AM ACC 3/31/2016

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

Chemical Management News

1. (ACC Mentioned) Study: BPA Found in Two-Thirds of Sampled Food Cans

   Mar 30, 2016 | Maine Public Broadcasting

   By Jennifer Mitchell
   
   
   Two-thirds of food cans sampled around the country, including in Maine, contain bisphenol A - or BPA - making canned foods a major source of the hormone-disrupting chemical.
2. TSCA Reform Would Have ‘Negligible’ Effect on State Regulation

   Mar 31, 2016 | Chemical Watch

   By Kelly Franklin
   
   
   Reform to the Toxic Substances Control Act (TSCA) would have a “negligible” effect on state regulatory programmes, according to Maureen Gorsen, a former head of the California Department of Toxic Substances Control (DTSC)...
3. Flame Retardants: Debate Still Being Driven By Outdated Science and Alarmism

   Mar 31, 2016 | American Council for Science and Health

   By Angela Logomasini
   
   
   Learning from history should keep us from repeating our mistakes. Yet when it comes to environmental politics, the opposite seems to be true. History and improved scientific understanding fail to inform...
4. Industry Warns of ‘Bad Precedent' From HFC Rule Decision

   Mar 31, 2016 | BNA Daily Environment Report

   By Anthony Adragna
   
   
   The Environmental Protection Agency rejected an agreement reached between environmental advocates and industry to phase out three refrigerants currently used in liquid chilling packages in what one group warned was...
5. IRIS Program Changes Procedure to Release Assessments

   Mar 31, 2016 | BNA Daily Environment Report

   By Pat Rizzuto
   
   
   The Environmental Protection Agency no longer will announce in the Federal Register its release of draft Integrated Risk Information System (IRIS) assessments for public comment, according to a Federal Register notice...
6. EPA's Formaldehyde Rule Under White House Review

   Mar 31, 2016 | BNA Daily Environment Report

   By Pat Rizzuto
   
   
   The Office of Management and Budget is reviewing the Environmental Protection Agency's final rule that would regulate formaldehyde emissions from composite wood products.
7. ECHA Lists Substances for Draft Information Requests

   Mar 31, 2016 | BNA Daily Environment Report

   By Stephen Gardner
   
   
   Companies that have submitted registration dossiers for 32 substances under the European Union's REACH regulation should expect to receive draft decisions in April, following initial evaluations of those substances...
8. PCB Lawsuits Against Monsanto Part of ‘Emerging Trend'

   Mar 31, 2016 | BNA Daily Environment Report

   By Peter Hayes
   
   
   A recent flurry of suits by West Coast cities—seeking to hold Monsanto liable for allegedly polluting public waterways with polychlorinated biphenyls it made decades ago—represents an intersection of hazardous waste...
9. Toxicity is a Hazardous Waste

   Mar 30, 2016 | Chemistry World

   By John Warner
   
   
   Where do you stand on the role of academia in training the next generation of chemists: should we favour ‘applied chemistry’ or ‘science for the sake of science’?

Energy News

10. (ACC Mentioned) Resilience a Key Factor in Area’s Future

    Mar 31, 2016 | Charleston Gazette-Mail

    By Steve Hedrick
    
    
    When we think about our region’s economic development, we think about oil and gas, innovation and petrochemical manufacturing as the cornerstones of this region’s economic future.
11. Truth or Consequences in Energy Policy, Part II

    Mar 31, 2016 | The Hill - Contributors Blog

    By Charles McConnell
    
    
    The Environmental Protection Agency's (EPA) Clean Power Plan (CPP) is the next in this three-part "Truth or Consequences" series. Can we afford to stop it? Adopt it? Is it meaningful?
12. McCarthy Touts Planned ICR As Basis for Strong Oil & Gas Methane Curbs

    Mar 30, 2016 | InsideEPA

    By Doug Obey
    
    
    EPA Administrator Gina McCarthy is touting the agency's upcoming information collection request (ICR) to the oil and gas sector as the “linchpin” of future strong standards to curb emissions of the potent greenhouse gas...
13. Keep Moratorium on Offshore Fracking

    Mar 31, 2016 | Sacramento Bee

    By Rep. Lois Capps
    
    
    In 1969, an offshore oil platform failed near the coast of Santa Barbara, causing one of the worst oil spills in American history. Last year, my constituents on the Central Coast saw history repeat itself...
14. Sierra Club's Legal Theory In Frackquake Case Draws 'Star Trek' Comparison

    Mar 31, 2016 | Forbes

    By W.J. Kennedy
    
    
    The Sierra Club and Public Justice are taking a novel approach in citing the Resource Conservation and Recovering Act in a lawsuit against the oil and gas industry in Oklahoma, according to several industry...
15. California Looks to Modernize Natural Gas Utilities, Presents a National Model

    Mar 30, 2016 | Environmental Defense Fund

    By Tim O'Connor
    
    
    Methane leaking from pipes before natural gas is delivered to customers can have a large, harmful impact on the climate.
16. Anti-Keystone Group Expands from Nebraska to Three New States

    Mar 30, 2016 | PoliticoPro - Whiteboard

    By Elana Schor
    
    
    Bold Nebraska founder Jane Kleeb, whose anti-Keystone XL advocacy group propelled the nationwide fight to kill the pipeline, is expanding her grassroots-organizing model to three states for new fossil-fuel fights this spring.
17. Asia's Record LPG Shortfall to Attract Increasing U.S. Exports

    Mar 31, 2016 | Reuters

    By Seng Li Peng
    
    
    Asia's supply shortfall of liquefied petroleum gas (LPG) will rise to record highs for at least the next two years, drawing ever more U.S. exports to fill the void.
18. Largest New U.S. Refinery Since 1976 Planned for N.D.

    Mar 30, 2016 | Fuel Fix

    By Jordan Blum
    
    
    Plans are moving forward to build the biggest new refinery in 40 years in the U.S. at a time when gasoline consumption is expected to break an all-time record in 2016.

Chemical Security News

19. Nuclear Industry Pledges to Fortify Security of Materials

    Mar 31, 2016 | BNA Daily Environment Report

    By Rebecca Kern
    
    
    The nuclear industry vowed at a global industry summit to enhance the security of nuclear and radiological materials.

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

Environment News

20. Supreme Court Seems to Lean Against Government in Key Wetlands Case

    Mar 30, 2016 | PoliticoPro

    By Annie Snider
    
    
    Supreme Court justices seemed ready allow miners, drillers and other developers to bring swifter challenges to the federal government's authority over their property during arguments in a closely watched wetlands case...
21. Maryland Lawmakers OK Greenhouse Reduction Bill

    Mar 31, 2016 | AP (In the Washington Post)

    By Brian Witte
    
    
    The Maryland General Assembly has passed what supporters are calling one of the most ambitious greenhouse gas reduction requirements set by a state legislature.

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

Chemical Management News

1. (ACC Mentioned) Study: BPA Found in Two-Thirds of Sampled Food Cans

   Mar 30, 2016 | Maine Public Broadcasting

   By Jennifer Mitchell

   Two-thirds of food cans sampled around the country, including in Maine, contain bisphenol A - or BPA - making canned foods a major source of the hormone-disrupting chemical.

   That's according to a national study carried out by a coalition of health and consumer watchdogs on 200 tins of food, including name brands like Del Monte and Campbell's, as well as store brands like Walmart, Trader Joe's and Whole Foods.

   "The can linings themselves were tested because that is the source of the BPA. It's in the epoxy resin linings," says Mike Belliveau, executive director of the Environmental Health Strategy Center, one of the partners in the study.  Belliveau says BPA readily leaches from the linings and into the food.  

   One hundred percent of Campbell's cans tested positive for BPA, along with 71 percent of Del Monte's and about half of General Mills' products. "I'm surprised the food industry is not switching out more quickly, but the solutions are within reach," Belliveau says.

   A day ago, Campbell's announced that it would phase out BPA in its cans by mid 2017, finding other options to create food-safe, bacteria resistant linings.

   BPA can mimic estrogen in the body and has been linked to prostate cancer, hormonal anomalies, and obesity among other things.

   According to the American Chemistry Council, the average American is exposed to 2.4 micrograms of BPA per day - far less than levels determined by the U.S. Food and Drug Administration to be safe. Amid concerns over developmental issues, the FDA banned the use of BPA in baby bottles, sippy cups and food packaging for infants in 2012.  However, the FDA has never declared the chemical, as currently used in manufacturing, to be unsafe.TAGS: 

   http://news.mpbn.net/post/study-bpa-found-two-thirds-sampled-food-cans
   

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2. TSCA Reform Would Have ‘Negligible’ Effect on State Regulation

   Mar 31, 2016 | Chemical Watch

   By Kelly Franklin

   Reform to the Toxic Substances Control Act (TSCA) would have a “negligible” effect on state regulatory programmes, according to Maureen Gorsen, a former head of the California Department of Toxic Substances Control (DTSC) and now a partner at law firm Alston & Bird.

   The extent to which state regulation of chemicals will be preempted by federal law is a crucial component in the ongoing discussions to reconcile the TSCA reform bills that were passed by the House and Senate last year.

   Preservation of states’ rights remains a priority for many NGOs and states’ attorneys general. Meanwhile, industry groups have called for stronger preemption.

   It remains unclear what preemption would look like under a final bill. But Ms Gorsen told industry event GlobalChem, last week, that, in her view, “TSCA reform is not going to have too much of an impact on the state agencies.”

   ‘Information gauntlet’

   Ms Gorsen’s interpretation of the preemption provisions, in the two proposed bills, is that the majority of the activities being conducted by the states would continue.

   “Most of what [state agencies are] doing is asking you for information, and disclosure, and changing labels”, said Ms Gorsen.

   Also, she said, it’s not until the state moves to place restrictions on a substance that preemption would kick in.

   California’s Safer Consumer Products programme, for example, could, she said, still select priority products and require the development of alternatives assessment. The only difference would be that, at the end of the process, the state could not take the results of the alternatives analysis to impose a regulation on a substance that has been federally preempted.

