Preview Newsletter
ACC AM 3/28/2016
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Top EPA Toxics Officials Tout Efforts to Implement Pending TSCA Reform
Mar 25, 2016 | InsideEPA
By Maria Hegstad
EPA's top toxics political and career officials say the agency's changes during the last few years to its existing chemicals management program will ease EPA's ability to implement a pending Toxic Substances Control Act (TSCA) reform bill... -
(ACC Mentioned) Chemical Sector Upbeat on TSCA Reform As States Advance Toxics Bills
Mar 25, 2016 | InsideEPA
By Maria Hegstad
Chemical sector officials are upbeat on prospects for Toxic Substances Control Act (TSCA) reform legislation clearing Congress this year, even as states ramp up efforts to approve legislation that would give them more power... -
(ACC Mentioned) Makers Urged to Get Chemicals on EPA Safer List
Mar 28, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Chemical manufacturers that want to underscore the safety of a chemical they make should consider submitting it for inclusion in the Environmental Protection Agency's Safer Chemical Ingredients List, the head of EPA's chemicals... -
Will New Toxics Law Hide Secret Chemicals?
Mar 25, 2016 | Environmental Working Group
By Jon Whelan
When I first smelled a strange odor coming from my daughter's brand-new pajamas, I wanted to find out what caused it. -
California Updates Prop 65 Warning Reform Proposal
Mar 26, 2016 | Chemical Watch
By Kelly Franklin
California’s Office of Environmental Health Hazard Assessment (Oehha) has issued modifications to its proposed reform of “clear and reasonable warning” provisions under Proposition 65. -
Schools Nationwide Still Grapple With Lead in Water
Mar 27, 2016 | New York Times
By Michael Wines, Patrick McGeehan and John Schwartz
Anxious parents may wonder how a major school system like Newark’s could overlook lead in the drinking water of 30 schools and 17,000 students. -
The Future for Flint’s Children
Mar 28, 2016 | New York Times
By Mona Hanna-Attisha
The World Health Organization’s “action level” for lead contamination in drinking water — indicating the need for intervention — is 10 parts per billion. -
Household Action Level for Lead in Water: EPA Needs to Release Health-Based Estimate
Mar 25, 2016 | Environmental Defense Fund
By Tom Neltner
A new article in USA Today’s series on lead in drinking water shines a light on the Environmental Protection Agency’s (EPA) delays in releasing a health-based “household action level” for lead. -
ECJ Rules Sweden's Chemical Reporting Requirements Legal
Mar 28, 2016 | BNA Daily Environment Report
By Marcus Hoy
Sweden's imposition of reporting requirements on chemical importers and manufacturers does not breach the European Union's REACH chemical regulation or the Treaty on the Functioning of the European Union, the European Court of Justice has found. -
Oil Firms Urge White House to Weaken Well-Control Rule
Mar 28, 2016 | BNA Daily Environment Report
By Ari Natter
Exxon Mobil Corp., Anadarko Petroleum, Murphy Oil Corp. and others from the oil and gas industry met with White House officials multiple times this month and urged them to weaken a forthcoming federal rule... -
Infrared Cameras Reveal Hidden Air Pollution from Oil and Gas Drilling
Mar 26, 2016 | Houston Chronicle
By James Osborne
A pair of state and federal government inspectors spent two weeks traveling around northern Colorado's oil and gas fields in early 2012, filming with an infrared camera. -
LNG Exports Represent Next Step to U.S. Energy Independence
Mar 28, 2016 | Philadelphia Inquirer
By Jeffrey Kupfer
With all the focus on volatile oil prices, it would not be surprising if most people missed one of the most important energy developments of the year: last month's first export cargo of liquefied natural gas (LNG)... -
The Big Bust in the Oil Fields
Mar 25, 2016 | Washington Post
By Chico Harlan
He’d borrowed from banks and investors and retirement funds, all in a frenzied mission to drill for oil and gas, and by the time Terry Swift realized he’d gone too far, this was his debt: $1.349 billion. -
Texas Oil and Gas Regulators Keep Close Ties to Industry
Mar 27, 2016 | AP (In Fuel Fix)
The cozy relationship between state oil and gas regulators and the industry they monitor is typified by a revolving door of officials who leave the Texas Railroad Commission to lobby for energy companies... -
Texas Haze Case to Focus on Reasonable Progress Requirements
Mar 28, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Litigation over an Environmental Protection Agency rule that will require Texas utilities to invest about $2 billion to control emissions that affect visibility is expected to focus on how much flexibility states have under the Clean Air Act... -
DOT Finalizes Hazardous Return Rule Opposed by Shippers
Mar 28, 2016 | BNA Daily Environment Report
By Ari Natter
The Department of Transportation has finalized a rule designed to ensure safe transportation of hazardous materials when they are being returned from retailers, the Pipeline and Hazardous Materials Safety... -
(ACC Mentioned) Briefing on Boiler MACT Reconsideration Begins in July
Mar 28, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Briefing over a 2015 Environmental Protection Agency rule concerning emissions from major source industrial boilers will begin in April and last through the end of 2016 (Sierra Club v. EPA, D.C. Cir., No. 16-1021, 3/24/16). -
States Urge District Court to Reject DOJ Bid to 'Relitigate' CWA Rule Suit
Mar 25, 2016 | InsideEPA
By Bridget DiCosmo
States challenging EPA's Clean Water Act (CWA) jurisdiction rule in federal district court in North Dakota are urging the judge overseeing the case to reject what they call the Department of Justice's (DOJ) bid to “relitigate”... -
Corps Urges High Court to Reject CWA 'Jurisdiction' Order Suit
Mar 25, 2016 | InsideEPA
The Army Corps of Engineers is urging the Supreme Court to reject calls from industry groups and conservatives to allow pre-enforcement judicial review of regulators' findings that waters are covered by the Clean Water Act (CWA)...
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Top EPA Toxics Officials Tout Efforts to Implement Pending TSCA Reform
Mar 25, 2016 | InsideEPA
By Maria Hegstad
EPA's top toxics political and career officials say the agency's changes during the last few years to its existing chemicals management program will ease EPA's ability to implement a pending Toxic Substances Control Act (TSCA) reform bill, but some observers question whether the agency is taking sufficient steps to prepare for TSCA reform.
“We've tried very hard to stand up our existing chemicals program, and we've done it in a way that will stand up well if” a final compromise TSCA reform bill clears the House and Senate and becomes law this year, said Jim Jones. assistant administrator in EPA's Office of Chemical Safety and Pollution Prevention (OCSPP) in March 23 keynote remarks to the chemical industry conference GlobalChem in Washington, D.C.
Wendy Cleland-Hamnett, the top career official in OSCPP's Office of Pollution Prevention and Toxics, said later, “In the back of our minds is, 'If [TSCA reform] happens, how will we be implementing?' Of course, that's a priority for me. If we get a bill signed by Congress and signed by the president, that will become the priority.”
Some conference attendees, however, viewed the remarks on existing efforts to revise EPA's toxics program as an indication that EPA is not preparing for TSCA reform. They question EPA's ability to craft implementing regulations for a new statute by the short deadlines expected in the final bill, which industry leaders at the conference predicted will emerge from an ongoing informal Congressional conference committee by Memorial Day.
The House and Senate approved their competing TSCA reform bills last year and top Democrats and Republicans in both chambers are now trying to craft a final compromise bill they could vote on.
EPA Administrator Gina McCarthy in a Jan. 20 letter to lawmakers backs much of the Senate bill, S. 697, over the House-approved measure, which could bolster proponents of the upper chamber's bill in pending conference negotiations aimed at reconciling the two bills into one bill both chambers could support.
However, McCarthy said that the agency is taking no position on the contentious issue of whether the legislation should preempt existing states' chemical programs. Disputes between Republicans and Democrats on whether to protect such programs or prohibit them have stalled TSCA reform efforts in previous years.
Years of work on TSCA reform have given Jones and his staff “an opportunity to get your legs under you around the kind of concepts Congress has been thinking about as it relates to reforming that law, things like, setting priorities. It was very clear from early on that was an important part of reformed TSCA. As a regulator, it's a no-brainer,” he said.
Jones and Cleland-Hamnett pointed to EPA's work plan chemical program, initiated in 2012 after the Obama Administration stopped work on the Bush Administration's Chemical Assessment and Management Program (ChAMP), as an important effort to prepare for TSCA reform. They cited similarities between their program and the approach in both TSCA bills, such as the need to prioritize chemicals for review, and then how to undertake risk-based assessments of high-priority chemicals.
Work Plans
The work plan chemicals program has long been viewed as the Obama administration's attempt to more strictly regulate existing chemicals -- those on the market with the current TSCA passed in 1976 and largely grandfathered -- in the absence of Congressional reform of TSCA. But Jones and Cleland-Hamnett said it has also been a learning exercise that they expect will help smooth the transition to a potential TSCA reform law.
“We're just learning a tremendous amount as we go along, as Jim said, and that will I think give us a good head start should reform TSCA happen,” Cleland-Hamnett said, citing evolution in the work plan chemical assessment process, such as adding the step of a problem formulation document with public comment before drafting an assessment, and moving peer review of the assessments from contractor managed panels to a new federal advisory committee (FACA).
“I've been around this town long enough to know that if you're putting all your eggs in one basket, and that basket is a legislative basket, you could find yourself holding an empty basket at the end. We have not managed our operation under the assumption that the law would be changed. We have tried very hard . . . 99.5 percent of the energy in our organization has been going into implementing the existing statute,” Jones said.
“We have basically done something that may not exactly match what may come out of a reformed TSCA, but it's certainly not going to be inconsistent with it,” he added.
Jones said that the work plan program was developed “in a way that was conscious of the political arena.” He pointed to the initial start up of the program, wherein EPA staff crafted an approach to prioritize chemicals for risk assessment based on their toxic, persistence and bioaccumulative properties, as well as exposure information such as whether a chemical is used in children's products or consumer products.
“We've got some experience now, we've done risk evaluations with some high-priority chemicals,” he added. “And whether TSCA is reformed or not we will be able to take advantage of all this learning and apply it to the new statute or if that doesn't pass . . . we are beginning to occupy the field in a way that even in the absence of a reformed TSCA we have a standing existing chemicals program that will continue to look at existing chemicals for safety.”
Voluntary Programs
Jones also pointed to efforts to bolster voluntary agency toxics programs that give EPA an opportunity “to speak to where we should be,” such as efforts to boost awareness of the presidential green chemistry challenge and the Safer Choice program, formerly known as Design for the Environment. Safer Choice, EPA's voluntary alternative assessment program, also has a tie-in to TSCA reform efforts, both Jones and Cleland-Hamnett said.
“One of the outgrowths [of Safer Choice] is the safer chemicals list, 700 chemicals where government, my organization, has evaluated and agreed that they meet the criteria,” Jones said. “The chemicals on the safer ingredients list will meet the low priority” chemical criteria described in the TSCA reform bills.
Cleland-Hamnett, who focused her remarks on priorities for her office in 2016, said that “adding chemicals to the safer ingredient list will be a big priority. We have a goal of a 10 percent increase.”
Acknowledging that the safer chemicals ingredient list started with chemicals in cleaning products reviewed by the Safer Choice labeling program for cleaning products, she said “there's no reason this list has to be limited to chemicals that have gone through the Safer Choice program per se. We would be happy to run chemicals from other sectors that you would like us to run against the Safer Choice criteria to be put on the safer chemicals list. And as Jim said, we consider these chemicals lowest priority in terms of meeting that extensive risk evaluation.”
