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ACC AM 3/30
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(ACC Mentioned) ACC Chief Hopes TSCA Overhaul Could Impact Global Regulations
Mar 29, 2016 | Chem.Info
By Andy Szal
A chemical industry group hopes to blend U.S. and Canadian regulatory systems to create a global standard for chemical evaluation. -
(ACC Mentioned) Industry, Advocates Split on Risk Management Proposal
Mar 30, 2016 | BNA Daily Environment Report
By Brian Dabbs
After digesting the Environmental Protection Agency Risk Management Program proposal for roughly a month, not much has changed in the minds of the chemical and manufacturing industry community. -
Will Private Interests Trump Public Ones When it Comes to Our Right to Know Under TSCA?
Mar 29, 2016 | Environmental Defense Fund
By Richard Denison
One of the few bright spots of the original Toxic Substances Control Act (TSCA) was Congress’ clear intention that the public have access to health and safety information on chemicals and mixtures. -
Issues Of The Environment: Reforming The Toxic Substances Control Act
Mar 30, 2016 | WEMU Radio
By David Fair
The Flint water crisis is only one of many water quality issues that need to be addressed.There are numerous threats to the Great Lakes and Michigan's inland waters -
EPA Sends Formaldehyde Air Rule For OMB Review
Mar 30, 2016 | InsideEPA
EPA has forwarded to the White House Office of Management and Budget (OMB) for review a long-delayed final air rule setting limits for formaldehyde emissions from composite wood products, with OMB receiving the final rule March 28, according to OMB's website. -
Premature Births Linked To Toxic Chemicals
Mar 29, 2016 | Environmental Working Group
By Alex Formuzis
The rate of premature births in the U.S. is among the highest in the developed world, with nearly one in 10 babies born in 2014 arriving before 37 weeks of pregnancy. -
‘Natural’ Product Claims Can Be Murky
Mar 30, 2016 | The Wall Street Journal
By Serena Ng
Whole Foods Markets Inc. last fall started selling a new brand of laundry detergent called Nature’s Power, whose green bottle claims the product is made “with plant-derived soaps.” -
(ACC Mentioned) SCOTUS Hears First Big Environmental Case Without Scalia
Mar 30, 2016 | PoliticoPro (Morning Energy)
By Eric Wolff
...The American Chemistry Council gave Exxon some backup Tuesday by echoing the company’s warnings that investigations of internal corporate research would risk “chilling open scientific inquiry.” -
Hillary, Bernie, Hydraulic Fracturing And The Future Of US Oil And Gas Production
Mar 25, 2016 | Forbes
By Anna Mikulska, Michael Maher and Kenneth B. Medlock III
The dramatic increase in domestic oil and gas production since 2008 – the so-called “shale revolution” – has been a boon to the US economy and the Obama administration, not to mention the international and geopolitical benefits. -
Study Cites Water Contamination by Fracking
Mar 30, 2016 | BNA Daily Environment Report
By Alan Kovski
Two researchers at Stanford University said March 29 that an Environmental Protection Agency investigation in 2010 and 2011 provided evidence that hydraulic fracturing near Pavillion, Wyo., had contaminated underground sources of potential drinking water. -
The Long and Short of Ethane in the Northeast US
Mar 30, 2016 | Platts
By Andrew Neal
On March 9, the JS INEOS Intrepid departed Sunoco Logistics’ Marcus Hook terminal in Pennsylvania with the first waterborne ethane cargo. -
Advocates Challenge EPA's Method to Meet Toxics Obligations
Mar 30, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental petitioners are challenging the Environmental Protection Agency's use of surrogate pollutants to meet its Clean Air Act obligations to set emissions standards for industrial sectors that emit certain hazardous air pollutants (Sierra Club v. EPA, D.C. Cir., No. 15-1246, brief filed3/28/16). -
States Defend EPA Clean Power Plan Authority
Mar 30, 2016 | BNA Daily Environment Report
By Andrew Childers
A court decision to overturn the Environmental Protection Agency's Clean Power Plan on the grounds that it would cause shifts in the nation's electricity mix would effectively bar the agency from regulating all power plant emissions, states supportive of the rule said (West Virginia v. EPA, D.C. Cir., No. 15-1363, briefs filed 3/29/16). -
(ACC Mentioned) EPA Waste Chief Signals Major Changes To Facility Security Plan Unlikely
Mar 29, 2016 | InsideEPA
By Dave Reynolds
EPA waste chief Mathy Stanislaus is offering a strong defense of the agency's recently proposed rule to overhaul its risk management plan (RMP) facility accident prevention program, suggesting that EPA is unlikely to adopt major changes to the rule that advocates, industry groups and others called for at a March 29 public hearing. -
Chemical Makers Say EPA Reversed Course With HFC Ban
Mar 30, 2016 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency improperly compared hydrofluorocarbons to later-generation chemicals when it chose to ban the use of some HFCs in favor of substances with less climate change impact, chemical manufacturers told an appellate court (Mexichem Fluor, Inc. v. EPA,, D.C. Cir., No. 15-1328, briefs filed 3/28/16). -
EPA Proposes to Curtail Use of Certain HFCs
Mar 30, 2016 | BNA Daily Environment Report
By Anthony Adragna
Various new limitations would be placed on the use of certain ozone-depleting substances in multiple industrial sectors under a proposed Environmental Protection Agency regulation. -
Advocates Criticize EPA Use Of 'Surrogates' In Air Toxics 'Completion' Rule
Mar 29, 2016 | InsideEPA
By Stuart Parker
Environmentalists are criticizing as unlawful EPA's use of “surrogate” air pollutants to satisfy a Clean Air Act mandate that the agency regulate air toxics from sources representing 90 percent of emissions of seven hazardous air pollutants (HAPs), saying EPA is erroneously relying on limits for other HAPs to satisfy the mandate.
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(ACC Mentioned) ACC Chief Hopes TSCA Overhaul Could Impact Global Regulations
Mar 29, 2016 | Chem.Info
By Andy Szal
A chemical industry group hopes to blend U.S. and Canadian regulatory systems to create a global standard for chemical evaluation.
Cal Dooley, the president and CEO of the American Chemistry Council, also lauded proposed changes to U.S. chemical regulations and said that he expects them to pass Congress by the end of May, according toChemical Watch.
The House and Senate last year passed their respective versions of legislation to overhaul the Toxic Substances Control Act, the last remnant of 1970s environmental legislation to go without a significant upgrade in subsequent decades.
Although some remain critical of the language of each bill as congressional negotiations continue, all sides of the issue appear to favor replacing the outdated TSCA.
Dooley told last week's GlobalChem conference in Washington that the changes would establish a "gold standard internationally."
Should the legislation pass, however, he cautioned that both the Environmental Protection Agency and chemical companies will need to do their parts to ensure proper enforcement.
Dooley also expressed hope that the EPA would scrap its current list of chemicals used in commerce that need to be evaluated. That number currently stands at some 85,000; Dooley argued that it should be much lower and noted that Canada's chemical regulators tested just 4,000.
Dooley said that the TSCA changes and an updated chemical list could serve as a model for chemical-producing nations — notably Brazil, China, India and Taiwan — instead of European Union regulations that have drawn the group’s ire.
http://www.chem.info/2016/03/acc-chief-hopes-tsca-overhaul-could-impact-global-regulations
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(ACC Mentioned) Industry, Advocates Split on Risk Management Proposal
Mar 30, 2016 | BNA Daily Environment Report
By Brian Dabbs
After digesting the Environmental Protection Agency Risk Management Program proposal for roughly a month, not much has changed in the minds of the chemical and manufacturing industry community.
At a public meeting held March 29, industry continued to decry federal overreach while environmental and public safety advocates prodded the EPA for more stringent measures.
The inherently safer technology language in the proposed rule's Accidental Release Prevention Requirements again emerged as a lighting rod, with industry attacking the provision as onerous and safety advocates arguing it fails to protect at-risk communities. EPA Assistant Administrator Mathy Stanislaus reiterated his argument that the proposal is a valuable compromise, however.
“I think we've struck a very good balance in [the safer technology] requirement,” Stanislaus told Bloomberg BNA before the meeting. “We think it's appropriate for facilities in the categories we've identified to conduct a hard look at those potential alternatives available to them and what are feasible. But … it's inappropriate for the federal government to really mandate a particular decision by the chemical facility operators. We think we are in the best position evaluating what comes out of the safer alternatives analysis and other pertinent business considerations.”
The RMP proposal, which follows through on EPA commitments to improve safety in the wake of the West, Texas, fertilizer plant explosion in 2013, revises the accidental release prevention requirements for facilities that house chemicals ( (76 DEN A-16, 4/19/13)).
The inherently safer technology (IST) language requires additional analysis of safer technology and alternatives for some sectors of the North American Industry Classification System (NAICS).
EPA officials also tacked on language to strengthen emergency preparedness, public access to information on the facilities and disaster response coordination.
The EPA floated the proposal in late February (39 DEN A-13, 2/29/16).
Many speakers at the meeting said they are continuing to scrutinize the proposal, despite the month of available time for evaluation. Others complained that the meeting was convened at the front end of the public comment period.