   Nevertheless, she said that “the pressure to deselect those chemicals will be very high.” Even without the ability to restrict a substance, the regulatory framework could create a burden so heavy “that the retailers and the product manufacturers will deselect, to avoid the paperwork nightmare”.

   A BASF representative told the same event that the “principal driver” of the legislative activity has been that TSCA has not been updated in decades, which puts pressure on states to take action.

   But if a modernised TSCA is passed, this may change, said government affairs senior manager Michael Heltzer. “The last thing, I think, they want to be doing is devoting dollars to state chemical regulation programmes if they don’t have to do it, and, hopefully, under a modernised TSCA they will feel less pressure to do that.”

   But according to Ms Gorsen, state agencies, which regulate chemicals, “work very very hard to insulate themselves from their own legislatures”.

   “They’re going to find ways to regulate, regardless of what happens in their legislative bodies,” she added.

   Restoring faith in the Fed

   Mr Heltzer said state legislators want to see TSCA reform passed. “They want to have a modern TSCA; they want to have that greater safety net; they want to make sure that the federal system is more deadline-driven, systematic, more efficient.”

   He added: The “fundamental question that I hear across state legislatures is: ‘Is the federal government doing anything at this point?’ And the answer when TSCA is enacted is ‘yes, the federal government has strengthened its law, and is now prepared to move forward.’”

   https://chemicalwatch.com/46008/tsca-reform-would-have-negligible-effect-on-state-regulation
   

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3. Flame Retardants: Debate Still Being Driven By Outdated Science and Alarmism

   Mar 31, 2016 | American Council for Science and Health

   By Angela Logomasini

   Learning from history should keep us from repeating our mistakes. Yet when it comes to environmental politics, the opposite seems to be true. History and improved scientific understanding fail to inform, while alarmism and irrational fears drive policy.

   The current debate related to flame retardant chemicals is a prime example. Environmental activist groups have petitioned the Consumer Product Safety Commission (CPSC) to ban an entire class of flame retardant chemicals called organohalogens, with a decision expected this year. Yet, the scientific justification for such bans has long been invalidated.

   The debate about flame retardants began back in the early 1970s, with the emergence of the environmental movement and newfound fears that synthetic chemicals posed significant cancer risks. Even the now world-renowned scientist Bruce Ames—who later proved these fears unfounded—once expressed concerns that trace synthetic chemicals were a significant cause of cancer.

   “I didn’t want to put my kids in these pajamas [which were treated with chemical flame retardants], so we bought their pajamas in Europe when we were there,” he recalls in a 2014 interview.  In 1977, Ames and Arlene Blum published an article in Science that advocated banning of tris(2,3-dibromopropyl)phosphate, commonly known as “tris,” for use in pajamas. At the time, tris was applied to sleepwear in order to meet federal flammability standards set by CPSC.

   That same year, CPSC banned the use of tris in sleepwear, even as it admitted in the Federal Register that it had: “no conclusive data that establish TRIS has caused cancer in humans.” CPSC banned the chemical solely because it caused tumors in rodents exposed to very high levels. At the time, scientists believed that was enough to demonstrate cancer risk in humans.  After all, CPSC noted, “all known human carcinogens have been shown to be carcinogenic in laboratory animals.”

   However, Ames did not continue to advocate bans. Instead, he and his colleague Lois Swirsky Gold decided to critically evaluate the prevailing wisdom about rodent tests. Ironically, within a decade, Ames’s research thoroughly debunked claims that such trace chemicals pose a significant cancer risk, which invalidated his own fears about tris.

   Ames and Gold found that it wasn’t the chemicals themselves that caused cancer in rodents, but the highdoses. “High doses can cause chronic wounding of tissues, cell death, and consequent chronic cell division of neighboring cells, which is a risk factor for cancer,” Ames and Gold explained in a 1997 research article.

   In fact, Ames and Gold found that these tests caused tumors in rodents even when the chemical tested were naturally occurring chemicals found in many healthy foods, such as apples, carrots, and other fruits and veggies. They concluded: “There is no convincing evidence that synthetic chemical pollutants are important as a cause of human cancer.”

   Yet the facts don’t seem to matter much in this debate. Even today, faulty rodent tests are being used as the basis for banning flame retardant chemicals.

   Consider the evolution of policy regarding three Polybrominated Diphenyl Ethers (PBDEs) flame retardants: penta-BDE (used for foam furniture) and octa-BDE (used in plastics for business equipment), and deca-BDE (used in electronics such as television sets). These chemicals are not dangerous when used in consumer products. Activists are targeting them for the same faulty reason they targeted tris—they are rodent carcinogens. But again, so are chemicals that are naturally found in carrots, apples, and plums.

   Green activists have been able to generate enough scary headlines to press manufacturers to voluntarily phase out these chemicals. The Chemtura Corporation (then called Great Lakes Chemical Corporation) was among the first, deciding in 2004 to phase out penta-BDE and octa-BDE.

   The EPA took this opportunity to essentially ban these chemicals without any scientific justification. As the only U.S. manufacturer of these two chemicals, Chemtura eliminated the only legal domestic uses. The agency then quickly issued a rule that bars any new significant uses without first gaining EPA approval under the Toxic Substances Control Act (TSCA).

   EPA admits it had no health risk justification for its action. “EPA has not concluded that PBDEs pose an unreasonable risk to human health or the environment,” the agency explained on its website. “However, due to growing concerns, EPA believes that the phase out and the regulatory action taken in this announcement are useful steps to minimize and ultimately help prevent further exposure to these chemicals.” As a result, these chemicals are now effectively banned.

   In 2009, the EPA pressured two U.S. producers (Chemtura and Albemarle) and one importer (Israel’s ICL Industrial Products) of deca-BDE to “voluntarily” phase it out as well, ending production and importation by 2013.

   Now activists, including Arlene Blum, want to ban potential replacement products for the PBDEs, petitioning CPSC to ban all organohalogen flame retardants without any real scientific justification.

   And there you have it: Old and faulty science coupled with activist generated fear is driving this debate. Banning flame retardants simply because they may kill rats in labs is absurd given the fact that fires actually kill people in their homes. If we continue to eliminate flame retardants, we can expect that fires will burn hotter and move faster, and more people will die as a result.

   Angela Logomasini is a Senior Fellow at the Competitive Enterprise Institute and the author of Fanning the Flames: How Banning Flame Retardant Chemicals Puts Consumers at Risk.
   

   http://acsh.org/news/2016/03/31/outdated-science-alarmism-flame-retardants/
   

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4. Industry Warns of ‘Bad Precedent' From HFC Rule Decision

   Mar 31, 2016 | BNA Daily Environment Report

   By Anthony Adragna

    The Environmental Protection Agency rejected an agreement reached between environmental advocates and industry to phase out three refrigerants currently used in liquid chilling packages in what one group warned was “bad precedent” that “could discourage further collaboration” between unlikely allies.

   The Air-Conditioning, Heating, and Refrigeration Institute (AHRI) and Natural Resources Defense Council had asked the EPA to bar the use of the refrigerants—R-134a, R-410A, and R-407C—in chillers by 2025, but a proposed rule released March 29 would instead require them to be phased out by 2024—a year earlier.

   “Realistically, an earlier date would be very, very difficult [to comply with] because of the wide range of products and technologies that would be impacted,” Steve Yurek, president of the AHRI, told Bloomberg BNA March 30. “I'm hoping that this does not discourage other parties or industry from having those conversations in the future. It may make some of those holdouts go, ‘What's the purpose, they didn't listen to us last time?' ”

   Yurek said the EPA's rejection of the agreement was especially disappointing given both groups “worked diligently” toward an agreement and only reached one “after a lot of give and take.” The groups notified the agency of their proposed phase out in a Feb. 1 letter (22 DEN A-8, 2/3/16).

   The refrigerants at issue are one part of a much broader EPA proposed rule (RIN 2060-AS80) limiting the usage of various hydrofluorocarbons (HFCs) used in the refrigeration and air conditioning, foam blowing, and fire suppression and explosion protection industries (61 DEN A-8, 3/30/16).

   The EPA has sought to phase out use of some HFCs, which do not deplete the ozone layer but are potent greenhouse gases.

   Complicates Proposal's Reception

   Alexander Hillbrand, who works on HFC issues at the NRDC, told Bloomberg BNA it was unfortunate the decision to alter the phase out by a year had the effect of “complicating a strong and universally well-received proposal.”

   Nevertheless, he said it was encouraging the agency appeared to accept so much of the joint proposal given the environmental and industry groups put it forward in a letter so late in the rulemaking process.

   “Certainly there is a difference with what they proposed and what we recommended, but I think the more striking is there's a lot of commonality,” Hillbrand said. “On the whole, it does show that the EPA took the letter under heavy consideration.”

   While some may certainly question the value of such collaborations outside of the formal rulemaking process given the EPA ultimately did not accept this particular one, “this does not slam the door on that type of engagement, no,” Hillbrand said.

   EPA Soliciting Comments

   According to the proposed rule, the EPA is considering a range of potential implementation dates between 2022 and 2025 for the phase out of the refrigerants and specifically solicited public comment “on any technical or other reasons that NRDC and AHRI proposed January 1, 2025.”

   “We are encouraged that the major trade organization representing manufacturers of chillers worked with the environmental non-governmental group to develop this consensus agreement that all chillers could transition to lower-[global warming potential] alternatives by or before [Jan. 1, 2025] and that during this time period more and more models of such equipment would be released from individual manufacturers,” the proposed rule said.

   The EPA did not respond to multiple requests for comment on whether rejecting the deal from environmental advocates and industry might discourage similar collaborations in the future.

   http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86164893&vname=dennotallissues&fn=86164893&jd=86164893
   

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5. IRIS Program Changes Procedure to Release Assessments

   Mar 31, 2016 | BNA Daily Environment Report

   By Pat Rizzuto

   The Environmental Protection Agency no longer will announce in the Federal Register its release of draft Integrated Risk Information System (IRIS) assessments for public comment, according to a Federal Register notice scheduled for March 31 publication.