But Jones acknowledged that “it wasn't the risk assessment process that tripped us up the last time we tried to apply section 6, it was our application of the standard.” Jones noted that of the first five completed risk assessments from the work plan program, three identified risks, and reminded GlobalChem attendees that agency staff are preparing TSCA Section 6 rules on these chemicals. They include trichloroethylene in degreasers, spray fixatives and when used as a stain remover; methylene chloride in paint removers and n-methyl pyrrolidone in paint removers.
Section 6 provides the little-used authority to ban a chemical's use. “We hope to have the rules out before the year is out,” Jones added.
Cleland-Hamnett described these three section 6 rulemakings as “a big priority for us in 2016,” and predicted that the first proposal would be released in the late summer or early fall, with the other two proposals following by the end of the year. “This is a huge deal, it's actually almost 30 years since EPA tried to use Section 6” to ban asbestos, an action later rejected by the 5th Circuit in its 1991 decision Corrosion Proof Fittings v. EPA.
Cleland-Hamnett reported that the rulemaking team has “got lots of advice from” the office of general counsel, that the risk assessment was “done in a way that we think will help us fulfill the requirements of the statute,” that agency economists are being consulted for the necessary cost-benefit analysis, and that staff have met with small business and the Small Business Administration as required by the Small Business Regulatory Enforcement Fairness Act.
Advisory Committee
Cleland-Hamnett also pointed to the agency's efforts to create a new advisory committee, or federal advisory committee (FACA), as another step that would be helpful if TSCA reform becomes law, “so we have that infrastructure in place to help us provide peer review for the chemical risk assessments. Again, that is something that should help us get a head start should reformed TSCA happen,” she said.
Gary Guzy, formerly general counsel to EPA and the White House Council on Environmental Quality, agreed with her assessment. Guzy, now with the multinational firm Covington & Burling, said during another GlobalChem panel session that when he and EPA colleagues were reworking agency programs after Congress approved the Food Quality Protection Act of 1996, “it was hugely important to have set up a FACA to help guide the process.”
Cleland-Hamnett said that an announcement on committee members would be released soon. EPA chartered the committee, known as the Chemical Safety Advisory Committee (CSAC) last summer. The agency announced CSAC's first meeting in a March 16 Federal Register notice. The committee will meet in the Washington, D.C. area May 24-26 to conduct a peer review of the draft work plan risk assessment of 1-bromopropne, the notice says.
Guzy also sought to reassure one skeptical conference attendee that EPA could quickly produce implementing regulation for a new TSCA statute.
“EPA's ability to do this in two years is zero,” said Phil Brondsema of Celanese Corp. “How are we going to cope to avoid some really bad regulations coming out?”
Guzy said that it would be important for industry to comment and provide good ideas as the agency develops these rules. He also pointed to EPA's development of greenhouse gas standards for existing power plants as an example of EPA's “incredible machine for making rules.”
Fellow panelist Mark Duvall, a principal with the law firm Beveridge & Diamond, also encouraged attendees to consider opportunities in the pending statute, such as companies' ability to nominate chemicals for expedited risk assessment by EPA. “I know of two trade associations that are planning already to nominate chemicals,” once TSCA reform is passed, he said. “Why? Because otherwise, their chemicals may take decades to come up” for review. “They can get a stamp of approval and state preemption” by seeking EPA review, he said. Duvall encouraged others to consider this approach “if you're confident in your chemicals.”
http://insideepa.com/daily-news/top-epa-toxics-officials-tout-efforts-implement-pending-tsca-reform
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(ACC Mentioned) Chemical Sector Upbeat on TSCA Reform As States Advance Toxics Bills
Mar 25, 2016 | InsideEPA
By Maria Hegstad
Chemical sector officials are upbeat on prospects for Toxic Substances Control Act (TSCA) reform legislation clearing Congress this year, even as states ramp up efforts to approve legislation that would give them more power to regulate chemicals -- a patchwork of state efforts that has helped drive calls to overhaul the toxics law.
Lawmakers are currently engaging in informal talks to craft a compromise TSCA bill that reconciles the House-approved TSCA reform measure H.R. 2576 with the broader TSCA reform bill cleared by the Senate, S. 697. Top Democrats and Republicans in both chambers are working to try to develop a consensus bill that could potentially avoid the need for Congress to hold a formal conference committee to craft a final bill.
Industry groups are pushing TSCA reform for several reasons including creating a credible federal chemicals management system that has public trust, and halting states' efforts to regulate chemicals in the face of limited existing federal action. The dramatic increase of state restrictions on chemicals and substance management programs over the past decade has resulted in a patchwork of laws with which companies have struggled to comply.
At this week's GlobalChem chemical industry conference in Washington, D.C., Beveridge & Diamond law firm partner Mark Duvall said there are more than “60 bills pending in state legislatures. The states have shown no interest in slowing down.” He suggested that this presents industry with “a challenge and an opportunity to engage with states,” by suggesting that a revised TSCA would allow EPA to address chemicals on a national scale.
During a March 23 panel on what TSCA reform means for the states, Maureen Gorsen -- former director of California's Department of Toxic Substances Control and now a partner with the multinational law firm Alston & Bird -- said that in her view, “TSCA reform will not have much of an effect on state regulators.”
She explained that state regulators “work very hard to insulate themselves from the legislature and the public. . . . They work very closely with each other to divvy up their spheres of influence.”
The extent to which a TSCA reform bill should preempt state chemicals management programs has long been a major point of contention in efforts to overhaul the 1976 law, and has blocked prior reform attempts.
S. 697 would “grandfather,” or preserve, states' existing chemicals laws, as well as allowing state toxic tort claims. But under the bill, new state chemical rules and laws would be preempted as soon as EPA defines and publishes the scope of a safety assessment and safety determination under its TSCA section 6 authority to review existing chemicals' risks.
Similarly, the House bill grandfathers existing state chemical laws as well as preserving state toxic tort claims even after EPA takes final action on regulating a chemical, unless they "actually conflict" with the new federal mandates. New state chemical laws, however, would be preempted when EPA uses its TSCA authority to restrict the same substance, without the need to show the policies “actually conflict.”
State Preemption
Mike Heltzer, government affairs senior manager for BASF Corporation, said at GlobalChem that preemption remains a major issue for the conference talks. “[K]ey points of disagreement remain. When does preemption kick in? I don't think anybody has a clear signal where this will go, and it's a very important point.”
“We can extrapolate the common points [between the bills] will be adopted,” he said, noting areas of agreement between the bills such as not preempting state tort actions and grandfathering state actions.
Gorsen noted that the states can take other actions to address chemicals, such as those pursed by states like California, Washington, Maine, and most recently Oregon and Vermont, which are implementing their own broader chemicals management programs requiring companies to disclose certain chemicals in childrens' products and perform assessments of alternate chemicals to replace those the states deem of concern.
“Most of what they're doing is asking for information, labeling, alternatives assessment,” she said, adding that if EPA had acted on any of these chemicals under a reformed TSCA, the states would be preempted from restricting their use as well. “But they can continue with all the information gathering,” she added.
The discussion led one concerned attendee to question whether it is possible for industry to negotiate a better deal. “What are we getting for TSCA reform if the states won't calm down?” he asked.
“Well, you're getting one standard instead of 50,” Gorsen replied.
Sarah Brozena, a senior director with the trade association American Chemistry Council (ACC), added, “We don't yet know what the final bill will say. If anybody thinks the minute TSCA reform is signed by the president” states will be preempted from acting, they haven't read the preemption sections of the bills very well.
Pending Legislation
Cal Dooley, CEO and president of ACC and Mike Walls, vice president of regulatory and technical affairs at ACC, both predicted at GlobalChem that the final TSCA bill could make it out of the lawmakers' ongoing discussions by Memorial Day, while also urging companies to prepare to provide more chemical data to EPA.
Speaking to reporters after his keynote speech, Dooley said that he thought the long negotiations are due more to process than substance, though he acknowledged that “the biggest issue is clearly preemption.”
Noting that both the House and Senate bills cleared their individual chambers last year with “obviously overwhelming support . . . we're a little frustrated that it took a long time for the starting pistol to fire” on reconciling the bills. “Now, they are making great progress on reconciling,” he said.
An industry source expresses similar optimism, describing lawmakers and staff as “going to town. The discussions are very active. . . . They are going through line by line on lots of provisions of interest.”
The source adds that while there was a “danger that this legislation might be pushed aside by other events, that does not seem to be the case. Staffs are talking frequently, and apparently making progress . . . it's clearly not getting lost.”
The source says that while it would be preferable for a final bill to emerge before the August Congressional recess and the unofficial start of the presidential campaign season, there is also no reason it could not move in the fall, noting that the existing TSCA was enacted in October 1976, also a presidential campaign year.
http://insideepa.com/daily-news/chemical-sector-upbeat-tsca-reform-states-advance-toxics-bills
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(ACC Mentioned) Makers Urged to Get Chemicals on EPA Safer List
Mar 28, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Chemical manufacturers that want to underscore the safety of a chemical they make should consider submitting it for inclusion in the Environmental Protection Agency's Safer Chemical Ingredients List, the head of EPA's chemicals and pesticide office said.
The list has more than 700 chemicals that have been evaluated using the EPA's rigourous criteria, Jim Jones, assistant administrator for chemical safety and pollution prevention, said March 23 at the Global Chemical Regulations Conference.
“They're not persistent, not bioaccumulative and have a very low hazard,” Jones said at the annual conference co-hosted by the American Chemistry Council and the Society of Chemical Manufacturers and Affiliates (SOCMA).
Wendy Cleland-Hamnett, director of the EPA's Office of Pollution Prevention and Toxics, said the EPA compiled the list based on chemical ingredients in cleaning, car care and other products that have qualified for the agency's Safer Choice program, formerly known as the Design for the Environment.
Stringent Health, Environmental Criteria
Products can qualify for a Safer Choice label if every ingredient meets a stringent set of EPA's health and environmental criteria. Products can bear the Safer Choice label only if each ingredient is among the safest for the function it provides, according to the Safer Choice website.
“EPA labels products so that consumers can easily choose ones that are safer for people and the environment. The program empowers consumers to protect their health and minimize impact on the environment through everyday purchasing decisions,” the EPA said.
If a particular chemical isn't in a labeled product, there is no reason a manufacturer can't submit that chemical to the Safer Choice program and have it evaluated against the EPA's criteria, Cleland-Hamnett said.
The EPA's SCIL website invites chemical manufacturers to submit their safer chemicals to the agency for review and listing. “Adding chemicals to the SCIL encourages innovation and growth in safer products, increase markets for business, and helps protect people and the environment,” the EPA said on the website, describing steps a company needs to list its chemical.
The agency seeks to expand the number of private-sector companies that check each chemical to verify it meets the agency's SCIL criteria, Cleland-Hamnett said. OPPT anticipates adding 75 chemicals to the SCIL list in 2016, she said.
“I'd like that list to be in the thousands, ultimately,” Jones said.
‘Low Priority.'
Jones said chemicals on the EPA's SCIL list “would fundamentally have no problem meeting the low priority standard in the Senate bill.”
He referred to the Senate's Frank R. Lautenberg Chemical Safety for the 21st Century Act, which would overhaul the Toxic Substances Control Act. Formerly S. 697, the Senate passed its bill unanimously in December as an amendment to H.R. 2576, the House's TSCA Modernization Act (243 DEN A-1, 12/18/15).
The Senate bill would require the EPA to prioritize chemicals based on their potential human health and environmental concerns and initially designate 10 chemicals to be high priorities for further review and 10 to be low priorities. The number of chemicals designated as high- or low-priorities is to grow as the agency would gain experience implementing the law.
