains both legal and widespread in the United States. Its microscopic fibers turn up in buildings that millions of Americans enter every day – including many schools.
Take Chicago. Asbestos Nation recently analyzed 2013 inspection records for Chicago public schools. The inspectors found damaged asbestos that needed repair or removal in more than 600 locations at more than 180 schools. Yet as of the fall of last year, only 11 of those schools had taken any of the recommended actions to reduce potential exposure. You can read Asbestos Nation’s full report here.
The best way for parents to protect kids from this health hazard is to learn the facts, so we’re setting the record straight about five common myths about asbestos in school.
1. Asbestos is an old problem and doesn’t affect my child’s school.
America’s asbestos problem is all too real, and it hasn’t gone away. The Environmental Protection Agency has been fighting since 1980 to ban the hazardous substance, but federal courts, hampered by a woefully weak toxic chemicals law, have blocked those efforts. Today more than 50 countries have outlawed asbestos, but the United States is not among them.
In schools far beyond Chicago, students, teachers and staff have been exposed to harmful asbestos fibers, including in Philadelphia in July 2015, in Arlington, Va., in March 2015 and in Huntington Beach, Calif. the year before.
If your child’s school was built before 1981, you should assume that it contains asbestos. Newer schools may as well.
2. Only construction workers need to worry about getting sick from asbestos.
Nearly 15,000 Americans die every year from asbestos-related illness. Among those most at risk are school teachers.
A 2007 study by the National Institute for Occupational Safety and Health found that elementary school teachers were more than twice as likely as the average American to die of mesothelioma, a fatal illness caused only by asbestos exposure. Although construction workers fare worse, the risk for teachers is real.
3. There’s not enough asbestos in my child’s school to make her sick.
There’s no safe level of asbestos exposure, according to the federal Occupational Safety and Health Administration. Even brief exposure can cause illness, including mesothelioma, later in life.
What’s more, kids may be especially vulnerable. They breathe more rapidly than adults, and due to their size and how they play, they spend more time exposed to floor dust. They also may have a greater lifetime risk of mesothelioma since exposure in childhood gives the slow-growing disease more time to develop.
4. Only hidden building materials contain asbestos.
Asbestos is more common than you think. Although its use has declined since the 1980s, companies are still manufacturing products – including things your kids can touch and see – that legally contain the harmful fibers. Door seals, vinyl floor tiles, clothing – even crayons and children’s toys – may contain asbestos. (Note: The recent discovery of asbestos fibers in crayons and toys was likely the result of contaminated talc; asbestos itself was not an ingredient.)
5. The government is responsible for monitoring and removing asbestos from schools.
Although the Occupational Health and Safety Administration limits workplace exposure to asbestos, the same standard does not apply to schools.
Instead, the EPA holds schools responsible for inspecting their buildings every three years and taking steps to ensure that any asbestos fibers present cannot be released into the air. Affected schools must maintain an asbestos management plan and share it with anyone who wishes to see it within five days of the request. So, parents, you can ask for it.
Federal funding has dried up to support schools’ efforts reduce the risk of exposure to asbestos, so schools must pay for renovations themselves. This can take valuable dollars away from education – and even cause schools to close.
http://www.ewg.org/enviroblog/2016/03/five-myths-about-asbestos-schools
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Observers: Judge Garland Typically Deferential to EPA
Mar 17, 2016 | BNA Daily Environment Report
By Rebecca Wilhelm
Chief Judge Merrick Garland, President Barack Obama's nominee to fill the U.S. Supreme Court seat left vacant by the death of Justice Antonin Scalia, has generally been deferential to Environmental Protection Agency regulations, legal observers told Bloomberg BNA March 16.
Garland, who has been a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 1997 and chief judge since 2013, has reviewed dozens of environmental law cases, including a challenge to the EPA's performance standards limiting particulate emissions from new power plants and a Commerce Clause challenge brought by a real estate developer whose construction plans were halted when the government determined that the project would jeopardize the endangered arroyo southwestern toad.