Safer Tech Sticking Point
The current language of the proposal requires safer technology and alternative analysis to assess the feasibility of IST for the paper, petroleum and coal products manufacturing and chemical manufacturing sectors in NAICS.
The inherently safer technology provision marks an about-face from EPA's position during RMP promulgation in 1996, when EPA argued IST wouldn't substantially strengthen safety. The IST language continues to generate heated opinion on both sides of the spectrum. Stanislaus touted inherently safer technology as an important step in ensuring safety.
“There is a benefit for taking a hard look,” he said. “Taking a hard look has, in fact, led to changes that a facility on its own has executed,” he said.
Industry said the requirement inappropriately burdens companies, particularly small business and may even divert resources from other safety systems.
“Safer alternative technologies are highly complex, resource intensive and very specific,” American Chemistry Council Senior Director Bill Erny said in testimony. “ACC agreed with EPA's assessment back in 1996. We don't believe that circumstances have changed so dramatically to require a change in that 1996 policy.”
Greenpeace Legislative Director Rick Hind criticized the provision for exempting large swaths, roughly 85 percent, of facilities covered by PSM, pointing to drinking and waste water treatment centers.
Speaking of the requirement for considering inherently safer technology, Hind said, “We'd like to see that expanded in the most prevention-oriented piece of this proposed rule.”
He added, “A lot of time, industry and others [opposed] to the IST requirements, for example, often cite risk-shifting. We want to bring your attention to the fact that risk-shifting is happening; it's the Wild West out there.”
Industry Bashes Auditing Mandates
National Association of Chemical Distributors Vice President of Regulatory Affairs Jennifer Gibson and several other industry members said the proposal burdens industry by forcing the use of third-party auditing despite the availability of in-house expertise.
“This commission seems based on the assumption that internal auditors are biased or lenient, which is not necessarily the case,” Gibson said. “In order to be effective, an auditor must be both knowledgeable about a facility's operations and available to conduct the audit, which would be extremely difficult under EPA's proposed stringent criteria. EPA's proposal that auditors must be licensed professional engineers is unprecedented and would severely limit the number of individuals eligible to perform these audits.”
Rulemaking Procedures in the Pike
The comment period for the proposal is set to conclude May 13. Several industry association representatives asked for an deadline extension for testimony, arguing the two-month period doesn't provide enough time to analyze the expected impact of the proposal with members.
The EPA should extend the deadline by an additional month, according to Chamber of Commerce Senior Director in the National Security and Emergency Preparedness Department, Matthew Eggers. He noted the EPA denied that request in March 28 correspondence.
“The timeline to respond to the agency is insufficient,” Eggers testified. “A cursory glance suggests EPA is seeking information on a vast array of issues.”
American Petroleum Institute Senior Policy Adviser Ron Chittim called for a second public meeting before the public comment period closes.
Stanislaus described the proposal as the product of outreach to industry and other advocates over two and a half years.
“The rule already reflects a sense of prioritization … substantial input,” he said. “One of the reasons we feel we were justified for a 60-day comment period is that it already reflects this substantial engagement and input.”
Addressing the suggestions to extend the comment period, Stanislaus said: “We think we'll get more rigorous information, but we don't think we will receive fundamentally different views.”
He urged commenters to provide substantive information on their preferred alternatives to specific portions of the proposal.
Stanislaus deflected a question on the likelihood of publishing a final rule during the remaining 10 months of the Obama administration.
“We're going to move forward as quickly as possible,” he said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86071604&vname=dennotallissues&wsn=497604000&searchid=27277312&doctypeid=1&type=date&mode=doc&split=0&scm=DELNWB&pg=0
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Will Private Interests Trump Public Ones When it Comes to Our Right to Know Under TSCA?
Mar 29, 2016 | Environmental Defense Fund
By Richard Denison
One of the few bright spots of the original Toxic Substances Control Act (TSCA) was Congress’ clear intention that the public have access to health and safety information on chemicals and mixtures.
The very first section of the 1976 law expressly states: “It is the policy of the United States that adequate data should be developed with respect to the effect of chemical substances and mixtures on health and the environment.” The law goes on to expressly exclude “data from health and safety studies” submitted to the Environmental Protection Agency (EPA) from the reach of TSCA’s confidential business information (CBI) provisions, by stating that those provisions do not prohibit disclosure of health and safety information. Congress provided only two narrow exceptions: where disclosure of such information would disclose the process by which a chemical is made or processed, or the portion of a mixture that a particular chemical comprises.
Now some in the chemical industry are brazenly pressing to thwart that original intent, by codifying into the law the ability of companies to black out the names of chemicals when health and safety studies they submit on a chemical are released to the public.
The Society of Chemical Manufacturers and Affiliates (SOCMA), a trade association of specialty chemical manufacturers, is publicly taking credit for adding a provision to the House’s TSCA reform legislation that would do just that. In its annual report, SOCMA touted “successfully inserting provisions strengthening Confidential Business Information protections.” (SOCMA also took credit for the fact that the House bill maintains TSCA’s current New Chemicals provisions, another of its severe weakness about which I blogged last week.)
Should SOCMA get its way and its pet provision ends up in the final TSCA legislation, then you – whether you are a worker, consumer, business, researcher, or concerned member of the public – would get to learn that a new study shows a chemical in a product you may make, use, study or are otherwise exposed to is, say, a potent human carcinogen. What you would not be allowed to know, however, is what chemical it is! How useless is that?
See the sidebar for why this matters.
More background for TSCA geeks
I’ll spend the remainder of this post diving a little deeper into the law and history on this issue that SOCMA seeks to wipe out with just a few words inserted into a bill.
What TSCA says about your right to know
Section 14(b) of TSCA carves out an exception for health and safety information on chemicals from the general allowance in Section 14(a) for companies to claim any information they submit to EPA to be CBI. The only exceptions to that exception (still with me?) are the ones just mentioned: where the disclosure would reveal either (a) how a chemical is made or processed, or (b) in the case of a mixture, the portion of that mixture a chemical comprises.
What EPA’s TSCA regulations say about your right to know
EPA’s regulations implementing TSCA clearly define chemical identity to be an integral part of a health and safety study; see the definition of a health and safety study at 40 CFR §716.3 and §720.3(k).
Based presumably on the provision of TSCA that provides two exceptions to the general proviso that health and safety information be publicly available, EPA regulations (40 CFR §720.90) provide certain conditions under which a company may assert a confidentiality claim for the identity of a new chemical even when associated with a health and safety study. The regulations state that EPA will deny such a claim unless the claimant demonstrates that "the specific chemical identity is not necessary to interpret a health and safety study." See 40 CFR §720.90(c)(3). This additional exception appears nowhere in TSCA.
Even so, EPA’s own reports indicate that it would be highly unusual for the agency to conclude that the specific chemical identity is not necessary to interpret a health and safety study. A 1992 report commissioned by EPA’s Office of Pollution Prevention and Toxics (OPPT) summarized the low likelihood that chemical identity wouldnot be necessary to interpret a health and safety study as follows:
OPPT attorneys have argued that it is rarely the case that chemical identity information could legitimately be covered by such an exemption. It is unlikely that any reputable health or environmental scientist could be found who would argue that it is ever the case that chemical identity is unnecessary to interpret health and safety data. (emphases in original).
Likewise, the CBI Final Action Plan developed by OPPT in 1994 declares that:
[t]he utility of a health and safety study, particularly for chemicals in commercial distribution, is greatly enhanced by connection to a specific chemical identity. … This connection allows for risk analysis by all segments of the interested public, including the chemical industry. … Such actions cannot take place when a hazard cannot be associated with a specific chemical.
I ask you: How on earth could it not be essential to know the identity of a chemical in order to understand health and safety information about that chemical?
Based on TSCA’s language and its own implementing regulations, EPA policy and practice is to “generally deny confidentiality claims for the identity of chemicals in health and safety studies filed under TSCA except in specified circumstances.” The House bill would have the effect of obliterating this policy and practice.
What the House bill does
Section 14(b)(1) of TSCA, as amended by the House's TSCA Modernization Act of 2015 would retain TSCA’s two exceptions from disclosure for information relating to chemical identities in the context of health and safety information: “data which discloses processes used in the manufacturing or processing of a chemical substance or mixture or, in the case of a mixture, the release of data disclosing the portion of the mixture comprised by any of the chemical substances in the mixture.”
But the bill would add a third exception: “data that disclose formulas (including molecular structures) of a chemical substance or mixture.” The inclusion of the term “molecular structures” in this addition goes beyond information relating to a chemical formulation, and would expressly preclude EPA from identifying a chemical that is the subject of health and safety information it is making public, if that chemical identity were claimed CBI.
http://blogs.edf.org/health/2016/03/29/will-private-interests-trump-public-ones-when-it-comes-to-our-right-to-know-under-tsca/#more-4957
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Issues Of The Environment: Reforming The Toxic Substances Control Act
Mar 30, 2016 | WEMU Radio
By David Fair
The Flint water crisis is only one of many water quality issues that need to be addressed.There are numerous threats to the Great Lakes and Michigan's inland waters. In this week's "Issues of the Environment," WEMU's David Fair speaks with Ecology Center Deputy director Rebecca Meuninck about updating the federal Toxic Substances Control Act to better protect these natural resources.