Mark Duvall, an attorney with Beveridge and Diamond PC, said Jones's comment that SCIL chemicals are low priorities suggests that the EPA sees the list as a resource it could use if the Senate bill's quotas to designate low priorities remain in a final TSCA-reform bill.
“He's got a list of chemicals ready to fill that quota,” Duvall said.
“Maybe your chemical is on that list,” he said. Jones is suggesting, if it is not, it could be, Duvall said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=85867263&vname=dennotallissues&fn=85867263&jd=85867263
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Will New Toxics Law Hide Secret Chemicals?
Mar 25, 2016 | Environmental Working Group
By Jon Whelan
When I first smelled a strange odor coming from my daughter's brand-new pajamas, I wanted to find out what caused it.
I had no idea that this seemingly simple question would lead me on a quest through corporate boardrooms, the halls of Congress, and back alleys, eventually to discover that companies are not required to disclose whether their products contain potentially toxic chemicals.
My new documentary “STINK!” follows my journey as I clash with political and corporate operatives trying to protect the darkest secrets of the chemical industry. I was shocked by what I learned, and I’ve made it my mission to fight against secret chemicals in everyday products.
Few laws are more important in that fight than the Toxic Substances Control Act of 1976, the country’s primary chemical safety law.
Under current law, TSCA, pronounced “tosca,” contains a loophole that has allowed the chemical industry to claim that thousands of chemicals in commerce are “trade secrets” protected from public disclosure -- even when someone may have been injured after being exposed to that chemical.
Both the House and Senate have passed bills proposing revisions to TSCA’s trade secret laws. Congressional leaders are working on reconcile the two bills now.
The secret chemical provision in the House-passed bill is far worse than the Senate’s version. The House bill would ensure that thousands of secret chemicals already in the environment will remain just that – secret.
Here’s why.
First, under the House bill, trade secret claims asserted in previous years would remain secret. By contrast, the Senate bill would require the U.S. Environmental Protection Agency to review past trade secret claims.
Second, the House bill would actually make things worse than under current law by allowing industry to hide information about a chemical’s identity in health and safety studies. Why?
Third, the House bill would give companies 10 years to “resubstantiate” their trade secret claims. During that period, the EPA could not ask companies for more evidence to support those claims or revoke that trade secret status.
By contrast, the Senate bill would require that companies to prove to the EPA periodically that their company secrets should stay secret. Chemical makers would have to produce evidence whenever the agency inquired out of concern for safety. The EPA would not have to wait to ask questions when a substance’s privileged status as a trade secret status was about to expire. Also, under the Senate bill, a chemical banned by the EPA would automatically lose its super-secret status.
I understand that chemical companies need to keep some practices from their competitors or they’ll lose the incentive to innovate. But their arguments for trade secret status should be double-checked. Frequently. When manufacturers can keep chemicals secret, we don’t get to choose the chemicals to which we’re exposed. The chemical industry gets to choose for us.
There are plenty more problems with both the House and Senate versions of the toxic substances overhaul bill. For example, neither measure provides enough funding to enable the EPA to investigate the most potentially dangerous chemicals in a timely way.
But keeping secrets? Forever? Even my daughters know that some information should be shared.
http://www.ewg.org/enviroblog/2016/03/will-new-toxics-law-hide-secret-chemicals
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California Updates Prop 65 Warning Reform Proposal
Mar 26, 2016 | Chemical Watch
By Kelly Franklin
California’s Office of Environmental Health Hazard Assessment (Oehha) has issued modifications to its proposed reform of “clear and reasonable warning” provisions under Proposition 65.
The updates were made after consideration of stakeholder comments submitted in response to the agency’s November proposal. This document, which replaced Oehha’s previous proposed reform, intends to further the “right to know” provisions within Prop 65.
Modifications to the proposed regulatory text include
:a new provision regarding what supplemental information to a warning may be provided;
amendments to language that a responsible party may use to satisfy warning requirements;clarification on how warning is to be provided in cases where there is exposure to both cancer and reproductive toxicity endpoints;
changes to the retail sellers’ and product manufacturers’ responsibilities with regard to providing warning; and
alterations to a variety of product- and environmental-specific warning provisions.
Supplemental language
A provision that drew feedback from many stakeholders in Oehha’s November proposal was that supplemental information to a warning could be provided, but that it “may not contradict the warning”.
In comments, several NGOs advocated the agency bring back stronger language that would also restrict supplemental information that would “dilute or diminish the warning”.
By contrast, an industry coalition said the supplemental information limitations could violate free speech rights by blocking companies from providing context to warnings.
The updated proposal has struck the original supplemental information text. In a new section, it now says that supplemental information may only be included: “to the extent that it explains the source of the exposure or provides information on how to avoid or reduce exposure to the identified chemical or chemicals.”
Warning language
Oehha’s November proposal lifted a previously considered mandate to disclose the presence of any “List of 12” substances identified by the agency. It replaced this with a requirement that at least one substance for which a warning is being provided should be disclosed.
The November draft had said: “This product can expose you to [name of one or more chemicals], a chemical[s] known to the State of California to cause [endpoint].”
The agency now proposes that a warning say that a product “can expose you to chemicals such as [name of one or more chemicals], which is [are] known to the State of California to cause [endpoint].”
The agency has made no changes to its proposed requirement that warnings include a pictogram of an exclamation point within a triangle.
Multiple hazards
For products that result in exposures to more than one endpoint, the revised proposal clarifies that a warning must specify the presence of one or more chemicals for each hazard.
Alternately, a warning may name a single chemical, if that substance is listed under Prop 65 as both a carcinogen and reproductive toxicant, and provided that the warning discloses both endpoints.
Oehha will accept comments on the revised proposal through 11 April. The agency has until 27 November to finalise the regulation.
Speaking at last week's industry conference GlobalChem, Anthony Samson, policy advocate at the California Chamber of Commerce, said it expects Oehha will have a final regulation in place by the end of the summer.
https://chemicalwatch.com/45937/california-updates-prop-65-warning-reform-proposal
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Schools Nationwide Still Grapple With Lead in Water
Mar 27, 2016 | New York Times
By Michael Wines, Patrick McGeehan and John Schwartz
Anxious parents may wonder how a major school system like Newark’s could overlook lead in the drinking water of 30 schools and 17,000 students. The answer: It was easy. They had to look only a few miles away, at the century-old classrooms of the schools here, across the Hackensack River.
The Jersey City Public Schools district discovered lead contamination in eight schools’ drinking fountains in 2006, and in more schools in 2008, 2010 and 2012. But not until 2013 did officials finally chart a comprehensive attack on lead, which by then had struck all but six schools.
This winter’s crisis in Flint, Mich., has cast new attention on lead in water supplies. But problems with lead in school water supplies have dragged on for years — aggravated by ancient buildings and plumbing, prolonged by official neglect and tight budgets, and enabled by a gaping loophole in federal rules that largely exempts schools from responsibility for the purity of their water.
Children are at greatest risk from lead exposure, and school is where they spend much of their early lives. But cash-starved school administrators may see a choice between spending money on teachers or on plumbing as no choice at all.
“They feel it’s almost better not to sample, because you’re better off not knowing,” Marc Edwards, a Virginia Tech civil engineering professor who has fought for lead safety nationwide, said in an interview.
The problem is persistent and widespread. Baltimore’s public schools switched entirely to bottled water in 2007 because ripping out the lead plumbing would have been impractical. Sebring, Ohio, found elevated lead levels in August after workers had stopped adding an anti-corrosion chemical to the water supply.
The Los Angeles Unified School District allotted $19.8 million in September to retrofit or remove its 48,000 drinking fountains to erase a small but tenacious lead threat. Ithaca, N.Y., schools switched temporarily to bottled water in January after water tests found elevated lead levels at two schools.
Congress could easily have cracked down on lead in schools. In fact, it once did. The 1988 Lead Contamination Control Act required schools to scrap lead-lined water coolers, test drinking water and remedy any contamination they found. But a federal appeals court struck down part of the law affecting schools in 1996. And while some states have devised their own lead-testing rules, federal lawmakers have yet to revisit the issue.
The only regulation left is a 1991 rule by the federal Environmental Protection Agency requiring periodic tests for lead and copper by most public water systems, whether the supplier is a big utility or a well in a trailer park or campground.
But although schools and day care centers are the main sources of water for children on most weekdays, only the few schools that operate their own wells fall under the rule. The vast majority of schools use treated water from utilities.
And while the utilities test their water, virtually all lead contamination occurs inside schools — in lead pipes, water-cooler coils and linings, and in leaded-metal fountains and taps.
“If you’re a mom-and-pop coffee shop in Sparta, New Jersey, and have a private well, you’re required to certify every quarter,” said Robert Barrett, the chief executive of Aqua Pro-Tech Laboratories, a New Jersey environmental testing laboratory. “But if you’re a school, you don’t have to do anything.”
Mr. Barrett, whose firm tests water in 13 states, said the Newark and Flint revelations prompted reassessments by schools and other institutions that had not scrutinized their plumbing in years, if ever.
“No one was testing,” he said. “Now all of a sudden they’re all going crazy.”
In Newark, where school officials disclosed elevated lead levels earlier this month, Mr. Barrett’s firm began testing water systemwide on March 19. Students at the 30 schools now drink bottled water, and the youngest students were offered free blood tests.
There, as in Los Angeles, high lead levels persisted even though workers flush the water pipes every weekday to push out lead that accumulates overnight. Nor did some filters on Newark school fountains reduce contamination sufficiently.
The Centers for Disease Control and Prevention says children whose blood lead content exceeds five micrograms per deciliter — 50 parts per billion, or less than a millionth of an ounce in a pint — should see a doctor. High blood lead levels can stunt a child’s mental development and damage a range of organs. But even smaller amounts can affect children’s intellectual development, and the agency says no level of lead is safe.
The E.P.A.’s 1991 lead rule — the one that requires most public water systems to periodically test for lead and copper — limits the amount of lead in drinking water to no more than 15 parts per billion. The rule is being revised, though, and that limit could soon be lowered. Even though the rule does not apply to most schools, districts that do monitor drinking water generally use it as a guideline.
Tainted water is not the biggest source of lead exposure in humans; on average, the E.P.A. says, it makes up about a fifth of contamination. Pregnant women working in schools are at greatest risk because fetuses are most profoundly affected by contamination. Women face an increased risk of miscarriage, along with potential organ damage and developmental problems in the baby.
Schools built before 1986, when an amendment to the Safe Drinking Water Act banned lead plumbing, pose the greatest hazard. Fountains may be fed water through lead pipes commonly used in the early 20th century. Older water coolers may have lead linings and components.
But even newer buildings can face a threat. Under industry pressure, Congress defined “lead-free” in the amendment as no more than 8 percent lead. Plumbing hardware like faucets and connectors often contained that much lead until 2013, when the permissible level fell to near zero.
Los Angeles school officials learned of the 8-percent rule the hard way. In the 131 schools built over the last decade, the district installed thousands of water fountains with long-lasting brass fittings to reduce maintenance costs. They later discovered that the leaded brass fittings tainted the water in some fountains beyond the E.P.A.’s lead standard.
The district’s $19.8 million lead initiative seeks, in part, to correct that. “The approach we’re taking now is to get rid of anything with a brass fitting,” Roger Finstad, the district’s maintenance and operations director, said.
In New York City, officials have uprooted and replaced all lead pipes leading from water mains into schools, swiftly replaced equipment when tests showed high lead levels, and ordered weekly pipe flushing at any school with a violation. All schools’ water is regularly tested. The result? Only 1.3 percent of nearly 90,000 water tests have exceeded the city’s lead threshold. The program is “a model for the nation,” said Dr. Philip Landrigan, an expert on lead and a professor of preventive medicine and pediatrics at the Icahn School of Medicine at Mount Sinai.
