Preview Newsletter
ACC PM 5/26/2016
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(ACC Mentioned) Chubb: U.S. Chemical Firms Expanding Abroad See Heightened Risk
May 26, 2016 | Claims Journal
Foreign risk management challenges will be a growing concern for chemical firms, according to Ernie Salas, vice president, Specialty Casualty & Construction, Chubb. -
(ACC Mentioned) LRQA Receives Accreditation from ANAB
May 26, 2016 | Port News
LRQA, a leading provider of professional assurance services, has received accreditation from the USA's ANSI-ASQ National Accreditation Board (ANAB) for Responsible Care (RC) 14001:2015, Lloyd's Register said Wednesday. -
(ACC Mentioned) Congress Is Finally Overhauling A Decades-Old Chemical Safety Law
May 26, 2016 | Huffington Post
By Kate Sheppard
Congress this week is poised to pass legislation overhauling chemical safety for the first time in 40 years — with strong bipartisan support, no less. -
(ACC Mentioned) Toxic Substances Will Now Be Somewhat Regulated
May 26, 2016 | The Atlantic
By James Hamblin
Asbestos is a fiber found in nature, made of six minerals. Its unique structure makes it resistant to fire, a lightweight insulation to keep people warm in their homes. The ethereal quality of the fibers also, unfortunately, makes them easily drawn into our airways. -
(ACC Mentioned) Compromise Between Environmental Concerns and Business in New Chemical Safety Law
May 26, 2016 | New Hampshire Public Radio
By Fred Bever
The U.S. Congress is set to enact a broad, bipartisan reform of the nation’s toxic substance safety law. The bill is seen as a compromise between the chemical industry and public health and environmental advocates. -
Rand Paul Holding Up Final Passage of TSCA Reform -- Inhofe
May 26, 2016 | E&E Greenwire
By Sam Pearson
Senators are working to secure a final vote today on legislation to update the nation's chemical safety law, with the logistics of final passage uncertain at press time. -
House's Approval Of TSCA Bill Shifts Focus Toward EPA's Implementation
May 26, 2016 | Inside EPA
By Bridget DiCosmo
The House's approval May 24 of legislation to overhaul the Toxic Substances Control Act (TSCA) -- and expected Senate approval before Congress' Memorial Day recess -- is shifting proponents' focus toward how EPA will implement the major new authorities that the bill gives the agency, and to options for shaping those new programs. -
House Passes Toxic Substance Control Act (TSCA) Reform H.R. 2576 – Senate Vote Slated for Later this Week
May 26, 2016 | The National Law Review
By Thomas C. Berger
On May 24, 2016, the U.S. House of Representatives debated and voted to pass the pending Toxic Substance Control Act (TSCA) reform bill, The “Frank R. Lautenberg - Chemical Safety for the 21st Century Act,” H.R. 2576. The final vote was 403-12. Three Republicans – Buck (CO-4), Duncan (TN-2), and McClintock (CA-4) – voted against the bill. -
Paul Blocks Chemical Safety Bill in Senate
May 26, 2016 | The Hill - E2 Wire
By Timothy Cama
Sen. Rand Paul (R-Ky.) on Thursday said he’s blocking quick consideration of the Senate’s chemical safety overhaul bill because he hasn’t had time to read it. -
Paul Delays TSCA Vote
May 26, 2016 | Politico Pro - Whiteboard
By Darren Goode
Sen. Rand Paul is delaying Senate approval of a sweeping bill to update chemical safety law until after lawmakers return from a week-long Memorial Day break. -
Dem Senator: Sanders ‘Doesn’t Have a Lot of Answers’
May 26, 2016 | The Hill - Ballot Box Blog
By Mark Hensch
Sen. Joe Manchin (D-W.Va.) says Democratic presidential candidate Bernie Sanders has a purity of idealism but lacks practical solutions for many of the nation’s challenges. -
SOCMA Praises House for Passing Chemical Control Reforms
May 26, 2016 | Powder & Bulk Solids
The Society of Chemical Manufacturers and Affiliates (SOCMA) praised the US House of Representatives for passing reforms on the country's primary chemical control law in a statement Tuesday. -
Asbestos, Other Toxic Chemicals Finally Set to be Regulated by EPA
May 26, 2016 | RT
The Environmental Protection Agency will finally be able to regulate asbestos and other known toxic substances for the first time in decades. But environmentalists say the compromise bill doesn’t do enough and limits state regulators. -
Will Congress’s Chemical Safety Reform Protect Us? It Depends
May 26, 2016 | TIME
By Justin Worland
Chemicals in household products have been manufactured and sold with few checks on their safety for decades in the United States—a system some have described as “innocent until proven guilty.” Manufacturers are allowed to develop and sell potentially dangerous chemicals—the federal government has few resources to stop them. -
Congress Votes To Overhaul Nation’s Chemical Safety Law
May 26, 2016 | Houston Public Media
By Andrew Schneider
The House of Representatives has voted to toughen the law underlying the nation’s chemical safety rules. The reform bill passed by a margin of 403-12, with the votes in favor including those of most of Greater Houston’s congressional delegation. -
Udall on Passage of Chemical Safety Reform
May 26, 2016 | LA Daily Post
By Chris Clark
U.S. Sen. Tom Udall welcomed passage in the U.S. House of Representatives by an overwhelming vote of 403-12 of landmark reform of the nation's broken chemical safety law, the Toxic Substances Control Act of 1976 (TSCA). -
US Osha to Hold Public Meeting on GHS Proposals
May 26, 2016 | Chemical Watch
The US Occupational Safety and Health Administration (Osha) will convene a public meeting on 14 June in Washington, DC to discuss proposals for the 31st session of the United Nations Sub-Committee of Experts on the Globally Harmonized System of classification and labelling of chemicals (UNSCEGHS). -
Corporate Chemical Policies Focus on Products Over Supply Chains
May 26, 2016 | Chemical Watch
By Leigh Stringer
In the first annual review of the Chemical Footprint Project (CFP), results show that company chemical policies largely focus on chemicals in products rather than in manufacturing, supply chains or packaging. -
Minn. Debate on Cap-and-Trade Design Previews Fights to Come
May 26, 2016 | E&E Climatewire
By Emily Holden
Minnesota power companies and environmental advocates are already split over how the state might divide up valuable carbon allowances under U.S. EPA's Clean Power Plan. -
BLM Overstepped With Fracking Rule -- Critics
May 26, 2016 | E&E Energywire
By Ellen M. Gilmer
Critics of the Obama administration's hydraulic fracturing rule are pushing back on the government's efforts to advance the hamstrung regulations. -
Critics Say Court Order Shows ESPS Is Unprecedented, Merits Close Scrutiny
May 26, 2016 | Inside EPA
By Lee Logan
Top opponents of EPA's greenhouse gas rule for existing power plants say that an appellate court's rare move to hear consolidated litigation by the full en banc court, rather than a three-judge panel, underscores their argument that the rule is “unprecedented” and thus should be subject to stricter court scrutiny. -
Industries Fault CWA Permitting Requirements In EPA Cooling Water Rule
May 26, 2016 | Inside EPA
By David LaRoss
Groups representing non-energy industries including chemical manufacturers and boiler owners are urging a federal appeals court to scrap mandates in EPA's cooling water intake structure rule that, they say, require facilities to seek CWA permits even if they are exempted from the rule's technical requirements or take in little or no water for cooling. -
Federal Agency Contradicts EPA on Contamination in Dimock
May 26, 2016 | E&E Energywire
By Mike Soraghan
When U.S. EPA ended its investigation of drilling and drinking water contamination in Dimock, Pa., the agency said the water was safe to drink. -
Ruptured Water Main Swamped Petroleum Reserve
May 26, 2016 | E&E Greenwire
By Hannah Northey
A U.S. strategic crude stockpile in Southeast Texas was off limits for five weeks after a corroded saltwater pipeline ruptured in early April. -
Before a Fire Under the Tracks in East Harlem, a Business Took Root
May 26, 2016 | The New York Times
By Emily S. Rueb
It hardly seemed like a place where a four-alarm fire would snarl a vital railroad and delay tens of thousands of commuters in the country’s biggest city. -
White House Starts Reviewing Regional Haze Guidance for States
May 26, 2016 | E&E Greenwire
By Sean Reilly
The Office of Management and Budget is now reviewing a package of proposed U.S. EPA guidance for states on implementation of the second round of regional haze reduction planning.
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(ACC Mentioned) Chubb: U.S. Chemical Firms Expanding Abroad See Heightened Risk
May 26, 2016 | Claims Journal
Foreign risk management challenges will be a growing concern for chemical firms, according to Ernie Salas, vice president, Specialty Casualty & Construction, Chubb.
By 2019, the U.S. is expected to run a $77 billion trade surplus in chemicals, according to the American Chemistry Council.
“As U.S. chemical manufacturers and distributors of all sizes significantly increase their business overseas, they are facing challenges posed by product liability issues, environmental regulations and widely varying insurance laws,” according to Salas, author of a new Chubb advisory on the topic. “These firms need to identify such risks to their foreign operations and develop a robust strategy to manage them.”
The Chubb advisory, “Growing Global Chemical Trade Brings New Risks for U.S. Firms,” offers risk management and insurance strategies to adequately address the exposures of doing business abroad. Specifically, the advisory examines the following key areas for consideration:
Product Liability;
Emerging Environmental Regulations;
Transportation and Disposal;
Emerging Chemicals;
Filling Insurance Coverage Gaps.
“A preemptive approach that includes working with an insurer that understands the chemical industry and has a strong global presence can potentially mitigate exposures and let companies focus on making the most of their new opportunities,” said Salas.
http://www.claimsjournal.com/news/national/2016/05/26/271158.htm
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(ACC Mentioned) LRQA Receives Accreditation from ANAB
May 26, 2016 | Port News
LRQA, a leading provider of professional assurance services, has received accreditation from the USA's ANSI-ASQ National Accreditation Board (ANAB) for Responsible Care (RC) 14001:2015, Lloyd's Register said Wednesday.
Created by The American Chemistry Council (ACC), RC 14001:2015 and Responsible Care Management System (RCMS®) offers an integrated, structured approach to improve company performance in the following key areas: community awareness and emergency response; security; distribution; employee health and safety; pollution prevention; and process and product safety. For ACC members, RC 14001 or RCMS certification is mandatory. In addition, LRQA offers certification to RCMS:2013.
Certification must be renewed every three years, and companies can obtain RC14001:2015, which combines Responsible Care and international environmental management standard ISO 14001 certification into a single, cost-effective process. Although originally intended for chemical companies and their suppliers, any company can seek certification. RC 14001:2015 incorporates one of ISO’s most widely used standards to help organizations establish an integrated approach to environmental management.
LRQA provides a complete range of services to help organisations' transition to revised standards. These include gap analysis, preliminary assessments, transition certification, and training packages that can all be tailored to suit the individual needs of the organisation.
“LRQA certifies companies to RC 14001:2015 and RCMS as well as many other industry standards – putting sustainability at the heart of your business. Better hazard awareness, adequate emergency planning and clear communications with oversight bodies along with a robust RC 14001 system can help ensure that you have these frameworks in place. LRQA assessors are trained to look for these things in the conformity assessments,” said Chris Koci, President, LRQA, Inc. He adds, “LRQA assessors can provide a thorough, value added assessment that helps to improve a company’s Responsible Care Management System.”
LRQA can now issue ANAB-accredited certificates for RC 14001:2015 and RCMS:2013. LRQA received accreditation on 4 April 2016, which is recognised on ANAB’s website at: http://anab.org/programs/isoiec-17021/certification-bodies/transitions. LRQA is also accredited by ANAB for ISO 9001:2015 and ISO 14001:2015.
LRQA is a member of the Lloyd’s Register group. LRQA is a leading independent provider of professional assurance services including assessment, certification, validation, verification and training across a broad spectrum of standards, schemes and customised assurance programmes.http://en.portnews.ru/news/220037/
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(ACC Mentioned) Congress Is Finally Overhauling A Decades-Old Chemical Safety Law
May 26, 2016 | Huffington Post
By Kate Sheppard
Congress this week is poised to pass legislation overhauling chemical safety for the first time in 40 years — with strong bipartisan support, no less.
It would be the first major new environmental law in two decades. One might expect the feat would be a happy moment for those who have advocated change for years.
Except, they aren’t all exactly happy.
The environmental and public health community is fairly tepid about the final version of the measure, a negotiated text released last week that combines elements of previously passed Senate and House bills. Some groups have endorsed it. Others are opposed. Many simply point out the bill’s strengths and flaws, without taking a position for or against its passage. The consensus is that the bill is good, but not good enough, and probably the best Congress could do.