   The decision was made in an effort to update interested parties “in a timely and efficient manner,” the agency said. IRIS staff previously have told Bloomberg BNA that the general public is more accustomed to checking websites for information than reading Federal Register notices.

   The EPA notice states that the agency will announce its future release of draft IRIS assessments, comment periods on those assessments, docket numbers and related information on the IRIS program's website.

   The March 31 notice also announces the IRIS program's plan to hold public science meetings on the following dates: May 10, June 29–30, Sept. 7–8 and Oct. 26–27.

   Issues to be discussed will be posted on the IRIS website before each meeting.

   Finally, the agency reminded parties of its general docket for comments about the IRIS program. “Examples of the types of comments appropriate for this docket include comments on general scientific issues that apply to all assessments, as well as other general comments (not chemical-specific) about the IRIS program,” the EPA said.

   The IRIS program established the general docket so that interested parties no longer have to submit the over-arching comments to individual dockets that are established for a particular chemical assessment.

   http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86164877&vname=dennotallissues&fn=86164877&jd=86164877
   

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6. EPA's Formaldehyde Rule Under White House Review

   Mar 31, 2016 | BNA Daily Environment Report

   By Pat Rizzuto

   The Office of Management and Budget is reviewing the Environmental Protection Agency's final rule that would regulate formaldehyde emissions from composite wood products.

   The EPA submitted its final rule (RIN 2070-AJ44) to the OMB's Office of Information and Regulatory Affairs on March 28, triggering what traditionally has been a 90-day review by the White House office.

   The regulation is intended to implement the 2010 Formaldehyde Standards for Composite Wood Products Act (Pub. L. No. 111-199). That law amended the Toxic Substances Control Act by adding a new title directing the EPA to adopt national formaldehyde emissions standards for plywood, fiberboard, and particleboard that match those the California Air Resources Board set in 2007.

   A key issue is whether the final rule will cover formaldehyde emissions from laminated products.

   California had exempted such products, but the law gave the EPA discretion to cover or exempt them.

   At certain exposure levels, inhaling formaldehyde can lead to nose and throat irritation, bronchitis and cancer, among other health concerns.

   As proposed by the EPA in 2013, the regulation would cover companies that sell, supply, offer for sale, manufacture or import composite wood products, including laminated products. Such companies would have to certify that formaldehyde emissions from the wood products meet the rules' formaldehyde emissions limits (104 DEN A-4, 5/30/13).

   Congress directed the EPA to issue final regulations implementing the national standards no later than Jan. 1, 2013.

   Those regulations, however, have been delayed by factors including that the agency's proposed rules remained under OMB's review for more than a year, concerns China raised about trade impacts of the rules, and workability concerns raised by IKEA (162 DEN A-12, 8/21/13).

   http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86164873&vname=dennotallissues&fn=86164873&jd=86164873
   

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7. ECHA Lists Substances for Draft Information Requests

   Mar 31, 2016 | BNA Daily Environment Report

   By Stephen Gardner

   Companies that have submitted registration dossiers for 32 substances under the European Union's REACH regulation should expect to receive draft decisions in April, following initial evaluations of those substances by EU member state authorities, the European Chemicals Agency (ECHA) said March 30.

   ECHA said evaluations of the substances were carried out in 2015 and were aimed at identifying if sufficient information was available in the REACH registration dossiers to enable decisions to be made about whether any regulatory measures should be taken to ensure safe use of the substances.

   The chemicals agency published a list of the substances, but said the draft decisions requesting further information would be made available to registrants in the last week of April. Once registrants receive the draft decisions, they have 30 days in which to comment.

   Under REACH (Regulation No. 1907/2006 on the registration, evaluation and authorization of chemicals), chemicals with suspected hazards can be listed in the so-called Community Rolling Action Plan (CoRAP), which assigns them to member states that carry out evaluations to identify information gaps.

   ECHA said 48 such evaluations were carried out in 2015. In 14 cases, it was decided to not request additional data from registrants, while for two chemicals, the substance evaluation was suspended pending further checks on the completeness of their REACH registration dossiers.

   Binding Decisions

   The issuing of draft decisions to registrants on the 32 substances for which possible information gaps were identified during the initial evaluation is a preliminary step ahead of the issuing of final decisions, which are legally binding.

   Binding requests for additional information can involve multiple companies. For example, for aluminium chloride, one of the 32 substances for which draft decisions will be issued, the ECHA website lists 11 separate registrants including BASF and Huntsman P&A U.K. Ltd.

   ECHA said in a statement March 30 that registrants should respond with “consolidated comments on the draft decision on behalf of all addressed registrants.”

   Once registrants have complied with decisions requesting further information, and any concerns about substances have been clarified, EU member state authorities could issue recommendations that evaluated substances be made subject to further controls, such as restrictions or even possible prohibition of use within the EU.

   http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86164880&vname=dennotallissues&fn=86164880&jd=86164880
   

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8. PCB Lawsuits Against Monsanto Part of ‘Emerging Trend'

   Mar 31, 2016 | BNA Daily Environment Report

   By Peter Hayes

   A recent flurry of suits by West Coast cities—seeking to hold Monsanto liable for allegedly polluting public waterways with polychlorinated biphenyls it made decades ago—represents an intersection of hazardous waste and product liability law that could have a far-reaching impact on industrial product manufacturers, attorneys and scholars tell Bloomberg BNA.

   Six cities—San Diego, San Jose, Spokane, Oakland, Berkeley and Seattle—have sued Monsanto Co. under a theory of public nuisance during the past eight months and a seventh—Portland, Ore.—will soon join the fray.

   The plaintiffs have moved to consolidate the cases in multidistrict litigationin the U.S. District Court for the Northern District of California, in In re Monsanto PCB Water Contamination Litigation, U.S.J.P.M.L., No. 2697,motion to consolidate 1/26/16.

   ‘It's a Huge Deal.'

   “It's a huge deal,” Professor Noah Sachs at the University of Richmond School of Law in Richmond, Va., told Bloomberg BNA.

   “It started out looking like a few municipalities but now there are several up and down the west coast with the arrow pointed at a single defendant.”

   Because Monsanto doesn't fall under any of the categories of parties liable for the clean up of hazardous waste enumerated in the federal Superfund law, the cities can't pursue claims under that law, Sachs said.

   “Here, Monsanto wasn't arranging for disposal but was selling a commercial product,” he said.

   If the cities are successful with these state-law nuisance claims, it would provide another avenue to recover cleanup costs.

   The stakes are high, Professor Craig Johnston at Lewis & Clark Law School in Portland, Ore., told Bloomberg BNA. Johnston teaches hazardous waste law.

   “It could be $1 billion just for the cleanup in Portland,” Johnston said.

   “I haven't seen public nuisance suits like this against a manufacturer of a product based on someone else's usage of the product,” he said.

   Johnston declined to predict the likelihood of success but said it's clear that the Superfund law will not preempt the litigation. “It's worth pursuing even if there is only a 20 percent chance of success,” he added.

   The suits come on the heels of a $1.1 billion lead-paint public nuisance award, which is now on appeal in California's Sixth Appellate District, in People v. Atlantic Richfield Co., Cal. Ct. App., No. H040880.

   The outcome of the appeal in that case may determine whether the PCB claims succeed, Sachs said. “If I were Monsanto, I'd be watching the lead paint appeal,” he said.

   In People v. Atlantic Richfield Co., three companies that once made lead-based paint were ordered in 2013 to pay the more than $1 billion award into an abatement fund for lead removal in 10 California cities and counties.

   Here, the cities that have sued are targeting PCBs which, like lead paint, were banned for use in commercial products in the 1970s.

   Monsanto was the sole manufacturer of PCBs, which were used primarily to insulate and cool electrical equipment, including power transformers, from the 1930s until the company voluntarily ceased production in 1977.

   The EPA banned their manufacture in 1979 after finding they caused birth defects and cancer in laboratory animals, and they are a suspected cause of cancer and adverse skin and liver effects in humans.

   Useful Products

   Monsanto spokesperson Charla Lord told Bloomberg BNA that PCBs sold at the time were “a lawful and useful product” and that municipal landfill operators and parties that disposed of PCB-containing products should bear responsibility for the contamination.

   “These cases do not claim damages due to Monsanto discharging PCBs into the environment itself,” Lord said.

   “Where cleanup is required, government regulations provide for procedures where the parties responsible for the discharges participate in the cleanup. In contrast, these cases are filed outside of that government-established procedure.”

   Defense counsel representing other industrial product makers are also concerned that a ruling against Monsanto could expand manufacturer liability for other products.

   “If the plaintiffs' theory were to succeed many useful products could be attacked with the risk that such products would not be sold in California,” attorney Peter Hsiao with Morrison & Foerster LLP in Los Angeles told Bloomberg BNA.

   Hsiao practices environmental, natural resources and chemical toxic tort law, but is not involved in the Monsanto litigation.

   “For example, the state of California once brought a nuisance lawsuit against auto manufacturers claiming that their cars created a nuisance because of their greenhouse gas emissions. That lawsuit was dismissed,” Hsiao said.

   “This attempt by plaintiffs’ attorneys to use the common law of nuisance to hold manufacturers liable for their chemical products is a new emerging trend in environmental cases.”

   But, Hsiao said, “This theory has a serious flaw where the manufacturer did not spill the chemical and therefore did not cause the release to the environment.”

   Sachs agreed that the suits could set a precedent beyond the issue of PCBs.

   “Courts will struggle with where the line is. For example, a car battery contains hazardous substances. A manufacturer puts that on the market knowing some will end up in a landfill. The manufacturer will argue it is not disposing.”

   From San Diego to Seattle

   In March 2015, Baron Budd PC in Dallas and Gomez Trial Attorneys in San Diego filed the first PCB public nuisance suit against Monsanto on behalf of the city of San Diego (51 DEN A-8, 3/17/15).

   The complaint alleges that Monsanto knew for decades that PCBs were toxic and couldn't be contained, that there was no safe way to dispose of PCBs, and that the company concealed these facts. Similar allegations of concealment of toxic hazards were made in the lead paint litigation.