That scorched-earth approach is the surest way to control lead threats, but few school systems have the money or knowledge to pursue it. Many instead follow a whack-a-mole strategy, testing a sample of water sources, then fixing or disabling ones with excessive lead concentrations.
http://www.nytimes.com/2016/03/27/us/schools-nationwide-still-grapple-with-lead-in-water.html?_r=0
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The Future for Flint’s Children
Mar 28, 2016 | New York Times
By Mona Hanna-Attisha
The World Health Organization’s “action level” for lead contamination in drinking water — indicating the need for intervention — is 10 parts per billion. The Environmental Protection Agency’s action level is 15 parts per billion.
In tests of tap water in Flint., Mich., over the last six months, some 1,300 homes exceeded the E.P.A. action level. Thirty-two had levels above 1,000 parts per billion. And just this month, a sample showed a concentration as high as 11,846 parts per billion.
To understand the contamination of this city, think about drinking water through a straw coated in lead. As you sip, lead particles flake off into the water and are ingested. For almost two years, Flint’s children have been drinking water through lead-coated straws.
There are so many things wrong with this that it’s difficult to know what to address first. But since I called attention last year to an increase in children with elevated lead levels after the city changed its water supply, I’ve known that my focus had to be on the kids. One of my patients, a 2-year-old girl, recently came to the clinic for her checkup. Running around the room with her colorful gown flapping, she hopped onto the exam table, grabbed my stethoscope and placed it on her chest. I gently nudged it over her heart. “Can you hear anything?” Her eyes lit up, and she nodded.
Her mother turned to me, trying to hide her tears. She thought the water was safe, and why not? The authorities told her it was. She mixed her daughter’s baby formula with warm tap water. She got a filter only when the National Guard came to her door this year. Now she wonders, will her daughter be O.K.?
The same question can be asked about the more than 8,000 other children here under the age of 6 who drank lead-contaminated water.
Numerous epidemiologic studies of lead exposure in children, particularly those under the age of 6, indicate an increased risk for damage to cognition, behavior and employment prospects, also lower I.Q.s, poor impulse control and decreased lifetime earnings. Epigenetic research suggests that lead exposure in women can lead to DNA changes in their grandchildren. Theirgrandchildren.
And yet my little patient may be all right. Not every child exposed to lead will suffer the most severe consequences. Some will be fine, though the Centers for Disease Control and Prevention warns that there is no safe level of lead in a child.
Families here are traumatized; faith and trust in government have evaporated. State and federal agencies responsible for protecting them failed miserably. Much has been written about the roots of the Flint water crisis: misguided fiscal austerity, inequality, racism, environmental injustice, poverty, deindustrialization. These are all important and nationally relevant issues, but the focus now needs to turn to the future, and to healing.
We cannot wait to see the potential cognitive and behavioral consequences; we must act. Developmental neurobiology has taught us that adverse childhood experiences and toxic stress change the trajectory of a child’s life in predictable ways.
But science also gives us hope. We can reduce the impact of these adversities, including lead exposure, when we wrap these children in evidence-based interventions to promote their development. These include maternal infant support and early literacy programs; universal preschool; school health services; nutrition programs; and primary medical care and mental health care. All vulnerable children need these interventions, but kids in Flint need them now, not next month or next year.
At the Pediatric Public Health Initiative, created by Michigan State University and Hurley Children’s Hospital in response to this crisis, we are aiming to help Flint not only recover, but thrive. Flint is proud and resilient (it helped put America on wheels), but we can’t do this alone.
Unfortunately, not enough money has been allocated for the long-term child development initiatives we need. Gov. Rick Snyder recently proposed a budget that would spend $195 million on the lead problem here, including $63 million for health-related programs and $15 million for food and nutrition initiatives. I am hopeful that the State Legislature will enact these measures. But even this support would not address the full magnitude of this problem, which will continue throughout these children’s lives. We must make a yearslong commitment.
We also need federal help, and much more than the $220 million Congress is considering for water infrastructure and health-related services to communities nationwide. This is not a partisan issue; it is a humanitarian one.
Some will say we can’t afford it. But our nation has never been reluctant to aid victims of hurricanes, tornadoes, floods or earthquakes. Shortsighted cost-cutting and willful bureaucratic blindness may have caused the calamity in Flint but the effect is no less than a huge natural disaster.
When I turn back to my patient’s mother, I give her a hug. I remind her to keep using the water filter, give her daughter great nutrition, sign her up for preschool, read to her, sing to her, love her and be there for her. Her daughter has been exposed to lead-contaminated water for almost her entire life, during her most critical brain development. I don’t have a magic pill that can take that away, but I do have a prescription for hope.
As she reaches for my stethoscope again, I tell her mom that she is going to be O.K. No, she’ll be great. With the nation’s help, we will heal. Because we are not a nation that can accept 11,846 parts per billion of lead in drinking water. Or the consequences for the children of Flint.
Mona Hanna-Attisha is a pediatrician at Hurley Children’s Hospital and an assistant professor at Michigan State University’s College of Human Medicine.
http://www.nytimes.com/2016/03/27/opinion/sunday/the-future-for-flints-children.html
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Household Action Level for Lead in Water: EPA Needs to Release Health-Based Estimate
Mar 25, 2016 | Environmental Defense Fund
By Tom Neltner
A new article in USA Today’s series on lead in drinking water shines a light on the Environmental Protection Agency’s (EPA) delays in releasing a health-based “household action level” for lead. EPA’s National Drinking Water Advisory Council (NDWAC) recommended that the agency develop this number to help parents, in consultation with their pediatrician and public health agency, decide whether to invest in a filter for the water they use to make up their child’s infant formula.
Without a health-based number, people are mistakenly using EPA’s current “lead action level” of 15 parts per billion (ppb) as the level below which no action is needed. The problem is that this level has no relation to the health risk. It is based on a provision in the drinking water rule that requires utilities to undertake corrosion control and, potentially, lead service line replacement when at least 10% of worst-case sample results exceed that level.
A year after committing to develop a household action level, it appears tied up in the agency’s long overdue overhaul of its broken 1991 regulation designed to protect people from lead in drinking water. Communities all across the country are raising legitimate concerns about the safety of their water and need proper public health guidance. They should not have to wait on rulemaking for this important information. I know EPA is a regulatory agency that thinks in terms of rulemaking. But first and foremost EPA is a public health agency with responsibility to consumers for the safety of drinking water.
I also understand the challenge of developing an estimate given that there is no safe exposure to lead— people may misconstrue the levels below the number as completely safe. On the other hand, in the absence of such a number, they are already mistakenly using the 15 ppb current lead action level to mean the water is safe and no action is needed.
There is precedent for setting health-based numbers for different lead hazards. The agency has done it for lead in soil and for lead in dust on floors or window sills. For lead in dust, EPA established 40 micrograms of lead per square foot of the floor of homes and child-occupied facilities as the definition of a hazard that must be eliminated. This is equivalent to one gram – the same amount of sugar in a packet we add to our tea – spread evenly over about 1/2 of a football field. The agency set this level because it would “result in a 1 to 5% probabilityof an individual child’s exceeding a blood lead level of 10 µg/dL” (the definition of elevated in 2001 when the rule was promulgated). While subsequent research showed that the risk of lead in dust was much greater and, in 2009, EPA committed to revising the number, it still shows the value of providing people with a level at which a household should act.
These measurements help public health officials, housing agencies, and parents better assess the risk from lead hazards, determine what they should do to reduce the risk, and guide how they set priorities. A health-based number empowers people to make informed choices. The agency has done it for dust and soil. It needs to do it for water.
In February 2015, NDWAC’s workgroup asked EPA to develop an estimated value for a household action level to help guide the workgroup's development of its recommendations. The agency agreed and provided updates inApril 2015 and reaffirmed its commitment in June 2015. No number has been released.
Given the developments in Flint and the evidence of lead in water systems throughout the country (as explained in a compelling USA Today series), delay is untenable. EPA must not wait on a proposed rule to act. It must focus its scientific expertise to developing a sound estimate, make it public, and use an external peer review process to ensure the science is strong.
For more information on the Household Action Level for lead in drinking water. See alsowww.edf.org/leadpipes.
http://blogs.edf.org/health/2016/03/25/lead-hal/
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ECJ Rules Sweden's Chemical Reporting Requirements Legal
Mar 28, 2016 | BNA Daily Environment Report
By Marcus Hoy
Sweden's imposition of reporting requirements on chemical importers and manufacturers does not breach the European Union's REACH chemical regulation or the Treaty on the Functioning of the European Union, the European Court of Justice has found.
Along with its Nordic neighbors, Sweden maintains a national database that stores information on chemical products and biotechnical organisms that are manufactured in Sweden or imported into the country. Any company or individual manufacturing or importing such products is obliged to provide information on their actions to the Swedish Chemicals Agency (KemI) which oversees the nation's Product Registry.
In a March 17 preliminary ruling, the court rejected a complaint from a Swedish company that the requirement to report to the Product Registry was redundant as such obligations were already harmonized under REACH (Regulation No. 1907/2006 on the registration, evaluation and authorization of chemicals).
The court also rejected the company's view that, as most other EU member states do not impose similar obligations on companies, the Swedish requirements amounted to a barrier to free trade under the Treaty on the Functioning of the European Union (TFEU).
Barrier to Free Trade
The ruling could be important to other members of the EU that maintain similar registries, Madeleine Edqvist, a senior associate at the Lindahl KB legal firm who had represented the company in court, told Bloomberg BNA March 23.
While Nordic nations already impose similar requirements on importers, most other EU member states do not. Some, such as the Netherlands and Belgium, have “poison registries,” whose documentation requirements are not as far-reaching as the Nordic registries.
One company, Canadian Oil Co. Sweden AB, filed a legal complaint after it was penalized for failing to notify the nation's Chemical Agency of the import of 320 metric ton of chemical products in 2009. Both the company and its managing director were prosecuted for breaching the nation's Environmental Code (2000/61), and in April 2013, a regional court fined Canadian Oil Co. Sweden 200,000 kroner ($24,000) for noncompliance. The director also was fined a token sum.
The case was appealed to Sweden's Supreme Court, where the company argued that the imposition of the requirements amounted to a restriction on the free movement of substances and could amount to an illegal restriction on imports under Article 34 of the TFEU, which prevents EU countries from applying rules that hinder intra-EU trade without permissible justification.
Permissible Under EU Treaty
The Supreme Court had asked the ECJ for a preliminary ruling on whether adherence to REACH should disqualify the enactment of national legislation requiring importers of chemicals to also register such products with a national authority. And, if the answer to that question was no, whether the Swedish requirements hindered intra-EU trade under Article 34 of the TFEU.
On both counts, the court held the Swedish requirement did not breach EU law.
The court found the notification and registration provisions under REACH did not harmonize documentation requirements in such a way that they precluded national legislation imposing similar obligations at a domestic level. While the court did not dispute that national import requirements could potentially hinder intra-EU trade, it found Sweden's action to be permissible under Article 36 of the TFEU, which allows for exceptions to the free trade rules laid out in Article 34.
Recent case law such as Scotch Whisky Association and Others (C333/14) and Alands Vindkraft(C573/12) demonstrated that import restrictions could be justified on the grounds of the protection of human health and the environment, the court stated.
The ruling potentially could strengthen the legal status of similar registries in other member states, KemI spokesman Bjorn Malmstrom told Bloomberg BNA in a March 22 statement.