The bill, called the Frank R. Lautenberg Chemical Safety for the 21st Century Act, would reform the Toxic Substances Control Act, a 1976 law guiding the regulation of thousands of chemicals used in goods in the U.S. The current law is widely maligned as ineffective and out of date, incapable of assessing the safety of all the chemicals in consumer goods today.
“There is a widespread acknowledgement and understanding that nobody is well-served by the current law,” said Rep. John Shimkus (R-Ill.) on the House floor Tuesday, as members voted 403 to 12 to pass the bill. Shimkus was a lead sponsor in the House.
A spokesman for Senate Majority Leader Mitch McConnell (R-Ky.) said the Senate would likely vote on the bill this week. It is expected to pass there, and the White House has said President Barack Obama will sign it.
The law would give the Environmental Protection Agency new authority to evaluate the safety of a chemical before it enters the marketplace (which may seem intuitive, but it’s not the case under current law). It would also allow EPA to start evaluating the safety of chemicals already known to be risks — including chemicals found to persist in the human body and in the environment. It also limits companies’ ability to claim information about what’s in their products as confidential business information — which means regulators, health providers and the general public will have more access to information.
The law would be especially beneficial for regulating new chemicals — which are introduced at a rate of roughly 700 a year, according to Richard Denison, lead senior scientist at the Environmental Defense Fund. “They will be required to make a safety finding to get on market, which gets away from the passive system we have now,” Denison said. “EPA no longer has to prove evidence of risk before it can require testing.”
Public health and environmental advocates are less enthusiastic about other parts of the bill. They have concerns whether EPA funding is adequate for all this new work, and whether the bill’s timeline for reviewing chemicals is fast enough.
The bill would prevent states from regulating a chemical while EPA is assessing whether it should be controlled at the federal level, but it would allow existing state laws to stand. There’s also language in the legislation that says EPA must consider the “cost-effectiveness” of any proposed rule — a requirement vague enough to concern advocates.
“We don’t know what it means for a regulation to be ‘cost-effective,’” said Melanie Benesh, legislative attorney at the Environmental Working Group. “There’s a concern that it’s another way of saying its going to be the least-burdensome on industry, which makes it hard for EPA to make good regulations.”
The Environmental Working Group said the final bill falls short of what’s needed to really reform chemical regulation, and is too friendly to the chemical industry. Groups like the Breast Cancer Fund outright oppose it.
Andy Igrejas, director of Safer Chemicals, Healthy Families, a coalition of 450 health and environmental groups, falls somewhere in the middle. Some members of the coalition are against the bill, while others decline to endorse it.
“It’s definitely a mixed bag,” said Igrejas. “The idea that they had to have elements that go backward and that’s their price for allowing limited reform — I think that’s what sticks in the craw of people who work on these issues.”
Denison and the Environmental Defense Fund support the bill, along with groups like the March of Dimes and the Physicians Committee for Responsible Medicine. “None of [the bill’s components] are perfect. All have elements of compromise,” Denison said. “But they are, I think, unequivocally improvements over the status quo.”
The bill was a collaboration between Republican Sen. David Vitter (La.) and Democratic Sen. Tom Udall (N.M.), who took up a years-long effort from the late Sen. Frank Lautenberg (D-N.J.) to reform the law.
“This landmark reform is a major improvement over current law,” Udall said in announcing the negotiated House-Senate version. “It will overhaul a law that has been broken from the beginning and do what TSCA should have done in the first place — ensure there is a cop on the beat keeping us safe.”
The bill’s likely passage is a rare departure from partisan deadlock in Congress. There are several reasons for its apparent success. For one, more consumers are demanding products free of suspect chemicals — leading big box retailers like WalMart and Target to stop selling goods that contain them. And states like California, for example, have passed much stricter laws on things like carcinogenic flame retardants and bisphenol-A, a likely endocrine disruptor, which have in turn compelled more retailers to bar potentially harmful chemicals.
Meanwhile, Europe has passed tough chemical regulations, so companies that sell products there are already complying with stricter standards. The industries that produce these chemicals and products are seeing the value of a more straightforward federal system in the U.S., as do their allies in Congress.
The bill has support from major industry groups — including the U.S. Chamber of Commerce, the National Association of Manufacturers, and the American Chemistry Council, whose CEO Cal Dooley called it “a major win for America’s economy and American consumers.”
Environmental Working Group’s Benesh said it remains to be seen whether the bill will live up to promises of meaningfully changing the chemical safety system.
“I think we will know how effective this new law is after the first lawsuits are filed and have been settled,” Benesh said. “Then we will know how much power EPA has, and how fully they will be able to exercise it.”
http://www.huffingtonpost.com/entry/congress-chemical-safety_us_57465c2fe4b055bb117137d2
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(ACC Mentioned) Toxic Substances Will Now Be Somewhat Regulated
May 26, 2016 | The Atlantic
By James Hamblin
Asbestos is a fiber found in nature, made of six minerals. Its unique structure makes it resistant to fire, a lightweight insulation to keep people warm in their homes. The ethereal quality of the fibers also, unfortunately, makes them easily drawn into our airways.
There they work their way down into our lungs, and our body attacks them. But the fibers are too large for our immune cells to eradicate. Like a sore that won’t heal, the scars grow and expand over decades, often until the lungs cease to function. The fibers and scarring can also pierce into the mesothelium, the slippery lining that allows our lungs to slide within our chest cavity, where they cause the aggressive cancer whose name has become synonymous with daytime-television class-action-lawsuit commercials.
While asbestos is illegal in more than 50 countries, the United States is not among them. The Environmental Protection Agency attempted to make asbestos-containing products illegal in 1989—and succeeded temporarily. But the ruling was overturned in 1991 after appeals by manufacturers. The weak point for the regulatory agency was the Toxic Substances Control Act of 1976—the law that ostensibly regulates household and industrial compounds (chemicals in the stuff under the sink or in the garage)—which, when put to the test, did not afford the EPA enough power to ban asbestos.
Since then, many advocates for human health have demanded overhaul of the patently “toothless” law. The Toxic Substances Control Act has simply proven ineffective at banning elements linked to health problems, and many believe its premarket safety testing standards are also inadequate. (Not to mention that the law requires no safety testing for the roughly 60,000 “grandfathered” substances that were already in use as of its passage in 1972.)
So it is of great historical significance that after 40 years, in a Congress so divided, the U.S. House of Representative voted overwhelmingly (403 to 12) this week to pass the first ever update to the law. Even Republicans who have repeatedly voted to downsize the EPA, have in this case supported the measure to expand its power. The Senate is expected to pass the bill later today, after which it will head to President Obama, who is expected to sign.
The product of years of negotiation, the bill was introduced in 2013 by Senators Frank Lautenberg and David Vitter. It had momentum in the moment, but several days later, Lautenberg died. The bill is named in his honor, the Frank R. Lautenberg Chemical Safety for the 21st Century Act.
“This is an issue that many people assumed was never going to see progress because it had been so politicized, and industry and environmentalists were so diametrically opposed on how it should be handled,” said Anne Kolton, vice president of communications for the American Chemistry Council (ACC), a trade group that advocates for industrial chemical manufacturers and suppliers. “It's something that, through the art of compromise, we've settled on with the environmental community and the public health community.”
But those communities seem less than settled.
Philip Landrigan, dean for global health in the Icahn School of Medicine at Mount Sinai, has for years been concerned about the cumulative effects of environmental exposures that, he believes, have “subtle but far-reaching impacts on brain development that show up as lifelong impairments in cognition, ability to focus, and ability to exert executive control over impulsive, risk-taking behaviors.”
Among his chief concerns are brominated flame retardants used in furniture, organophosphate pesticides, phthalates used in some toys, perfluorinated compounds, which he'd like to see restricted to “essential uses” (where there is no substitute). Nanotechnology, too, is a concern. “Investment has exploded, but the amount of information on hazards is minute,” said Landrigan. “It may turn out that there isn’t much hazard, but I wouldn't be so sanguine.”
He’s unsure if the new bill will give enough power to remove substances once they prove harmful. “This could very well fix the problem, but we won't know until the first legal judgment,” said Scott Faber, vice president of government affairs for the Environmental Working Group, a self-described non-partisan organization "dedicated to protecting human health and the environment."
“The average reader of The Atlantic would say, you know, chemicals should be safe. And the EPA should get to work reviewing them," said Faber. “Neither of these things are clear from this.”
Faber concerned that the bill doesn't provide sufficient funding to the EPA to test even the highest-priority substances in a timely manner. Asbestos exposure became grounds for one of the longest and most expensive mass torts in history; even from a purely financial perspective, it makes sense to preempt similar catastrophes. The agency has testified that about 1,000 substances ought to be quickly reviewed, and Faber estimates the bill provides about half as much money as would be needed to get through those chemicals in one generation.
“This new bill is certainly an improvement on the current Toxic Substances Control Act,” said Landrigan, noting that it would increase pre-market safety testing requirements, with a mandatory emphasis on vulnerable populations. The act also removes some “trade secret” loopholes, which allowed companies to hide data on chemical testing. “But it also doesn't go as far as a lot of us in the public health community were hoping it would go.”
Probably the most concerning thing to Landrigan and Faber is the bill's pre-emption of the states’ ability to regulate toxic chemicals.
“States have been the only cop on the beat—the EPA has been a paper tiger, certainly since 1991,” said Faber. “Now this law says that there’s a period when the EPA is reviewing a chemical during which states can’t act. This freezes state action while EPA is investigating. And that's been the only [regulatory] activity for the last two decades.”
If everyone is interested in appropriate safety testing, I asked Faber, then why would the exemption argument exist?
“I'm sure when you call the American Chemistry Council they'll have a good argument for that.”
And, they did have an argument. Having different regulations in different states is difficult and costly to industry.
“If industry was writing the bill, the preemption provisions would be stronger,” said Anne Kolton. “We certainly are comfortable with where it came out. But the proliferation of state level chemical restrictions—and, in some cases, standalone regulatory programs—was really becoming a major challenge for manufacturers.”
The most famous example may be California’s Proposition 65, which requires manufacturers to warn consumers if its product contains known carcinogens in its products. As Kolter put it, “That presents a challenge for manufacturers and retailers.”
Proposition 65 is among a small number of state-level programs that will remain outside of the new EPA preemption. But the general law is that once the EPA is done with its work, any state-level restrictions or bans that are in conflict with the EPAs findings would be preempted by the agency’s finding.
“Why would we throw that resource out the door if Congress and industry aren't able to provide enough money to review all the chemicals that should be previewed?” he posits. “There's no reason to block state action before EPA declares their final rule— other than industry's desire to simply chill any co-regulation.”
“I find it kind of ironic," said Landrigan, "that the political party that usually champions states' rights chooses to take those rights away when it's convenient.”
http://www.theatlantic.com/health/archive/2016/05/toxic-substances-control-act/484280/
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(ACC Mentioned) Compromise Between Environmental Concerns and Business in New Chemical Safety Law
May 26, 2016 | New Hampshire Public Radio
By Fred Bever
The U.S. Congress is set to enact a broad, bipartisan reform of the nation’s toxic substance safety law. The bill is seen as a compromise between the chemical industry and public health and environmental advocates. But there are some who say it does not go far enough to protect Americans’ health. And some of them say the new law will undermine efforts by states, including Maine, that have pioneered toxics regulation.
Under the current law, which is 40 years old, it’s been difficult for the federal government to regulate or ban substances that are known to be toxic. The new bill would change that, and allow the federal Environmental Agency to assess, regulate and even ban chemicals that it finds harmful to human health.
“I’m very glad we’re moving forward and I think as everyone knows we have long needed to update the toxic substances control act, it’s a very critical piece of legislation,” says Chellie Pingree, Maine’s first congressional district Representative.
She says it’s a good thing the measure is moving forward, but even she voted against it this week. Heres’ why — she says it allows the federal government to preempt work by states which want to move forward with their own rules on toxic substances.
“I think there were parts of this that were designed to kill the activities going in states like Maine and designed to slow down the process of discovering which chemicals are toxic and which ones should be regulated,” she says.
In 2008, Maine was one of a handful of states to enact its own laws to provide for risk assessments for chemicals and to require manufacturers to disclose their use in certain products, and in some cases, to ban them. Since then five chemicals have been classified as substances of “priority concern” and some have been banned.
Those bans will be grandfathered under the new law. But other state efforts to regulate potentially harmful chemicals could grind to a halt.