Overview
* In 2015, Congress at long last began to overhaul the Toxic Substances Control Act (TSCA). This spring, leaders of the U.S. Senate and House of Representatives — including Congressman Fred Upton, who represents Michigan's 6th Districtand, as chairman of the Committee on Energy and Commerce, has played an instrumental role in ushering the reform along — are meeting to reconcile differences in their own versions of the new legislation.
* Last year, the US Congress took major steps toward chemical safety reform by passing bills to reform the Toxic Substances Control Act. The Senate passed its bill just before the holidays; the House passed its chemical safety bill in June. Now, the two pieces of legislation must be combined before the final version can go to President Obama for his signature.
* According to advocates at the Ecology Center, there are also provisions, especially in the Senate bill, that exist solely to help out special interests. For example, the Senate bill makes it harder for EPA to restrict chemicals in imported products. It would let some chemicals off the hook without a thorough safety review and it would block states from taking action on chemicals while EPA is reviewing their safety, which could take years. The House bill largely avoids those problems, but it fails to provide EPA with new resources and a mandatory schedule.
* Opposition to these reforms primarily comes from chemical industry lobbyists who argue that the current TSCA regulations are strong enough and that industry regulates itself, as an unsafe product is detrimental to a company’s image, and they claim that chemicals used to keep consumers safe (flame retardants or preservatives for example) may be eliminated under the new regulations.
* Rebecca Meuninck, deputy director of the Ecology Center, serves on the Safer Chemicals, Healthy Families (SCHF) steering committee, and although she is critical of both bills, she has been championing their progress and pushing for meaningful revisions to give the bills teeth in terms of more regulatory control over current and future chemicals in the marketplace.
TSCA Reforms
Senate Bill passed in 2015: In June, the US Senate passed Toxic Substances Control Act (TSCA) reform legislation by unanimous consent. The legislation would reform our nation’s main chemical law, which has been in dire need of change for many years. The Senate bill now must be reconciled with a very different House bill, co-sponsored by Congressman Upton, and passed by the US House of Representatives in June. Public health and environmental organizations, in Michigan and nationally, have generally preferred the House version.
The bill passed despite strong opposition from health and environmental advocates in Michigan. The Senate bill would undermine the ability of states to protect their residents by blocking state action on priority chemicals. Under this bill, many chemicals are cleared for use without completing a safety determination by claiming they are “low priority.” The bill also makes it harder to halt imported products that contain toxic chemicals restricted in the U.S.
The Ecology Center’s press release following the passage of the Senate bill emphasized the negative aspects of the bill for two reasons:
1. The Senate bill has been accompanied by a full propaganda push by the industry and its allies, requiring some rebalancing and perspective on our part.
2. Recently, and more troubling: in the run-up to this vote, we saw strong indications that the chemical industry’s playbook for the upcoming conference process will be to walk back the few key wins for public health and the environment, including walking away from a strictly health-based standard and an enforceable schedule of reviews.
House Bill passed 2015: They said, “The next phase of the process will therefore be most crucial. As we’ve said before, the strength of the House bill is that it acknowledges that it is a limited reform, and it focuses on the fundamentals. The House bill simply removes the key pieces of TSCA that had prevented EPA from testing, evaluating, and restricting chemicals where needed. It also asks for expedited action on chemicals that are persistent, bioaccumulative, and toxic. Like the Senate bill, it defines vulnerable populations and requires that they are protected. It has an important principle that nothing changes for the states unless and until EPA actually exonerates a chemical after a full safety review or restricts it to ensure safety.
The House bill still falls short by not providing new resources for EPA, making inadequate reforms to confidential business information, and not having clearer grandfathering of certain key state laws.
To combine the best of both bills would be to work off of the House bill and address these shortcomings, by pulling selectively from the Senate bill. If the conference committee does that, we could end up with TSCA reform that is more limited than we had hoped for, but still meaningful in the protection it steadily provides. “Ten chemicals per year” sounds like a small number but one chemical or class of chemicals can have an enormous reach in the economy and impact on our health. If EPA tackles some of the worst first, and truly protects disproportionately exposed populations, like environmental justice communities or factory workers, it would make a big difference to actual people. Ditto for thePBT provisions.”
Many of the toxic chemicals found in our lakes and in our bodies get there by migrating out of the household products we use every day. Studies conducted in Michigan have found heavy metals, bisphenol A (BPA), phthalates, toxic flame retardants, and many more nasty chemicals in children's products, furniture, cars, and our homes. (The Ecology Center has conducted numerous studies on the dangerous toxins lurking in ordinary items, recently phthalates in flooring, flame retardants in car seats, and numerous toxins in “dollar store” products.)
These are just a few of many reasons why efforts underway in Washington, D.C., to reform national policy to regulate chemicals in everyday products couldn't be more urgent. The centerpiece of that policy is the federal Toxic Substances Control Act. The act, which became law in 1976, is both out of date and lacks the teeth to protect Americans and our environment from toxic chemicals. In fact, the EPA has only assessed approximately 200 chemicals out of about 83,000 in commerce, and it has banned or restricted the use of just five.
The bills that came out of the House and Senate are complex, containing many important — and, as you might guess, contentious — elements. So they're difficult to summarize. But two provisions in particular have been of concern to public health advocates.
Strengths and Weaknesses of House and Senate Bills
Senate Bill - First, a loophole in the Senate bill would make it harder for the U.S. Environmental Protection Agency to identify and ban imported products with toxic chemicals. That loophole would allow foreign-made toys, furniture, and other consumer products containing harmful chemicals to be sold in U.S. stores. It's in the best interest of Michigan-based manufacturers, retailers, workers and consumers to have better protections against hazardous imported products, not to make it easier for toxic imports to get on store shelves.
Serious problems with the Senate legislation include:
· Making it more difficult for EPA to identify and intercept imported products containing toxic chemicals.
· States will still be blocked from taking action while EPA studies a chemical, potentially delaying urgent public health interventions.
· The “low priority” category requires EPA to ‘green-light’ some chemicals without a thorough safety review.
Michigan-based manufacturers, retailers, workers and consumers would all greatly benefit from better protections against hazardous imported products. However, the legislation actually makes it harder for anyone to know the products they are buying and selling are safe.
House Bill - Second, the House version of the act contains stronger provisions than its Senate counterpart regarding the protection of states' rights to pass chemical regulations to protect public health and the environment. States are more flexible than the federal government and can often act more quickly to address concerns that are unique to their environment and residents. For example, states such as Michigan led the way in banning certain toxic flame retardants called PBDEs that were building up in our environment and contaminating fish, wildlife and people in the state. It was only after states like Michigan passed bans on PBDEs that the federal government finally took action.
Reforms Requested by the Ecology Center’s Safer Chemicals Healthy Families Coalition
A letter from the Safer Chemicals Healthy Families coalition to US Senate and House leadership about the two bills and their relative strengths and weaknesses.
Reasons Overhaul of the TSCA is Needed
* Babies in the U.S. are born with over 200 chemicals in their bodies.
* A recent World Cancer Report predicted 57% increase in cancer rates in next 20 years, and they said prevention is desperately needed.
* Emerging science is increasingly identifying health problems from chemicals - including a new study showing children's brains are increasingly harmed from toxic chemicals.
* Learning disabilities, autism, pediatric cancer, breast cancer, thyroid disease, and many other health problems are linked to unregulated toxic chemicals exposure.
Online Petition
Rebecca Meuninck says, “We also have an active petition to the conference committee and leadership which has a bullet point list of items we believe are needed in the final bill.”
http://wemu.org/post/issues-environment-reforming-toxic-substances-control-act#stream/0
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EPA Sends Formaldehyde Air Rule For OMB Review
Mar 30, 2016 | InsideEPA
EPA has forwarded to the White House Office of Management and Budget (OMB) for review a long-delayed final air rule setting limits for formaldehyde emissions from composite wood products, with OMB receiving the final rule March 28, according to OMB's website.
Congress in 2010, through an amendment to the Toxic Substances Control Act (TSCA), required EPA to incorporate a 2008 California Air Resources Board (CARB) standard into a federal rule, but EPA's effort to complete the rule has been hindered by questions of how to narrow requirements for laminated wood products.
Early last year, House and Senate lawmakers urged EPA to swiftly finalize a rule setting "clear, enforceable standards" for formaldehyde in composite wood products, and pressed the agency for reasons for the delay. The letter came after media reports showing high levels of formaldehyde in laminated flooring imported from China.
EPA, in the fall 2015 Unified Agenda description of the rule, says that as “[a]s proposed, the rulemaking will reduce exposures to formaldehyde, resulting in benefits from avoided adverse health effects.”
The agency had predicted last fall that it would finalize the rule by May, a timeline that will be hard to meet unless OMB takes less than the typical 90 days to review the rule.