Garland, 63, also served on the panel that upheld the EPA's mercury and air toxics standards, a decision reversed by the Supreme Court in June 2015 (White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 78 ERC 1757, 2014 BL 103957 (D.C. Cir. 2014), rev'd byMichigan v. EPA, 135 S. Ct. 2699, 80 ERC 1577, 2015 BL 207163 (2015); 124 ECR, 6/29/15; 125 State Environment Daily, 6/30/15; 125 DEN A-1, 6/30/15; 125 DER 125, 6/30/15; 83 U.S.L.W. 2005, 6/30/15; 46 ER 1993, 7/3/15; 15 EHSDSN, 7/6/15; 22 ECB 230, 7/20/15).
“Garland has earned a well-deserved reputation as a jurist who is a complete straight-shooter, who comes to his cases, including environmental law cases without a preconception of preferred outcome,” Harvard Law professor Richard J. Lazarus told Bloomberg BNA in an e-mail.
“Given that the Justice he would be replacing, Antonin Scalia, was known for his heightened skepticism of environmental protection laws and their citizen suit enforcement, a Justice Garland would clearly make a difference for environmental law cases before the Supreme Court,” Lazarus said.
Garland Called ‘Balanced.'
Garland, nominated by Obama on March 16, is “balanced, brilliant and an excellent jurist,” Harvard Law professor Jody Freeman told Bloomberg BNA in an e-mail. “Not always siding with EPA but certainly open to the government's arguments, not ideologically opposed to regulation and prepared to grant deference where warranted.”
Garland's environmental law jurisprudence is “inextricably intertwined with his administrative law opinions,” Victor B. Flatt, a professor at the University of North Carolina at Chapel Hill School of Law, told Bloomberg BNA.
“We know that he is a stickler for exhaustion of administrative remedies,” Thomas Lorenzen, a partner at Crowell & Moring LLP, told Bloomberg BNA.
Garland wrote the majority opinion in Utility Air Regulatory Group v. EPA(UARG), in which the court held that several of the petitioners' challenges to the EPA's performance standards limiting particulate emissions from new power plants weren't properly before the court, because they had first been raised in petitions for reconsideration still pending before the EPA (Util. Air. Regulatory Group. v. EPA, 744 F.3d 741, 78 ERC 1001, 2014 BL 66673 (D.C. Cir. 2014); 48 DEN A-1, 3/12/14; 48 DER A-30, 3/12/14; 29 TXLR 231, 3/13/14; 45 ER 721, 3/14/14; 21 ECB 99, 3/31/14).
Raising Objections in Petition
“[A]lthough the filing of a petition for reconsideration does not render a Clean Air Act rule nonfinal for purposes of judicial review, the only objections that may immediately be raised upon judicial review are those that were raised during the public comment period,” Garland wrote for the court. “Objections raised for the first time in a petition for reconsideration must await EPA's action on that petition.”
The UARG opinion “is actually relevant to the current challenges to the Clean Power Plan,” Lorenzen said. “The applicability of that decision to the Clean Power Plan is going to be a significant issue. The argument in the Clean Power Plan case is that the final rule is so untethered from the proposal that requiring parties to avail themselves of that reconsideration would be fundamentally unfair and fairly unworkable.”
The Clean Power Plan (RIN 2060-AR33), which sets carbon dioxide emissions limits on the power sector in each state, is being challenged by 27 states as well as several utility and industry groups.
The Supreme Court stayed implementation of the plan Feb. 9 with Scalia's backing, four days before his sudden death at a Texas ranch. The D.C. Circuit will hear oral arguments in the case June 2. The stay will prevent the rule from going into effect until it's fully litigated, including any future appeals to the Supreme Court (West Virginia v. EPA, U.S., No. 15A773, 2/9/16).
It's not clear where Garland would come down on the Clean Power Plan, Lorenzen said. He “might have to determine the limits of his own decision” in UARG.