   The complaint contends that it was foreseeable that humans would be exposed to PCBs through swimming in contaminated waters or eating fish from those waters.

   In July 2015, the firms filed public nuisance actions on behalf of San Jose, Calif., and the city of Spokane, Wash.—the latter also alleged defective design and failure to warn.

   By January 2016, the firms had filed public nuisance suits on behalf of the cities of Oakland, Calif., Berkeley, Calif., and Seattle (18 DEN A-18, 1/28/16), and on March 16, the Portland City Council adopted a resolution authorizing the city attorney to sue Monsanto.

   Novel Theory, Potential Superfund Impact

   “It's a huge risk to Monsanto and an opportunity for municipalities and users of the products, such as utilities that used transformers containing PCBs,” environmental attorney Loren Dunn with Riddell Williams in Seattle told Bloomberg BNA.

   “It's a novel theory, and how it's resolved will impact a lot of other cases,” said Dunn, who has represented many companies facing hazardous waste cleanup liability. “The damages that result are environmental in nature but the cities are using an alternate theory for the recovery of environmental cleanup costs to a normal CERCLA recovery.”

   The suits could also impact settlements negotiated under the federal Superfund law, Dunn said.

   “Most if not all of the municipalities that are suing are involved in Superfund cleanups with water bodies impacted,” he said, and the remedies at these sites can run into the hundreds of millions of dollars.

   “Suddenly, Monsanto is injected as a potentially responsible party” liable for hazardous waste cleanup costs, Dunn said. “The EPA is looking for PRPs to perform the remedy. If they instead can wait to see how the MDL comes down before spending millions of dollars, that introduces a new component into negotiations.”

   Monsanto Argues No Liability

   For its part, Monsanto says it produced a useful product for the times it didn't dispose of the chemicals in the cities' waters, and it shouldn't be held liable for any cleanup activities.

   “The cities claim damages for a variety of things in these cases—from remediation, to the building of new water treatment plants and regulatory costs to lawfully discharge PCBs (and other chemicals) in the city's storm water,” said Lord, the company spokeswoman.

   “However, as is stated in our motions to dismiss, there is no public nuisance liability for a product manufacturer unless a manufacturer actively caused and deposited chemicals in the bays and are among those who polluted the property,” Lord said.

   “If the third-party disposal or municipal disposal practices of the past have led four decades later to the state's development of lawful limits on future PCB discharges into various bays and rivers through storm water, then those third parties and municipal landfill operators bear responsibility for these additional costs.”

   In order to prevail on their public nuisance claims, the cities will need to show that Monsanto's conduct was a “substantial factor” in causing the harm, and that the company knew or should have known that the manufacture and sale of PCBs was causing contamination.

   “The question is what did Monsanto know and when did they know it? Whether it knew before the PCB ban in the 1970s,” Sachs said.

   “PCBs bioaccumulate,” Sachs said. “It is taken into the tissues of animals and fish and is then eaten by humans. The question is whether Monsanto was aware of how easily its product gets into the environment.”

   http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86164878&vname=dennotallissues&fn=86164878&jd=86164878
   

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9. Toxicity is a Hazardous Waste

   Mar 30, 2016 | Chemistry World

   By John Warner

   Where do you stand on the role of academia in training the next generation of chemists: should we favour ‘applied chemistry’ or ‘science for the sake of science’? Both sides have valid points; public funding should not be subsidising private industry, but students should receive practical training to help them get jobs after graduation. Yet while this debate will rage for a long time to come, one aspect requires action now: green chemistry. Navigating the complex issues around toxicity and waste can be a significant impediment to commercial success of any new technology, and we need to integrate a mechanistic understanding of hazard in to the chemistry curriculum. It is the missing element in how we train chemists.

   A matter of scale

   Anyone with industrial experience has probably heard the same lament, repeated with subtle variations. A brilliant fresh graduate from a university begins their career in an industrial position. They create some wonderful new material or process that meets some need of the business. The company becomes quite excited and resources are applied to further develop the science. Then someone from manufacturing steps in and all hell breaks loose. It is discovered that solvents are being employed that cannot be used in manufacturing. Reagents and conditions are being used that cannot be scaled up. Fingers point in various directions and the company must hope to invent the technology again, this time remaining consistent with real world practices.

   Understandably, the waste of time and dashed expectations from the project can result in frustration and create a tangible rift between teams. The discoverers are disappointed that their inventions are not being commercialised and question the abilities of the manufacturers. Meanwhile, the manufacturers are disappointed that they are not receiving technologies that can be commercialised · and question the abilities of the discoverers.

   Back to school

   Many of the reasons we often cannot scale up laboratory chemistry relate to issues around human health and the environment. There are regulations that require high compliance, toxic substances that require special handling and hazardous waste streams that require high disposal costs. Sadly, universities rarely discuss these issues with students. Typically, the focus of the chemistry curriculum is on instructing students what to do after waste or a hazard emerges, such as the importance of wearing proper personal protective equipment, disposing of chemicals appropriately or monitoring compliance. Conversely, we often give very little attention to strategies and tactics at the molecular level to avoid generating hazardous material in the first place. It is astonishing (almost frightening) that the next generation of chemists · the only people with the skills to create new forms of matter · are unlikely to have even a basic ability to predict the possible negative impacts of the molecules they make.

   This is not some epic battle of good and evil at work. Chemists and material scientists are brilliant, ethical and highly caring people. However, chemistry has evolved around the assumption that there must be elements of toxicity and hazards associated with any process · that these concerns are just part of being a chemist. We wear gloves to protect our skin, masks to protect our lungs and goggles to protect our eyes. We install scrubbers and filters in smokestacks to protect the air, the land and the sea. By accepting these exposure control technologies, we have inadvertently left our very skills as chemists out of the picture. Instead of accepting that a red dye causes cancer, or that some plasticisers might cause birth defects, we should identify the mechanism of harm and develop red dye molecules or new plasticisers that do not.

   Of course, this is not as easy as it sounds. Although the fields of mechanistic toxicology and environmental health sciences are immense, and our knowledge base is growing constantly, it is not going to be simple to create a conduit to those colleagues working in molecular design labs. Yet the stakes are too high for this not to happen. Perhaps the best approach we could take is the green chemistry commitment (www.greenchemistrycommitment.org), operated by Beyond Benign, a non-profit organisation I co-founded. This program asks chemistry departments to help create and share best practices with other universities as they develop curricula and programs to bridge this gap.

   There is obviously a moral and ethical component to teaching green chemistry. It is also pragmatic, cost effective and likely to shorten the time it takes innovations to reach the market. Some may argue the chemistry curriculum is already bursting with content and there is no room for new material. We must ask ourselves, what could possibly be more important?

   John Warner is president and chief technology officer at the Warner Babcock Institute for Green Chemistry, Wilmington, US

   http://www.rsc.org/chemistryworld/2016/03/toxicity-waste-green-chemistry-training
   

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Energy News

10. (ACC Mentioned) Resilience a Key Factor in Area’s Future

    Mar 31, 2016 | Charleston Gazette-Mail

    By Steve Hedrick

    When we think about our region’s economic development, we think about oil and gas, innovation and petrochemical manufacturing as the cornerstones of this region’s economic future.

    But maybe we should be thinking about something a little bit more personal. And that’s our own resilience.

    The shale gas revolution has a tremendous opportunity, but one that some believe has begun to stagnate. Many citizens have begun to tire from the consistent drumbeat of this topic. But is it so stale? Is that drumbeat, and this article, simply rhetoric? I believe it’s not.

    I firmly believe we are on the cutting edge of this opportunity. But we must act now. Because it’s not just about us, it’s about our entire nation’s economy and security. It is about our strategic future, not just about today.

    For years, it seems we’ve focused so hard on ethane crackers. And we’ve yet to see this opportunity become a reality. This delay is part of our new reality, now part of our history. But we absolutely must show resilience, and we need to continue to push and fight for this shale opportunity.

    We need to revisit the entirety of the value chain. Let’s engage the oil and gas production community — the midstream.

    We must not lose sight of the opportunity for value-creating manufacturing based within the region on these efforts upstream. Because maybe part of what we’ve been missing is that we still have not created the linkage across the entirety of the value chain.

    The raw materials available to us in the Marcellus Shale alone have a reported estimated value in excess of $2 trillion, of which some experts report 15 percent is estimated to be natural gas liquids that are extensively used in the petrochemical industry.

    The job creation potential is tremendous, and in the petrochemical industry, according to the American Chemistry Council, an additional five jobs are created in surrounding communities for each of its own manufacturing jobs. We may well be talking about adding value to a base of about $300 billion in raw materials.

    Further, the geographic location of the regional shales position this opportunity for economic growth, prosperity and security away from the threat of major natural disasters.

    Hurricanes threaten the Gulf Coast with regularity, interrupting productivity of the major extraction and important manufacturing hubs there, causing lasting damage to the economy. These manufacturing hubs are of vital importance to our nation and must be protected insomuch as we are able to do so.

    We can offer a level of protection to our economy by creating geographic diversification of the industry. The petrochemical industry follows the raw material; it is old wisdom. And we know there is significant availability of raw materials in more than one location in the U.S. due to the shale gas revolution and the natural gas liquid deposits that are so very critical to the industry’s success.

    However, we cannot transform these raw materials through manufacturing without infrastructure to support the demands and needs of the associated industries.

    Infrastructure requirements associated with new build-outs must be delivered by multiple parties. It won’t be easy or cheap. We’ll need cooperation and support from the private sector, the federal and state governments, private equity and more.

    And while this infrastructure is relatively straightforward in premise, it is amazingly complex in execution.

    Specifically, the corridors naturally created by the Ohio and Kanawha rivers should be used as a platform for a substantial pipe system that will support the distribution of key raw material and intermediate constituents, including but not limited to methane, ethane, ethylene, propane, propylene and chlorine.

    We must have substantial underground storage of ethane and create an Appalachian Storage Hub. This can be safely and efficiently done in naturally occurring underground caverns, in depleted natural gas extraction points or even in depleted salt domes. The brightest minds in geology are pursuing this today.