“The EU Court clearly stated that member states may have national registries that serve purposes other than that served by the REACH registry,” he said. “The judgment may therefore be important in nations where the registration of chemicals is deemed necessary to, for example, facilitate national chemical monitoring or identify the need for new rules under REACH. It may also be relevant for other types of national registries, for example nanomaterial registries.”
Nanomaterial Registries
Malmstrom added that he could not envisage a situation where domestic and REACH reporting requirements could be combined into a single obligation.
“The REACH registration obligation cannot be used to facilitate national supervision, partly because it only applies to large volumes, and the specific countries where the substances are sold cannot be identified,” he said.
Edqvist told Bloomberg BNA that while she was unaware of the size of additional documentation burden, other companies that import chemical products to Sweden had been interested in the outcome of the ECJ case.
“The issue is probably relevant for many companies,” she said. “As REACH is a comprehensive harmonized EU regulation it is, in our opinion, unlikely that the EU would adapt the REACH requirements in order to combine certain national registries' requirements with those of REACH.
“Since the court has given its interpretation on the referred issues regarding REACH, the ruling may of course have an effect on other countries that have similar systems to that of Sweden,” she added, “However, as rulings from the ECJ always shall be interpreted in the light of the specific circumstances in the case, it is difficult to know what the effect of the judgment actually will be with respect to other national product registries.”
On March 17, the Environmental Protection Agency in neighboring Denmark issued a statement saying that the Danish government had supported Sweden's position.
“Denmark has supported Sweden in this case,” the statement read. “The proceedings are important for the corresponding Danish Product Registry, which is used to keep track of the dangerous chemicals that industry uses. The information contained in the registry is important to protect the population against the risks of chemical substances.”
Sweden's position also was supported by Finland and Norway, which impose similar requirements on companies.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=85867282&vname=dennotallissues&fn=85867282&jd=85867282
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Oil Firms Urge White House to Weaken Well-Control Rule
Mar 28, 2016 | BNA Daily Environment Report
By Ari Natter
Exxon Mobil Corp., Anadarko Petroleum, Murphy Oil Corp. and others from the oil and gas industry met with White House officials multiple times this month and urged them to weaken a forthcoming federal rule that would toughen regulations on offshore oil and gas wells, online meeting records show.
The “well-control rule,” which could be finalized by the Obama administration within weeks, would actually increase risks and technical complexity, while reducing production and exploratory drilling, industry representatives told officials from the White House and Interior Department in series of meetings held this month, according to meeting records posted online by the White House Office of Management and Budget.
“If finalized as written, the proposed drilling margin requirement would render many wells un-drillable and prevent the industry from developing known reserves,” according to a document distributed by Chevron Corp. at a March 4 meeting with OMB and Interior Bureau of Safety and Environmental Enforcement officials.
In its proposed form, the rule (RIN 1014-AA11) developed in response to BP's Deepwater Horizon blowout in the Gulf of Mexico in 2010, would add more features to the blowout preventers, including a requirement for double sets of shear rams, and would mandate outside audits of equipment and real-time onshore well monitoring, as well as set standards related to well design, well casing, well cementing and subsea containment systems.
$883 Million to $25 Billion Cost?
Though the Interior Department estimated the rule's cost at $883 million over 10 years, Exxon Mobil has estimated the cost to exceed $25 billion, according to an e-mail by Susan E. Carter, the company's senior director of federal relations, that was posted online in conjunction with a March 7 meeting.
“Significant changes will be necessary to make this a safe, workable rule that allows for continued offshore operations,” Dale Bradford, a vice president of a Murphy Oil subsidiary, wrote in an March 15 e-mail to the OMB.
In all, OMB officials met seven times on the rule in March with groups that include the International Association of Drilling Contractors, the Texas Oil and Gas Association, the Petroleum Equipment & Services Association, as well with staffers for oil state Sens. Bill Cassidy (R-La.) and John Cornyn (R-Texas.)
An OMB spokeswoman did not respond to an e-mail seeking comment. The agency has been reviewing the rule since Feb. 3.
The rule has been criticized by industry as impractical and too costly since it was first proposed in April. Brian Salerno, director of the Bureau of Safety and Environmental Enforcement, told members of the Senate Energy and Natural Resources Committee in December it would consult with industry experts as the agency works to finalize the rule (231 DEN A-9, 12/2/15).
Emphasis on Blowout Preventers
The rule puts a special emphasis on blowout preventers, which are essentially large valves plus pairs of hydraulic rams that can shear off a well to close it.
The blowout preventer used by BP at the Macondo well failed to shear an off-center pipe, resulting in an explosion that killed 11 workers and the worst offshore oil spill in the nation's history.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=85867276&vname=dennotallissues&fn=85867276&jd=85867276
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Infrared Cameras Reveal Hidden Air Pollution from Oil and Gas Drilling
Mar 26, 2016 | Houston Chronicle
By James Osborne
A pair of state and federal government inspectors spent two weeks traveling around northern Colorado's oil and gas fields in early 2012, filming with an infrared camera.
Air pollution was rising in the region, and attention was turning to the rapid increase in drilling activity. The inspectors focused on Houston-based Noble Energy, one of the state's largest drillers with about 7,000 wells in the suburbs and countryside north of Denver.
With the naked eye, there was nothing to see at the nearly hundred sites they visited. But when observed through the infrared camera, again and again they saw plumes of gas radiating from the top of storage tanks near the wells.
"The infrared camera does not quantify emissions, but you can say that's a small leak versus a big leak. And these were big leaks," said one of the inspectors, Cindy Beeler, an energy adviser at the U.S. Environmental Protection Agency's offices in Colorado. "When we showed our findings to Noble, they were surprised."
As the Obama administration accelerates its campaign to blunt the effects of climate change, federal regulators are turning to infrared technology to seek out emissions leaks in the country's oil and gas fields. With state agencies, including the Texas Commission on Environmental Quality, and environmental groups embracing the technology, drillers are increasingly finding themselves staring down the lenses of infrared cameras.
Beyond government inspections, many companies are worried they soon will be required to do their own infrared scans and make what they fear will be unnecessary repairs across the country's more than 1 million oil and gas wells. Industry lobbyists are already challenging the devices' effectiveness.
"Part of our concern is that it really locks us in to this technology at a point in time the understanding of these fugitive emissions is really in its childhood," said Lee Fuller, executive vice president of the Independent Petroleum Association of America. "The presumptive starting point for the EPA is requiring infrared."
With wellheads spread over vast, remote areas of Texas, Colorado and other oil-producing regions, the industry had historically stayed under the radar of regulators. But with tougher new laws in place or in the works on methane emissions and volatile organic compounds, both components of oil and gas emissions, federal regulators are looking to crack down on leaks.
After finding most of Noble's emissions control systems in Colorado violated federal air pollution laws, the EPA reached an agreement last year with Noble, requiring the company to pay $5 million in fines and spend more than $60 million on repairs and upgrades. In September, the agency issued an alert warning oil and gas companies across the country they too could be out of compliance.
Spread across the warning were black and white, infrared images of gas leaks.
'Pin the tail on the donkey'
For decades, companies and government inspectors relied on hand-held sensors to tell them if gas was leaking. But without a means to see the emissions, one was left to guess where to hold the sensor on a drilling site that can run the size of a football field - "like trying to pin the tail on the donkey," Beeler jokes.
Then in 2011, the EPA decided to try infrared technology, which uses variations in temperature and other environmental measures to form images - capturing everything from a mouse on the ground to escaping gas.
At the time, the primary mission was reducing the release of volatile organic compounds, a key contributor to smog, which has long been linked to asthma and lung disease in humans. But federal attention is now turning to methane, which makes up about 10 percent of U.S. greenhouse gas emissions and has an impact on global warming 25 times that of carbon dioxide.
The oil and gas industry is pressuring the EPA to look away from infrared at other cheaper technologies, like methane sensors, that would automatically detect leaks as they occur but are still in development. In a memo to EPA in December, the IPAA raised several issues about the infrared devices, including concerns about whether smaller companies could handle the cost - $100,000 each - and whether they were reliable.
"The results of the camera, the 'pictures,' are difficult to interpret and subject to misinterpretation, e.g., what appears to be a leak could simply be a heat plume," the memo stated.
EPA officials countered that infrared is one of a variety of tools for gathering evidence in emissions cases that often was supported by data from the companies themselves.
"Infrared allows us to see hydrocarbons," said Apple Chapman, associate director of EPA's air enforcement division. "It's a faster screening tool and a faster investigative tool."
The Colorado case, which stretched for more than two years, stemmed from the initial infrared footage and also included more than a hundred requests to Noble for data on their emissions control systems. Investigators concluded many of Noble's storage systems were too small to handle the amount of gas coming up through the wells as a side product of oil production.
As a result, natural gas was regularly released into the atmosphere through pressure-release valves intended only for emergencies, contributing to some of highest ozone levels in the country in the suburbs north of Denver.
More than three years after the EPA began its investigation, Noble agreed in a settlement last April to replace or upgrade any storage tank in the basin around Denver that was out compliance.
"By working together with the federal government and the State of Colorado to reduce emissions, we are doing the right thing," Gary Willingham, Noble's vice president of operations, said in a statement last year.
Noble declined a request for an interview about the Colorado investigation.
A better picture
Environmental groups have been using infrared cameras for years to pressure companies to address emissions leaks.
In 2013, Earthworks published a report claiming toxic air pollution from oil and gas drilling was making residents in the Eagle Ford basin sick. The report included infrared video footage of gas leaking from storage tanks in South Texas.
Months after a massive leak began at the Aliso Canyon natural gas storage facility in Southern California last year, the media descended on the site when the Environmental Defense Fund released infrared footage shot from the air.
"The numbers themselves didn't mean anything. The only way to convince anyone would be if you got a picture," said Mark Brownstein, an attorney with EDF.
The EPA declined to discuss other cases against oil and gas companies built upon infrared evidence, explaining they were still under investigation.
But there has been a surge of cameras out into the field, to police not just oil and gas drilling but refineries, chemical plants, natural gas utilities and other industrial operations. Last year, the EPA handed out infrared cameras to environmental agencies in 11 states, including oil-rich Louisiana and North Dakota.
The Texas Commission on Environmental Quality has 12 infrared cameras, which it uses both for on-site inspections of oil and gas wells and for aerial surveys across large fields. A spokesman said the agency was planning to buy more.
Policing themselves
Some oil and gas companies are already embracing infrared's potential.
Statoil, the Norwegian oil giant, has begun using infrared cameras at its facilities. In fact, the devices had become a part of employees' core duties to seek out and repair leaks, said Nate Teti, vice president of communications at Statoil.
"We look at the entire infrastructure and say, 'Where are the potential escape points?' There are so many places for emissions to escape," Teti said recently at a conference in Houston.
The EPA runs a voluntary program to reduce methane emissions, which dates back to the 1990s. On its website, the agency has a long list of partner companies, including the likes of Exxon Mobil, Shell and Anadarko.
But during a recent press conference, EPA Administrator Gina McCarthy indicated participation had not been as great as she would have liked.
"We have been working with the industry to try and get some voluntary efforts," she said. "Those efforts have not been as successful as they have with other industries."
http://www.houstonchronicle.com/business/energy/article/Infrared-cameras-reveal-hidden-air-pollution-from-7181258.php
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LNG Exports Represent Next Step to U.S. Energy Independence
Mar 28, 2016 | Philadelphia Inquirer
By Jeffrey Kupfer
With all the focus on volatile oil prices, it would not be surprising if most people missed one of the most important energy developments of the year: last month's first export cargo of liquefied natural gas (LNG) from the continental United States.