“The states will be in a competitive race with the EPA to see who can get to dangerous chemicals first,” says Michael Belliveau, Executive Director of the Environmental Health Strategy Center.
The new law, he says, would bar state regulation of a chemical which the EPA decides to review itself. For instance, Maine recently required manufacturers to disclose sales of products containing some hormone disrupting chemicals known as pthalates. But unless the administration of Governor Paul LePage acts to ban them before the new law takes full effect — which is unlikely, Belliveau says — it could preempt any such effort by the next governor.
“It’s pthalates in Maine, it’s flame retardants in Washington DC, it’s methylene chloride in California — all these states are working on different chemicals,” says Belliveau. “If EPA gets there first. If they say this is a federally-designated high priority chemical then the states are blocked. They are stopped in their tracks. They can not restrict the chemical while EPA is studying the same chemical.”
That’s a four year process. And even if the EPA moves to regulate a product, states would be barred from enacting stricter regulations — chilling any state-level effort to review a chemical that’s likely to be reviewed by the EPA, Belliveau says.
Industry supporters say there are provisions allowing states to petition the EPA to approve local action when a chemical is discovered to pose an immediate public health emergency. And Judah Prero, a lawyer who’s worked for the industry’s lobbying group, the American Chemistry Council, says the industry recognized that the law needed to be updated — and that manufacturers otherwise might have to contend with an ever-expanding hodgepodge of state-level regulations. He also says there was a strong business case for stronger federal oversight.
“There has been a weakening of consumer confidence in the safety of chemicals because there isn’t a strong regulatory structure in the federal government,” says Prero. “Ultimately manufacturers are better served when they have that stamp of approval.”
The senate passed an earlier version of the measure unanimously and is expected to do so again, sending it on to President Obama for his expected approval.
http://nhpr.org/post/compromise-between-environmental-concerns-and-business-new-chemical-safety-law
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Rand Paul Holding Up Final Passage of TSCA Reform -- Inhofe
May 26, 2016 | E&E Greenwire
By Sam Pearson
Senators are working to secure a final vote today on legislation to update the nation's chemical safety law, with the logistics of final passage uncertain at press time.
A lawmaker not closely involved in the bill's drafting, Sen. Rand Paul (R-Ky.), was behind the delay, Senate Environment and Public Works Chairman Jim Inhofe (R-Okla.) said.
Inhofe said he spoke to Paul yesterday about the issue, though there was still some confusion. The Senate has little else on its floor schedule today.
"Those who have called his office, he has not given that response," Inhofe said. He added that Paul is "[objecting] I'm sure, but I can't say it, because that's not for me to say."
Asked today if he is holding up the bill, Paul repeatedly replied, "We read every bill, do you understand that?"
Staffers are "vicariously" working with Paul's office, Inhofe said. He said the goal is to avoid having to return in two weeks, after the congressional recess, to consider the bill under a more drawn-out process.
Earlier this week, the final legislation was "hotlined" in both the Democratic and Republican conferences, Inhofe said.
Jennifer Talhelm, a spokeswoman for Sen. Tom Udall (D-N.M.), a chief sponsor, said no Democrats were blocking floor consideration of the bill.
For a process that hasn't come easily, there seems to be more to do before lawmakers can send what would be the largest update to an environmental law in decades to President Obama's desk.
Off the Senate floor, Udall spoke with Bonnie Lautenberg, the widow of the late Sen. Frank Lautenberg (D-N.J.), who had long pushed for action on the issue.
On the Senate floor this morning, Environment and Public Works ranking member Barbara Boxer (D-Calif.) said the process was being delayed by a hold from a GOP lawmaker, while all Democrats have agreed to allow the bill to move forward.
"I'm hopeful this can be resolved because this bill has been the most complicated, difficult, emotional journey that I have ever had in the United States Senate," said Boxer, who led the contentious fight to prepare a cap-and-trade bill in 2009 -- and is planning to retire at the end of the year.
The broad majority that supported the legislation in the House earlier this week proved the issue deserves fast consideration in the Senate, Boxer said.
Lawmakers are still working on when the bill will come to the floor today, said Don Stewart, a spokesman for Senate Majority Leader Mitch McConnell (R-Ky.).
Stewart referred questions about the delay to Paul's office, which did not respond to a request for comment.
Paul, who does not sit on the Environment and Public Works Committee, which drafted the bill, was not present for much of the previous legislative work on the issue.
Paul has spoken out in the past about what he sees as the hazards of Congress rapidly passing complex legislation. He has introduced bills to limit legislation to only one subject and tried to change Senate rules earlier this year to require lawmakers to read bills before passing them.
"If we are to answer to the American people, it is imperative we pay close attention to the legislation we pass," Paul said in a statement last year.
Paul "is objecting because he believes lawmakers should read legislation before voting on it," spokesman Sergio Gor said in an email. "This legislation is being unnecessarily rushed without an opportunity for review."
Paul said on the floor: "I just want to read the bill."
Paul said he was concerned the measure would expand EPA's regulatory authority at the expense of states.
Other Republicans pushed back against Paul's stance. He had plenty of time to read the bill, said Sen. David Vitter (R-La.).
Vitter said the final text had been available for about a week and the provisions Paul expressed concerns about were agreed on six months ago.
"We know this thing is going to pass," Inhofe said.
http://www.eenews.net/greenwire/2016/05/26/stories/1060037956
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House's Approval Of TSCA Bill Shifts Focus Toward EPA's Implementation
May 26, 2016 | Inside EPA
By Bridget DiCosmo
The House's approval May 24 of legislation to overhaul the Toxic Substances Control Act (TSCA) -- and expected Senate approval before Congress' Memorial Day recess -- is shifting proponents' focus toward how EPA will implement the major new authorities that the bill gives the agency, and to options for shaping those new programs.
"The rulemaking process is pretty interesting," says a source with the American Sustainable Business Council (ASBC), representing companies that push for strong environmental health protections. As EPA pursues notice-and-comment rules to implement various provisions of the law, ASBC and other groups have the chance to try and influence the agency's approach -- including for critics to push to "roll back" some provisions of the law.
"We observed a lot of rulemaking with the Clean Air Act, and a lot can happen when the rubber meets the road," the source says of implementing the air law and its many new EPA programs. ASBC is likely to focus on ensuring EPA keeps pace with the timeframes laid out in the bill for reviewing chemicals, and with a new administration taking office in 2017, "making sure they're working as hard as EPA can to complete chemical reviews."
Separately, Natural Resources Defense Council says in a May 23 statement that while the bill would give EPA a "clear and enforceable mandate" to review chemicals, it also contains "loopholes and rollbacks" sought by industry. Among those alleged loopholes are restrictive state preemption provisions, and limits on EPA authority to monitor chemicals in imported products. "It will be some years before we know for sure how successful the bill will be at protecting the public. NRDC will press hard to ensure the strong implementation of this bill."
A chemical industry source says that as EPA begins to implement the 181-page final bill, there will "absolutely" be opportunities for stakeholders to seek a strong role in helping shape the resulting programs.
House lawmakers on May 24 approved in a 403-12 vote the bill, H.R. 2576, that would overhaul the 1976 toxics law by significantly expanding EPA's authority to regulate chemicals, sending the measure to the Senate with hopes of advancing it to President Obama before Congress' Memorial Day recess. The White House has said that it supports the legislation.
The final bill, which is the result of lengthy bipartisan negotiations, drew support from 232 Republicans and 171 Democrats, with three GOP lawmakers and nine Democrats voting against it. A total of 10 Republican lawmakers did not vote and eight Democratic lawmakers did not vote.
The pact follows negotiations that began late last year between leaders on the House Energy & Commerce Committee and EPW to reconcile a narrow House bill, H.R. 2576, authored by Rep. John Shimkus (R-IL), with a more comprehensive Senate bill, S. 697, authored by Sens. David Vitter (R-LA) and Tom Udall (D-NM).
The House bill as approved in the lower chamber initially had been 46 pages, and the Senate bill as approved had been more than 200 pages, with the final bill being whittled to 181 pages from a 208-page version floated on May 20 before last-minute negotiations made final tweaks to the language.
The legislation appears to retain much of the framework established in the Senate's broad version of TSCA reform legislation and the narrower TSCA reform bill approved by the House.
EPA's Implementation
How EPA would implement a final TSCA bill has been a subject of discussion throughout the negotiations in Congress, with some raising questions about how thoroughly the agency has prepared for potential reform of the law.
Jim Jones. assistant administrator in EPA's Office of Chemical Safety and Pollution Prevention (OCSPP) in March 23 keynote remarks to the chemical industry conference GlobalChem in Washington, D.C., said that the agency has been trying in recent years to "stand up our existing chemicals program" in the event a final TSCA reform bill cleared congress this year.
For example, Jones touted OCSPP's chemical work plan program, which houses the initial 10 chemicals that EPA must review as high-priority substances within 180 days of the bill's enactment. Jones said that the program was developed "in a way that was conscious of the political arena."
He pointed to the initial start-up of the program, wherein EPA staff crafted an approach to prioritize chemicals for risk assessment based on their toxic, persistence and bioaccumulative properties, as well as exposure information such as whether a chemical is used in children's products or consumer products.
"We've got some experience now, we've done risk evaluations with some high-priority chemicals," he added. "And whether TSCA is reformed or not we will be able to take advantage of all this learning and apply it to the new statute or if that doesn't pass . . . we are beginning to occupy the field in a way that even in the absence of a reformed TSCA we have a standing existing chemicals program that will continue to look at existing chemicals for safety."
The final TSCA bill would give EPA new powers to mandate reviews of whether existing substances are safe, including the thousands purportedly grandfathered under current law, and amend language that an appellate court in 1991 found barred EPA from banning asbestos -- one of the few times the agency has sought to ban an existing chemical.
For example, the bill would require EPA to every five years review the adequacy of any TSCA policies, procedures and guidance, including methods for assessing risk, and provide opportunities for public comment on whether revisions are necessary.
EPA within two years of the bill's enactment would also be required to develop for public comment a strategic plan for reducing animal testing through use of alternative toxicology methodology, such as high-throughput screening or computational toxicology.
Additionally, EPA must provide at least 30-day notice and comment periods for each draft risk evaluation it conducts under the new TSCA, and the bill would require EPA to ensure that at least 10 chemicals are undergoing risk evaluations within 180 days after the date the bill is enacted, and at least 20 chemicals at three and half years after the date the bill is enacted. Moreover, any waivers from state preemption for new state chemical safety requirements would also have to undergo notice and comment.
'Safety Standard'
The bill would assert a new definition of "safety standard" to be used in EPA determinations on whether chemicals are safe, barring EPA from taking into consideration cost or other non-risk factors in evaluating whether a chemical poses "unreasonable risk of injury to health or the environment" under its conditions of use.
In addition, the bill would set first-time deadlines for EPA to restrict high-priority substances within two years of completing and publishing a safety assessment and determination under section 6 of TSCA, removing language that EPA must identify the "least burdensome" option that stymied the agency's efforts to ban asbestos.
The ASBC source says the group recognizes that the final bill is an improvement over previous draft legislation and over current law in many respects.
But that source adds that they believe lawmakers "missed an opportunity" to make the bill as strong as possible, citing more narrow preemption of state programs and accelerated timeframes for EPA to assess chemicals as two measures they would have liked to see in the final bill.
http://insideepa.com/daily-news/houses-approval-tsca-bill-shifts-focus-toward-epas-implementation
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May 26, 2016 | The National Law Review
By Thomas C. Berger
On May 24, 2016, the U.S. House of Representatives debated and voted to pass the pending Toxic Substance Control Act (TSCA) reform bill, The “Frank R. Lautenberg - Chemical Safety for the 21st Century Act,” H.R. 2576. The final vote was 403-12. Three Republicans – Buck (CO-4), Duncan (TN-2), and McClintock (CA-4) – voted against the bill.
H.R. 2576 was the subject of extensive negotiations and has been amended to address competing policy priorities and stakeholder concerns. The Senate is expected to vote on the legislation without amendment. Key supporters of the legislation in the House, including Representatives Shimkus (R-IL), Pallone (D-NJ), Upton (R-MI) and Hoyer (D-MD) characterized the legislation as striking the right balance to protect people, jobs, and the environment.
The legislative agreement negotiated by the House and Senate keeps the framework of the Senate-passed legislation (S. 697) largely intact. Highlights include -Testing. EPA has new authority to order chemical testing, and is called upon to use tiered testing, screening approaches, test categories, and encourage alternatives to animal testing. EPA will charge fees to evaluate submitted test results.