‘Long-Standing Commitment' to Agency Deference
Garland has generally been very deferential to the government in regulatory cases, Jonathan H. Adler, a professor at Case Western Reserve University's School of Law in Cleveland, told Bloomberg BNA.
“He is not one of the more aggressive judges in terms of the scrutiny he applies to regulatory initiatives,” Adler said. “The caveat I would give is that as an appellate judge he clearly has taken his responsibilities very seriously to follow the lead of the Supreme Court, to follow precedent closely, to not necessarily plow new ground. It’s somewhat risky to use that as a guide as how he would act as a justice because he would not face the same constraints.”
When it comes to Garland's environmental record, “the distinguishing characteristic about him is his long-standing commitment to Chevrondeference, the idea that in the face of statutory ambiguity the court should defer to reasonable interpretations by implementing agencies,” Scott Fulton, president of the Environmental Law Institute, told Bloomberg BNA.
Garland Supported EPA Action
For example, in White Stallion Energy Center LLC v. EPA, the D.C. Circuit held that the EPA acted reasonably in concluding it didn't need to consider costs before deciding it was appropriate and necessary to regulate power plant mercury emissions. Garland voted with the majority.
The Supreme Court reversed the D.C. Circuit panel's decision by a vote of 5-4, Lazarus said. That suggests “a different outcome if [Garland] had been on the Court instead of Scalia.”
Garland also voted to remand the rule without vacatur after the Supreme Court held that the EPA erred by not initially considering costs. Chief Justice John Roberts Jr. recently denied a petition seeking a stay of the MATS rule while the EPA undergoes the mandated cost analysis (Michigan v. EPA, U.S., No. 15A886, 3/3/16; 42 ECR, 3/3/16; See previous story, 03/04/16; 43 DEN A-2, 3/4/16; 43 State Environment Daily, 3/4/16; 47 ER 673, 3/4/16; 31 TXLR 233, 3/10/16; 84 U.S.L.W. 1298, 3/10/16).
Other Garland Opinions
Other notable cases in which Garland voted to uphold an EPA regulation include his majority opinions in National Association of Home Builders v. EPA, 682 F.3d 1032, 75 ERC 1232, 2012 BL 156511 (D.C. Cir. 2012), which found that the EPA didn't act arbitrarily or capriciously in revising the lead-based paint hazard abatement regulation for home renovations under the Toxic Substances Control Act, and Cement Kiln Recycling Coalition v. EPA (493 F.3d 207, 64 ERC 2025, 2007 BL 56171 (D.C. Cir. 2007), which rejected a challenge to an EPA rule regulating the burning of hazardous waste as fuel under the Resource Conservation and Recovery Act.
“He's been very strong generally for agency deference,” Flatt said. “But there were a couple of cases in the [George W.] Bush administration when he sided against the EPA.”
Writing for the majority in Sierra Club v. EPA, 356 F.3d 296, 57 ERC 1897 (D.C. Cir. 2004), Garland ordered the agency to reconsider its approval of deficient state implementation plans submitted for the Washington, D.C., ozone nonattainment area under the Clean Air Act.
‘The Taking of a Hapless Toad.'
Three of the Supreme Court's current justices—Chief Justice Roberts, Justice Clarence Thomas and Justice Ruth Bader Ginsburg—previously served on the D.C. Circuit. President George W. Bush nominated Roberts to that court in 2003, while Garland was also a judge.
Roberts's first opinion as a D.C. Circuit judge was a dissent from a decision denying a request for a rehearing en banc in an Endangered Species Act case, Adler said. Garland had written the panel opinion, which held that the government didn't violate the Commerce Clause by instructing a real estate developer to change its construction plan to protect the endangered arroyo southwestern toad (Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 56 ERC 1001 (D.C. Cir. 2003))
Roberts doubted that “regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce ... among the several States.' ” Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003)).
“People have been trying to chip away at the Endangered Species Act for years on Commerce Clause grounds,” including Chief Justice Roberts, Flatt said.
The Rancho Viejo decision “suggests that Judge Garland would likely be skeptical of constitutional challenges to broad assertions of regulatory authority,” Adler said.