Formaldehyde is widely used in the manufacturing of building materials and household products, EPA says. Exposure can irritate the skin, eyes, nose and throat, and high levels of exposure can cause certain cancers, according to the agency's notice.
EPA's June 2013 proposed rule called for imposing the CARB limits on wood products, but also subjected laminated products, rather than simply their component parts, to emissions requirements and testing, which some industry groups have argued Congress never intended. Some industry officials have also argued the proposal includes unwieldy testing requirements on fabricators of laminated wood products.
Advocates for reducing harmful chemical exposures in housing and some domestic producers of wood products have backed the rule, arguing it would reduce health risks from formaldehyde and set a level playing field by requiring foreign producers to comply with the California standard, which has been widely adopted by domestic producers.
http://insideepa.com/news-briefs/epa-sends-formaldehyde-air-rule-omb-review
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Premature Births Linked To Toxic Chemicals
Mar 29, 2016 | Environmental Working Group
By Alex Formuzis
The rate of premature births in the U.S. is among the highest in the developed world, with nearly one in 10 babies born in 2014 arriving before 37 weeks of pregnancy.
It’s also the number one cause of infant mortality. Very premature babies who do survive often endure serious problems for the rest of their lives, including diabetes, cerebral palsy, intellectual disabilities and breathing and vision problems, among other issues.
It’s difficult to pinpoint what causes pre-term birth, but many obstetricians as well asfederal health authorities strongly urge pregnant women to avoid smoking, alcohol and illicit drugs. Poor nutrition, infection and carrying twins or triplets can also trigger early births. But research indicates the cause of roughly half of all premature births is unknown.
An emerging body of research is connecting pre-term birth to in utero exposure to toxic chemicals. You can learn more in this terrific video, Little Things Matter: The Impact of Toxins on Preterm Birth, by Bruce Lanphear, M.D., Ph.D, one of the world’s leading experts in children’s environmental health.
EWG was a pioneer in investigating industrial pollution in the womb, documenting the presence of toxic chemicals in the bodies of newborns.
EWG co-founder and president, Ken Cook, brought the findings of this landmark research to tens of thousands of people through a widely seen presentation titled 10 Americans. It’s a little over 20 minutes long – worth every second of your time if you’re worried about the impacts of toxic chemicals on our children’s health.
http://www.ewg.org/enviroblog/2016/03/premature-births-linked-toxic-chemicals
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‘Natural’ Product Claims Can Be Murky
Mar 30, 2016 | The Wall Street Journal
By Serena Ng
Whole Foods Markets Inc. last fall started selling a new brand of laundry detergent called Nature’s Power, whose green bottle claims the product is made “with plant-derived soaps.”
Its top active ingredient, a commonly used cleaning agent called sodium laureth sulfate, is found in plenty of its mainstream peers, including Arm & Hammer, which like Nature’s Power is made byChurch & Dwight Co. Sodium laureth sulfate can be produced from coconut oil, palm oil or petroleum.
“It is the same chemical compound, regardless of what it’s derived from,” says Clarence Miller, a professor emeritus of chemical and biomolecular engineering at Rice University in Houston.
A Church & Dwight spokesman said the sodium laureth sulfate in Nature’s Power “is plant-based and not the same” as the sodium laureth sulfate found in Arm & Hammer. Whole Foods declined to comment.
There are no regulatory guidelines for what makes a household product “natural.” Makers of detergents, dish soaps and other household cleaners aren’t required by law to disclose their ingredients to consumers. That has spawned an industry filled with labels that claim cleaners are eco-friendly, nontoxic, hypoallergenic or even vegetable-based.
These so-called natural household and personal-care products have proliferated over the past few years as more consumers—especially parents of young children—are looking for safer products and are often willing to pay more for them. U.S. sales of beauty, household and personal care products that make natural claims have grown 35% since 2012, versus 4% growth for the broader industry, according to Bernstein Research analyst Ali Dibadj, who analyzed Nielsen data.
Many retailers and consumer products companies classify their products as natural if some of their ingredients were originally sourced from plant-based materials. But the top ingredients in many natural or “green” consumer goods aren’t that different from mainstream products, whose ingredients often come from petroleum-based sources, according to Neal Langerman, a chemist who runs Advanced Chemical Safety Inc., a consulting firm.ENLARGE
The main ingredients in Tom’s of Maine Simply White toothpaste, for instance—including sodium fluoride, hydrated silica, sorbitol and sodium lauryl sulfate—are also in some types of Colgate toothpaste. Tom’s of Maine, which says all its ingredients “originate from nature,” is owned by Colgate-Palmolive Co. A Tom’s of Maine spokeswoman said those ingredients “can be found in many toothpastes, and were part of our toothpaste formulas before we became associated with Colgate-Palmolive” in 2006.
While the Food and Drug Administration regulates foods and personal-care products and requires detailed ingredient labeling, it isn’t clear who is checking the labels of household products or the contents of bottles.
The Federal Trade Commission, which enforces federal truth-in-advertising laws, has a set of “green guides” to help marketers avoid making deceptive environmental claims. James Kohm, head of enforcement for the agency’s consumer protection bureau, said the FTC hasn’t provided specific guidance on marketing natural products, but companies aren’t allowed to deceive consumers.
The use of term “organic” is more closely regulated. Makers of household cleaners that label their products organic must have their ingredients certified by an independent body that follows guidelines from the U.S. Department of Agriculture.
Some makers of mainstream brands are trying to grow in the natural-products space. Last month, Procter & Gamble Co. said it would launch an eco-friendly version of Tide, called Tide purclean. According to P&G, the new detergent contains a unique blend of cleaning agents, including sodium laureth sulfate that is 87% from plants and 13% from petroleum-based sources.
“There’s a wild, wild west situation going on with natural product claims because there is no set definition of natural,” says Nneka Leiba, deputy director of research at the Environmental Working Group, a Washington, D.C., nonprofit that assesses chemicals in consumer products.
The group has flagged concerns about sodium laureth sulfate because the manufacturing process for it sometimes creates trace amounts of a contaminant called 1,4-dioxane. That contaminant may be a carcinogen, according to the Environmental Protection Agency.
Tide purclean “has a trace amount of 1,4 dioxane at levels found naturally in food and water, and is safe,” a P&G spokesman said. Church & Dwight said its products “are assessed to make sure any exposure to this byproduct, if present, is well below any level known to cause health concerns.”
Sodium laureth sulfate is part of a family of cleaning agents that also includes sodium lauryl sulfate. The Journal reported earlier this month that Honest Company Inc.’s laundry detergent contains sodium lauryl sulfate, according to two independent lab tests, even though the labels on its bottles say the product is “free of SLS.” The company disputed the labs’ findings and said its detergent contains an alternative called sodium coco sulfate. Multiple chemists told the Journal that sodium coco sulfate is a mixture that has a significant amount of SLS.
Some companies, including Honest, have dialed back natural product claims after being challenged by rivals or consumers.
Honest used to describe its disposable diapers as made with “totally natural” ingredients. It since modified its claims to say they are “made with naturally derived, plant-based and sustainable materials” after a competitor questioned its claims.
The diapers contain, among other things, plastics and an absorbent compound made from petrochemicals, in addition to absorbent materials made from wheat and corn, according to the company’s website. Honest didn’t respond to requests for comment.
Hello Products LLC, a New Jersey-based maker of toothpaste, stopped claiming its products were “99% natural” after a 2014 settlement with P&G, which owns the Crest brand. P&G had sued, claiming that a significant proportion of the ingredients in Hello’s toothpaste were “extensively and chemically processed.”
Hello toothpaste’s packaging now says it is “naturally friendly.” Craig Dubitsky, Hello’s chief executive, said it isn’t tested on animals and doesn’t contain chemicals like peroxide and artificial sweeteners.
http://www.wsj.com/articles/natural-product-claims-can-be-murky-1459296027
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(ACC Mentioned) SCOTUS Hears First Big Environmental Case Without Scalia
Mar 30, 2016 | PoliticoPro (Morning Energy)
By Eric Wolff
...#EXXONKNEW GETS TWO MORE ON BOARD: Former Vice President Al Gore and New York Attorney General Eric Schneiderman on Tuesday got two more attorneys general, from Massachusetts and the Virgin Islands, to begin looking into environmentalist-backed allegations that ExxonMobil deliberately misrepresented its internal research into climate science. But as Pro's Andrew Restuccia and Elana Schor report, it was decidedly unclear whether the other 13 AGs’ offices represented at Tuesday's Schneiderman-hosted climate event would jump on the anti-Exxon bandwagon.
And industry is not chill: The American Chemistry Council gave Exxon some backup Tuesday by echoing the company’s warnings that investigations of internal corporate research would risk “chilling open scientific inquiry.” ACC, the former home of now-American Petroleum Institute CEO Jack Gerard, said in a statement that the AGs’ work “will infringe upon free speech and impede the full consideration of emerging and diverse scientific research by companies, large and small, throughout the U.S."
https://www.politicopro.com/tipsheets/morning-energy/2016/03/pro-morning-energy-wolff-016565
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Hillary, Bernie, Hydraulic Fracturing And The Future Of US Oil And Gas Production
Mar 25, 2016 | Forbes
By Anna Mikulska, Michael Maher and Kenneth B. Medlock III
The dramatic increase in domestic oil and gas production since 2008 – the so-called “shale revolution” – has been a boon to the US economy and the Obama administration, not to mention the international and geopolitical benefits. In fact, growth in US oil production alone offset the losses in production from countries beset by sanctions, civil strife and/or sector mismanagement. This, in turn, has impacted US foreign policy as domestic oil and gas have become credible threats to perceived hegemonic intent by countries such as Russia and Venezuela.