    We cannot give up on this opportunity. It’s not in our nature, as people who are born in this region are resilient.

    We should all do our part to make this happen, and you can count on me and on MATRIC to help lead the way.

    Steve Hedrick is president & CEO of MATRIC, the Mid-Atlantic Technology, Research & Innovation Center, headquartered in the W.Va. Regional Technology Park in So. Charleston.

    http://www.wvgazettemail.com/daily-mail-opinion/20160331/steve-hedrick-resilience-a-key-factor-in-areas-future
    

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11. Truth or Consequences in Energy Policy, Part II

    Mar 31, 2016 | The Hill - Contributors Blog

    By Charles McConnell

    The Environmental Protection Agency's (EPA) Clean Power Plan (CPP) is the next in this three-part "Truth or Consequences" series. Can we afford to stop it? Adopt it? Is it meaningful?

    In the previous column, we addressed clean coal technology and Carbon Capture Utilization and Storage (CCUS) as a critical pathway to meeting climate and energy security goals. The conclusion is that technology — not flawed policy — is the only way to ensure that success. That leads us to the EPA's CPP and this column.

    The CPP was originally introduced in August 2015 by the EPA and the president and was called "historic" in terms of reducing carbon pollution from power plants. The Supreme Court recently stayed the implementation pending further judicial review. President Obama recently told Democratic supporters to not "despair" over the Supreme Court ruling to stay the CPP, as he saw "strong legal footing." He said that "the centerpiece of our climate plan involves ... reducing [states'] carbon emissions." 

    The stay also surprised and delighted many Republicans and encouraged pushback on regulations and specifically the implementation of the plan.

    What's the truth here and what are the consequences? A stay is nothing more than a delay. Delay begets uncertainty, introduces risk, provides more time to argue, spend money on legal wrangling and accomplishes nothing! Nothing accomplished in terms of carbon dioxide emissions reductions and nothing in terms of further development of a secure and affordable energy future in our country or progress toward providing global leadership. That is the truth and the consequences.

    Why is it so hard? Because we have not invested in the technology to actually reduce emissions from the largest segment of global power production and energy: fossil fuels. We have not invested because many Democrats want nothing more than to kill coal and fossil energy. We have not invested because many Republicans deny carbon dioxide implications to global climate change. Both positions have consequences and they are both uninformed.

    Let's look again at this centerpiece proposed legislation, the CPP. What does it do and more importantly, not do? If we use the reasonable test to measure relevance and impact for change, what is the truth? Resulting carbon dioxide reductions will amount to a net reduction of 0.2 percent of global carbon dioxide. Yes, there is a decimal point in front of the two; it is not a misprint. This also results in a .01 degree Fahrenheit impact to climate and a net reduction in seawater rise the thickness of a dime. Relevant? Impactful? No, and surely not ambitious. It amounts to three weeks of emissions in China. Three weeks, the "centerpiece" of our climate strategy! My view is that this is much ado about nothing. Why are educated people so invested in arguing about something that does nothing but create economic pain in the U.S. for no global climate gain?

    Because some wish to shut down coal in the U.S. The CPP enables natural gas (also a carbon dioxide emitter, albeit at half the impact as coal) to be broadly installed with no capture of carbon dioxide emissions. It also mandates wind deployment far beyond any rational public utilities commission planning in terms of reliability and affordability — and does it under the guise of climate legislation. Yet it's not impactful climate legislation! Starting to make sense to you? Because it doesn't to me.

    And while many on the other side of the aisle may find joy in the above comments, it is inconceivable that we can spend one more day denying climate change, fighting for the right to burn coal and natural gas without carbon dioxide controls and doing it in the name of energy sustainability. You can't have energy sustainability without accessible and affordable energy and yet you surely cannot ignore environmental responsibility. Without all three components, it is a house of cards that is not sustainable for our future. Delays, stays and arguing about the next Supreme Court justice: Our eye is off the ball, and time is ticking.

    There are consequences, so what can be done? Simple: Invest in technology and deploy it globally to enable fossil fuels to be environmentally responsible. Let's also invest in transformative technologies in wind, solar, nuclear and geothermal. We need all of the above. The stated position of this administration is to support all forms of energy, but it is only pretend. We need a genuine "all of the above" strategy.

    As I stated in an earlier column, in my two years as assistant secretary of Energy, the administration put forth budgets that reduced fossil fuel technology investments 40 percent per year two years in a row. This most recent administration request to de-obligate $240 million of already obligated funds for advanced clean coal technology is simply acting on a strategy — and let's be real, it's not "all of the above." This is a perfect opportunity to put our money where our mouth is!

    There are two truths. The first is that we cannot continue to use fossil energy (coal or gas) without carbon dioxide advanced technology. The second is that we can't simply stop using fossil fuels. It's magical thinking to pursue only renewables over the next 50 years.

    I believe it is reprehensible to misinform the American public that the CPP is climate legislation. It is not. It is a forced renewable portfolio standard that goes well beyond EPA legal precedent. And the most disturbing fact is that all of the data sited in this column comes from information the EPA is fully aware of — it's their data. Let's answer real questions about electricity cost and reliability and stop fabricating stories about green jobs creation and saving the world. The consequences are that the public may be convinced that passing such legislation will actually impact the climate, and it won't.

    People will continue to use more energy as we add computers, cellphones, cell towers, servers, etc. All these devices continue to increase energy demand as we become more technologically advanced — and yet we sit in our idling autos, texting in line at the drive-through, believing we are environmentally responsible and concerned?

    We need advanced clean coal and fossil technology to capture carbon dioxide before it is emitted. We must use the carbon dioxide for its chemical and physical values in enhanced oil recovery and chemicals production, and then safely and permanently store it.

    The truth is that carbon capture, utilization and storage (CCUS) can benefit the climate and our energy security, improve affordability of energy and, most important, can be the single biggest global technology leadership the U.S. can provide to the rest of the world as coal- and gas-fired generation is rapidly deployed to improve living standards.

    The consequences of not rapidly deploying CCUS are devastating. The International Energy Agency states there is no way for us to globally reach our envisioned targets without it. Using the carbon dioxide provides a productivity and energy-security gain. CCUS is what both sides of the aisle must understand, support and invest in. Pledges and speeches do not equal real investment, and poor policies such as the CPP cannot be considered progress. The issue is critical and real, today, and demands real solutions.

    Buying carbon credits and offsets and relying on disingenuous policies such as the CPP are no substitutes for technology. Let's not delude ourselves with feel-good illusions. 

    My next column will be about the real needs and the real solutions of energy sustainability and where and how we can invest in all of the forms of clean, accessible energy that Bill Gates speaks of.

    McConnell is executive director of the Energy and Environment Initiative at Rice University and a former assistant secretary of energy at the Department of Energy from 2011 to 2013.

    This the second installment in a three-part series. Part I is available here.

    http://thehill.com/blogs/pundits-blog/energy-environment/274758-truth-or-consequences-in-energy-policy-part-ii
    

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12. McCarthy Touts Planned ICR As Basis for Strong Oil & Gas Methane Curbs

    Mar 30, 2016 | InsideEPA

    By Doug Obey

    EPA Administrator Gina McCarthy is touting the agency's upcoming information collection request (ICR) to the oil and gas sector as the “linchpin” of future strong standards to curb emissions of the potent greenhouse gas methane from existing drilling facilities because it will give the agency a clear sense of existing sources, technology available to cut those emissions, and the cost of controls.

    “It is a routine step, and while it may seem boring, it is the linchpin of how we can move forward to capture our methane more effectively and reduce the pollution that is generating the instability of our climate,” McCarthy said March 30 during the Global Methane Forum in Washington D.C.

    She added that the ICR will provide “data that we need to underpin a strong and legally binding rule.” The ICR is thus a step toward “strong, enforceable, cost-effective and achievable standards.”

    McCarthy's defense of the ICR, which is set to be issued in draft form in April, came as part of broader remarks formally launching the agency's Natural Gas Star Methane Challenge, a widely expected effort expanding EPA's existing voluntary Natural Gas Star program.

    The agency launched its new voluntary program with an initial list of 41 “founding partner companies” in the oil and gas sector. The current list of participants appears to feature mostly natural gas utility local distribution companies or companies with gas transmission assets.

    The launch of the new program also coincided with the formal rechartering for the next five years of the Global Methane Initiative (GMI), a partnership of 43 member countries and private sector and nongovernmental groups. The GMI has its origins in the 2004 launch of EPA's Methane to Markets partnership that was in turn rechartered as the GMI in 2010 in Mexico City.

    “Businesses are stepping up. Let's thank them for it. Let's celebrate, let's spotlight how well they are doing, and let's challenge every company to take similar action,” McCarthy said.

    But McCarthy also used the occasion to remind participants of the rationale for future binding regulations to target methane emissions from existing facilities, particularly the agency's most recent GHG inventory showing emissions of methane from existing sources in the sector are “substantially higher than we previously understood them to be,” she said.

    An agency source says the methane challenge is open to all interested companies in the oil and gas sector, while acknowledging that natural gas utilities currently predominate in the participants list.

    McCarthy did not discuss how the voluntary program would interact with any future existing source methane rule, and the issue remains unclear.

    However, the American Petroleum Institute has already sought credit under the methane challenge for cuts in emissions of volatile organic compounds, and it might be expected to seek similar credit under any future methane regulation.

    Company-Wide Commitments

    The agency in a statement says the methane challenge program “will provide partner companies with a platform to make company-wide commitments to cut emissions from sources within their operations by implementing a suite of best management practices within five years. Transparency is a fundamental part of the program, and partner achievements will be tracked by submitting annual data directly to EPA.”

    The statement also calls the voluntary methane challenge “one important part” of methane reductions, complementing regulatory efforts, to help achieve the Obama administration's goal of curbing the sector's methane emissions 40 to 45 percent by 2025.

    Examples of commitments by companies under the challenge include commitments to replace or rehabilitate old cast iron and unprotected steel distribution mains, and reduce methane emissions from pipeline blowdowns.