New chemical reviews. EPA must take sensitive subpopulations and intended conditions of use into account. If EPA fails to make a timely determination on a new chemical, the Agency is required to refund the submitter’s filing fee unless the application is found incomplete. Within 90-days of a finding that the safety standard is not met or that testing is required, EPA must publish a decision on whether to issue a significant new use rule. EPA is required to publish a finding that a new chemical meets the law’s safety standard. Commercialization can proceed before publication of EPA’s finding. In addition, the 90-day review period can end early if EPA determines before that date that the substance meets the safety standard.
Inventory Reset. Within one year of enactment, EPA will require manufacturers and importers to submit reports within six months on those chemicals listed on the TSCA Chemical Substance Inventory (“Inventory”) that they have manufactured or imported for a non-exempt commercial purpose in the previous 10 years (“active” chemicals). In the interim, TSCA section 8(a) Chemical Data Reporting (CDR)-reported substances will serve as the list of active substances. Processors may be asked to report. EPA must publish a list of these active substances, and publish a rule within one year after that to require substantiation for chemical identities claimed as confidential business information (CBI). EPA must complete its review of these CBI claims within five years of issuing the active substance list. Inactive substances will remain on the TSCA Inventory, but EPA must be notified before manufacture, import, or processing can commence.
Existing chemicals. Last minute changes included doubling the number of chemicals previously proposed for EPA to designate and review in the first three and a half years of the existing chemical review program to 20 high-priority and 20 low-priority substances. Preference is given to highly ranked PBTs and known human carcinogens with high acute and chronic toxicity. Metals will be evaluated within the March 2007 Framework for Metals Risk Assessment. EPA will prioritize and evaluate existing chemicals that may present an unreasonable risk of injury to health or the environment without considering costs or other nonrisk factors. EPA must consider intended conditions of use and include an evaluation of unreasonable risk to potentially exposed or susceptible subpopulations. Industry-requested risk assessments may comprise 25% – 50% of the Agency’s risk evaluation workload.
Regulatory controls. To restrict, phase-out, or ban an existing chemical, EPA must consider effects on health and the magnitude of the exposure, the benefits of the chemical substance or mixture for various uses, the reasonably ascertainable economic consequences of the rule, the costs and benefits of the regulatory action, and consider alternatives. However, EPA will no longer be required to select the least burdensome regulatory alternative. Exemptions may be granted for critical or essential uses; disruption of national economy, security or critical infrastructure, and beneficial uses. EPA cannot impose a regulation that duplicates a regulation issued by the Agency or another agency under a different statute.
Preemption. Federal preemption of new and existing state laws applies when EPA finds that a high priority chemical meets the safety standard and when EPA enacts a rule to regulate a chemical that does not meet the safety standard. Any state statute or regulation in existence before April 22, 2016, however, is grandfathered and not subject to preemption. There is no preemption of common law tort claim actions. Between the time EPA publishes the scope of a chemical risk assessment and up to three and a half years while it conducts the assessment, states generally may not enact new laws and regulations regulating the chemical. However, states may submit waiver requests to EPA to regulate a chemical during this period. States also are given up to 18 months after EPA has initiated the prioritization process or published the scope of the risk evaluation, whichever is sooner, to (i) enact a statute or (ii) propose or finalize an administrative action without any preemption while EPA evaluates the chemical. Exemptions from federal preemption include state law adopted pursuant to federal law; reporting, monitoring, or information obligations not otherwise adopted by EPA; and air, water quality, and hazardous waste laws absent a direct conflict with a TSCA regulation.
Confidential Business Information (CBI). The legislation establishes processes for protecting CBI and requires written support for claiming protection from disclosure for chemical identity and other information. Only specific manufacturing and processing descriptions, specific volumes, the composition of a mixture, a chemical’s use and function, and sales and marketing information will not require substantiation. There is a ten year time limit on confidentiality claims. Extensions of CBI protection are available for additional ten year terms. There is a presumption that information on uses of chemicals to be banned or phased-out will be fully disclosed to the public.
Fees and Penalties. EPA is tasked to update fees for PMN submissions and impose new fees for reviews of test data and risk assessments for existing chemicals. The fees must support 25% of the operating costs of these programs. Small businesses will pay lower fees. The maximum civil penalty for TSCA violations is increased to $37,500, and maximum criminal penalties are increased to $50,000. Individuals may be fined $250,000 as well as up to 15 years imprisonment for willful, imminent endangerment. Organizations may be fined up to $1 million in such case.
Articles. EPA may require a premanufacture notification (PMN) for a chemical substance imported as part of an “article” after issuing a rule finding that there is reasonable potential for exposure that justifies notification. EPA can impose prohibitions or restrictions on articles containing chemicals that do not meet the safety standard to the extent necessary to address the identified risks from exposure.
Advisory Committee. EPA is instructed to have an advisory committee with representation from government, industry, nongovernmental organizations and academia to advise the Agency on new and existing chemical reviews.
Best Science. EPA must use the “best available science” to review chemicals and develop policies and procedures necessary for implementation within two years.
Retroactivity. The new law does not modify any rule or order promulgated or issued under TSCA before its effective date.
Judicial review. A determination that the safety standard is met is a final Agency action. A determination that the safety standard is not met is not reviewable until EPA issues a final rule regulating the chemical substance.
Miscellaneous: Other provisions further regulate export and disposal of mercury compounds, require negotiated reporting for inorganic byproducts, and provide authority to investigate potential cancer clusters. A section in the earlier Senate bill (S. 697) assessing federal resources dedicated to the use of sustainable chemistry was removed. Previously agreed-on provisions providing greater federal seizure authority and changes to export requirements were dropped from the legislation.
During consideration by the House of Representatives, Representative Tonko (D-NY), an earlier supporter of the legislation, expressed his concern that the negotiated agreement had weakened the Agency’s ability to impose significant new use rules and track chemicals in imported products. Other provisions that he listed as bases for his decision to vote against the legislation include provisions to limit reporting on inorganic byproducts and the ability of states to ban chemicals. Representative Tonko noted the precedent setting nature of the preemption pause and his view that the negotiated 18 month period for states to enact new legislation before the pause goes into effect is insufficient. In their remarks on the House Floor, Representatives Blackburn (R-TN) and Pittinger (R-NC) expressed support for section 9(b)(2), which will prevent EPA from restricting the use of a chemical if it is already regulated by EPA or another agency under a different statute in a manner that protects against the identified risks associated with the chemical. Representative Shimkus closed the bipartisan discussion leading up to the vote by noting the broad support for the legislation among industry, labor, and nongovernmental organizations. H.R. 2576 is expected to be fast-tracked for Senate consideration later this week on Wednesday or Thursday and the White House has announced the President’s intention to sign the legislation into law.
http://www.natlawreview.com/article/house-passes-toxic-substance-control-act-tsca-reform-hr-2576-senate-vote-slated
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Paul Blocks Chemical Safety Bill in Senate
May 26, 2016 | The Hill - E2 Wire
By Timothy Cama
Sen. Rand Paul (R-Ky.) on Thursday said he’s blocking quick consideration of the Senate’s chemical safety overhaul bill because he hasn’t had time to read it.
Paul said the Frank R. Lautenberg Chemical Safety for the 21st Century Act is a big, consequential bill, and he deserves the time to read and understand it before he votes.
The bill has widespread bipartisan support. It passed the House on Tuesday with only 12 members opposing.
“One of the pledges I made to the people of Kentucky when I came here was that I would read the bills,” Paul said on the Senate floor Thursday.
“This bill came here on Tuesday. It's 180 pages long. It involves new criminalization, new crimes that will be created at the federal level. It includes preemption of states,” the former presidential candidate added.
“And so I think it deserves to be read, to be understood and to be debated, and so I object to just rushing this through and saying ‘Oh, you can't read the bill.’ ”
As long as Paul keeps his objection in place, Sen. Mitch McConnell (R-Ky.) cannot have the unanimous consent he needs to allow a vote on the bill Thursday. It could take weeks to go through the Senate procedure to consider the bill without Paul’s consent, since senators are on recess next week.
It’s unclear whether Paul’s objection is the only one holding up quick consideration of the legislation.
The bill would update the 1976 Toxic Substances Control Act and give the Environmental Protection Agency (EPA) sweeping new powers to order the testing of and limit the sales of harmful chemicals.
Sen. David Vitter (R-La.), a lead author of the bill, criticized Paul for his objection.
“I regret an objection to this very reasonable path forward,” Vitter said after Paul spoke.
“No one objects to all members of the senate reading the bill. I encourage all members of the senate to read the bill,” he continued.
“The final version of the bill has been publicly available for everyone to read, dissect and digest for about a week. It is largely similar to the Senate version that passed months ago to which there was no objection raised.”
Sen. James Inhofe (R-Okla.), chairman of the Environment and Public Works Committee, also criticized Paul.
“We know it’s going to pass. That’s not the issue,” he said. “It’s just that if we could do it now instead of two weeks from now.”
http://www.thehill.com/policy/energy-environment/281391-rand-paul-blocks-chemical-safety-bill-in-senate
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May 26, 2016 | Politico Pro - Whiteboard
By Darren Goode
Sen. Rand Paul is delaying Senate approval of a sweeping bill to update chemical safety law until after lawmakers return from a week-long Memorial Day break.
The Kentucky Republican complained the bill updating the 1976 Toxic Substances Control Act is being rushed through, would preempt state toxics law and expand criminal penalties. Paul today objected to a unanimous consent request from Environment and Public Works Chairman Jim Inhofe for three hours of debate and a roll-call vote on the bill this afternoon.
"And so I think it deserves to be read, to be understood and to be debated," Paul said. "I object to just rushing this through. ... I told people, everybody involved with this, I just want to read the bill."
Final text of the bill was posted online last Friday, and the House approved the compromise 403-12 Tuesday.
While Paul said his staff has been reading the bill, Inhofe countered that the specific provisions he cited as problematic have been known for months.
Sen. David Vitter also noted the compromise is "largely similar" to a bill the Senate unanimously approved without objection in December. "So there is no impediment to everyone having adequate time to read and digest the bill," he said.
Inhofe predicted eventual victory on a rare major update to environmental law that enjoys broad support, including chemical companies and manufacturers after years of negotiations. "We know this thing is going to pass," he said.
https://www.politicopro.com/energy/whiteboard
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Dem Senator: Sanders ‘Doesn’t Have a Lot of Answers’
May 26, 2016 | The Hill - Ballot Box Blog
By Mark Hensch
Sen. Joe Manchin (D-W.Va.) says Democratic presidential candidate Bernie Sanders has a purity of idealism but lacks practical solutions for many of the nation’s challenges.
“Bernie’s always been that way,” Manchin said, citing Sanders’s opposition to Puerto Rico debt legislation and the Toxic Substances Control Act, according to Politico. “He’s sincere as a heart attack. I like him, he’s a good guy, brings a lot to the table, but doesn’t have a lot of answers for the problems that we’re dealing with.”
Sanders on Monday called on Senate Democrats to oppose a bipartisan bill aimed at defusing Puerto Rico’s debt crisis.
“We must stop treating Puerto Rico like a colony and start treating the American citizens of Puerto Rico with the respect and dignity they deserve,” the Vermont senator wrote in a letter.
“[It] would make a terrible situation worse,” Sanders added, citing an oversight board that the legislation would create for the island.
Sanders late last week also panned a compromise chemical safety bill, arguing it does too much to prevent states from regulating dangerous substances.
“While this legislation allows Vermont to continue enforcing existing state regulations to keep adults and children safe from toxic chemicals such as [perfluorooctanoic acid], it makes it more difficult for states to set new, stricter standards,” he said in a statement. "That makes no sense.
“Federal chemical regulations should be a floor, not a ceiling. States should not be stopped from going above and beyond minimum federal safety standards.”
The bill, which still must go through the House and Senate and get President Obama’s signature, gives the Environmental Protection Agency new authority to review and regulate thousands of chemicals, but it also greatly limits states’ ability to put their own chemical rules in place.
Sen. Brian Schatz (D-Hawaii) said attention over Sanders’s White House run would make him an impactful figure on these and other issues.
“He’s grown a movement, and he is the leader of it, although there are others,” he told Politico. "I think his voice is louder and stronger than ever."
http://thehill.com/blogs/ballot-box/presidential-races/281355-dem-senator-sanders-doesnt-have-a-lot-of-answers
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SOCMA Praises House for Passing Chemical Control Reforms
May 26, 2016 | Powder & Bulk Solids
The Society of Chemical Manufacturers and Affiliates (SOCMA) praised the US House of Representatives for passing reforms on the country's primary chemical control law in a statement Tuesday.