Implications for Clean Power Plan
“The Garland choice also has implications for the case now before the D.C. Circuit concerning the lawfulness of the Clean Power Plan,” Lazarus said.
“If [Sri] Srinivasan had been picked, it was possible he might have dropped off the panel hearing that case, meaning a new judge would have been lotteried in,” Lazarus said. “Srinivasan also would have been recused from hearing the CPP case if the case reached the Court and he was then on it, given he voted on the stay request a few months ago.”
The fact that Srinivasan, a D.C. Circuit judge who was reportedly on Obama's Supreme Court nominee shortlist, is on the Clean Power Plan panel might have factored into the president's decision to nominate Garland instead, Adler said.
Garland doesn't present any “obvious near-term costs in terms of recusal issues in cases of importance to the administration,” Fulton said.
‘Well-Regarded in the Legal Community.'
The president's nominee is also “very well-regarded in the legal community,” Lorenzen said. “He'd be more of a centrist than Justice Scalia. He certainly believes in Chevron deference. By the same token he is a stickler for the language of statutes.”
Republicans in Congress might be willing to hold confirmation hearings given the current political situation, Lorenzen said. They might be worried that a subsequent Democratic president would choose a more liberal nominee.
“This is a consensus pick; let’s move forward,” Sen. Barbara Boxer (D-Calif.) told reporters. “I think it’s a brilliant pick given where we are right now. [Obama] wants someone who can get through this United States Senate, and he has chosen someone who is strong, who is fair, who is respected by all sides, who has shown his mettle not only as a judge but also as a prosecutor.”
In 1997, the Senate confirmed Garland to the D.C. Circuit by a 76-23 vote. Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who has said his committee won't hold confirmation hearings, voted against Garland's nomination to the federal appeals court.
Republican Senators Cite Unwillingness
Other Republicans say they are still unwilling to move forward on the president's nominee.
“Before a Supreme Court justice is confirmed to a lifetime position on the bench, West Virginians and the American people should have the ability to weigh in at the ballot box this November. My position does not change with the naming of a nominee today,” Sen. Shelley Moore Capito (R-W.Va.) said in a statement.
“Anyone confirmed to the Supreme Court will play a key role in decisions on monumental issues ranging from EPA regulations that affect West Virginia’s energy sector, to immigration and Second Amendment rights. With just a few months until the election, West Virginians should have an opportunity to express their views and elect a new president who will select the Supreme Court justice,” she said.
http://www.bna.com/observers-judge-garland-n57982068626/
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Energy Bust Powers Down Generator Sales
Mar 17, 2016 | Wall Street Journal
By James R. Hagerty and Bob Tita
Brandon Millican, who owns construction businesses in Malta, Mont., spotted an opportunity several years ago when shale-oil production soared in western North Dakota. He bought three Caterpillar Inc. generators for roughly $138,000 each and rented them to oil-production firms needing mobile electric power for their equipment.
Now that oil exploration and production have plunged, Mr. Millican can’t find anyone to rent those machines and is trying to sell them on Craigslist. “I’d rather not have them sit around if oil takes five or 10 years to come back,” Mr. Millican said.
Wary of the boom-and-bust cycle, oil-and-gas producers rent much of their equipment rather than buying. That leaves rental companies holding lots of generators and searching for ways to unload them—which is also drying up sales of new machines for Caterpillar, Cummins Inc. and other companies that manufacture them. The pain being felt by these companies illustrates how the energy bust has rippled far beyond the oil patch and is chilling a large part of the economy.
“There’s been a tremendous amount of (used) equipment hitting the market, and there will be a tremendous amount more,” said Dick Davis, president of Depco Power Systems, a Houston-based dealer in new and used generators. In the range of 30 to 300 kilowatts, there probably are more than 10,000 surplus generators available for sale because of the oil bust, estimated Will Perry, chief executive of Worldwide Power Products, another Houston dealer.