    EPA says in its challenge announcement that it expects the program to grow over time and it is also working to finalize an additional “emissions intensity commitment” option for participating companies through the ONE Future coalition, a group of natural gas companies focused on boosting efficiency throughout the supply chain.

    http://insideepa.com/daily-news/mccarthy-touts-planned-icr-basis-strong-oil-gas-methane-curbs
    

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13. Keep Moratorium on Offshore Fracking

    Mar 31, 2016 | Sacramento Bee

    By Rep. Lois Capps

    In 1969, an offshore oil platform failed near the coast of Santa Barbara, causing one of the worst oil spills in American history. Last year, my constituents on the Central Coast saw history repeat itself when a corroded pipeline spilled more than 100,000 gallons of crudeonto our coast.

    The risks of offshore oil production are painfully obvious – and just as clear is the obligation of federal officials to carefully regulate these activities in U.S. waters near our coast.

    That’s why the Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement, the federal agencies that oversee offshore energy production and environmental safety, must rethink the recent proposal included in their draft environmental assessment that would allow oil companies to resume hydraulic fracturing and acidization at offshore platforms near Santa Barbara and Ventura counties.

    Many questions remain about the safety of these controversial oil-production techniques. While we still know very little about the impacts of onshore fracking, we know even less about offshore fracking and acidization, both of which employ toxic chemicals that pose threats to people, wildlife and the environment.

    Federal officials wisely agreed several months ago to halt offshore fracking and acidization near California pending a careful study of the risks. That decision comes after legal pressure from conservation organizations and legislation that I’ve introduced for many years that would place a similar moratorium on these practices in federal waters off the West Coast until a full environmental review is completed.

    To me, that’s just common sense. Not only is our coastline one of the most beautiful in the world, but it is also critical for countless local businesses and our economy as a whole.
    

    Unfortunately, the draft federal environmental assessment does not resolve the concerns of many people in Santa Barbara and other coastal communities.

    The assessment, for example, cited a study that concluded that there are “critical data gaps” in our understanding of the toxicity of fracking chemicals and their effects on marine life. Yet in the same document, officials propose allowing the oil industry to resume fracking offshore wells with very little transparency.

    Under the plan, it is unclear if oil companies would have to disclose any information to the public about what chemicals they are using. Even worse, oil companies could resume discharging fracking chemicals mixed with wastewater into the Santa Barbara Channel.

    More fundamentally, the proposal by the two federal bureaus in charge of overseeing offshore energy production and environmental safety seems to encourage the resumption of fracking so that oil companies can recover as much oil as possible. Encouraging offshore oil production today puts our region at greater risk in the future. We know that every gallon of fuel extracted and burned contributes to global warming and puts California at greater risk of droughts, wildfires and coastal flooding.

    At the very least, the federal government has a duty to thoughtfully assess the wisdom of allowing controversial techniques like fracking and acidizing to be used to prolong the life of aging offshore oil infrastructure.

    Such deliberations would be in line with other recent decisions by the federal government. Last year, federal officials announced the cancellation of oil-lease sales in Arctic waters. And just this month, citing strong community concerns, they halted plans to open the southeastern Atlantic coast to oil and gas leasing.

    California deserves similar thoughtful consideration when it comes to offshore fracking and acidization.

    We know how much harm oil production can do to our coast. It’s time for federal officials to reduce the risk by maintaining the moratorium on these controversial techniques until they can be proved safe.

    Rep. Lois Capps is the Democratic congresswoman representing Santa Barbara. 

    http://www.sacbee.com/opinion/op-ed/soapbox/article69096727.html
    

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14. Sierra Club's Legal Theory In Frackquake Case Draws 'Star Trek' Comparison

    Mar 31, 2016 | Forbes

    By W.J. Kennedy

    The Sierra Club and Public Justice are taking a novel approach in citing the Resource Conservation and Recovering Act in a lawsuit against the oil and gas industry in Oklahoma, according to several industry and environmental attorneys.

    “This is the ‘Star Trek’ of lawsuits,” said Andrew H. Perellis, of the Chicago office of Seyfarth Shaw LLP. “They are boldly taking RCRA where it has never gone before.”

    RCRA authorizes citizens who have suffered harm to sue “any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an eminent and substantial endangerment to health or the environment.”

    The endangerment cited in this case? An increase in seismic activity, or induced seismicity, in Oklahoma linked to the deep well disposal of brine released by hydraulic fracturing and brought to the surface along with oil and gas.

    The complaint filed on Feb. 16 in U.S. District Court for the Western District of Oklahoma states that the defendants – Chesapeake Operating LLC, Devon Energy Production Co. LP, and New Dominion, LLC – “have contributed and are contributing to past and present handling, storage, transport, and disposal of Production Wastes from the drilling fall under which is causing earthquakes that may present an imminent and substantial endangerment to health or the environment. They are therefore jointly and severally liable for the abatement of this endangerment.”

    A staff attorney in the Environmental Enforcement Project at Public Justice, Richard Webster, said that RCRA applies since the wastewater amounts to solid waste under the law. Public Justice is a public interest law firm that is representing the Sierra Club in the lawsuit.

    “Even though no RCRA permits were violated, the operation falls under RCRA because they are dealing with discarded material,” Webster said. “The endangerment provision applies.”

    But Perellis says the lawsuit is the equivalent “of suing a company that warehouses hazardous chemicals over a danger arising from an increase in truck traffic to and from the facility.”

    “The waste here (the water) is not the cause of the endangerment,” he said. “They’re using RCRA to regulate land use and it wasn’t designed to be used that way.”

    The remedies asked for in the complaint are novel as well. One requires the defendants to “reinforce vulnerable structures that current forecasts indicate could be impacted by large magnitude earthquakes” during the interim period between the time it takes the seismic activity to decrease after the water injection amounts are reduced.

    Another would require “the establishment of an independent earthquake monitoring and prediction center to analyze and forecast the volume of Production Wastes which can be injected into a particular well or formation in a given area before seismicity is induced; and monitor how closely ongoing earthquakes conform to researchers’ predictions.“

    Eric R. Skanchy of Stoel Rives said the action has little chance of success on its own — for one it runs headlong into the Safe Drinking Water Act’s Underground Injection Control Program.

    “So long as the operators are complying with the requirements of the Safe Drinking Water Act’s Underground Injection Control Program, it will be very difficult for the Sierra Club to succeed on this claim,” Skanchy said.

    The path for the other lawsuits was cleared when, in July, the Oklahoma Supreme Court ruled that Sandra Ladra of Prague could pursue her personal injury claim in district court and not have her case relegated to the Corporation Commission, which regulates the oil and gas industry in the state.

    The decision allowed, by extension, a property damage suit by Jennifer L. Cooper, also of Prague, to go forward. Cooper is seeking class action status. Both are suing New Dominion LLC of Tulsa and Spess Oil Co. of Cleveland, OK, in Lincoln County District Court.

    A separate class action suit by April Marler and Lisa Griggs was filed in Logan County District Court on January 12, against Devon Energy, Chesapeake Operating LLC, New Dominion and SandRidge Energy. A group of Edmond residents filed a property damage suit on Jan. 21 in Oklahoma County District Court against a dozen energy companies.

    Finally, Carter Williams of Baker Donelson’s Houston office wrote in an email that the alleged endangerment under RCRA is “typically groundwater contamination or air pollution, and I would expect the defendants to challenge whether it is a proper application of the statute.

    “But it should be watched closely,” he wrote, “precisely because it appears to be the first RCRA case involving induced seismicity.”

    http://www.forbes.com/sites/legalnewsline/2016/03/31/sierra-clubs-legal-theory-in-frackquake-case-draws-star-trek-comparison/#23a10f8e3a5e
    

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15. California Looks to Modernize Natural Gas Utilities, Presents a National Model

    Mar 30, 2016 | Environmental Defense Fund

    By Tim O'Connor

    Methane leaking from pipes before natural gas is delivered to customers can have a large, harmful impact on the climate.  This idea was first brought to light in a major scientific paper published in 2012, and supported by numerous papers since.  For California, a climate leader, and a state that consumes 10 percent of the nation’s natural gas supply – this leakage epiphany was and continues to be a very big deal.
    

    Last week, after years of science, politics, and policy deliberations, the state took one of its boldest steps yet in the quest to cut methane escaping from its vast network of aging pipes underneath city streets – a move that should result in a new direction for California, and likely for utilities across the nation.

    That move, taking the form of a 28-page report and staff recommendations from California Public Utilities Commission (CPUC) as part of the implementation of a 2014 law (SB 1371), proposes to require utilities in California to use specific best practices to find, fix, and prevent leaks from the natural gas distribution system.

    Bringing local gas utilities to the 21st century

    These recommendations, if adopted and implemented, would make huge strides in improving how California’s utilities and storage providers manage natural gas. It would also bring all of these companies up to modern standards, instead of having only some companies taking leading positions.

    Utilities are already required to report how many leaks they have on their systems, and tell lawmakers how they spend the money they receive to upgrade and fix pipes. However, with this report and recommendations the CPUC is proposing to change the business as usual culture and overall operating practices – something utility commissions in other states will likely take note of.

    For example, it recently came to light that when utilities find a leak, if the leak doesn’t present an immediate public safety concern (read fire or explosion) there is no requirement to fix the leak.  As a result, utilities routinely track thousands of leaks, some that are quite large, for decades at a time, stopping short of repairing the leaks when fixes are often easy and cost-effective.

    Now the CPUC is proposing a sensible tectonic shift in this policy: when you find a leak, you fix it. Additionally, utilities will have until October 1, 2018 to eliminate much of their backlogs of unrepaired leaks.

    Adopting sensors and other best practices

    Another major change involves leak detection and public awareness, something EDF has been doing in partnership with Colorado State University using Google street view cars outfitted with vehicle mounted methane sensors.

    Although PG&E has been engaging in a major deployment of vehicle mounted methane sensors with unquestioned success – SoCalGas, the utility in Southern California responsible for the Aliso Canyon leak, has resisted using similar technology. Similarly, although SoCalGas and SDG&E have on-line maps of the leaks they find, PG&E has yet to do the same.