At the core of this evolution is hydraulic fracturing. When the US economy needed a boost after the 2008 global recession, the shale revolution delivered by providing job growth and economic stimulus. President Obama nurtured the boom by avoiding restrictive policies, even as the EPA scrutinized the environmental impact.
Enter the two candidates vying for the Democratic nomination. On energy policy, they appear to have either forgotten the last 8-10 years or they are so philosophically opposed to domestic production that it just does not matter. Regardless, the two candidates appear to have little in common in this regard with the sitting president.
Bernie Sanders has called for a full nationwide ban on hydraulic fracturing. Hillary Clinton promises tough restrictions, so great in fact that, as she stated,“By the time we get through all of my conditions, I do not think there will be many places in America where frac’ing will continue to take place.”
Putting aside the practicalities of actually implementing these policies, it is important to ask, “What would happen if hydraulic fracturing were banned in America?”
Long before the proposals of Sanders and Clinton had been announced, in February 2015 the Center for Energy Studies at the Baker Institute for Public Policy at Rice University published a study (authored by Ken Medlock and Peter Hartley and funded by the Alfred P. Sloan Foundation) that looked at consequences of a federal ban on frac’ing (as well as a wide range of other local, state and federal shale gas policies). Thus, the study is well-positioned to shed light on how a ban would impact US natural gas production, natural gas prices, international trade in natural gas, and the potential geopolitical consequences.
Shale gas production in the US grew more than sevenfold from 2 trillion cubic feet in 2008 to 15 trillion cubic feet in 2015). During that period the price dropped more than three-fold, as the Henry Hub spot price averaged almost $9/mcf the year prior to President Obama’s inauguration and averaged $2.62/mcf in 2015. This has carried significant, far-reaching impacts. For one, inexpensive natural gas has been the major factor in leading America away from coal in power generation, which has contributed to a significant reduction in US carbon dioxide emissions over the past decade.
Low-price natural gas has also revitalized the industrial base in the United States, with ongoing and planned $100+ billion in expansions in the petrochemical and manufacturing sectors, a source of real macroeconomic benefit and rebuilding of the high-wage, skilled manufacturing workforce. It has also stimulated significant investment in the midstream sector, from pipes to LNG export terminals, which also carry substantial benefits for the labor force and the macroeconomy more generally. Moreover, the leverage that US natural gas introduces with regard to Russian dominance in Europe and the potential environmental impact it has in meeting growing Asian demands cannot be overstated.
The short answer to what a federal ban on shale development would mean is that natural gas would get a lot more expensive.
According to the analysis by Medlock and Hartley, a full ban on frac’ing would reduce US domestic gas production by more by 30% or just over 9 tcf by 2030 compared to the no ban reference case. The resulting higher natural gas prices would encourage some offsetting conventional and offshore natural gas production of around 12 tcf so that the decline in total production would be less than the decline in unconventional gas production of over 20 tcf (Figure 1).\
But, the drop in US shale gas production would shift US prices into parity with European prices while in the no ban case, the Henry Hub price would be $4/mcf or so lower than Europe. In fact, the price at Henry Hub would rise by almost $4/mcf in 2020 and would be $6/mcf higher in 2030 compared to a case where current policies are kept in place. Under a frac’ing ban, U.S. consumers in 2030 would pay around $100 billion more annually for natural gas by 2030. Of course this assumes supply responsiveness is possible from other types of natural gas opportunities, Senator Sanders’ proposal to end offshore development would exacerbate these trends.
The longer term implications are significant. Revival in US manufacturing, especially in the chemical sector, would be cut short, due to a more than doubling in price of one of its key inputs. Families relying on electricity and gas for home and water heating would also be hard hit.
Globally, a US shale gas ban has a smaller effect as production in various regions outside of the US can at least partially offset the US decline. However, coal use would be stimulated – both in the U.S. and abroad – relative to the case where no such ban was instituted. In turn, environmental aspirations – would take a big hit, thereby challenging a gas-driven low cost net reduction in CO2 emissions globally.
In addition, by altering US production, a ban on hydraulic fracturing can shift the US position from one of being an exporter to the global market in the coming years to one of importer, effectively cementing the fate that many though would come to pass in the late-1990s/early-2000s – namely, the US as a large importer of LNG. More generally, if US supplies to the global market are impeded, the impact the US has on global landscape is diminished. This will result in reduced liquidity and slow ongoing transitions in the global LNG market. In addition, any geopolitical leverage associated with a greater US supply presence in both Asia and Europe would be foregone. Instead, two of the key beneficiaries of the ban and decreased US supply would be Russia and Iran, the top two holders of natural gas reserves.
All of this being said, institutional limitations to federal and presidential prerogatives seem to make an outright federal ban on frac’ing, as proposed by Bernie Sanders, rather unlikely. Somewhat more possible is the proposal by Hillary Clinton where various legislative actions could make hydraulic fracturing difficult and expensive enough to effectively stop future development. At the very least new federal legislation relating to issues like water or fugitive methane would have to be far more restrictive than what has been proposed to date under existing regulatory authority and confirmed by both the House and Senate.
However, even this would be difficult regardless of who holds majority in the House and Senate given that many Republican and Democrats alike have seen positive economic impact of shale development for their states and constituencies. Indeed, President Obama in his 2015 State of the Union Address specifically mentioned the positive impact of rising US natural gas production on the US economy and energy security. And the analysis above only provides an indication of the costs of a ban on shale gas development; the impact on unconventional oil from a frac’ing ban would also yield significant economic and security costs for the U.S.
Thus, while electoral rhetoric can be myopic and extreme, it is important to inject rationality into the discussion. Fortunately, the implications of a ban on hydraulic fracturing have been studied, and the consequences of such a policy intervention are not only dramatic, they bear significant costs that should ultimately check any effort to institute such a policy.
http://www.forbes.com/sites/thebakersinstitute/2016/03/25/hillary-bernie-hydraulic-fracturing-and-the-future-of-us-oil-and-gas-production/#46a0afbd41d9
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Study Cites Water Contamination by Fracking
Mar 30, 2016 | BNA Daily Environment Report
By Alan Kovski
Two researchers at Stanford University said March 29 that an Environmental Protection Agency investigation in 2010 and 2011 provided evidence that hydraulic fracturing near Pavillion, Wyo., had contaminated underground sources of potential drinking water.
Researchers Dominic DiGiulio and Robert Jackson said their own review of the EPA data provided additional analytical detail on the underground water pollution by hydraulic fracturing, or fracking. The two researchers' analysis was published in the journal Environmental Science & Technology.
The researchers used reports by the Wyoming Department of Environmental Quality to suggest that old unlined waste pits contaminated with diesel fuels and drilling muds may have contributed to contamination of nearby drinking water wells—a suggestion Wyoming regulators made a few years earlier.
An oil and gas industry advocacy group, Energy in Depth, described the analysis of groundwater contamination by DiGiulio and Jackson as a repackaging of discredited EPA work.
The group also said the two researchers relied on a misleading definition of drinking water “sources” that blurs the distinction between drinkable freshwater and undrinkable water that someday could be cleaned up enough for human consumption.
DiGiulio Led EPA Study, Too
DiGiulio was the lead researcher for the EPA Pavillion investigation, released in draft form in December 2011 and never completed. That draft used samples from deep monitoring wells to say groundwater contamination was “likely associated with gas production practices, including hydraulic fracturing” (237 DEN A-15, 12/9/11).
Wyoming regulators and oil and gas industry representatives pointed to what they considered serious weaknesses in the EPA study, including contamination of samples by the workers doing the research. The EPA then backed away from the case, leaving further investigation to Wyoming officials.
The EPA never explained why it was leaving the Pavillion investigation to Wyoming. DiGiulio did not respond March 29 to a question seeking his view on why the EPA stepped back from the case.
Stanford issued a press release March 29 quoting Jackson as denouncing the EPA over studies on fracking's impact on groundwater.
“The EPA has consistently walked away from investigations where people and the environment appear to have been harmed,” Jackson said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86071606&vname=dennotallissues&fn=86071606&jd=86071606
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The Long and Short of Ethane in the Northeast US
Mar 30, 2016 | Platts
By Andrew Neal
On March 9, the JS INEOS Intrepid departed Sunoco Logistics’ Marcus Hook terminal in Pennsylvania with the first waterborne ethane cargo. Arriving at the INEOS steam cracker in Rafnes, Norway, on March 23, the shipment is the culmination of four years of work to transport ethane internationally. However, uncertainty around the ethane market has grown as new projects for domestic and export use all come online simultaneous with declining production and low prices.