The legislation, named the Frank R. Lautenberg Chemical Safety for the 21st Century Act, changes the way that chemicals are regulated under the Toxic Substances Control Act (TSCA). If passed by the Senate and signed into law by the president, the Environmental Protection Agency (EPA) would be mandated to create a process to assess the risk of chemicals currently in commercial use.
"This is a truly historic moment for a major piece of environmental legislation. SOCMA and the specialty chemical companies that we represent have been longtime stakeholders in the TSCA reform debate," said SOCMA's president and CEO, Lawrence D. Sloan, said in a statement. "We applaud the leadership of Congressman Fred Upton (R-MI) and John Shimkus (R-IL) for their overwhelming success in improving the current law, while recognizing the need to protect chemical innovation made by SOCMA's members."
Passed in 1976, the TSCA did not require a review of safety risks posed by some chemicals in use at the time. Under the new act companies will be required to disclose what chemicals they are producing and submit them to EPA risk review. The agency will designate a chemical as either high or low priority for safety assessments and determinations. If the chemical does not meet EPA safety standards, the agency will either ban its use, require that it is phased out, or create restrictions that requires the company alter the chemical so it complies with the standards.
For a more complete description of the proposed changes to the TSCA, read the Environmental Defense Fund's overview of the proposed legislation's contents.
http://www.powderbulksolids.com/news/SOCMA-Praises-House-for-Passing-Chemical-Control-Reforms-05-26-16
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Asbestos, Other Toxic Chemicals Finally Set to be Regulated by EPA
May 26, 2016 | RT
The Environmental Protection Agency will finally be able to regulate asbestos and other known toxic substances for the first time in decades. But environmentalists say the compromise bill doesn’t do enough and limits state regulators.With bipartisan support, the House of Representatives voted 403-12 to pass a bill to update the Toxic Substances Control Act of 1976 for the first time since it was enacted. The Senate is also expected to pass the legislation, Reuters reported, citing leadership aides.
The measure, called the Frank R. Lautenberg Chemical Safety for the 21st Century Act, revises the scope of the EPA’s ability to regulate chemicals “so that they no longer present unreasonable risks of injury to health or environment,” rather than requiring “the EPA to provide adequate protection against those risks using the least burdensome requirements.”
The bill tasks the government with testing chemicals using "sound and credible science," and without evaluating the cost of taking action. If a chemical presents an unreasonable impact on health and the environment, the EPA would then try to manage that risk, while also considering the chemical's benefits and the economic impact of regulation. The agency would then be able to take steps against the substance that range from labeling the product to outright banning it.
"By removing 40-year-old barriers and modernizing procedures, we reduce the risk to consumers. This means the chemicals and products we use every day will be safer for Americans," Speaker of the House Paul Ryan (R-Wisconsin) said.
Minority Whip Steny Hoyer (D-Maryland) noted that the current law has made it difficult for the EPA to regulate “even substances that are known to cause cancer, such as asbestos.”
The 1976 law makes it “almost impossible” for the EPA to function, “in part because it does not require manufacturers to provide safety data before a product hits the market,” the New York Times noted in an Op-Ed urging the bill’s passage.
The Environmental Defense Fund lauded the compromise bill in a statement, calling it a “substantial improvement over current law.” It did note that there are aspects of the legislation it didn’t support that were included to secure its passage, but added: “We are very pleased that we can say that each major section of the final bill offers real improvements.”
“At long last, EPA will have stronger tools to protect Americans from toxic chemicals that impact the health of millions of Americans.”
Some consumer rights advocates and environmentalists say the bill will do more harm than good, though. The biggest sticking point seems to be that the new bill would preempt states from imposing restrictions on chemicals ‒ a concession pushed for by industry.
“When it comes to public health protections, the federal government should set a floor, not a ceiling,” US Public Interest Research Group (PIRG) said in a statement when the bill’s language was released. “By unnecessarily preempting states’ efforts to regulate toxic chemicals, this bill does more harm than good.”
“But there is a reason why the chemical industry supports this bill. It handcuffs state regulators and takes 50 chemical cops off the beat,” US PIRG added. “This proposal could best be characterized as one step forward and two steps back. We can do better, and we urge lawmakers to vote no.”
Professor Rena Steinzor, University of Maryland School of Law, also opposes the legislation, which she says was “made possible by the steely and relentless determination of the US chemical industry.”
“A well-funded, politically empowered EPA that employed the best and the brightest of American scientists might be able to make lemonade out of the lemons scattered throughout this unfortunate legislation,” she wrote in a Huffington Post Op-Ed.“But it’s far more likely that the agency we have today will soon become mired in ‘paralysis-by-analysis’ before it takes action and a flood of litigation after it ‒ only occasionally ‒ acts.”
The bill, which is a compromise of legislation that each chamber of Congress had previously passed, is named after former Senator Frank Lautenberg (D-New Jersey), who died in 2013 at the age of 89. The five-term senator pushed to update the 1976 law because it prevented the US government from regulating asbestos even after it was declared a carcinogen, according to NJ Advance Media.
The Obama administration “strongly supports” the compromise bill, the White House said Monday.
https://www.rt.com/usa/344390-epa-regulate-toxic-chemicals/
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Will Congress’s Chemical Safety Reform Protect Us? It Depends
May 26, 2016 | TIME
By Justin Worland
Chemicals in household products have been manufactured and sold with few checks on their safety for decades in the United States—a system some have described as “innocent until proven guilty.” Manufacturers are allowed to develop and sell potentially dangerous chemicals—the federal government has few resources to stop them.
Now, in a rare bipartisan move in an election year, Congress appears poised to pass the most comprehensive overhaul of federal chemical regulation in more than 40 years. Changes to the Toxic Substances Control Act, known as TSCA, will require the Environmental Protection Agency (EPA) to consent to new chemicals before they are sold on the open market, rather than after the fact. President Obama is expected to sign the measure.
“This is a sweeping legislation…with monumental benefits for virtually every man, woman and child in the United States,” said Congressman John Shimkus, an Illinois Republican, on the House floor before passage of the law in the House. “There is a widespread and understandable concern that no one is well served by the current law.”
The new legislation will require chemical manufacturers to submit new chemicals used in everything from consumer electronics to furniture to the EPA for testing and analysis before the chemicals can be commercially produced. The EPA will then have six months to determine whether a chemical poses a safety risk, needs further study or is unlikely to harm people or the environment.
The legislation also creates provisions to allow the EPA to review the thousands of chemicals already on the market that have not been approved by the federal government. Crucially, the EPA will be able to assess risk without considering the cost of replacements. The EPA will also have the authority to issue rules to manage risks, including labeling and full bans. The process of addressing that backlog of chemicals will take years if not decades, experts say.
The legislation’s bipartisan support—it passed the House of Representatives 403 to 12 and awaits a vote in the Senate, where it is expected to pass—suggests how frustrated business, consumer and environmental groups have grown over the existing law. Environmental and health groups have complained for years that existing federal law lacks the teeth that allow the government to take action against real risks, even as new science has shown that even very low doses of some chemicals can carry unexpected threats to human health. The EPA has only regulated five chemicals under the existing law, and many hazardous chemicals have failed to meet some of the provisions. That includes asbestos, which the EPA has failed to ban despite strong evidence that the chemical contributes to cancer.
Business groups have also complained about the fragmented regulatory scheme the law has created as states have been left to regulate chemicals where the federal government has not. That uncertainty is bad for business—and enough to convince many industry groups to support the new federal legislation.
But a number of health and environmental groups say that the new legislation may ultimately not be an improvement over current law. Much will depend on implementation. The measure does not fully explain how the EPA will fund the work of new regulation, and it simultaneously weakens states’ authority to pass their own, tougher legislation.
In the past, states have stepped in to regulate chemicals in the absence of leadership by the federal government. Lynn Bergeson, managing partner at the environmental law and government affairs firm Bergeson & Campbell, says the new approach could be seen as a “don’t call us, we’ll call you” approach for the states. “States that are mindful of what they need to do to protect their citizens don’t want that,” she says.
Some environmental groups also say the bill does not account for how the EPA can live up to its mandate given constraints on time and money. The agency has said it will begin its review of existing chemicals with a list of 10 priority subjects, with plans to take more on in the future. But in the accounting of the Environmental Working Group (EWG), around a 1,000 chemicals need review, according to Melanie Benesh, an attorney at the environmental advocacy group. Ruling on those chemicals with current resources could take decades, even as new chemicals will be introduced over time.
“The compromise version looks like a house of cards,” says Leonardo Trasande, a New York University professor who studies environmental health. “It has a very strong principles, but the implementation could leave less than the desired outcome.”
http://time.com/4348103/tsca-congress-chemical-reform/
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Congress Votes To Overhaul Nation’s Chemical Safety Law
May 26, 2016 | Houston Public Media
By Andrew Schneider
The House of Representatives has voted to toughen the law underlying the nation’s chemical safety rules. The reform bill passed by a margin of 403-12, with the votes in favor including those of most of Greater Houston’s congressional delegation.
The Toxic Substances Control Act (TSCA) dates back to 1976. Its purpose was to assess the safety of commercially developed chemicals before allowing them onto the market. Environmental groups have long criticized the law as broken, allowing the approval of many chemicals that turned out to threaten the environment or public health.
Congressman Gene Green is a co-sponsor of the House bill to reform TSCA. His district covers eastern Harris County and includes much of the region’s petrochemical industry.
“It provides special circumstances for people who live and are neighbors of these, our chemical plants, and people who work on there,” Green says. “Their special populations will get more attention by EPA. The industry supports it, but alsoEnvironmental Defense Fund, a number of environmental groups support it too.”
But not all environmental groups. Luke Metzger, director of Environment Texas, says the bill is an improvement, but it doesn’t provide anything like the resources the EPA needs to do the job the law requires of it.
“You know in the next twenty years they, EPA says that they need to adequately study about 1,000 chemicals on the market, and to do something like that they would need what we estimate to be about $90 million a year; however, this bill gives the EPA just a fraction of that money,” Metzger says.
Texas Senator John Cornyn says the Senate could vote on the bill as early as tomorrow. Cornyn co-sponsored an earlier version of the bill the Senate passed in December.
https://www.houstonpublicmedia.org/articles/news/2016/05/25/153991/congress-votes-to-overhaul-nations-chemical-safety-law/
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Udall on Passage of Chemical Safety Reform
May 26, 2016 | LA Daily Post
By Chris Clark
U.S. Sen. Tom Udall welcomed passage in the U.S. House of Representatives by an overwhelming vote of 403-12 of landmark reform of the nation's broken chemical safety law, the Toxic Substances Control Act of 1976 (TSCA).
Udall authored the reform bill, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, with Senator David Vitter (R-La.) to finally enable the Environmental Protection Agency (EPA) to regulate the thousands of chemicals manufactured each year and used in common household items ― including known carcinogens and highly toxic substances, like formaldehyde, asbestos, lead, flame retardants and BPA.
The Senate is expected to vote later this week, and the White House has indicated that the president will sign the bill. Udall issued the following statement:
"TSCA was intended to protect Americans from dangerous chemicals, but it has been broken from the very beginning. We’re exposed to hundreds of chemicals in our daily lives in countless ways ― from flame retardants in the dust from your sofas to formaldehyde in non-iron shirts, and from the non-stick coating on your frying pans to volatile organic compounds given off from laser printers. Some of these chemicals are known to cause cancer or serious health problems, yet there has never been a cop on the beat keeping us safe.
"The House vote today is a major milestone that has taken years of negotiation and collaboration across both parties and both houses of Congress. We aren't done yet -- the Senate still needs to pass this bill. But we are steps away from finally having a working chemical safety law that protects our children and our communities from dangerous chemicals."
http://www.ladailypost.com/content/udall-passage-chemical-safety-reform
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US Osha to Hold Public Meeting on GHS Proposals
May 26, 2016 | Chemical Watch
The US Occupational Safety and Health Administration (Osha) will convene a public meeting on 14 June in Washington, DC to discuss proposals for the 31st session of the United Nations Sub-Committee of Experts on the Globally Harmonized System of classification and labelling of chemicals (UNSCEGHS).
The agency, with the US Interagency GHS coordinating group, will use comments and information it receives to help develop the US government's position at the UNSCEGHS session. This will be held between 5 and 8 July in Geneva.