“We don’t see any relief on the horizon,” said Aaron Jagdfeld, chief executive of Wisconsin-based Generac Holdings Inc., a leading manufacturer of generators. Its sales to the oil and gas sector fell about 45% in 2015, and is expecting it to drop 35% to 40% in 2016. Its overall revenue dropped 10% last year to $1.3 billion, while net income sank 55% to $77.7 million, partly because of one-time charges. “Everybody is hoping for the best and bracing for the worst. You’ve got to let the air come out of the balloon,” Mr. Jagdfeld said.
For some, the generator glut spells opportunity. Justin Crownover, a farmer in Sunray, Texas, is finding bargain prices on used generators. Mr. Crownover, whose family farm is about 65 miles north of Amarillo, is using some of those natural gas-fueled generators to power irrigation pumps for fields of corn and sorghum. A used Caterpillar 210-kilowatt generator, roughly the size of Ford F-150 pickup truck, would have cost about $90,000 two years ago but now can go for as little as $50,000, he said.
An index of values for used generators of various types compiled by Rouse Services, a data provider in Beverly Hills, Calif., fell 15% through January from its peak in April. That is far sharper than the 6.4% drop in prices for used construction and warehouse equipment broadly.
Global Power Supply LLC, a generator rental and sales concern based in Santa Barbara, Calif., has dozens of generators in the 75- to 150-kilowatt range that were destined for oil-field use but now aren’t needed there, said Mike Wolfe, who heads the firm’s generator operations. He said a very lightly used Caterpillar G3306 generator that would have sold for roughly $150,000 about 18 months ago now might cost roughly $85,000.
“They will get cheaper and cheaper,” said Eddie Boudreau, owner of Pan American Power, a generator dealer in Covington, La. Some will be sold in the U.S., he said, but most are likely to be exported to Latin America or Asia.
To keep from further depressing used-market prices, Tractor & Equipment Co., the Caterpillar dealer in North Dakota’s Bakken Shale-oil region, has been shifting some generators and other rental equipment to dealers elsewhere and holding others at its Williston, N.D., rental lot. Demand for rented Caterpillar generators in Williston fell by about 40% last year, the dealer said.
In addition to supplying electric power to equipment in remote places, generators are increasingly located in hospitals, commercial buildings, factories and homes for backup power. Most of those used in the oil fields are too large for residential needs, though, and may need to be reconfigured or rebuilt for other purposes to meet emissions standards, which lowers resale value.
Still, United Rentals Inc., the biggest U.S. equipment-rental company, is redeploying generators from the oil fields to petrochemical plants, commercial buildings, golf tournaments and outdoor concerts, said Paul McDonnell, a senior vice president.
Dewey Bailey, an area sales manager for industrial power at Tractor & Equipment in Williston, said he is holding on to many of his rental generators in anticipation of an eventual recovery. “There’s a lot of wells left to be completed and when that happens there will be demand” for power, he said.
http://www.wsj.com/articles/energy-bust-powers-down-generator-sales-1458207002
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Pipeline Safety Regulator to Roll Out New Natural Gas Plan Today
Mar 17, 2016 | Politico Pro - Whiteboard
By Elana Schor and Andrew Restuccia
The Pipeline and Hazardous Materials Safety Administration today plans to roll out a long-awaited safety rule that expands assessment and repair protocols to new natural gas pipeline segments, agency sources told POLITICO.
PHMSA began working on the natural gas safety rule set for proposal today since a fatal 2010 gas blast killed eight residents of San Bruno, Calif. The agency's proposed regulations, agency sources said, tackle four mandates Congress laid out in the 2011 pipeline safety law, one recommendation from the Government Accountability Office, and six National Transportation Safety Board recommendations, including recommendations adopted in the wake of the San Bruno explosion.
PHMSA chief Marie Therese Dominguez told lawmakers at a House hearing earlier this month that the regulation was coming soon. She added that the rule would address gathering pipelines, the largely unregulated smaller pipes that connect gas extraction sites to larger lines. But she provided no further details.