Platts Bentek details this uncertainty in a free Market Alert, No Longer Adrift: Navigating a Tighter Ethane Market. Ethane exports have been viewed as a major relief for gas producers in the Northeast, where limited infrastructure has forced producers to reject large volumes of ethane into the natural gas stream. Currently Platts Bentek’s Market Call: North American NGLs estimates 2016 Northeast ethane production at the wellhead at 311,000 b/d, with 125,000 b/d (nearly 40%) of that rejected. Ethane rejection was estimated at nearly 65% in 2015.
The volumes involved in ethane exports are comparatively small. Range Resources, the primary shipper in the contract with INEOS, has 20,000 b/d contracted on the Mariner East 1 pipeline to Marcus Hook. Approximately 50,000 b/d of ethane is contracted to flow on the Mariner West pipeline to cross the US/Canada border and serve southwestern Ontario’s petrochemical industry.
Enterprise Products Partners reports 110,000 b/d currently flowing on the ATEX pipeline from the Northeast to the Gulf Coast. Current capacity on ATEX is 125,000 b/d, and Enterprise has stated that an expansion up to 265,000 b/d would require 18-24 months’ work.
Blue/red is total US ethane production based on our October 2014 forecast and green/purple is production based on our January 2016 forecast. Both are materially revised downward.
Looking forward, low commodity prices have reduced drilling activity and led to a less aggressive ethane production forecast, both nationally and in the region. In the 4Q 2014Market Call: North American NGLs, published in October 2014, Bentek expected ethane supply from gas plants to reach roughly 2.07 million b/d in 2018.
In the latest edition of Bentek’s Market Call: North American NGLs, published January 2016, ethane supply reaches only 1.86 million b/d in 2018, a 10% decline. In the Northeast, the new ethane projections indicate a smaller decline, of just 8% from 479,000 b/d to 443,000 b/d in 2018.
Projects that will increase ethane demand both domestically and for export continue to move forward, primarily in the US Gulf Coast. Eight ethane crackers are currently under construction on the Gulf Coast will come into service between 2017 and 2018.
Among the cracker projects announced for the Northeast, none are expected to come online by 2018. Export volumes are expected to ramp up as the other ethane export terminal, Enterprise’s Morgan’s Point terminal in Texas, comes online later this year.
With demand growth on the Gulf Coast, Northeast ethane remains stranded without greater pipeline access. ATEX is set to reach capacity in 2018, and Enterprise has made no announcement of expansion plans. The only alternative destinations for Northeast ethane in the near term are Mariner West to Canada or on Mariner East for waterborne export, both of which are already subscribed. Because ATEX is the only pipeline serving the Gulf Coast, it is the best candidate for expansion to meet new domestic petrochemical and export demand. Without that expansion and with current production forecasts, ethane rejection could exceed 175,000 b/d in the Northeast in 2018.
If capacity on ATEX remains restricted, Northeast producers will be disconnected from the domestic market. Lower regional ethane prices won’t matter because of the physical transport constraint. Thus, the ethane supply for new projects will need to be sourced from other regions, initially Texas and the Mid-Continent, and later the Rockies and Williston basin. Ethane prices will have to rise dramatically to overcome the costs to transport ethane to market, i.e. Mont Belvieu, Texas, and to fractionate ethane from other NGLs.
But even with ethane from the Rockies and Williston, without Northeast production, the US ethane market is short by just over 75,000 b/d by 2018. This ethane shortage would need to be made up through a combination of lower operating rates by existing petrochemical plants, delays for plants under construction, or reductions in export volumes. While this spring brought optimism for Northeast producers via a new market for their ethane, the lack of a domestic outlet looms on the not-so-distant horizon.
http://blogs.platts.com/2016/03/30/long-short-ethane-northeast-us/
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Advocates Challenge EPA's Method to Meet Toxics Obligations
Mar 30, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Environmental petitioners are challenging the Environmental Protection Agency's use of surrogate pollutants to meet its Clean Air Act obligations to set emissions standards for industrial sectors that emit certain hazardous air pollutants (Sierra Club v. EPA, D.C. Cir., No. 15-1246, brief filed3/28/16).
The Sierra Club and the California Communities Against Toxics are challenging a June EPA determination that the agency fulfilled its duty to regulate industrial sources responsible for at least 90 percent of the aggregate emissions of seven hazardous air pollutants—alkylated lead compounds, polycyclic organic matter (POM), hexachlorobenzene (HCB), mercury, polychlorinated biphenyls (PCBs), 2,3,7,8-tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dioxin.
The three pollutants at issue in the litigation are PCBs, POM and HCB, which the environmental petitioners described as probable human carcinogens linked to liver and kidney tumors. The groups, in a March 28 brief, alleged that the EPA unlawfully claimed to meet the 90 percent threshold through the improper use of surrogate pollutants.
The petitioners alleged that the EPA's own interpretation of the Clean Air Act requires the EPA to set maximum achievable control technology standards for POM emissions from refineries, coke ovens, chemical plants and other sources, for HCB emissions from chemical plants and pesticide manufacturers and for PCB emissions from municipal waste combustors. Rather then directly regulate those emissions, the EPA's June 2015 determination claimed “for the first time” to have set those standards through the past regulation of other pollutants, which the agency determined to be appropriate surrogate for POM, PCBs and HCB, the environmental petitioners said.
Those surrogacy claims violate the Clean Air Act because they fail to identify the “best performing units” and the level of emissions those units can achieve for the three hazardous air pollutants, the environmental petitioners said. They argued that the EPA failed to establish which pollutants are correlated and to what degree.
“The result of EPA's refusal to set standards for these pollutants is that people living in exposed communities ... are being deprived of protection that Congress ‘obviously' intended EPA to provide,” the petitioners said.
The EPA's response brief is due to the court by May 27. The agency, in its final rule, said comments filed by environmental groups were outside the scope of the rulemaking because they challenged the substance of EPA regulations set as far back as the 1990s (101 DEN A-1, 5/27/15).
The environmental petitioners are represented by Earthjustice attorneys Neil Gormley and James Pew.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86071583&vname=dennotallissues&fn=86071583&jd=86071583
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States Defend EPA Clean Power Plan Authority
Mar 30, 2016 | BNA Daily Environment Report
By Andrew Childers
A court decision to overturn the Environmental Protection Agency's Clean Power Plan on the grounds that it would cause shifts in the nation's electricity mix would effectively bar the agency from regulating all power plant emissions, states supportive of the rule said (West Virginia v. EPA, D.C. Cir., No. 15-1363, briefs filed 3/29/16).
Regulating power plant emissions will necessarily have an impact on the energy sector, but that does not mean the EPA's carbon dioxide standards trample states' authority to regulate the power sector, 18 states and several cities supporting the Clean Power Plan said in a March 29 brief to the U.S. Court of Appeals for the District of Columbia Circuit.
“Indeed, an interpretation of the Clean Air Act that would forbid an emission regulation from affecting the energy sector would prevent EPA from regulating harmful emissions from power plants at all, despite their being a substantial source of greenhouse gases as well as many other harmful pollutants,” the states and cities said.
The EPA Clean Power Plan (RIN 2060-AR33), issued under Section 111(d) of the Clean Air Act, sets carbon dioxide emissions limits on the power sector in each state.
Environmental and public health groups, some utilities and renewable energy associations also came to the defense of the Clean Power Plan in intervenor briefs filed March 29.
The rule builds on a foundation of cooperative federalism employed by the agency in other Clean Air Act regulations and does not overstep into powers reserved to the states, the states said.
“EPA's pollution regulations are simply another federal constraint that states and power plants must heed in this complex area of overlapping state and federal authority,” they said. “It is well established that air pollutants—including carbon-dioxide emissions—have substantial interstate effects that the Clean Air Act was designed to address.”
Though 18 states are supporting the EPA, the Clean Power Plan is being challenged by 27 others as well as several utilities and other industry groups that argue the EPA overstepped its Clean Air Act authority by regulating how electricity can be generated (35 DEN A-16, 2/23/16).
Intervenors' Arguments in Support of Clean Power Plan
States: “The fact that state regulatory agencies will continue exercising their ordinary oversight over their electric utilities — including over decisions made by power plants to comply with a federal plan — does not mean the rule commandeers states.”
Environmental Groups: “Far from petitioners’ grim portrayal, the rule's eminently achievable targets reinforce existing market trends and give the industry extensive lead time.”
Utilities: “By largely following existing trends that are causing generation shifts towards lower-emitting sources and by requiring reductions at no greater pace than they are already being achieved by many states and power companies, the rule's formulation of the best system of emission reduction is reasonable and consonant with the practical realities of how the electricity grid is operated today.”
Renewable Energy Groups: “Petitioners assert that EPA lacks expertise in the ‘power supply industry.' But EPA has unparalleled expertise in establishing standards of performance for the electric power supply industry under the Clean Air Act.”
Targets ‘Eminently Achievable.'
Environmental and public health groups supporting the EPA argued that the carbon dioxide emissions targets for the power sector in each state are “eminently achievable” because they follow trends already under way among utilities.