Members of the Regulatory Cooperation Council (RCC) will be present to provide an update on the status of Canada’s GHS policies and procedures, according to a notice in the Federal Register.
https://chemicalwatch.com/47681/us-osha-to-hold-public-meeting-on-ghs-proposals
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Corporate Chemical Policies Focus on Products Over Supply Chains
May 26, 2016 | Chemical Watch
By Leigh Stringer
In the first annual review of the Chemical Footprint Project (CFP), results show that company chemical policies largely focus on chemicals in products rather than in manufacturing, supply chains or packaging.
The report, released last week by CFP founders – NGO Clean Production Action (CPA), Lowell Centre for Sustainable Production and consultant Pure Strategies – found that almost 90% of the companies that participated in the first year pilot project have a policy to avoid chemicals of high concern in products, but only 54% of the policies address them in supply chains.
It also found that, of the 24 participating companies, 67% of policies address a preference for safer alternatives in products, while 42% favour these in supply chains.
CPA executive director, Mark Rossi, told Chemical Watch that the participants were all downstream users, selling finished/formulated products directly to consumers or businesses. Because of this, he said, chemicals in products (CiP) is where they have both the greatest potential liabilities and the greatest control over decision making.
"I’m surprised to see supply chain engagement lagging so far behind CiP. This is an indicator of how challenging it is to engage the supply chain on chemicals as well as the corporate priorities on CiP," he added.
Another key finding is that the 29% of companies that have board level oversight of chemicals management performed “better overall than firms with no such accountability”.
The review took place last year. The group of companies, from seven sectors, including technology, healthcare equipment, apparel, and household and personal care products, were asked 20 questions, covering four areas of chemicals management:
management strategy – the policies and strategies companies put into place to manage chemicals;
chemical inventory – the information companies collect on chemicals in products and supply chains;
footprint measurement – the baseline data companies have on chemicals of high concern; and
disclosure and verification – the sharing of information on chemicals in products with the public, disclosure of participation in the CFP, and steps taken to verify responses to the CFP survey.
They were then scored out of 100 on their responses. Scores ranged from 12 points to 89 points, with an average score of 41:
“The wide range in scores reflects the new reporting standard set by the Chemical Footprint Project, the diversity of corporate chemical management programmes, along with the variety of participating companies in terms of size, sector and business strategy,” the report says.
The survey will be carried out annually. The CPA is revising its questions based on feedback from the 2015 respondents. It will then open the survey for participation in July, providing companies with a four-month window to complete it.
https://chemicalwatch.com/47610/corporate-chemical-policies-focus-on-products-over-supply-chains
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Minn. Debate on Cap-and-Trade Design Previews Fights to Come
May 26, 2016 | E&E Climatewire
By Emily Holden
Minnesota power companies and environmental advocates are already split over how the state might divide up valuable carbon allowances under U.S. EPA's Clean Power Plan.
Despite a Supreme Court stay on the rule, the Minnesota Pollution Control Agency is still working through decisions the state would have to make in order to reach required carbon reductions.
In doing so, they explored a touchy subject this week: whether they would auction carbon allowances if the state caps emissions.
Utilities say they should receive allowances for free, based on their historical share of power generation or emissions. They argue charging companies for allowances will only raise customer bills.
Environmental advocates say free allowances would mean a windfall profit for companies that exceed their goals and get extra allowances to sell. They want the state to use revenues to lower customer bills, fund clean energy or assist coal industry workers who may lose their jobs.
Although Minnesota overall is well-positioned to comply with the regulation, the early talks foreshadow future unrest. If the Clean Power Plan survives legal challenges, states around the country could face the same questions, which could quickly become heated political debates.
Nicholas Martin, manager of environmental policy at Xcel Energy Inc., said at an agency meeting Tuesday that auctions would "dramatically increase costs passed along to customers." Martin said he was confident that through regulation by the Public Utilities Commission or municipal power or cooperative boards, companies would be required to return any allowance value to customers.
Margaret Hodnik, vice president of regulatory and legislative affairs at Minnesota Power, said utilities have invested in the power system with customers' money and with regulatory approval.
"We can't just do whatever we want with that value and give it to other people," she said.
Hodnik noted that her company will not be in a position to shut down all its coal power for decades.
"We need baseload power that runs 24 hours a day, seven days a week. That isn't available. Storage isn't available. Renewable energy and natural gas can't serve the kind of load we have on our system," she said, adding that's why having enough allowances to keep some coal online will be key.
But Leigh Currie, a staff attorney at the Minnesota Center for Environmental Advocacy, said it makes "more intuitive sense" that companies should have to purchase the right to pollute.
Environmental groups also argued the state should use an updated output approach, to change how allowances are divided as the industry shifts away from coal power and toward renewable energy.
Incentivizing coal plant shutdowns
Power companies also say it's important that they continue to receive allowances after coal plants retire, so they don't face market disincentives for shutting them down. Missouri companies and advocates clashed over that issue at meetings earlier this year (ClimateWire, Feb. 5).
Frank Kohlasch, manager of the Pollution Control Agency's air assessment section, said environmental groups understand the need to incentivize closures, but various interests in the state have not reached a consensus for how long companies should keep getting allowances.
That decision also depends on what other potential trading-partner states are thinking, Kohlasch said. If one state grants allowances for retired units in perpetuity and another limits them to a certain number of years, there would be "more opportunity for market distortions," he said.
Minnesota has continued talks with officials in North Dakota and South Dakota, but not as frequently as before the stay, Kohlasch said. Both the neighboring states have suspended their official Clean Power Plan work, but the less frequent communications aren't really hurting Minnesota's planning, he said.
Kohlasch said his agency tries to reach out to the states on a regular basis and talk with them at regional meetings. At a meeting of the Lignite Energy Council in Bismarck last month, he met with the North Dakota Department of Health's air director.
"While we disagreed on the legality and basis and regulatory need of the Clean Power Plan, we agreed that it's reflective of where the market is going and that doing this in a cost-effective manner helps both states because North Dakota does produce a lot of electricity for Minnesota," Kohlasch said.
Protecting at-risk customers
In the meeting Tuesday, utilities stressed that the state shouldn't remove too many allowances from the pot to incentivize special programs. They said that might raise overall costs for consumers by leaving fewer allowances to divide among power companies.
Great River Energy's environmental project leader, Mark Strohfus, argued that set-asides distort the market.
Both utilities and clean air advocates said they want to pay special attention to how energy-intensive industrial customers and low-income residents might fare under the Clean Power Plan.
Kohlasch said his agency is looking at how states with existing cap-and-trade programs have protected specific users from potential price increases.
The agency plans to hold a meeting soon on how trading might work if the state aims for an average rate of emissions in the power sector. Minnesota has seen some modeling that shows the state might fare well under a rate-based, rather than mass-based, trading system. But costs would depend on which states Minnesota was trading with and how many allowances those states' companies needed to buy or sell, Kohlasch said.
Data have shown Minnesota is well-off, and faces similar costs, under either kind of plan, Kohlasch said.
In picking a strategy, the state also must consider how it might maintain lower carbon emissions levels in the 2030s, when nuclear plant licenses are due to expire. Not all of the replacement power could come from zero-carbon sources, Kohlasch said.
http://www.eenews.net/climatewire/2016/05/26/stories/1060037894
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BLM Overstepped With Fracking Rule -- Critics
May 26, 2016 | E&E Energywire
By Ellen M. Gilmer
Critics of the Obama administration's hydraulic fracturing rule are pushing back on the government's efforts to advance the hamstrung regulations.
Several states, industry groups and an American Indian tribe yesterday urged a federal appellate court to keep the rule from taking effect while another court considers its legality.
The fracking rule -- which sets new requirements for well construction, wastewater management and chemical disclosure for fracking on public and tribal lands -- was the administration's biggest effort to address the impacts of the nation's fracking boom, but it's been tied up in litigation since it was released in March 2015.
The U.S. District Court for the District of Wyoming, which is weighing whether the rule is legal, froze the rule last fall. The Obama administration and environmentalists appealed that preliminary injunction to the 10th U.S. Circuit Court of Appeals. The appeal centers on the high-stakes question of whether the Bureau of Land Management has any authority over fracking.
In a brief to the 10th Circuit yesterday, a group of Western states spelled out the logic that was so persuasive to the lower court when it granted the injunction: Congress used the Safe Drinking Water Act to delegate authority over fracking to U.S. EPA and subsequently used the Energy Policy Act of 2005 to revoke that power and leave it in the hands of the states.
"In doing so, Congress decided instead to leave regulation of hydraulic fracturing in the capable hands of the states," attorneys for Wyoming, Colorado and Utah argued. "Since that time, states have been regulating the practice effectively, continuing to improve and adapt their local rules to address the unique characteristics within their states."
BLM has countered that the Mineral Leasing Act, the Federal Land Policy and Management Act and other statutes give it broad authority over all activities that affect public and tribal lands.
"In those statutes, Congress expressly delegated BLM broad authority to regulate oil and gas operations on federal and Indian lands, and hydraulic fracturing is one such operation," the lawyers told the court in March, noting that the agency has regulated oil and gas development for decades (EnergyWire, March 22).
But opponents of the rule have challenged the breadth of that power, arguing that the stated purposes of the laws provide for a limited scope of regulation.
They argue that the purpose of the 1920 Mineral Leasing Act, for example, was to encourage orderly development of oil and gas and to ensure that none was wasted. The only mention of water resources in the MLA refers to protecting oil wells from disruptive water floods, they say.
"Thus, the MLA unambiguously directs BLM to protect oil and gas resources from the intrusion of water, not the other way around," the states argue. "Nearly 100 years after Congress enacted the MLA, BLM cannot invert this straightforward statement of law by citing to decades-old regulations with ambiguous provisions about preventing damage to water-bearing formations."
North Dakota, which is also challenging the rule, filed its own brief at the 10th Circuit yesterday, adding that the rule should remain enjoined because it will have particularly harsh effects on the state, which has many "split estates" where BLM owns oil and gas rights beneath farms.
Industry and tribal arguments
Industry groups and an American Indian tribe challenging the rule raised additional arguments for keeping the preliminary injunction in place.
According to the Western Energy Alliance and Independent Petroleum Association of America, the district court was correct in concluding that the challengers were likely to prevail in the case -- on many grounds.
While the court's decision centered on BLM's authority to regulate fracking, the industry groups note that it also came down on the agency on administrative grounds, finding a flawed rulemaking process.
"The question this appeal presents is not whether the rule BLM issued represents sound policy, but whether BLM complied with the [Administrative Procedure Act] in issuing the rule," the groups argued. "The district court correctly concluded that BLM did not."
The lone tribe suing over the rule, meanwhile, told the court it would be inappropriate to ever let the fracking rule take effect because the rule inappropriately equates tribal lands with public lands.
"It is one thing for BLM to adopt the Fracking Rule for its own lands, where it has the powers of both a government and the land owner," lawyers for the Ute Indian Tribe of the Uintah and Ouray Reservation said in a brief, "but it is something far different to paternalistically impose that exact same Rule against tribal lands, where BLM does not have the beneficial ownership, where Congress excluded BLM from rulemaking, and where the Tribe has both governmental power and beneficial ownership."
http://www.eenews.net/energywire/2016/05/26/stories/1060037919
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Critics Say Court Order Shows ESPS Is Unprecedented, Merits Close Scrutiny
May 26, 2016 | Inside EPA
By Lee Logan
Top opponents of EPA's greenhouse gas rule for existing power plants say that an appellate court's rare move to hear consolidated litigation by the full en banc court, rather than a three-judge panel, underscores their argument that the rule is “unprecedented” and thus should be subject to stricter court scrutiny.
“I think it demonstrates the judges know this is an absolutely unprecedented action by the EPA,” West Virginia Attorney General Patrick Morrisey (R) said during a May 23 event at the National Press Club in Washington, D.C.
Speaking at the same event, industry attorney Jeff Holmstead of the firm Bracewell said that the U.S. Court of Appeals for the District of Columbia Circuit's decision in West Virginia, et al. v. EPA, et al., also could undercut EPA's chief legal defense.
“If you look at EPA's brief, much of their argument is, 'This is just another EPA regulation. This is what we do. We interpret the statute. This is just another EPA rule. Courts, you should defer to us,'” he said. “I think that argument has essentially been rejected because the court has said, 'We know this is extraordinary.'”
Holmstead, who is representing a group of coal sector interests challenging the rule in West Virginia, said the significance of the case was initially underscored by the Supreme Court's unprecedented stay of the rule in February, “and you now have unprecedented [move] with the full D.C. Circuit stepping in and saying, 'We want to hear this case as a full court.'”
Instead of the court simply deferring to EPA on interpretations of ambiguous statutes -- which courts often do under the high court's Chevron precedent -- Holmstead predicted that EPA's lawyers “are going to have to get into the merits” of challengers' claims, “and we think that's good for us.”