    Now, the CPUC is proposing to require all utilities to engage in the best proven practices – like mobile mounted methane sensors and online leak maps – as opposed to letting utilities pick and choose their own without rigorous oversite. Additionally, utilities may be required to conduct leak surveys of gas systems every three years instead of every five years; install new stationary methane detection devices at certain sites; and list how many leaks they have by zip code or other metric, as opposed to system wide.

    Changing company culture to take methane seriously

    Like building a house, individual components are only as effective as the sturdiness of the foundation.  For this reason, the CPUC recommendation is proposing to require changes to company policies that establish the basic framing of methane leaks and the importance of prevention.

    Specifically, if adopted, companies will be required to state that methane is a potent greenhouse gas that must be prevented from escaping to the atmosphere, that non-emergency venting to the atmosphere is only permitted after significant specified  steps are taken, and that worker training programs on why it is important to reduce and/or eliminate methane emissions are required.

    Taken together with inspection, maintenance and repair provisions, it appears the CPUC is shooting for a full overhaul of the utility leak practices for climate purposes – in addition to safety.

    A giant step

    While last week’s announcement is a sign of major progress for cleaner air and safer communities, there is more work to do to further strengthen and defend the state’s response to methane leaks. For example, while these recommendations state that leaks above a certain size must be repaired, they do not explicitly require utilities to fix their largest leaks first – another common sense provision. That’s why we will continue to support these recommendations and argue for stronger and clearer rules throughout the remainder of the rulemaking period.

    About two weeks ago, 3,177 people sent a letter to the President of the CPUC urging him to ensure the agency adopted strong mandatory standards to control methane pollution. With last week’s release, these 3,177 people, can be sure their voices and concerns are heard.  Now, the staff recommendations must be put into action to fulfill the promise of SB 1371 to protect the environment and public health for all Californians, and set a model for reshaping the national conversation on responsible leak management.

    http://blogs.edf.org/energyexchange/2016/03/30/california-looks-to-modernize-natural-gas-utilities-presents-a-national-model/#more-12796
    

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16. Anti-Keystone Group Expands from Nebraska to Three New States

    Mar 30, 2016 | PoliticoPro - Whiteboard

    By Elana Schor

    Bold Nebraska founder Jane Kleeb, whose anti-Keystone XL advocacy group propelled the nationwide fight to kill the pipeline, is expanding her grassroots-organizing model to three states for new fossil-fuel fights this spring.

    The Bold Alliance, as the new umbrella of groups will be known, will include new outlets in Iowa, Louisiana and Oklahoma, Kleeb told POLITICO. Each state will have a small staff steeped in the particulars of one core environmental issue, as her Nebraska group did with Keystone. But they will also focus on clean energy and aligning landowners against the use of eminent domain for both renewable energy and fossil-fuel projects.

    During her years of work against Keystone, Kleeb said, "my experience was that national environmental groups don’t understand rural communities." The new state-level Bold groups, she added, will focus on "working with farmers and ranchers, folks whose livelihoods are dependent on whether we can actually fix climate change."

    Bold Iowa will home in on greens' campaign to target ExxonMobil over global warming, with a focus on biofuels, Kleeb said, while he Oklahoma affiliate plans to forge partnerships with tribal groups to jointly fight wastewater injection wells that are linked to rising seismic activity. A third new group, in Louisiana, will target new offshore drilling leases.

    Kleeb outlined a broader goal of making biofuels more environmentally palatable. "Big Oil loves this divide between farmers and the environmental community," she said.

    The Bold Alliance's website is expected to formally launch in May.

    https://www.politicopro.com/energy/whiteboard
    

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17. Asia's Record LPG Shortfall to Attract Increasing U.S. Exports

    Mar 31, 2016 | Reuters

    By Seng Li Peng

    Asia's supply shortfall of liquefied petroleum gas (LPG) will rise to record highs for at least the next two years, drawing ever more U.S. exports to fill the void.

    The deficit between what Asia can supply and demand for LPG will rise to a record of 1.42 million barrels per day (bpd) in 2016, surpassing last year's 1.3 million bpd, said David Wech, managing director of consultancy firm JBC Energy.

    This deficit will increase to 1.5 million bpd by 2017, he added. As a result, the region may draw almost 300,000 bpd of LPG from the United States in 2016 and 340,000 bpd in 2017, said Wech.

    U.S. exports to Japan, South Korea, Singapore and China, the world's largest LPG consumer, already hit a record in 2015, averaging 248,000 bpd, data from the U.S. Energy Information Administration showed.

    Importers of U.S. LPG include Japan's Astomos Energy Corp and Eneos Globe Corp, South Korea's E1 and China's Unipec.

    "Since 2009, every year has seen a new all-time high in Asia's LPG deficit due to strong LPG demand growth," said Wech.

    U.S.-based Enterprise Products Partners and Phillips 66 are poised to fill Asia's demand as they have either recently expanded their export capabilities or, in the case of Phillips, will be opening a new terminal later this year.

    "In the case of South Korea, around 80 to 85 percent of the LPG imports are from the Middle East (Asia's key supplier) and 15 to 20 percent from the U.S, which will likely increase its share from this year. It will be an interesting market," said a LPG consumer.

    The U.S. holds a price advantage over Middle Eastern suppliers with propane at the Mont Belvieu, Texas, hub at 43 cents per gallon, or about $230 a tonne, although that does not include freight for the voyage to Asia. That compares to the current contract price from Saudi Aramco at $283.

    LPG is a mixture of two gases, butane and propane. Asian consumers primarily use the fuel for cooking and heating but the gas also powers cars and is used as a petrochemical feedstock.

    Asia's growing dependence on U.S. LPG may mean higher propane and butane prices for American consumers as exports pull supply away, analysts at Barclays Capital said in a March 28 note.

    "As supply and demand fundamentals continue to improve due to increased export levels and domestic (U.S.) demand, we believe ethane and propane are well positioned," said Barclays.

    PETROCHEMICALS DRIVE ASIAN DEMAND

    Asia's demand needs will steer the market direction.

    The region's total LPG consumption, including the Indian subcontinent, is projected to reach 113 million tonnes in 2016, or about 3.6 million bpd, said Yanyu He, director of Natural Gas Liquids Research at IHS, adding that the region has the most acute supply shortages in the world.

    This is up from 105 million tonnes in 2015 and it will grow to 121 million tonnes next year, said He.

    Residential and commercial users accounted for about 65 percent of the Asian LPG market in 2015 though this will ease to about 64 percent in 2017, said He.

    The petrochemical industry will drive Asian LPG demand growth to meet the increasing need for plastics, especially as a packaging material to feed the e-commerce sector.

    Petrochemical consumption will account for 15 percent of total Asian LPG usage by 2017, said IHS's He, up from 11 percent in 2015.

    New specialised propane dehydrogenation (PDH) plants that use LPG to produce propylene, a precursor to plastics, that have been built recently in South Korea and China are driving that growth.

    Additional petrochemical demand occurs when LPG prices drop to at least $50 a tonne lower than naphtha, a light oil product also consumed by the industry. Currently the gap is about $35.

    Naphtha crackers can replace up to 15 percent of their naphtha with LPG when the economics work. An average of about 750,000 tonnes of LPG a month could be used this way, said He.

    LPG can be extracted from gas fields and during the crude refining process. Typically, a crude oil grade will yield less than five percent LPG when run through a distillation unit.

    With a large number of natural gas fields and extensive crude distillation capacity, the Middle East has traditionally supplied Asian LPG needs.

    The Middle East's LPG surplus after meeting domestic consumption, most of which will go to Asia, will tick up to 1.25 million bpd this year from 1.23 million bpd in 2015 and reach 1.26 million bpd in 2017, said Wech.

    (Additional reporting by Florence Tan in Singapore, Osamu Tsukimori in Tokyo, Rebecca Jang in Seoul and Chen Aizhu in Beijing. Editing by Christian Schmollinger)

    http://www.reuters.com/article/asia-energy-lpg-idUSL3N16N2KV
    

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18. Largest New U.S. Refinery Since 1976 Planned for N.D.

    Mar 30, 2016 | Fuel Fix

    By Jordan Blum

    Plans are moving forward to build the biggest new refinery in 40 years in the U.S. at a time when gasoline consumption is expected to break an all-time record in 2016.

    California-based Meridian Energy Group is expected to begin construction soon on the planned Davis Refinery in North Dakota that would take advantage of the Bakken shale play and process up to 55,000 barrels of oil a day. The project comes on the heels of the 2015 opening of the 20,000-barrel-a-day Dakota Prairie Refinery that represented the nation’s first new refinery since 1976.

    “The Davis Refinery will be one of the most modern, efficient and environmentally-compliant refineries in the U.S. in more than 50 years,” Meridian Chairman and CEO William Prentice said in a prepared statement, noting that Houston-based BASIC Equipment is contracted for fabrication and construction services.

    The Davis Refinery is more substantial than the smaller, “teapot” Dakota Prairie project, said Patrick DeHaan, senior petroleum analyst for GasBuddy, which surveys and predicts gasoline demand and pricing.

    “The economics behind refining have not always been favorable. There’s a considerable risk to open a refinery,” DeHaan said. “Everybody wants cheap gas, but nobody wants a refinery near them.”

    Several other refinery projects in recent years have been held up by environmental concerns and protests by residents. For instance, Houston-based Rock River Resources hasn’t been able to move forward with plans for a Utah refinery for years.

    “It’s difficult to find a good place to put a refinery,” DeHaan said, “and it’s difficult to wedge yourself into an industry that has a lot of powerful players.”

    However, thanks to cheap gasoline and strong demand, DeHaan noted, the U.S. is expected to break its 2007 record for gasoline consumption this year. So the short-term economics make sense, he said, although the growth of more fuel-efficient or electric and battery-operated vehicles makes the long-term concerns more considerable.

    Although the U.S. hasn’t seen any new big refineries in 40 years, that hasn’t stopped many existing refineries from expanding. For instance, Motiva Enterprise’s Port Arthur Refinery in Texas doubled in size in 2012 to become the nation’s biggest refinery with a capacity of processing 600,000 barrels of oil a day.