Dispatched from the Sabine Pass terminal in Louisiana, this LNG shipment - and additional ones to come - not only reinforce America's role as the leader in global energy production but provide another tool for enhancing our relationships with allies, competing with our rivals, and improving our economic and national security.
This would have been unthinkable a little more than a decade ago. In 2005, the United States imported 30 percent of the energy it used. At that time, the Energy Information Administration (EIA) projected that to satisfy domestic demand, we would need to increase LNG imports 16-fold in 2025 - from 0.4 trillion cubic feet to 6.4 trillion cubic feet. But thanks to technological breakthroughs and private-sector ingenuity, all these forecasts turned out to be way off base. Last year, the United States produced the largest volume of natural gas in its history. Even with record consumption, the United States is now exporting LNG, and EIA's 2015 Annual Energy Outlook projects that we will be a net energy exporter sometime between 2020 and 2030.
The benefits are numerous. For domestic producers, who are currently coping with record low natural gas prices, the ability to access global markets provides a welcome, if modest, boost.
This is especially critical for states like Pennsylvania that have enjoyed tremendous economic gains as a result of the Marcellus Shale gas boom. In fact, from 2008 to 2014, Pennsylvania counties involved in Marcellus Shale operations had 8.7 percent employment growth, compared with just 0.6 percent in non-Marcellus counties, according to the Bureau of Labor Statistics.
Increasing LNG exports can only help the Keystone State's economy grow stronger. According to a study conducted by ICF International, an East Coast consulting firm, Pennsylvania could see more than 59,000 jobs created by 2035, with an additional $10.3 billion in revenue. And notably, these numbers don't take into account the extra jobs and income that will result from modernizing Pennsylvania's infrastructure, such as ports and pipelines, which is necessary to meet the increasing demand for American LNG.
Besides the regional and national benefits, there are also global advantages.
Take Europe for example. Eight of the 28 European Union nations, including Poland, Estonia, Lithuania, and Latvia, remain heavily dependent on Russia for as much as 80 percent of their annual natural gas use. The Europeans recognize that the availability of ample and reliable U.S. supplies will alter that dynamic. Maros Sefcovic, the European Union's energy chief, recently commented in the Wall Street Journal, "Like shale gas was a game changer in the U.S., American gas exports could be a game changer for Europe."
In Asia, we see similar benefits. The International Energy Agency projects that global demand for natural gas will continue to grow 2 percent annually until 2020, with more than 50 percent of incremental growth coming from Asia. With the availability of U.S. LNG supplies, allies like Japan, Taiwan, and South Korea - all of which import more than 90 percent of their energy resources - will be better positioned to diversify their energy supplies. Additionally, U.S. natural gas can help developing nations in Asia replace more carbon-intensive fuels and meet their climate goals.
The United States will not transform worldwide energy markets overnight. However, we can - and should - take the lead in strengthening the global energy market.
Congress is considering comprehensive legislation that includes a provision to streamline federal approval of LNG export applications. With current market conditions, we may not see an immediate flood of long-term contracts and new facilities. But that is no reason to maintain the status quo.
Lawmakers should ensure that we have an efficient and predictable permitting system. The advantages of U.S. LNG exports - many of which we are seeing already - are too important to ignore.
Jeffrey Kupfer, the former acting deputy secretary of the U.S. Energy Department, is an adjunct professor of policy and management at Carnegie Mellon University's Heinz College
http://www.philly.com/philly/opinion/20160328_Commentary__LNG_exports_represent_next_step_to_U_S__energy_independence.html
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The Big Bust in the Oil Fields
Mar 25, 2016 | Washington Post
By Chico Harlan
He’d borrowed from banks and investors and retirement funds, all in a frenzied mission to drill for oil and gas, and by the time Terry Swift realized he’d gone too far, this was his debt: $1.349 billion.
His company, founded by his father almost 40 years earlier, had plunged into bankruptcy and laid off 25 percent of its staff. Its shares had been pulled from the New York Stock Exchange. And now Swift was in a company Chevrolet Tahoe, driving back to the flat and dusty place where his bets had gone bust.
Swift was coming to this energy-rich strip of South Texas trying to grapple with how much blame he shouldered for the failure of his company. A low-key and historically cautious oil chief executive who eschews private jets and orders low-fat salads for lunch, he had made what he thought was the best financial move of the past decade — a gamble on rising oil prices — and yet was ensnared in an industry-wide craze of dangerous debt.
“Maybe we were wrong to believe there wouldn’t be a bust this bad,” Swift, 60, said, as the Tahoe rumbled south of San Antonio. “It didn’t even feel risky.”
This new wave of bad loans isn’t the same magnitude of the housing bust, but it reflects similar behaviors. Borrowers feasted on what Bloomberg estimates was $237 billion of easy money without scrutinizing whether the loans could endure a drastic downturn. The consequences are far-reaching: The U.S. oil industry, having grown into a giant on par with Saudi Arabia’s, is shrinking, with the biggest collapse in investment in energy in 25 years. More than 140,000 have lost energy jobs. Banks are bracing for tens of billions of dollars of defaults, and economists and lawyers predict the financial wreckage will accelerate this year.
South Texas, along with North Dakota, had been the testing grounds for the industry’s ambitions, a place where shale oil and gas companies had taken on billions in loans to support more drilling and fracking. The strategy was to gather up drilling sites at turbo-speed and later slow down and reap the benefits. But then, oil prices plunged and stayed down. They’ve fallen 60 percent from two years ago.
“It was drill-drill-drill,” said Fadel Gheit, an analyst at Oppenheimer, an investment bank. “Every Tom, Dick and Harry was trying to become an oil baron. Now all of a sudden you say, my God. All these people spent beyond their means.”
As Swift arrived in Tilden, the site of some of Swift Energy’s fields in South Texas, the signs of decay were everywhere. Scrubby two-lane roads once clogged with heavy-duty vehicles were almost empty. Roadside hotels that sprang up to meet demand — including one that once was booked solid for a year by Halliburton — had vacant parking lots and dust glazing the windows. McMullen County, where tens of thousands had worked every day at the peak, had shriveled back to a quiet place of 800.
The Tahoe turned onto a straight country road and headed toward Swift Energy’s field office, a series of trailers that were the base for its drilling operations. Little paddles of cactus nuzzled a fence that ran alongside the road, and Swift spotted a few cows near the entrance, the only visible activity along the horizon.
“We’ll have to chase ’em out,” he said.
He was quiet for a moment, pausing on what had transpired.
“You know the thing that’s disappointing,” he said. “All the wealth that was created — it dried up.”
Ambitions fueled by debt
America’s great energy boom resulted not simply from gains made by the established giants — ExxonMobil and Chevron — but rather from the rise of hundreds of smaller companies. And those smaller companies grew with debt, using it to drill 8,000 feet into the earth’s crust and 10,000 feet across, renting equipment, pumping in millions of pounds of sand, and creating fractures that released oil and natural gas.
This was hydraulic fracturing, or “fracking,” the technology that, in the middle of the last decade, allowed companies to reach oil and gas that was previously inaccessible. Companies had a choice: either borrow to enter the fracking race or stay on the sidelines and risk losing out.
Most, including Swift, chose to frack.
That decision, multiplied across hundreds of producers, has caused U.S. oil production to nearly double since 2007. And while politicians and executives celebrated that new capacity — dramatically reducing America’s dependence on foreign oil — few discussed the dangerous financial risks.
The industry’s debt, after all, had also nearly doubled. Producers like Swift didn’t think this was a bubble: Instead, they saw a new chapter in American energy — one in which technology had helped expand the market permanently at a time of global energy needs, led by China.
“Not that the industry was bust-proof, but the cycles maybe wouldn’t be as deep,” Swift recalled. It was a profoundly wrong call.
“By the time this is over,” he said, “this might be the worst of all the busts.”
Swift had been in the oil industry since graduating from the University of Houston with a degree in chemical engineering in 1979. He started off in Texas for a few years and then in 1981 joined the company run by his father, Aubrey Earl Swift, who died in 2006. There, he was initially dispatched to work overnight shifts in West Virginia. He called himself a geological nerd and happily talks for hours about rock formations and sonic mapping tools.
“It gets in your DNA,” Swift said.
Before fracking, Swift Energy had been a medium-size player — operating conventional oil and gas wells in Louisiana and Texas — that had relied on much the same formula for more than a decade. It kept its debt to a minimum. It drilled somewhere between 30 to 70 wells per year. It also had owned some previously sleepy tracts in South Texas’s Eagle Ford, an area that, with fracking, looked like America’s next energy moneymaker. Swift felt his company, which had experimented with fracking when the technique was less common and less reliable, had lucked out.
“The play was getting bigger and bigger,” Swift said. “So our vision was, we could do this.”
As the company began to frack more often, the amount it spent on exploration and drilling skyrocketed by hundreds of millions of dollars. To cover that spending, Swift Energy issued three separate packages of bonds worth $875 million. It also had a credit line of $500 million from JPMorgan. All together, the more than $1 billion debt represented an amount so large that if the company had combined its profits from its 20 best years, it could not have paid the debt back.
Not long after, cracks began to show in Swift Energy’s plan. The first problems, Swift thought, seemed manageable. Swift Energy was drilling in five places across Texas and Louisiana — each a different kind of dirt — and was taking a little longer than competitors to figure out the best drilling methods. Several times a year, Swift would pledge to pull a certain amount of oil and gas from the ground, then tell investors that the company had missed its targets. Often, its share prices would tumble. “They were horribly inefficient,” said David Deckelbaum, an analyst at KeyBanc.
Then Swift Energy began to feel the pain of unexpected global developments. Natural gas prices started to dip. Then the price of oil fell off a cliff in November 2014 when Saudi Arabia, in a bid to retain market share amid greater U.S. competition, increased its own production. Meantime, global demand sagged, again led by China.
Swift realized a manageable problem was no longer manageable. The company needed cash just to make interest payments, and nobody would lend it more money.
wift tried to perform triage. He laid off some employees. He called vendors and asked for lower prices. He chiseled at expenditures.
The company’s lender, JPMorgan, began tightening the funds Swift Energy could withdraw. The company’s stock — above $40 per share in 2011 — dipped below $1, and then below 25 cents.
Swift, along with chief financial officer Alton Heckaman, spent days at the computer running scenarios.
Can we survive if oil bounces back to $60?
Are we doomed if oil hits $30?
Running out of cash, Swift realized his company was bound for bankruptcy. “I knew it was the best path,” he said. “Doesn’t mean it was a great path.”
On Dec. 1, Swift skipped an interest payment to its bondholders.
On Dec. 18, the company’s shares were yanked from the New York Stock Exchange because of their “abnormally low” prices.
And on the night of Dec. 31, Swift and Heckaman gathered at their Houston office, signing the last bankruptcy papers.
“The debtor requests relief in accordance with the chapter of title 11,” one of the documents said, and in this case restructuring meant that everybody who’d once owned stock in Swift Energy would lose virtually everything.
It was not alone. In 2015, 42 oil and gas companies failed, according to Haynes and Boone, a Dallas-based law firm, and this year that number is projected to accelerate.
“It was a disaster for everybody,” said J. Ellwood Towle, a St. Louis-based investor who was among Swift Energy’s biggest shareholders.
‘It wasn’t sustainable’
Here in Tilden, 80 miles south of San Antonio and 100 miles north of the Mexican border, Swift Energy had rented out its own “man camp” — a compound of prefab trailers — to house workers recruited from as far away as Ohio. For the three-person trailers, the company paid $3,000 per month. The 13-trailer compound felt at the time like the only option, Swift said. Without a man camp, you could spend $5,000 per month just to house an employee.