“The rule provides six years’ lead time before emission reduction requirements begin gradually phasing in, and the pace of CO2 reductions the rule requires by 2030 is in line with the pace actually achieved by the industry in recent years. These readily achievable reductions are not too much to ask of an industry that contributes disproportionately to a grave public hazard, the groups, including the Sierra Club, Environmental Defense Fund, Natural Resources Defense Council and American Lung Association, said.
The Clean Power Plan takes into account the unique and interconnected nature of the power sector by encouraging utilities to shift away from coal-fired power to less-polluting generation sources as the least costly control measure. The groups argued that the EPA's decision to seek emissions reductions beyond the fenceline of the regulated power plants themselves constituted a valid interpretation of “best system of emission reduction” under Section 111(d) of the Clean Air Act.
“The ordinary meaning of these words easily encompasses the measures the rule identified for the power industry,” the groups said. “Their breadth contrasts with other Clean Air Act provisions that expressly limit EPA to technologies installed at the source.”
The EPA also defended the rule's use of generation shifting in a brief filed March 28 (60 DEN A-1, 3/29/16).
Renewables Groups, Utilities Defend Rule
Though several utilities are challenging the Clean Power Plan, others that have already invested significantly in renewable or low emissions generation are defending the rule.
“Electricity providers have been shifting generation among affected units and to zero-emitting sources as a means of achieving emission reductions for decades, as these strategies achieve greater reductions at lower cost than by relying on control technology alone,” Calpine Corp., Austin Energy, National Grid Generation LLC, the New York Power Authority, Pacific Gas and Electric Co. and others said in a brief supporting the EPA.
Renewable energy groups including the Advanced Energy Economy, American Wind Energy Association and Solar Energy Industries Association also defended the EPA's rule, arguing the Clean Power Plan follows a transition already under way in the power sector.
“While petitioners may disagree with the agency's determinations, they do not show (as they must) that the agency failed to engage in reasoned decision-making,” the renewables groups said. “To the contrary, EPA's targets are consistent with proven, well-established practices in the industry and in line with current industry trends.”
The D.C. Circuit has scheduled oral arguments in the Clean Power Plan litigation for June 2 and possibly June 3 before Judges Judith Rogers, Karen LeCraft Henderson and Sri Srinivasan, but the U.S. Supreme Court has already stayed the rule's implementation until litigation is complete (West Virginia v. EPA, U.S., No. 15A773, 2/9/16).
Petitioners' reply briefs are due April 15.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86071608&vname=dennotallissues&fn=86071608&jd=86071608
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(ACC Mentioned) EPA Waste Chief Signals Major Changes To Facility Security Plan Unlikely
Mar 29, 2016 | InsideEPA
By Dave Reynolds
EPA waste chief Mathy Stanislaus is offering a strong defense of the agency's recently proposed rule to overhaul its risk management plan (RMP) facility accident prevention program, suggesting that EPA is unlikely to adopt major changes to the rule that advocates, industry groups and others called for at a March 29 public hearing.
The hearing in Washington, D.C., is part of the agency's effort to gather feedback on the Feb. 25 proposal, which is part of a broad federal effort to implement President Obama's Executive Order (EO) 13650 aimed at improving facility safety after the April 2013 explosion at fertilizer facility in West, TX, killed 15 people. The agency is also taking comment on the plan through May 13, though some groups are seeking more time to provide input.
Currently, the RMP program established under section 112(r) of the Clean Air Act requires companies to craft a plan to submit to the agency that outlines how they will reduce risks from releases.
The proposed revisions would mandate that certain facilities consider safer chemicals or processes in their hazard assessments that inform plans; require third party audits after a reportable release to reduce risk of future accidents; and aim to improve coordination between facilities and local communities.
At the hearing, industry officials said that proposed new mandates for independent audits and root cause analysis of accidents and near accidents are unwieldy and risk diverting resources to unnecessary reviews.
Environmental and public interest groups, meanwhile, used the hearing to reiterate long-standing calls for EPA to require facilities to use inherently safety technologies (IST), usually alternative chemicals or process changes, where feasible. They backed the agency's proposal for certain facilities to consider IST, and pressed for EPA to expand that requirement to all RMP facilities, and to require use of IST at the highest risk facilities.
But in a briefing with reporters prior to the hearing, Stanislaus -- assistant administrator for EPA's Office of Land and Emergency Management -- specifically backed provisions in the proposal that industry finds objectionable, and also backed the agency's decision to only require consideration, rather than use of IST.
“We have struck a very good balance on that requirement,” for IST analysis, he said. Stanislaus said facilities should “take a hard look at those potential alternatives.” But he added, “We believe that the chemical industry is in the best position, once they conduct the analysis, to make a decision on all other pertinent considerations.”
Stanislaus also backed the proposal's requirements that certain facilities conduct independent audits and root cause analysis of incidents, even of so-called “near misses,” which do not cause a catastrophic release but could have.
He described independent audits as a central part of the proposal's prevention goals. And he said analyzing “near misses” that could have potentially led to off-site consequences is also an important step in preventing accidents.
Stanislaus also backed the proposal's call for certain facilities to conduct exercises to ensure that local emergency responders are aware of a facilities' hazards before an accident occurs. Industry officials have raised cost concerns about that proposed requirement, as well as liability concerns should local responders not participate in an exercise.
Public Hearing
At the public hearing, environmental and public interest groups, including Greenpeace, Earthjustice, and U.S. Public Interest Research Group, pressed EPA to expand the requirement that certain facilities analyze safer processes to all RMP facilities, and to require use of those measures where feasible, starting with the highest risk facilities. Advocates also argued that the proposed rule failed to improve release of facility information to the public.
Industry groups, including the National Association of Chemical Distributors (NACD) and the American Chemistry Council, questioned the necessity of the proposed requirement for facilities to conduct third-party audits and root cause analysis following certain incidents. Facilities already face a shortage of qualified auditors and EPA's proposed independence requirements would worsen the shortage, industrial officials said.
NACD's Jennifer Gibson said that the requirement for root cause analysis is far too broad. She questioned the necessity of investigating every near miss and said that even defining the term across industry sectors is difficult.
Ron Chittim of the American Petroleum Institute (API) and Lowell Randel of the Global Cold Chain Alliance, argued EPA moved too quickly by forwarding the proposal for White House review when a small business advocacy review panel was still considering the proposal's potential effects on small businesses.
Chittim suggested the move is grounds for a possible legal challenge once EPA finalizes the rule, arguing that the agency violated the Small Business Regulatory Enforcement Fairness Act's requirement to modify a proposal, where appropriate, based on the review panel's recommendations.
“EPA appears to be taking the opportunity to propose a 'wish list' of regulations unrelated to the Executive Order or the West, TX tragedy.” Chittim said. “Furthermore, it seems that EPA is intent on pushing these unneeded changes through as quickly as possible to avoid any subsequent review by the next administration.”
Industry officials also urged EPA to extend its May 13 comment deadline by 30 days, though several speakers said they had already received letters from EPA rejecting the request.
Prior to the hearing, Stanislaus told reporters that the 60-day comment period was justified. He noted that the agency has provided numerous opportunities for public input during two and a half years of crafting the proposal.
Given the extensive outreach, he said the agency is unlikely to encounter new arguments in public comments, though they are open to receiving new data. “We will get more rigorous information, but I don't think we will receive fundamentally different” views, he said.
http://insideepa.com/daily-news/epa-waste-chief-signals-major-changes-facility-security-plan-unlikely
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Chemical Makers Say EPA Reversed Course With HFC Ban
Mar 30, 2016 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency improperly compared hydrofluorocarbons to later-generation chemicals when it chose to ban the use of some HFCs in favor of substances with less climate change impact, chemical manufacturers told an appellate court (Mexichem Fluor, Inc. v. EPA,, D.C. Cir., No. 15-1328, briefs filed 3/28/16).
The EPA's decision to compare HFCs with later generation chemicals represents a reversal in how the agency has implemented Section 612 of the Clean Air Act that was made without any prior public notice, Mexichem Fluor Inc. and Arkema Inc. told the U.S. Court of Appeals for the District of Columbia Circuit in a March 28 brief.
“As the agency previously has recognized, in its implementing regulations and elsewhere, later-generation chemicals are not [Significant New Alternatives Policy] substitutes and so are not a valid basis for comparison,” the companies argued.
The companies are challenging an EPA (RIN 2060-AS18) rule that phases out some HFCs as acceptable alternatives for ozone depleting substances in aerosols, foam blowing, motor vehicle air conditioning, retail food refrigeration and vending machines in favor of other chemicals with less global warming potential (GWP). While HFCs do not deplete the ozone layer, they do have significant global warming potentials.
The EPA estimates the rule will reduce greenhouse gas emissions by 54 million to 64 million metric tons of carbon dioxide equivalent in 2025 (128 DEN A-4, 7/6/15).
Rule Doesn't Address Ozone
But in its rule, the EPA failed to show how the preferred substitutes would pose less risk than the previously acceptable HFCs other than having less impact on the climate, the companies argued. The EPA's decision to base the rule solely on the lesser impact of its preferred alternatives on the climate has no basis in the Clean Air Act, the companies said.