Holmstead and Morrisey were referring to one of the criteria used by appellate courts to decide to hear a case en banc -- that the suit raises issues of exceptional national importance.
Before the en banc order was issued May 16, attorneys supporting the agency in the suit argued that the existing source performance standards (ESPS) is not an extraordinary rule.
The ESPS is “not the first environmental case where there has been a real effort to allege what EPA is doing is really extraordinary,” said Kevin Poloncarz of Paul Hastings LLP, who is representing power companies covering 10 percent of domestic power generation that are intervening on EPA's behalf.
He also sought to highlight the significance of the utility intervenors while noting that the ESPS simply follows the sector's emission trends. The rule's GHG reduction requirements are “a pretty straight line. . . . It is not radical.”
Instead, the ESPS is "a conventional air pollution control" rule on a big industry that has long been regulated, he said.
Industry Trends
At the Press Club event, Morrisey, who is leading a coalition of 29 states and state agencies challenging the rule, sought to downplay existing market forces that are battering the coal sector. He arguing that the ESPS -- and even the “threat” of the rule -- contributed to generators' decisions to shift away from high-emitting coal.
“The market moves merely because of the threat of the proposed rule,” he said. “I think you saw that in a number of states across the country. . . . While I don't anticipate that coal will come back to its previous highest levels, I do think there is an opportunity for some form of comeback.”
Morrisey added that the ESPS represents a “regulatory overhang” on the sector, though he added that historically low natural gas prices have also had an impact on the fuel's use to produce electricity.
However, energy analyst Christine Tezak of the firm ClearView Energy Partners told the same briefing that “a carbon-limited energy environment is an increasingly likely reality,” regardless of whether one accepts the mainstream scientific consensus that GHGs cause global warming. “The questions is, how far do politicians want to go?”
She added that the results of November's presidential election will have a major bearing on that question, both in terms of the potential to nominate a Supreme Court justice that might consider West Virginia, but also in terms of how EPA might implement the ESPS if it survives, as well as other climate policies.
“It's certainly going to matter intensely where we go from here,” she said, adding that it is a choice between “continuity” if likely Democratic nominee Hillary Clinton succeeds President Obama, or “disruption” if presumptive GOP nominee Donald Trump wins.
Without mentioning Trump by name, Holmstead argued it would be “quite simple” for a new administration opposed to the ESPS to roll it back.
He said that the agency in that circumstance would have to publish a notice in the Federal Register outlining its reasons for repealing the rule, take comment on that notice, and then respond to the comments in a final notice.
“There are certain regulations that are very difficult for a new administration to change or undo, for legal reasons and for practical reasons,” he said. “This is not one of those regulations.”
He added that the decision is affected by the “obligation” on EPA to craft a rule, “and what the timing of that obligation is.” In the case of the ESPS, the agency relies on section 111(d) of the Clean Air Act, which requires it to craft rules for existing sources in a sector if new sources would be regulated by the same pollutant -- however the law does not set a deadline for the agency to act.
While he acknowledged there would be “political issues” with taking that step, “just as a matter of administrative law, it would be relatively simple.”
Holmstead added that a Republican administration could also decide not to defend the rule, if, for example, EPA were to lose at the D.C. Circuit but the case was not yet before the Supreme Court.
He noted that a similar dynamic arose in the Bush administration's Clean Air Mercury Rule, in which the D.C. Circuit rejected the rule, and the Obama administration later took office and decided not to defend it.
Top EPA officials, however, have rejected charges that the rule will be easy to repeal -- on the assumption it is upheld by the Supreme Court. Administrator Gina McCarthy, for example, has said that rolling back the rule will be a “heavy lift.”
The rule is “a pretty solid obligation,” and it's “quite a significant hurdle for [a future administration] to reverse this,”she said shortly after the final version of the rule was released last year.
http://insideepa.com/daily-news/critics-say-court-order-shows-esps-unprecedented-merits-close-scrutiny
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Industries Fault CWA Permitting Requirements In EPA Cooling Water Rule
May 26, 2016 | Inside EPA
By David LaRoss
Groups representing non-energy industries including chemical manufacturers and boiler owners are urging a federal appeals court to scrap mandates in EPA's cooling water intake structure rule that, they say, require facilities to seek CWA permits even if they are exempted from the rule's technical requirements or take in little or no water for cooling.
The Cooling Water Intake Structure Coalition (CWISC), representing the various sectors, filed a May 20 brief with the U.S. Court of Appeals for the 2nd Circuit targeting provisions in EPA's 2014 rule that apply to structures that take in less than 2 million gallons per day (mgd) of water or use only a small portion of their inflow for cooling -- both categories that it says the agency pledged to exempt from all the regulation's requirements.
“In the preamble to the Final Rule, EPA states over and over that only facilities that have Design Intake Flow greater than 2 mgd and also use 25 percent or more of intake water for cooling 'are subject to today’s final regulations.' . . . The language of the Final Rule is not consistent with those assertions, however,” says the brief.
The CWA rule, issued under section 316(b) of the water law, seeks to limit fish mortality and other harms from cooling water intake systems at existing power plants and other facilities by mandating the use of technological safeguards against fish from being trapped, or entrained, while taking in water.
The mandates are set out in CWA National Pollution Discharge Elimination System (NPDES) permit terms that each facility subject to the rule must obtain.
Together with energy groups that are also suing over the rule in the 2nd Circuit, CWISC is arguing that the rule's Endangered Species Act provisions are unlawful and should be overturned. But the non-energy groups' separate May 20 brief specifically targets portions that it fears will apply to facilities other than utilities.
The brief says that the rule's plain text seems to require that facilities below EPA's stated thresholds for the technology mandate apply for permits under section 316(b) regardless, rendering the rule self-contradictory and undercutting the agency's analysis of its costs.
'Extensive Requirements'
“[T]he Final Rule imposes extensive requirements for collection and submission of information in NPDES permit applications for any facility that withdraws any water for cooling purposes, including facilities that fall below those thresholds,” the brief says.
Even if those permit applications do not lead to new substantive requirements for facilities, CWISC argues that compiling the necessary information will be burdensome and EPA never assessed the costs involved.
“Perhaps not surprisingly, given how EPA described the Final Rule, EPA did not attempt to estimate the cost for these below-threshold facilities to comply with the final rule, nor determine the economic impact of those costs or compare that impact to any perceived benefit of this regulation,” it says.
CWISC is also claiming that the rule is “arbitrary and capricious” under the Administrative Procedure Act because facilities must meet the rule's technology standards for all intakes if the facility overall takes in at least 2 mgd of water and uses at least 25 percent of that for cooling, even if a particular intake falls far short of those figures.
“[T]he Final Rule imposes standards on each intake structure, no matter how low the flow and no matter how low the portion used for cooling. . . . EPA certainly has not given any clear and consistent explanation of the applicability of the Final Rule, nor justified why its approach is a reasonable application of section 316(b)’s directive” to regulate cooling water intakes specifically, the coalition says.
The coalition asks the 2nd Circuit to vacate and remand to EPA the permit provisions as applied to below-threshold facilities and all requirements for intakes where “only a small portion of the water withdrawn, if any, is used exclusively for cooling purposes.”
http://insideepa.com/daily-news/industries-fault-cwa-permitting-requirements-epa-cooling-water-rule
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Federal Agency Contradicts EPA on Contamination in Dimock
May 26, 2016 | E&E Energywire
By Mike Soraghan
When U.S. EPA ended its investigation of drilling and drinking water contamination in Dimock, Pa., the agency said the water was safe to drink.
Now, another federal agency looking at the same data says it wasn't safe.
"Some chemicals, including methane, found in private water wells are of health and safety concern in the Dimock area," said Robert Helverson, an environmental health scientist at the Agency for Toxic Substances and Disease Registry (ATSDR).
ATSDR issued a health consultation report Tuesday recommending that people in Dimock "take steps to reduce health risks" caused by the water in their wells.
The agency reviewed the data EPA collected from 64 homes in Dimock in 2012. But it didn't look at whether the problem chemicals resulted from oil and gas drilling, staying out of the fight about blame.
Still, the findings are likely to rekindle the politically charged debate over what contamination in Dimock's water says about the safety of shale drilling. That's especially true because Cabot Oil & Gas Corp., the accused company, recently lost a $4.2 million verdict to two Dimock families. The company is challenging the verdict (EnergyWire, April 27).
Cabot responded to the new report by stressing its contention that the methane and other substances in the water are naturally occurring.
Company spokesman George Stark said the data "does not indicate that those contaminants detected have any relationship to oil and gas development in Dimock."
But state regulators stressed that they still are not allowing Cabot to drill in a 9-square-mile zone in the Dimock area.
"The impacts identified by the ATSDR report further underscore the need to ensure that the natural gas industry is properly regulated," said Neil Shader, spokesman for the Pennsylvania Department of Environmental Protection.
EPA, whose actions in Dimock have been heavily scrutinized and criticized, referred questions to ATSDR, where officials said they couldn't provide answers yesterday. In a statement, EPA noted that it had the same information as ATSDR. But it didn't explain why the agencies offered such different messages to the people in Dimock.
To environmentalists, though, the message was clear.
"The report confirms what residents of Dimock have known for years -- their water is dirty and unsafe," said Dan Raichel of the Natural Resources Defense Council's Community Fracking Defense Project.
First mover in contamination
Dimock, about 150 miles north of Philadelphia, was at the forefront of a wave of drilling for shale gas that was powered by advances in horizontal drilling and hydraulic fracturing. Regulators never blamed fracturing, or "fracking," itself for the contamination. Instead, the allegation was that poor well construction had caused contamination.
Drilling began in the area in 2008. In the months that followed, people living in the area began to complain about problems with their water. In a few cases, the gas blew up water wells.
The water problems led to Dimock taking a starring role in the anti-drilling documentary "Gasland" as the prime example of gas production gone bad.
State officials blamed Cabot, saying shoddy drilling practices contaminated 18 properties. DEP shut down Cabot wells in the area for more than two years, fined the company and eventually negotiated a $4.1 million settlement. The state also ordered Cabot to deliver water to affected residents for more than two years.
In October 2011, state regulators working for a new governor said Cabot could stop delivering water. The residents protested, and environmentalists pressured EPA to get involved. In early 2012, EPA agreed to investigate.
Ahead of its entry into Dimock, EPA asked ATSDR to do a preliminary screening of water quality data. ATSDR, a public health agency that is part of the Department of Health and Human Services, recommended that people in Dimock not use their well water until the agency had done a more complete assessment.
The report released Tuesday was that more complete assessment.
But EPA ended its 2012 investigation in Dimock after a few months with a different, though carefully worded, message for people in Dimock.
EPA Regional Administrator Shawn Garvin said the agency's testing "did not indicate levels of contaminants that would give EPA reason to take further action."
A broader search
EPA stuck to looking for contamination from drilling chemicals such as fracking fluid and dropped the idea of looking for the cause of high methane levels.
It was one of three cases that year in which EPA scaled back or retreated from investigations into pollution from drilling and came as the Obama administration was showing support for domestic natural gas development. The other two retreats were in Parker County, Texas, and Pavillion, Wyo.
EPA acknowledged health concerns about some of the water wells but said they could be resolved with water treatment. And the headlines declared Dimock water "safe."
ATSDR's report this week would broadly seem to contradict that sentiment.
The report says drinking water at 13 of the homes may lead to an increased lifetime risk of cancer because of arsenic. It lists various degrees of concern about cadmium, lead and lithium, particularly for vulnerable populations such as young children. Five homes faced an immediate risk of fire or explosion from methane.
The different findings reflect two different aspects of such water controversies that often get confused amid the spin and fingerpointing. There's the question of whether the water is contaminated. Then there's the question of why it's contaminated.
EPA's investigation would have looked at who was to blame for any contamination. ATSDR did not.
"It's not their job to look at who caused whatever contamination there is," said Bryce Payne, a Pennsylvania environmental scientist who has studied aspects of the Dimock case. "It's their job to see if there are health implications. They did that and concluded there are health implications."
But the agency stressed that its findings have limitations. For starters, the report looks at 4-year-old data and not at the situation in Dimock right now.
To Payne, that's a problem.
"It's now four years later," Payne said. "Nobody is looking at this."
http://www.eenews.net/energywire/2016/05/26/stories/1060037920
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Ruptured Water Main Swamped Petroleum Reserve
May 26, 2016 | E&E Greenwire
By Hannah Northey
A U.S. strategic crude stockpile in Southeast Texas was off limits for five weeks after a corroded saltwater pipeline ruptured in early April.