    Although North Dakota still has limited pipeline access, DeHaan called the David Refinery an interesting project because it will slowly scale up from an initial capacity of more than 27,000 barrels of crude processing a day. Also, Meridian plans to operate in part with tolling contracts similar to how oil and gas pipelines operate, Prentice said. That could create less day-to-day risk of finding buyers for the fuel products.

    http://fuelfix.com/blog/2016/03/30/largest-new-u-s-refinery-since-1976-planned-for-n-d/
    

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Chemical Security News

19. Nuclear Industry Pledges to Fortify Security of Materials

    Mar 31, 2016 | BNA Daily Environment Report

    By Rebecca Kern

    The nuclear industry vowed at a global industry summit to enhance the security of nuclear and radiological materials.

    The industry pledged in a joint statement to effectively secure all nuclear and radiological materials in industrial facilities and applications according to International Atomic Energy Agency guidelines and to improve cybersecurity across all nuclear facilities and applications.

    The joint statement at a March 30 Nuclear Industry Summit will serve as recommendations to the more than 50 world leaders attending the 2016 Nuclear Security Summit meeting, which was being held for the final time March 31 and April 1 in Washington.

    The Nuclear Industry Summit has been occurring on the sidelines of the Nuclear Security Summit, and the industry leaders plan to continue to meet in the future.

    Growing Cybersecurity Threats

    “The cyber threat has expanded exponentially in recent years with a series of damaging, high-profile attacks,” said former Sen. Sam Nunn, the CEO of the Nuclear Threat Initiative, which works with world leaders to reduce reliance on nuclear weapons.

    “We all know that neither nuclear facilities nor weapon complexes are immune to the growing danger which is dynamic and which is challenging,” he said at the meeting.

    He said the Nuclear Threat Initiative has looked at 47 countries with weapons-usable nuclear material or nuclear facilities and found nearly half of them didn't have foundational legal and regulatory requirements in place.

    “There is a dangerous gap in the governmental focus on this threat. To put it mildly, this is an area where much work needs to be done,” he said.

    Needed Culture Change for Security in Industry

    Similarly, Marvin Fertel, chief executive officer of the Nuclear Energy Institute, acknowledged that the industry has long focused on safety and it's still improving its focus on security.

    “Our industry has done very well in safety for decades now. I think that in security we're getting better and better. We're not as good as we were in safety yet,” Fertel told reporters at the meeting.

    He said this is because it requires a culture change in the nuclear industry—requiring the security personnel at plants to share the secure information and the safety personnel paying as much attention to security issues.

    But he said the industry has dramatically boosted personnel and funding toward safety, to the point that security staff make up the largest number of personnel at nuclear plants today.

    Separately at the meeting, an industry cybersecurity working group issued a report that included 27 recommendations about how government and industry can develop counter measures in the cyber domain.

    Rise of Terrorist Threats to Nuclear Facilities

    The U.S. and Russia need to form a working group to prevent ISIS and other terrorist groups from obtaining nuclear materials, Nunn said.

    “In the immediate future, both the United States and Russia should be able to agree that the threat posed by terrorist organizations affects the core and vital interests of both of our countries,” Nunn said at the meeting of global nuclear executives.

    Nunn said he recently suggested in both Moscow and in Washington that President Barack Obama and Russian President Vladimir Putin should announce a joint working group, which would be led by energy departments, intelligence agencies and defense departments. The group's goal would be to prevent ISIS and other terrorist groups from obtaining any nuclear, radiological, chemical or biological weapons or materials.

    While Putin is not attending the Nuclear Security Summit, Russia has sent delegates to observe the proceedings.

    Nunn acknowledged the successful work on an international level to reduce the number of countries with weapons-usable nuclear materials from 52 countries in 1992 to 24 countries today.

    http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=86164903&vname=dennotallissues&fn=86164903&jd=86164903
    

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Environment News

20. Supreme Court Seems to Lean Against Government in Key Wetlands Case

    Mar 30, 2016 | PoliticoPro

    By Annie Snider

    Supreme Court justices seemed ready allow miners, drillers and other developers to bring swifter challenges to the federal government's authority over their property during arguments in a closely watched wetlands case Wednesday morning, the first major environmental challenge to come before the court since Justice Antonin Scalia’s death.

    The case asks whether landowners can challenge the federal government’s determination of which streams and wetlands on a property are subject to Clean Water Act protection. Those protections can drive up permitting costs if a landowner wants to put the property into oil and gas, mining, farming, homebuilding or other forms of development. A wide array of industry groups and 23 states have weighed in against the federal government.

    The case, U.S. Army Corps of Engineers v. Hawkes Co., Inc., comes as many of the same parties are duking it out in court over the Obama administration’s controversial Waters of the U.S. rule defining which streams and wetlands are subject to Clean Water Act jurisdiction. That rule, which is not at play in the Hawkes case, has been placed on hold by a federal appeals court as an array of legal challenges are resolved.

    Hawkes Co., a North Dakota-based peat moss mining company, had big plans to mine 530 acres in northwest Minnesota, until the Army Corps of Engineers came back with a jurisdictional determination showing the bogs subject to federal protection, making the project virtually impossible. No one disputes that the property contains wetlands, but Hawkes argues that they are too far from the nearest large river — roughly 120 miles — to qualify for federal protection. The question is whether the company can appeal the determination as soon as it receives it, or if it has to go through the permitting process first, or else risk proceeding without a permit.

    The federal government has held that jurisdictional determinations are purely informational, and in fact are not even mentioned in the Clean Water Act, so courts should not be able to review them. But justices Wednesday appeared to disagree.

    Deputy Solicitor General Malcolm Stewart argued that a landowner still has a number of options after receiving a determination, including going ahead with development plans without a permit, but that did not satisfy Justice Stephen Breyer, one of the four more-liberal justices. Breyer threw up his hands and exclaimed, "And then he goes to jail!"

    Justice Samuel Alito and Chief Justice John Roberts pointed to a Memorandum of Agreement between the Army Corps of Engineers and EPA making the corps' jurisdictional determinations final for both agencies, including when EPA takes enforcement actions such as threatening fines against landowners. That connection is key, since the high court ruled unanimously in a 2012 case that EPA compliance orders can be challenged in court. Landowners in that case were represented by the Pacific Legal Foundation, which argued for Hawkes Co. today.

    Pacific Legal Foundation Attorney Reed Hopper argued that jurisdictional determinations aren't just the corps' final say on which streams and wetlands fall under the scope of the Clean Water Act, but that they carry legal consequences, since a landowner could face stiffer penalties, and even jail time, for knowingly violating the Clean Water Act.

    But Justice Elena Kagan pushed back, appearing at least somewhat sympathetic to the administration. She said a landowner would face the same circumstances after receiving a jurisdictional determination as he or she would without it.

    "The predicament is the predicament, and it’s a predicament that comes from the Clean Water Act," she said.

    Kagan also seemed to worry that siding with Hawkes could open the door to a flood of lawsuits challenging the informal advice that agencies across the federal government routinely provide.

    “Mostly we want government agencies to do these things. We think it helps people to actually know what the government thinks,” she said, suggesting that the corps could just stop issuing jurisdictional determinations if it became too much trouble.

    She suggested that the threshold for when an action is formal enough to be a final agency action that can be challenged in court is the same as the threshold for when an agency should receive legal deference — so-called Chevron deference.

    But the government's slim chances in the case were underscored when Justice Sonia Sotomayor asked the government's attorney for advice on how to limit a court ruling against him.

    "Assuming we disagree with you, that this should be appealable, what’s the narrowest way to write this that the government would like?” she asked.

    Stewart, the government's attorney, suggested the justices could write a narrow opinion that finds the determinations are open to court scrutiny because of the weight they are given in the memorandum of agreement between EPA and the corps. He suggested that approach would allow the agencies to revise the memorandum to make the jurisdictional determinations less formal — and thus not judicially reviewable. Sotomayor seemed unpersuaded by the suggestion.

    Lower courts have split on the question of whether jurisdictional determinations can be challenged in court. A district court initially dismissed the Hawkes complaint, but on appeal the 8th Circuit Court of Appeals sided with the company. Meanwhile, the conservative 5th Circuit Court of Appeals and the liberal 9th Circuit Court of Appeals came to the opposite conclusion in similar cases.

    Although the Waters of the U.S. rule did not come up directly in the arguments, justices repeatedly acknowledged how difficult it is for landowners to know when their property contains waters regulated under the Clean Water Act. The jurisdictional regulation, also known as the Clean Water Rule, is being challenged by a variety of states, businesses and property-rights organizations, and the issue iswidely expected to eventually make its way to the Supreme Court.

    Justice Anthony Kennedy, who cast the deciding vote in a key 2006 case concerning the reach of the Clean Water Act, called the 1972 law “quite vague in its reach," perhaps even "unconstitutionally vague," while being "harsh" in its penalties.

    https://www.politicopro.com/energy/story/2016/03/supreme-court-leans-against-government-in-major-wetlands-case-104374
    

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21. Maryland Lawmakers OK Greenhouse Reduction Bill

    Mar 31, 2016 | AP (In the Washington Post)

    By Brian Witte

    The Maryland General Assembly has passed what supporters are calling one of the most ambitious greenhouse gas reduction requirements set by a state legislature.

    The House voted 97-39 for the measure Wednesday, sending it to Republican Gov. Larry Hogan.

    The measure sets a new 40 percent greenhouse gas reduction target for 2030. It builds on a 2009 state law, which required Maryland to reduce emissions 25 percent by 2020 from 2006 levels.

    Supporters cited powerful storms in recent years as evidence climate change was being felt in a state with a large amount of coastline. Sen. Paul Pinsky, a Prince George’s County Democrat who sponsored the bill, says the bill puts Maryland at the forefront of state action.

    Opponents say it’s a government mandate that threatens to hurt businesses.

    https://www.washingtonpost.com/local/maryland-lawmakers-ok-greenhouse-reduction-bill/2016/03/30/dde75fd6-f6b7-11e5-958d-d038dac6e718_story.html
    

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