“Nothing in Title VI suggests that Congress intended EPA to create an ongoing general regulatory regime to approve and disapprove chemicals based on GWP (or other considerations), divorced from any connection to stratospheric ozone,” they said. “On the contrary, the structure of Title VI confirms that Congress’ purpose was to ensure that producers and users of ozone-depleting substances designated for elimination did not immediately transition to more harmful substances, thereby preventing a jump from the frying pan into the fire. EPA itself once recognized this.”
Previously, the EPA had said it couldn't ban the use of HFCs outright based on comparisons to chemicals developed later, a position it reversed with its latest rule, the manufacturers said.
“The agency had always taken the position that it would not order the replacement of non-ozone-depleting substances under the SNAP program, and it reversed that position in the final rule without any explanation for its reversal, much less a reasoned one,” the companies said.
The EPA's response is due May 27.
Mexichem Fluor is represented by Squire Patton Boggs LLP while Arkema is represented by Mayer Brown LLP.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86071584&vname=dennotallissues&fn=86071584&jd=86071584
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EPA Proposes to Curtail Use of Certain HFCs
Mar 30, 2016 | BNA Daily Environment Report
By Anthony Adragna
Various new limitations would be placed on the use of certain ozone-depleting substances in multiple industrial sectors under a proposed Environmental Protection Agency regulation.
The EPA released the proposed rule March 29 under the Clean Air Act's Significant New Alternatives Policy, which allows the agency to limit or bar the use of certain substances when alternatives pose less overall risk to human health and the environment.
It would affect hydrofluorocarbons (HFCs) used in the refrigeration and air conditioning, foam blowing, and fire suppression and explosion protection industries, in particular.
“This new proposal would reduce the use and emissions of some of the most harmful HFCs, which are thousands of times more potent than carbon dioxide, and approves safer, more climate-friendly alternatives to protect public health and our environment,” EPA Administrator Gina McCarthy said in a statement.
Final Rule by August
McCarthy signed the proposed rule March 29, a day after the White House Office of Management and Budget completed its review of the proposal.
Once published in the Federal Register, the proposed rule will be open to public comment for 45 days. The Obama administration intends to issue a final version of the action (RIN 2060-AS80) by August, according to its most recent regulatory agenda.
Estimated annual costs from the regulation are expected to be $11.8 million to $14.4 million at a 7 percent discount rate. The EPA expects roughly 89 small businesses would be affected by the rulemaking.
Phasing out the use of hydrofluorocarbons with high global-warming potentials has been a significant focus of the Obama administration. In a previous July 2015 final rule, the EPA barred substances previously allowed for use by chemical and equipment manufacturers in aerosols, foam blowing, motor vehicle air conditioning, retail food refrigeration and vending machines (22 DEN A-8, 2/3/16).
Specific New Classifications Outlined
Among the substances the EPA said were acceptable for use with certain restrictions are HFO-1234yf in motor vehicle refrigeration and air conditioning uses, as well as 2-bromo-3,3,3- trifluoroprop-1-ene in the fire suppression and explosion protection sectors.
In addition, the agency proposed to exempt propane used in certain refrigeration uses from prohibitions on venting, release or disposal in Section 608 of the Clean Air Act, because it concluded those practices did not pose a threat to the environment.
Two substances—propylene and hydrocarbon blend R-443A—would be classified as unacceptable in various refrigeration uses. All refrigerants rated Class 3 for flammability from the American Society of Heating, Refrigerating and Air-Conditioning Engineers also would be rated unacceptable under the proposal.
The status of dozens of substances would be changed under the proposed rule, including various ones used in centrifugal chillers, positive displacement chillers, cold storage warehouses, retail food refrigerators, foam blowers and fire suppression usages.
Additionally, the proposed rule would apply “existing listing decisions for foam blowing agents to closed cell foam products and products containing closed cell foam,” according to the rule.
The status changes and prohibitions would be implemented over various time intervals, depending on the substance at issue. Some would be barred as soon as 30 days after the final rule's promulgation while others could continue on in use until 2024.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86071587&vname=dennotallissues&fn=86071587&jd=86071587
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Advocates Criticize EPA Use Of 'Surrogates' In Air Toxics 'Completion' Rule
Mar 29, 2016 | InsideEPA
By Stuart Parker
Environmentalists are criticizing as unlawful EPA's use of “surrogate” air pollutants to satisfy a Clean Air Act mandate that the agency regulate air toxics from sources representing 90 percent of emissions of seven hazardous air pollutants (HAPs), saying EPA is erroneously relying on limits for other HAPs to satisfy the mandate.
In a March 28 opening brief filed with the U.S. Court of Appeals for the District of Columbia Circuit, Sierra Club and other advocates challenge the agency's June 3 finding that it has met the 90 percent air toxics “completion” requirement. Sierra Club in its comments on the earlier proposed version of the finding said EPA cannot lawfully rely on surrogates, and must instead issue regulations aimed specifically at the seven listed HAPs.
Under Clean Air Act section 112(c)(6), EPA by Nov. 15, 1995, had to list industrial sources for regulation accounting for 90 percent of seven identified “persistent” and “bioaccumulative” HAPs. The HAPs are alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-tetrachlorodibenzofurans and 2,3,7,8- tetrachlorodibenzo-p-dioxin.
EPA for years avoided conducting a formal notice-and-comment rulemaking declaring that it had met the 90 percent mandate, initially issuing in response to environmentalists' pressure a declaratory finding without first taking comment on that finding. Environmentalists sued over this approach as inconsistent with the air law and normal administrative procedure, and the D.C. Circuit in a prior case faulted this process as inadequate.
In response to that ruling, the agency then proposed a formal finding that its regulations satisfy the duty to regulate sources covering 90 percent of the seven HAPs, and finalized it in June.
In their new opening brief, environmentalists make similar arguments as those raised in their comments on the proposed version of the 90 percent declaration. “EPA’s alleged surrogates are unlawful, unreasonable, and arbitrary because the agency does not even claim that they identify 'the best achieving sources, and what they can achieve'” with respect to the seven HAPs. The environmentalists say this is required by air law section 112(d)(2) and (3), and also by previous D.C. Circuit rulings on the use of surrogate air pollution reductions.
“Further, EPA’s surrogacy claims are unreasonable and arbitrary because EPA has not established a sufficient correlation between the . . . pollutants and its claimed surrogates,” they say. “EPA has failed even to identify the pollutants it believes are correlated with the target . . . pollutants for several source categories, and has failed to assess the degree of correlation for any source categories,” environmentalists say.
The groups argue that evidence shows the surrogate pollutants EPA cited are “not correlated” with the seven HAPs specified in the air law, “including evidence that combustion conditions that result in low emissions of the claimed surrogates do not necessarily result in low emissions of the target pollutants; that some control methods used to control the claimed surrogates do not reduce emissions of the target pollutants, while others actually increase them; and that other control methods could yield easily achievable reductions in the target pollutants, without reducing the surrogates to the same extent, or even at all.”
Surrogate Pollutants
They claim that EPA failed to respond to their comments on these issues outlined in their input on the proposed version of the completion finding, saying it had “no obligation” to do so.
Environmentalists say that EPA in its final rule does not defend its use of the surrogates, but instead countered that challenges to the reasonableness of these surrogacy claims are time-barred “and that the determination is a mere mathematical accounting.”
This approach is foreclosed by D.C. Circuit findings in prior litigation on the issue, the groups say, because the court has already held that EPA must substantively show how its use of surrogates satisfies air law requirements, when it compelled EPA to conduct a notice-and-comment rulemaking on the question.
Environmentalists rely on D.C. Circuit precedent to support their interpretation of requirements for use of surrogates, in the court's 2004 ruling in Mossville Environmental Action Now v. EPA, and its 2000 finding inNational Lime Association v. EPA, in addition to three D.C. Circuit rulings in prior litigation also known as Sierra Club v. EPA, from 2004, 2007 and 2012.
National Lime requires that the target pollutant must be “invariably present in” the surrogate, such that each unit of emissions of the surrogate avoided “‘carries’ within it some quantum of” the target pollutant. Control technologies that capture the surrogate must also “indiscriminately capture” the target pollutant.
Also, controlling the surrogate must be “the only means” by which facilities achieve reductions in the target. If sources can control the surrogate by other means, such as through changes in inputs, then “EPA must also assure itself that fuels and other inputs affect [the target pollutant] in the same fashion that they affect the [surrogate],” environmentalists say, citing National Lime. Under that holding, only by satisfying all these requirements can EPA avoid quantifying the correlation between the surrogate and target pollutants, they say. The Sierra Club line of cases has relied on the three-part test established in National Lime.
In Mossville, the D.C. Circuit vacated an EPA rule using vinyl chloride as a surrogate for HAPs at polyvinyl chloride production facilities. The court vacated because it found that EPA did not disclose “which of the HAPs” were correlated with vinyl chloride or “to what degree.”
http://insideepa.com/daily-news/advocates-criticize-epa-use-surrogates-air-toxics-completion-rule
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