The April 11 accident at the Big Hill Strategic Petroleum Reserve blasted a briny geyser of Gulf of Mexico water that swamped a swath of the 275-acre property, as shown in surveillance video obtained by Greenwire.
None of Big Hill's 160 million barrels of oil spilled, according to the Department of Energy. The spilled water, DOE said, was contained, tested and found to be within pollution-permit limits before being released into the drainage system.
The department insists it could have cut the five-week repair time in half if there were an emergency requiring a withdrawal from the Strategic Petroleum Reserve, or SPR, a crude storehouse created in the wake of the 1970s Arab oil embargo. The "Fort Knox of black gold" comprises four reserves in Texas and Louisiana near major refineries. The SPR is intended to support the oil industry if international unrest or a catastrophe blocks crude supplies.
But the rupture of the 30-year-old pipeline highlights bipartisan warnings from Capitol Hill about decaying infrastructure that supports the national oil bank. Senate Energy and Natural Resources Chairwoman Lisa Murkowski vowed in an interview yesterday to press DOE for answers after seeing the video of the SPR geyser.The nation's strategic petroleum reserve
"Wow!" the Alaska Republican said. "This is why the SPR modernization is really important. Geez!"
DOE said Big Hill workers were testing pressure valves along the waterline when it ruptured. The 5.42-mile line links a water-intake structure in the Intracoastal Waterway to high-powered pumps that can force oil from underground salt domes -- mushroom-shaped caverns 4,000 feet below ground.
William "Hoot" Gibson, a manager at the SPR Project Management Office in New Orleans, said earlier tests had picked up signs up corrosion, so steps were taken to ease pipeline pressure. But there were no external signs the line was about to rupture, he said.
A full report from contractors is expected this summer on what went wrong, whether the pipeline break could have been avoided and how to improve corrosion detection, Gibson said. That report, he said, could also help DOE prioritize which upgrades are most critical going forward.
"I think it's like a lot of aging infrastructure in the United States," he said in an interview. "Eventually, you have to make commitments to make certain repairs. In the meantime, we've been making repairs as necessary to make sure we can draw down, and we'll continue to do so as we move into life extension."
Critics of the SPR system said the Big Hill accident offers proof the aging network is too creaky and expensive to properly maintain.
Fred Beach, assistant director for energy policy at the University of Texas, Austin's Energy Institute, has argued the SPR cannot be deployed fast enough to respond to emergencies, whereas the private market would react instantaneously.
What's more, Beach said the pipeline rupture at Big Hill highlights the need to maintain the 1980s facility at the tune of $200 million a year.
But on the other hand, he said, it's not easy to scrap the behemoth SPR.
"It's always hard to argue getting rid of something you already have. It's like getting rid of that piece of junk up in your attic," he said. "Maybe Big Hill is a good example. Don't fix, just repair it enough to drain the darn thing and decommission it."
$800M fix?
The Obama administration hasn't been shy about asking for funding to upgrade the SPR.
Energy Secretary Ernest Moniz told a Senate panel last year that while the site is the "nation's most central energy security asset," it's in need of a significant life extension, and yet the sprawling reserves continuously face deferred routine maintenance.
The system, Moniz noted, was last updated in the 1990s. But much of the infrastructure is nearing the end of its design life, he said.
"Already two caverns have been taken offline and removed from service due to operational issues," Moniz told lawmakers.
In an interview, a DOE official said it could cost hundreds of millions of dollars to upgrade all four SPR sites. The final number, however, hinges on final congressional approval to begin the drawdown and sale of the oil from the SPR.
"In keeping with the theme [of] the with SPR modernization, one of the projects [that comprises SPR modernization] is our life extension project," said Robert Corbin, deputy assistant secretary for the Office of Petroleum Reserves in DOE's Office of Fossil Energy. "We are anticipating a total project cost of around $800 million to perform work at all four of our storage sites to basically upgrade [aging infrastructure through the replacement of equipment in major systems]: the raw water system, the crude oil system, firefighting system, power distribution, distributive control system, brine disposal systems."
Murkowski said last month she was keen on seeing a DOE review detailing long-term needs and priorities for modernizing the SPR network before signing off on the White House's pending request to sell up to $375 million of crude in fiscal 2017 to finance an upgrade for the aging stockpile (Greenwire, April 8).
DOE officials say the pipeline that broke at Big Hill would have been replaced as part of an infrastructure life-extension program. If there was no life extension project, such fixes would be considered major maintenance projects and prioritized for completion based on funding availability, DOE said.
The department says it has made regular repairs at Big Hill. Different areas of the water pipeline are scheduled for ultra-sonic testing to find corrosion. DOE officials said they occasionally find corrosion in SPR oil pipelines with scanning devices; those pipes, they say, are monitored and repaired in accordance with the Department of Transportation regulations and associated engineering codes.
L.S. Womack Inc., a DOE subcontractor, repaired the broken Big Hill waterline in 10-hour shifts, acquiring fittings, welding and testing the line before putting it back in service for a cost of $1.7 million, said Gibson, the DOE project manager.
The subcontractor could have been asked to work around the clock, but DOE chose to avoid overtime costs given there was no immediate need to draw down the oil. What's more, the pipeline wasn't carrying oil, and the water that spilled was quickly contained, tested and released into the site's drainage system, according to DOE.
"It could've been done in half the time if we had worked him 24 hours a day," Gibson said.
http://www.eenews.net/greenwire/2016/05/26/stories/1060037947
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Before a Fire Under the Tracks in East Harlem, a Business Took Root
May 26, 2016 | The New York Times
By Emily S. Rueb
It hardly seemed like a place where a four-alarm fire would snarl a vital railroad and delay tens of thousands of commuters in the country’s biggest city.
In East Harlem, the Urban Garden Center, located under the Metro-North tracks at 116th Street and Park Avenue, was known as a place to pick up a cup of soil for bromeliads or get a weekly community-supported agriculture delivery, where children from the city could get their fingers and shoes dirty building terrariums or visit the clucking chickens. But that changed suddenly on May 17, when workers reportedly poured gasoline into a hot generator in a storage lot filled with bags of fertilizer and wood pallets, among other things, which ignited like a giant pile of kindling.
In the wake of the fire, Thomas F. Prendergast, the chairman of theMetropolitan Transportation Authority, demanded an investigation. “Should we have material like that stored under such a vital, critical piece of infrastructure?” he said. “That’s a question that needs to be asked and answered.”
New York and the transit authority said they would each be scouring the city for other places where hazardous materials might be stored near train tracks or viaducts. The Fire Department, which is conducting an investigation of the cause of the blaze, issued four summonses to the garden center over the storage of gas and propane.
Dimitri Gatanas, who runs the center with his family, said that for the six years they had been operating on 116th Street — under a lease with the city’s Economic Development Corporation — he had often found it hard to get the attention of government officials.
Now, “everybody is looking for a scapegoat here, and they’ve got me at the cross hairs,” Mr. Gatanas said, speaking on behalf of the family for the first time since the fire.
“The Urban Garden Center didn’t just crawl under the tracks here and weasel their way into a space that wasn’t theirs,” he said. “This was a vetted arrangement here. It wasn’t like we just pulled up, unloaded our truck and started a business.”Continue reading the main story
Around 2009, the Economic Development Corporation was seeking tenants and proposals to revitalize La Marqueta, a struggling enclosed marketplacethat once housed 500 stalls, mostly owned by local Puerto Rican businesspeople. Hot Bread Kitchen, a nonprofit group that helps poor people, immigrants and minorities build culinary careers, signed on as an anchor tenant and planned to install a large professional kitchen as part of its incubator program.
The Gatanas family has operated plant businesses around the city since the 1950s, when Mr. Gatanas’s grandfather, Dimitri Gravanis, an immigrant from Greece, opened a shop at 89th Street and Madison Avenue. When the development corporation put out its request for proposals, Mr. Gatanas was running a struggling garden center in the Bronx. When he heard that a space in Manhattan might be available, he “saw a glimmer of light.”
Mr. Gatanas submitted a proposal for the two lots adjacent to the market, which he said had been orphaned for decades, except, perhaps, for the film crews that shot “Carlito’s Way” there. The area lacked light, running water and electricity. One of the lots was on a hill. And it was exposed to the continual 110-decibel rumble of speeding trains.
“I saw asphalt, stanchions, and I thought, ‘What a great place for a garden center,’” Mr. Gatanas said.
The Gatanas family signed a five-year lease with the city for the two plots in 2010, with a five-year extension.
Mr. Gatanas said it took about a year to get a mailing address, which was critical not only for setting up simple things like an Amazon account, but also for banking transactions. His packages are still misdirected sometimes, he said.
The hulking metal viaduct casts a long shadow above Park Avenue and the neighborhood.
When a piece of stone fell while workers drilled on the tracks above, without scaffolding, Mr. Gatanas said, it took him two hours to figure out whom to contact to stop the job. Only two years ago, the garden center’s main lot and greenhouse were buried in bricks and the front door of the building across the street after a gas explosion killed eight people.
Matthew Washington, the deputy Manhattan borough president, was the chairman of Community Board 11 when the Urban Garden Center opened.
Some residents may have wished that the storage lot “was a bit more organized,” he said, but “there was a hope and desire from the community that it would be a more active space.”
And the Urban Garden Center accomplished that, he said, by hiring local workers and involving the community in chicken-naming contests and school tours.
As the center expanded, the storage lot across the street filled with mulch and multiple varieties of soil. People donated tools and machinery in various states of working order. There were old vehicles and two trailers, one of which was used as an office, and another filled with, among other things, Mr. Gatanas’s collection of gardening books.
Mr. Gatanas said the space had become unwieldy because of “poor planning.” But many of the items were part of his unofficial recycling program, including piles of broken pallets that were remade into window boxes.
And the garden center is hardly alone in using the space under the tracks as storage. A few blocks south at 111th and Park Avenue, unmarked shipping containers and wooden pallets sit behind a barbed-wire fence covered in black netting.
On Monday night, Mr. Gatanas was using the Italian restaurant across the street as a temporary office. A stack of bills and letters, some with blackened edges, sat on the table. His mother and father, Nicholas, 77, and Aspasia, 63, who also work for the business, eventually filled the seats. Mrs. Gatanas has been fielding dozens of calls from concerned customers, and residents who know her face or see the logo on her apron have hugged her on the street.
“As a family, we’re embarrassed and disappointed about what’s happened here,” Mr. Gatanas said. “We feel bad about the businesses that closed that evening because of our mistake. And that a family had to be evacuated from the fourth-floor building nearby.”
Mr. Gatanas said they had, at times, fallen behind on the rent, which he said was about $4,500 a month. The city has initiated eviction proceedings before, but each time, the family and the development corporation have worked out a payment arrangement.
On Wednesday, the family found out they would be allowed to stay. More than a dozen officials from the Fire Department and the transportation authority spent three hours inspecting the garden center and issued several new warnings, Mr. Gatanas said. The development corporation presented the family with a new lease that raised the rent to $5,100 and also placed additional restrictions and conditions on how the lots could be used.
http://www.nytimes.com/2016/05/26/nyregion/before-a-fire-under-the-tracks-in-east-harlem-a-business-took-root-urban-garden-center.html?_r=0
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White House Starts Reviewing Regional Haze Guidance for States
May 26, 2016 | E&E Greenwire
By Sean Reilly
The Office of Management and Budget is now reviewing a package of proposed U.S. EPA guidance for states on implementation of the second round of regional haze reduction planning.
EPA sent the draft guidance, which covers long-term strategies, reasonable progress goals and other aspects of state implementation plans, to OMB's Office of Information and Regulatory Affairs on Tuesday, according to a notice posted on the Reginfo.gov website. The draft has not been made public; EPA will release it once the review is complete, a spokeswoman said in an email today.
The regional haze rule, which dates back to 1999, aims to return visibility at 156 major national parks and wildlife refuges to natural conditions by 2064. The first round of state implementation plans, which were due in 2007, covers the period from 2008 to 2018.
The second round is due in 2018, but EPA has proposed rolling back that deadline to 2021 to let states better blend haze reduction work with efforts to meet Clean Power Plan targets and other air quality regulations.
At a public hearing at EPA headquarters last week, some participants objected to the proposed delay, arguing that faster progress is needed to meet the visibility goal (E&ENews PM, May 19). A second public hearing on the proposed changes is scheduled for Wednesday in Denver; EPA plans to issue the final version by October.
http://www.eenews.net/greenwire/2016/05/26/stories/1060037946
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