Dominguez pointed to the pending rule to reassure frustrated lawmakers, who have long blasted PHMSA for taking years to write regulations mandated by Congress.
https://www.politicopro.com/energy/whiteboard
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Oil Company Shuts All N.M. Injection Wells, Faces Fines
Mar 17, 2016 | E&E Energywire
A Texas oil company has followed orders and shut down all New Mexico wastewater injection wells while investigations continue into a spill near Eunice, N.M.
Siana Operations filed a remediation permit and is expected to work with the New Mexico State Land Office after regulators accused Siana of causing a spill at a Eunice disposal site that Siana wasn't supposed to use.
Land officials say Siana was denied use of the well when regulators rejected a proposal for discounted rent. The officials say the company hadn't paid to lease the site since late 2011, while Siana's last reported activity at the site was in June of last year.
Siana could face over $900,000 in trespassing fines, according to regulators.
The New Mexico Oil Conservation Division said Siana has shut the wells as part of a temporary order until a hearing is held, though division spokeswoman Beth Wojahn said discussions could lead to a settlement.
http://www.eenews.net/energywire/2016/03/17/stories/1060034145
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Supreme Court Poised To Weigh Taking Suit Testing NAAQS Plan Mandates
Mar 17, 2016 | Inside EPA
By Stuart Parker
The Supreme Court is poised to consider at a March 18 conference whether to hear Ohio's appeal against a lower court's ruling that the state says contradicts EPA policy and other courts' precedent on the types of pollution controls states must impose, and when they must impose them, to comply with federal ambient air standards.
The appeal asks two questions: Whether the Clean Air Act requires states designated by EPA as out of attainment with national ambient air quality standards (NAAQS) to use air pollution control plans for such areas once they get into attainment, and whether an air law mandate that nonattainment areas use reasonably available control measures (RACM) to curb emissions applies if the use of RACM is unnecessary for the area to attain the NAAQS.
If the justices agree to take the case, State of Ohio v. Sierra Club, it could create new precedent on the scope of state implementation plans (SIPs), which are emissions reduction plans states craft to achieve the NAAQS.
Ohio is appealing a unanimous March 18 U.S. Court of Appeals for the 6th Circuit ruling that overturned EPA's decision to reclassify an area of the state around Cincinnati as in attainment with EPA's 1997 NAAQS for fine particulate matter (PM2.5). Sierra Club filed the suit, saying EPA wrongly allowed the state to avoid certain air pollution control mandates by reclassifying to attainment -- even though the Cincinnati area met the PM2.5 standard.
In its Nov. 23 petition for a writ of certiorari asking the Supreme Court to hear the appeal, Ohio says, "The Court should review the Sixth Circuit's holding that EPA cannot redesignate an area to 'attainment' until a State imposes undefined control measures that -- in the Sixth Circuit's words -- are 'not strictly necessary to demonstrate attainment.'"
Ohio says the 6th Circuit's decision creates a clear split with the 2004 ruling by the 7th Circuit in Sierra Club v. EPA, in which that appellate court found that the "applicable implementation plan" referenced in the Clean Air Act's redesignation statute does not need to implement all nonattainment plan requirements. Only measures required to bring about attainment are required, according to the 7th Circuit and EPA policy.
Further, Ohio says, the 6th Circuit's opinion "conflicts with the views of the Fifth, Ninth, and D.C. Circuits" that the phrases "reasonably available control measures" and "reasonably available control technology" (RACT) in the air law are best read to include only measures necessary for timely attainment. RACM and RACT are similar control technology requirements that apply to pollution sources in areas in nonattainment of NAAQS.
"EPA has always interpreted 'reasonably available control measures' to include only measures necessary to attain the relevant standards. Under that view, no more measures were 'reasonably available' here because Ohio had met the fine particulate-matter standards," Ohio says. If the 6th Circuit's ruling stands, it will create regional divergences over when RACM or RACT are required, the state warns.
Control Measures
The state also argues that the 6th Circuit's interpretation that RACT and RACM must apply even where an area has attained the NAAQS runs counter to the Supreme Court's focus on "efficient attainment."