In the Eagle Ford basin, the number of drilling rigs doubled between 2011 and 2012, topping 250. Prices for land spiked a hundredfold. Swift had put up with the prices because the potential rewards were so great, but now he was directly facing the consequences of those decisions.
Swift walked into the field office to meet with Robbie Walters, the supervisor who managed all the production in South Texas. Walters sat in a wood-paneled office covered in geological maps.
“Down here just for the day?” Walters asked, and he never mentioned the bankruptcy.
“Just for the day,” Swift said.
Walters talked, instead, about the broader landscape. About the empty hotels. The businesses that had disappeared. The Tex-Mex restaurant, Pepe Boudreaux’s, that had shuttered only weeks earlier.
“You look back and you see it wasn’t sustainable,” Walters said.
Now, only 43 rigs were operating in the Eagle Ford.
“It was very competitive,” Swift said. “If you ever blinked and said, I’m not sure about sustainability, you’d get put in the bleachers. The longer you waited, the more you missed out.”
Swift returned to the Tahoe and checked out some other spots in the Eagle Ford: a new gas well that was being tested and the company’s man camp, where they are trying to renegotiate a better rate.
While touring the field, Swift stayed mostly quiet, instead listening to his employees detail how well the work to develop oil and gas wells was going. But on the drive home, he had something to say. It wasn’t so much an explanation for his company’s demise, but rather an explanation for his actions.
Comparing the joy of pulling oil from the ground with a “baby being born,” he said, “Mother earth has treasures, and there are prizes if you can extract them.” He added: “I don’t ask myself when I wake up, how much money do I have? I’m still an oil guy.”
But even if he remains an oil guy, his father’s company will no longer be controlled by one.
When Swift emerges later this year from a lengthy federal court process in Wilmington, Del., Swift will still be CEO. But the company will be owned by bondholders, including the hedge funds that swooped in last year — when it was obvious Swift Energy was in trouble — and bought, for dimes on the dollar, the bonds that were certain to default.
Swift doesn’t even know whether the company will retain its name.
“If I was in total control, I’d answer that,” Swift said. “I’m not in total control.”
https://www.washingtonpost.com/news/wonk/wp/2016/03/25/the-big-bust-in-the-oil-fields/
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Texas Oil and Gas Regulators Keep Close Ties to Industry
Mar 27, 2016 | AP (In Fuel Fix)
The cozy relationship between state oil and gas regulators and the industry they monitor is typified by a revolving door of officials who leave the Texas Railroad Commission to lobby for energy companies, including several who recently departed and made six-figure salaries working the Capitol hallways last year.
The ties are seen in Railroad Commission policies that seek to shield the industry from further federal regulation, and top agency officials who beat back criticism from environmentalists on everything from seismic activity to fracking, the Austin American-Statesman reported Sunday.
Former Railroad Commissioner Barry Smitherman became a lobbyist and signed up two energy clients within four months of his state term expiring in January 2015, and also went on to work as an attorney at a firm that represents energy clients.
Other commission employees who worked just below the highest ranks found even more lucrative work. Three former chiefs of staff since 2010 have gone on to represent energy companies, including Amy Maxwell, who registered as a lobbyist within five days of leaving the Railroad Commission in 2013 and was paid as much as $585,000 last year, according to Texas Ethics Commission filings.
Maxwell said her work ranges from regulatory advice to her clients to helping them navigate the rule process at the agency. Chris Hose, who was chief of staff to former Commissioner Elizabeth Jones upon leaving the agency in 2010, made as much as $750,000 lobbying for energy companies last year.
Maxwell said agency rules insulate commissioners — the final decision-makers — from companies that have contested business before the agency. She can talk to commissioners about nonspecific matters, helping to arrange meetings between officials at the companies she represents and commissioners on broader issues.
While the relationships she forged at the commission help with her work, she said, “I don’t feel like I benefit as a lobbyist because I was a chief of staff. I do well because I can give advice that’s legal in nature but also because I work hard.”
When lawmakers mull new oil and gas regulation, industry representatives prefer that authority go to the Railroad Commission, which has shown it is sympathetic to business interests.
As evidence mounted in recent years that fracking-related activities have contributed to an uptick in seismic activity, lawmakers were under pressure from constituents to investigate the matter. Fracking, or hydraulic fracturing, injects a high-pressure mix of water, chemicals and sand underground to break open formations containing oil and gas.
One proposal directed the University of Texas to study earthquakes, but energy companies pushed back, asking for more involvement by the Railroad Commission.
The commission is currently being sued by a former inspector who claims he was fired for voicing concerns about the lax enforcement of environmental rules. A Railroad Commission spokeswoman said the agency is prohibited from commenting on personnel issues.
But commission leaders defend their record. Executive Director Kim Corley, who used to work for Shell Oil, says it’s important that agency officials understand the industry they regulate.
“I had retired and wanted to give back, to use my experience and leadership skills in a meaningful way,” said Corley, who had retired from Shell in 2015 when she was recruited by the Railroad Commission.
http://fuelfix.com/blog/2016/03/27/texas-oil-and-gas-regulators-keep-close-ties-to-industry/
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Texas Haze Case to Focus on Reasonable Progress Requirements
Mar 28, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Litigation over an Environmental Protection Agency rule that will require Texas utilities to invest about $2 billion to control emissions that affect visibility is expected to focus on how much flexibility states have under the Clean Air Act to craft their own regional haze plans.
An attorney representing the power sector told federal lawmakers the court's eventual decision could help “set the tone” for state regional haze efforts going forward. However, a Sierra Club attorney predicted the court's decision wouldn't have strong implications for the viability of the haze program because the EPA clearly has authority to step in when a state fails to meet its regulatory requirements.
At issue is a final rule, signed in December 2015, that rejected portions of state implementation plans for improving visibility at federally protected parks and wilderness areas submitted by Texas and Oklahoma in favor of a federal plan issued by the EPA.
That rulemaking is being challenged by Texas and a coalition of power industry groups, including the Utility Air Regulatory Group (UARG) and Luminant Generation Co., while the Sierra Club and the National Parks Conservation Association are seeking to intervene in support of the EPA rule.
Texas has asked the U.S. Court of Appeals for the Fifth Circuit to stay implementation of the rule, while the EPA asked the court to transfer the litigation to the U.S. Court of Appeals for the District of Columbia Circuit (Texas v. EPA, 5th Cir., No. 16-60118, motion filed 3/22/16; (57 DEN A-21, 3/24/16).
Jurisdictional issues still need to be figured out, but Aaron Flynn, a partner with Hunton & Williams LLP who is representing the UARG, told lawmakers the eventual court decision could be very important for the future of the regional haze program.
“Whichever court hears the case will decide a number of key questions … including the scope of state discretion under the Clean Air Act's reasonable progress provisions, which will likely be the key driver of any future regulatory requirements under the program,” Flynn said during a March 23 hearing by the House Science Subcommittee on Environment.
EPA Identified Deficiencies
The air act's regional haze provisions call for state implementation plans to require certain stationary sources to install best available retrofit technology (BART) to control emissions that affect visibility. States also are required to adopt long-term strategies for making “reasonable progress” toward national visibility goals. The EPA's goal under its regional haze rule is to return visibility in federally protected Class I areas to natural levels by 2064.
The EPA said it disapproved of Texas's proposed reasonable progress goals for Big Bend National Park and the Guadalupe Mountains because the state failed to demonstrate that its goals would provide for reasonable progress toward meeting that national visibility goal. In a March 22 court filing, the agency said Texas's proposal did not require reductions from any pollution source for the purposes of improving visibility at those two Class I areas or at protected areas in nearby states.
Until the EPA's disapproval of the Texas proposed plan, the first planning stage under the EPA's regional haze program focused on ensuring that BART requirements were met, said Debra Jezouit, a partner at Baker Botts LLP.
Jezouit is representing the Southwestern Public Service Co., a subsidiary of Xcel Energy Inc. Xcel's Tolk Station coal-fired power plant is among those required to install pollution controls under the EPA's federal haze plan.
“They really have gone much further on reasonable progress here than they have anywhere else,” Jezouit told Bloomberg BNA.
Texas Cites EPA Overreach
Texas, in its request for a stay, argued that EPA's disapproval of the proposed Texas plan is an example of regulatory overreach and ignores the flexibility that the Clean Air Act provides to states in forming a regional haze plan. Texas argued that its proposal satisfied all statutory and regulatory criteria under the Clean Air Act and the EPA's regional haze regulations.
“EPA in this action upsets the cooperative federalism framework of the [Clean Air Act],” Texas said. “Instead of just reviewing [state implementation plan] submittals for compliance with statutory and regulatory compliance, EPA seeks to substitute its own preferred policies in place of Texas's reasoned and well-supported approaches.”
Brad Watson, a spokesman for Luminant, echoed Texas's viewpoint in a March blog post explaining why the power company joined in litigation against the EPA's rule. Watson said the EPA's decision ignored the Clean Air Act's direction that a state be the primary author of its plan for meeting regional haze goals.
“The EPA substituted its own judgment for that of the state,” Watson said. “In doing so, the EPA invented new requirements in this federal plan for the three parks that, in effect, treat Texas differently than all other states.”
Sierra Club Supports EPA
Joshua Smith, an attorney with the Sierra Club, disagreed with those characterizations of the EPA's decision to disapprove of Texas's proposed plan in favor of a federal plan. Smith told Bloomberg BNA that EPA's action was “not a radical or precedent-setting rule” and is not much different from how the EPA has handled other states, including North Dakota.
Smith also disagreed with Flynn's testimony that the Texas v. EPA litigation will be significant for the regional haze program, although Smith did say an adverse court decision for the EPA would be unfortunate for Texas and Oklahoma.
“If for some reason this plan is struck down, I don't think it has any implication for the viability of the program going forward,” Smith said. “It's still very clear that EPA has the authority and obligation to step in when the states don't do what is required under the rule.”
Cost-Effectiveness of Controls
The EPA said in its court filing that its federal plan requires the installation of cost-effective pollution controls at eight Texas power plants. Those controls will significantly reduce sulfur dioxide emissions that cause or contribute to regional haze in protected areas in Texas and Oklahoma, according to the agency.
However, Texas is expected to argue that the federal plan would impose $2 billion in costs for minimal visibility benefits during the relevant period covered under the plan. In its court filing, Texas said visibility in Texas's Class I areas is already better than the visibility that EPA's federal plan seeks to achieve by 2018. Additionally, the state said the difference between the disapproved state reasonable progress goals and the goals included in EPA's federal plan is imperceptible.
Jezouit of Baker Botts noted that the EPA's federal plan would only get Texas to natural visibility six to eight years earlier than the Texas plan, which would still be more than 100 years later than the 2064 national goal.
Jezouit said the Southwestern Public Service Co. also disagrees that the federal plan is cost-effective. She said the EPA underestimated the cost of pollution controls for Southwestern Public Service, including a failure to adequately consider the cost of increased water requirements associated with installing pollution-control devices known as dry scrubbers.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=85867286&vname=dennotallissues&fn=85867286&jd=85867286
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DOT Finalizes Hazardous Return Rule Opposed by Shippers
Mar 28, 2016 | BNA Daily Environment Report
By Ari Natter
The Department of Transportation has finalized a rule designed to ensure safe transportation of hazardous materials when they are being returned from retailers, the Pipeline and Hazardous Materials Safety Administration announced March 25.
The “reverse logistics” rule (RIN 2137-AE81) relaxes communication and other requirements when hazardous materials are returned to manufactures because of recalls and other reasons. Shippers such as United Parcel Service and FedEx opposed it because of safety concerns when it was proposed in 2014 (231 DEN A-11, 12/2/14).
Currently, retailers must comply with the Hazardous Materials Regulations when returning the products to the distribution facility with the same precautions as the original product shipment.