Ohio cites as examples of this focus the high court's 2014 decision in EME Homer City v. EPA, a ruling upholding EPA's Cross-State Air Pollution Rule and allowing EPA's decision to base the rule on cost factors. The state also cites Michigan v. EPA, a high court ruling from last June faulting the agency for not considering costs in a preliminary finding that it is "appropriate and necessary" to regulate air toxics from power plants.
The state also claims support from the high court precedent set in Whitman v. American Trucking Associations, the 2001 decision in which the court found that EPA was prohibited from considering costs when setting NAAQS. Ohio says that the case clearly establishes that the focus of state plans to meet the NAAQS is on attainment, and "reasonably available" measures could only refer to those measures needed to meet the standards.
Indiana and nine other states -- Arkansas, Colorado, Kansas, Michigan, Mississippi, South Dakota, Tennessee, Utah, and Wyoming -- have joined the case in a Dec. 22 amicus brief to support Ohio.
These states say the 6th Circuit's holding "directly conflicts with holdings from other circuits and creates purposeless bureaucratic barriers that even EPA deems unnecessary."
Their position is also backed by the U.S. Chamber of Commerce, which in a Dec. 23 amicus brief warns of the "severe economic burdens" that the 6th Circuit's decision imposes.
Sierra Club in its Jan. 25 brief in opposition to cert insists that the "applicable" SIP for meeting the NAAQS states must impose when they are designated nonattainment is an expressly nonattainment plan that contains the RACM and RACT requirements, not a less-onerous plan for areas newly attaining the NAAQS. Ohio reads the air law "as demanding nothing, in essence, beyond attainment, by whatever means the States and EPA deem most 'efficient.' That is not, however, what the statute says. The Clean Air Act specifies not only the endsthat the States must meet (attainment), but also certain means that they must adopt to promptly reach those ends," Sierra Club says.
The group adds that the 6th Circuit did not prescribe what measures under RACT or RACM might be required in a nonattainment SIP, and that in practice Ohio might not have to impose any more controls on industry.
Nonattainment Plan
However, the nonattainment plan is procedurally necessary, Sierra Club argues. The group says there is no conflict with other court's rulings that would warrant cert. The impact of the 6th Circuit's ruling remains unclear with respect to what measures might ultimately be required, and hence "the consequences of any difference between the Sixth and Seventh Circuits remain obscure," depriving the high court of a fact-specific record to rely on, the brief says.
It adds, "The Sixth Circuit's decision is in no tension with the decisions of the D.C., Fifth, and Ninth Circuits cited by the petitioner," because those cases do not discuss redesignation requirements for NAAQS attainment "orwhether a nonattainment area must demonstrate that its plan satisfies [the air law] at all. Each instead addresses what must be contained within such a demonstration -- namely, what constitutes 'reasonably available' measures and technology."
The Department of Justice (DOJ) in its Jan. 22 brief on behalf of EPA agrees with Sierra Club that high court review is unnecessary, but warns that if the court takes the case, it will side with Ohio and industry in seeking to overturn the 6th Circuit's decision. "EPA agrees with petitioner that the court's decision is erroneous," the DOJ says.
The decision conflicts with the 7th Circuit's finding in Sierra Club, "and it is in tension with EPA's longstanding view" of what control measures are required and when. "The court of appeals' error, however, does not appear to be of sufficient practical importance to warrant this Court's review," DOJ says.
"The precise impact that the court's decision will have in future cases is not clear, especially since the court did not expressly consider, much less reject, EPA's longstanding interpretation of RACM and RACT to include only those measures necessary to achieve attainment," DOJ says, noting that the SIP for Cincinnati need not include any actual new control measures.
http://insideepa.com/daily-news/supreme-court-poised-weigh-taking-suit-testing-naaqs-plan-mandates
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EPA Cites SoCal Regulators for Violating Clean Air Act
Mar 17, 2016 | E&E Greenwire
By Debra Kahn
U.S. EPA is joining state officials in criticizing a Southern California air agency for failing to reduce air pollution as much as it could.