The rule also expands a previously existing exception for return shipments of used automobile batteries transported between a retail facility and a recycling center.
Reduced Compliance Costs
The rule, which was largely supported by companies such as Walmart, was estimated by the agency to save retailers and others between $5 million and $11 million annually in training, shipment preparation and other reduced compliance costs.
UPS, in comments on the proposed version of the rule, said the approach taken by PHMSA in qualifying materials for reverse logistics exceptions was “too general,” and that other provisions of the rule could lead to reduced communication between carriers and first responders.
“UPS has concerns about the proposed wording of every aspect of this proposal,” the Atlanta, Ga., company said.
PHMSA said it made some changes to the final rule to reflect the concerns of UPS and others.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=85867285&vname=dennotallissues&fn=85867285&jd=85867285
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(ACC Mentioned) Briefing on Boiler MACT Reconsideration Begins in July
Mar 28, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Briefing over a 2015 Environmental Protection Agency rule concerning emissions from major source industrial boilers will begin in April and last through the end of 2016 (Sierra Club v. EPA, D.C. Cir., No. 16-1021, 3/24/16).
Four environmental organizations, including the Sierra Club and the Environmental Integrity Project, are challenging a November rule (RIN 2060-AS09) that revised the EPA's maximum achievable control technology standards for industrial boilers in response to petitions for administrative reconsideration. That rule, issued in advance of a Jan. 31 deadline for facilities to come into compliance with the Boiler MACT rule, established alternative work practice standards for boiler startup.
While that alternative compliance method was welcomed by industry, the environmental petitioners intend to ask the court to consider whether the EPA violated the Clean Air Act by allowing boiler operators to avoid meeting numeric emissions standards during boiler startup and shutdown when emissions can spike.
James Pew, an Earthjustice attorney representing the petitioners, told Bloomberg BNA when the lawsuit was filed that the environmental groups are concerned that the reconsideration rule's alternative work practice standards established a “loophole” for boiler operators (35 DEN A-1, 2/23/16).
The briefing schedule, issued March 24 by the U.S. Court of Appeals for the District of Columbia Circuit, calls for the environmental petitioners to file their opening brief by July 20. The deadline for the government to respond will be Sept. 20.
In addition to setting the briefing schedule, the court also granted various industry trade associations, including the American Chemistry Council , National Association of Manufacturers and Council of Industrial Boiler Owners, intervenor status in the litigation. While many industry groups challenged the underlying Boiler MACT rule (RIN 2060-AQ25; RIN 2060-AR13), which applies to more than 14,000 existing boilers found at chemical plants, refineries and other industrial facilities, industry largely supported the agency's reconsideration rule.
A joint brief for the industry intervenors will be due to the court by Oct. 20. Final briefs in the litigation must be filed by Dec. 27.
Briefing on the reconsideration rule will proceed as the D.C. Circuit continues to weigh the legality of the Boiler MACT standards. The court heard oral arguments on challenges brought by both industry and environmental groups in December, but has not yet issued a decision (U.S. Sugar Corp. v. EPA, D.C. Cir., No. 11-1108, argued 12/3/15; 233 DEN A-5, 12/4/15).
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=85867264&vname=dennotallissues&fn=85867264&jd=85867264
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States Urge District Court to Reject DOJ Bid to 'Relitigate' CWA Rule Suit
Mar 25, 2016 | InsideEPA
By Bridget DiCosmo
States challenging EPA's Clean Water Act (CWA) jurisdiction rule in federal district court in North Dakota are urging the judge overseeing the case to reject what they call the Department of Justice's (DOJ) bid to “relitigate” the question of whether the court -- or alternatively a federal appeals court -- is the correct venue for the suit.
DOJ has urged the U.S. District Court for the District of North Dakota's Southeastern Division to cede to a recent U.S. Court of Appeals for the 6th Circuit divided ruling in which two out of three judges said that the appellate court should hear consolidated suits over the rule. But the North Dakota court already ruled before that it has power to hear a challenge to the rule filed by several states, and the states urge the court to ignore the 6th Circuit ruling.
“This Court should squarely reject the Agencies’ late invitation to relitigate the jurisdictional question in this Court on the basis of out-of-circuit authority that even the Sixth Circuit panel did not find persuasive, and should instead reaffirm its earlier decision and move forward to consider the merits of this important case,” says the coalition of 13 states in in a March 24 filing in the lower court case State of North Dakota, et al., v. EPA, et al.
The states challenging the rule in the lower court are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico Environment Department, New Mexico State Engineer, North Dakota, South Dakota, and Wyoming. The district court in an Aug. 27 ruling held that it had power to hear the case, and granted states' motion for a preliminary injunction blocking the rule's implementation in those 13 states.
But DOJ in a March 3 motion to dismiss the case said the recent 6th Circuit decision means district judges no longer have authority to hear parallel suits even if they disagree with the appellate court.
The 6th Circuit, which is hearing consolidated suits over the rule in Murray Energy, et al., v. EPA, et al., found in a Feb. 22 ruling that authority to review the rule should be with the appeals courts, not the district courts, bolstering the prospects for appellate review, which DOJ favors over the myriad suits pending in district courts. Several states and various industry groups have urged the full 6th Circuit to review the split decision.
Judge David McKeague, writing the lead opinion, said that although the water law is unclear on where suits over the rule should start, the 6th Circuit has jurisdiction under a “functional” reading of CWA sections 509(b)(1)(e) and 509(b)(1)(f). He relied in part on the 6th Circuit's 2009 ruling in National Cotton Council of America v. EPA that said section 509(b)(1)(f) authorizes direct circuit court review beyond agency actions issuing or denying particular permits. National Cotton also said the 6th Circuit has direct power to review regulations governing the issuance of permits under the CWA's section 402 National Pollutant Discharge Elimination System permit program.
Judge Richard Allen Griffin only supported the decision to take the case because it is in line with precedent established by National Cotton, but added that he believes the 2009 case was wrongly decided.
Dissenting Senior Judge Damon J. Keith said National Cotton should not apply, and the industry groups critical of the rule have cited his and Griffin's statements in calling for en banc review of the decision.
Divided Ruling
Although DOJ has seized on the ruling to call for an end to the myriad district court cases over the CWA rule, critics of the ruling have seized on the fact that Griffin only sided with McKeague because of National Cotton.
The coalition of states in the district court case State of North Dakota are also challenging the rule in the Murray Energy suit. In a March 4 petition for a rehearing en banc of the 6th Circuit ruling the states acknowledged that under the CWA, appellate jurisdiction to hear rule challenges, “where it applies, is exclusive,” under a 2013 Supreme Court case, Decker v. Northwest Environmental Defense Center.
However, in their March 24 filing with the district court the states focus on the fact that the court in an Aug. 27 decision said that jurisdiction “for this type of action lies in the district court.”
They point out that the lower court “squarely rejected” DOJ's two arguments for exclusive appellate jurisdiction under CWA section 509(b)(1)(e) as an “effluent” or “other limitation” and 509(b)(1)(f) as a denial or issuance of a permit at that stage.
Moreover, DOJ did not appeal the decision to the 8th Circuit, the brief notes. “Indeed, the Agencies acknowledge that their current motion is in effect a belated motion for reconsideration, and also acknowledge that such motions can only 'serve ‘to correct manifest errors of law or fact,’ and ‘may be granted only upon an adequate showing of exceptional circumstances,'” the brief argues.
Under federal rules, DOJ must make a show of exceptional circumstances to justify the relitigation of a settled decision, the states say, urging the court to reject DOJ's claim that this doctrine does not apply to the consideration of jurisdiction. The brief cites a 2000 8th Circuit ruling, Fromm v. Communion of Veteran Affairs, which held that the court is not required to relitigate settled issues “de novo over and over again when they were properly raised and adequately addressed.”
The states are arguing that the agencies are unable to make a successful showing of “extraordinary circumstances,” leaning heavily on the disagreement on the 6th Circuit panel.
“The fact that a fractured panel of the Sixth Circuit subsequently came to a different conclusion, especially when that conclusion relied on Sixth Circuit authority that failed to persuade two of the three judges on the panel and has been rejected in other circuits, is not an extraordinary circumstance,” the brief says.
The states are also downplaying the effect of the 6th Circuit ruling in Murray Energy, saying it is not binding on the district court and is at best persuasive authority under ONRC Action v. Bureau of Reclamation, a 2012 decision by a district court in Oregon.
In the same district court suit, Iowa Gov. Terry Branstad (D), intervening in the case, also filed a March 24 response in opposition to the motion to dismiss, arguing that the only forum for relief is in the district court, since the state has not intervened in the 6th Circuit litigation.
“Consequently, Branstad’s unique position in this action is an additional basis for this Court to deny Defendants’ Motion to Dismiss and to retain jurisdiction of this action,” the brief says.
http://insideepa.com/daily-news/states-urge-district-court-reject-doj-bid-relitigate-cwa-rule-suit
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Corps Urges High Court to Reject CWA 'Jurisdiction' Order Suit
Mar 25, 2016 | InsideEPA
The Army Corps of Engineers is urging the Supreme Court to reject calls from industry groups and conservatives to allow pre-enforcement judicial review of regulators' findings that waters are covered by the Clean Water Act (CWA), saying ahead of March 30 oral argument that allowing the suits would undermine Congress' intent in the water law.
In a March 23 brief filed in the pending high court case Army Corps of Engineers v. Hawkes Co., the Department of Justice (DOJ), arguing on behalf of the Corps, says Hawkes and its allies are asking the justices to invent a new type of judicial review beyond what Congress allowed when it crafted the CWA.
As laid out in the water law, “a landowner may challenge the agency’s coverage determination if it is denied a permit, is granted a permit on terms that it finds objectionable, or is subjected to an enforcement action. In enacting the CWA without providing for standalone jurisdictional determinations, Congress evidently contemplated that those avenues of judicial review, taken together, would provide an adequate means of resolving disputes about the scope of CWA coverage,” DOJ argues in its brief.
At issue in Hawkes is whether CWA jurisdictional determinations (JDs) are “final action” by agencies subject to suit under the Administrative Procedure Act (APA).
Courts have long held that JDs are not “final” because they carry no legal consequences; instead, property owners are required to either seek a CWA permit and then challenge its terms, or to raise jurisdiction as a defense when EPA or the Corps brings an enforcement action.
But the U.S. Court of Appeals for the 8th Circuit broke that trend in the current case, instead holding in a unanimous ruling for Hawkes that JDs create practical consequences for recipients. The three-judge panel backed arguments raised by Hawkes and its allies that among other effects of a JD recipients are effectively unable to fill wetlands on their property without either going through a potentially expensive permitting process or risking a costly enforcement action.
DOJ says in its new reply, however, that such practical consequences are not enough to trigger judicial review. Rather, it says, the high court “has squarely ruled” that only agency actions that change the recipient's legal responsibilities are “final.” Practical consequences do not render a JD “legally binding,” the brief says.
The test for finality in APA challenges is laid out in the court's landmark ruling Bennett v. Spear, which says that final actions are those that represent the "'consummation' of the agency's decisionmaking process" and from which "'rights or obligations have been determined,' or from which 'legal consequences will flow.'" However, Hawkes is urging the high court to set aside the second portion of that test, and allow challenges to any agency's “final word” on a subject.
DOJ counters in its new brief that overturning the Bennett test would require the high court to overturn decades of administrative law, and “would enmesh the courts in abstract, piecemeal disputes and disrupt agencies’ administrative processes. It would also 'muzzle any informal communications between agencies and their regulated communities--communications that are vital to the smooth operation of both government and business.'”
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