EPA Region 9 officials notified the South Coast Air Quality Management District yesterday that it is in violation of the Clean Air Act for failing to adequately control nitrogen oxide emissions in its jurisdiction, which encompasses Orange County and the urban portions of Los Angeles, Riverside and San Bernardino counties -- an area of more than 10,000 square miles that is home to more than 16 million people.
EPA's move comes two weeks after the SCAQMD board voted to uphold a controversial decision to keep nitrogen oxide permits at a slightly higher level than agency staff had recommended. The permits, which are used by industry to meet standards for the pollutant, are part of a market-based program to help the smoggy region attain its Clean Air Act targets.
The so-called RECLAIM Program, first adopted in 1993 to meet Clean Air Act standards for nitrogen oxides, allows refineries, manufacturers and other heavy industries to generate and sell credits when they reduce emissions below facility-specific caps.
Facility closures and faster-than-expected technological improvements resulted in an oversupply of credits, so SCAQMD staff proposed tightening credit supplies enough to reduce emissions by an additional 14 tons per day by 2022. But the board voted 7-5 in December to tighten supplies to a level that would reduce emissions by 12 tons per day. On March 4, they voted to uphold that decision, despite a request from the state Senate Environmental Quality Committee to reconsider it. That same day, the board voted to dismiss its long-standing executive officer, Barry Wallerstein, a move observers linked to the board's new Republican majority (Greenwire, March 7).
EPA Region 9 Air Division Director Deborah Jordan cited "new information" in finding that the program violates the requirement to lower emissions as effectively as direct regulations could. That is also the basis for a lawsuit filed last week by Earthjustice and other environmental groups, who argued that air pollution markets must reduce emissions as effectively as mandates to install best-available pollution controls (Greenwire, March 10).
Jordan said SCAQMD can either come into compliance with the NOx standards by October, when it has to submit a plan to meet the 2012 annual standard for fine particulate matter, or next year, with a plan to meet the 2006 daily standard.
"[W]e are aware of the program amendments that SCAQMD adopted on Dec. 4, 2015," Jordan wrote. "We look forward to working with you to ensure that these upcoming plan submissions satisfy the requirements of the Clean Air Act."
SCAQMD released a statement attributing EPA's decision to a "technicality" that the December decision actually resolved.
"It is important to understand that EPA's decision is NOT a criticism of the Governing Board's adoption of the RECLAIM amendments in December," the agency said. "It has nothing to do with whether the Board adopted a 12 ton per day or 14 ton per day 'shave.'"
In fact, the agency said, the December amendments should bring the program into compliance with the Clean Air Act. SCAQMD said it plans to submit a plan for meeting the 2006 particulate matter standard by this summer that envisions being in compliance by 2019. It missed the 2015 deadline largely due to the "lack of cleansing storms and other factors associated with the state's historic drought," it said.
"EPA could not consider these amendments yet since they have not yet been submitted by the California Air Resources Board," the agency said. "In short, the disapproval is based on a technicality, which staff expects to be remedied by submitting the December RECLAIM amendments to EPA, along with any additional technical information EPA needs to ensure that these amendments satisfy RACT [reasonably available control technology]."
SCAQMD faces increasingly strict standards from EPA and the California Air Resources Board for ozone and particulate matter. By July, it has to finalize an update to its plan to achieve federal standards for one- and eight-hour ozone concentrations, as well as concentrations of two sizes of particulate matter (dust and soot). Nitrogen oxides are a precursor to particulate matter.
The head of the state Senate, President Pro Tem Kevin de León (D), who has announced plans for legislation to change the composition of the board, warned that the agency is jeopardizing federal transportation funding and risking federal takeover by violating the Clean Air Act.
"SCAQMD board members should rethink their votes to weaken the region's clean air standards and take the necessary steps to comply with state and federal law," he said. "Their actions are not only irresponsible, but illegal."
http://www.eenews.net/greenwire/2016/03/17/stories/1060034209
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