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ACC AM 6/29

Industry and Association News

(ACC Mentioned) NFIB Nabs Addington
Jun 28, 2016 | Politico Influence
By Isaac Arnsdorf and Brianna Gurciullo

...Spotted at the luncheon: Carlton Carroll from the National Institute of Certified Public Accountants, Christina Pearson with Microsoft, Kara Ross from UPS, Matt Lavoie at Caterpillar, Anne Kolton with American Chemistry Council, Kristin Gossel with BAE Systems, Katie Laning Niebaum with National Restaurant Association, Ron Bonjean ROKK Solutions, and Dan Whitten with Solar Energy Industry Association.

Chemical Management News

(ACC Mentioned) Updated Law Boosts EPA Regulatory Power Over Chemicals
Jun 28, 2016 | Chemical & Engineering News
By Cheryl Hogue

Armed with new powers from Congress, the Environmental Protection Agency is readying for action on chemicals. EPA is training its regulatory sights on three long-used solvents that agency scientists determined may pose a serious risk to consumers’ health.
EPA to Post Chemicals Law Implementation Plan
Jun 29, 2016 | BNA Daily Environment Report
By Pat Rizzuto

The Environmental Protection Agency will post plans by July 1 for implementing the amended Toxic Substances Control Act, a senior agency official said June 28.
Toxic Substances Control Act: Landmark Amendments to Federal Chemical Safety Law Enacted
Jun 29, 2016 | The National Law Review
By Leah Hurtgen Ziemba and Todd E. Palmer

On June 22, 2016, President Obama signed H.R. 2576, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (theLautenberg Act or the Act) into law.
Courts Likely To Address TSCA Reform 'Cost-Effectiveness' Requirement
Jun 28, 2016 | Inside EPA
By Bridget DiCosmo

Federal courts are likely to weigh in on how to interpret provisions in the Toxic Substances Control Act (TSCA) reform law that requires EPA to consider cost when developing risk management rules for a chemical, observers say, as environmentalists and the chemical sector are expected to have opposing views on how to assess costs.
Understanding Basic Process Flows Under the New TSCA
Jun 28, 2016 | Environmental Defense Fund
By Richard Denison

As an additional resource for people delving into the new Lautenberg Act that wassigned by President Obama last week, I have developed some flow charts depicting the basic processes applicable to existing chemicals already in commerce and new chemicals prior to market entry.

Energy News

(ACC Mentioned) Chemists Find New Method For Recycling Common Plastics As Fuel
Jun 28, 2016 | Forbes
By Janet Burns

If you still lack the motivation needed to kick-start your recycling efforts but appreciate energy efficiency, a team of chemists may have just the innovation to get your engines revving.
Shell Exec Offers More Details on Pennsylvania Ethane Cracker
Jun 28, 2016 | NGI's Shale Daily
By Jamison Cocklin

A unit of Royal Dutch Shell plc decided to proceed with a multi-billion dollar ethane cracker in Western Pennsylvania for three primary reasons: cost-advantaged feedstock, market proximity and strong local support, one of the project's leading executives said Tuesday.
Activist Groups Up Pressure to Oppose Energy Bill Talks
Jun 29, 2016 | BNA Daily Environment Report
By Ari Natter

Environmental groups are increasing pressure on the Senate to reject a motion to go to conference with the House on energy legislation as Democrats consider whether to throw their support behind holding a formal negotiation.
Conference 'Doomed to Failure' -- Top Dem
Jun 29, 2016 | E&E Daily
By Hannah Hess

President Obama would veto whatever comes out of a potential conference committee on energy reform legislation, the Senate's No. 2 Democrat predicted yesterday.
Inhofe Still Mulling Bid to Nullify EPA's Methane Rules
Jun 29, 2016 | BNA Daily Environment Reports
By Anthony Adragna

Senate Republicans have not ruled out launching a Congressional Review Act (CRA) challenge to the Environmental Protection Agency's regulations on methane emissions but lack a time frame for doing so, the chairman of the Senate Environment and Public Works Committee told Bloomberg BNA June 28.
Court Rejects Greens’ Challenges to Natural Gas Exports
Jun 28, 2016 | The Hill - E2 Wire
By Timothy Cama

A federal appeals court rejected environmentalists’ challenges to two liquefied natural gas export projects.
EPA Supporters Fight Industry's 'Regulatory Capture' Seen Delaying Rules
Jun 28, 2016 | Inside EPA

Democratic senators and environmentalists supportive of EPA are seeking strategies for overcoming what they say is a successful strategy by various industry groups to force “regulatory capture” delaying various agency rules, such as creating a regulatory “watchdog” to target what they see as bias in the rulemaking process.

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

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

Environment News

Deference Ruling Doesn't Apply to Boiler Rule Suit: EPA
Jun 29, 2016 | BNA Daily Environment Report
By Andrew Childers

A recent U.S. Supreme Court decision limiting the deference federal agencies are due in interpreting statutes has no bearing on litigation over the Environmental Protection Agency's emissions standards for boilers, the agencytold a federal court (U.S. Sugar Corp. v. EPA, D.C. Cir., No. 11-1108, response filed 6/27/16).
API Launches Task Force to Study Climate Strategy
Jun 29, 2016 | PoliticoPro
By Andrew Restuccia and Elana Schor

The oil industry's powerful lobbying group, the American Petroleum Institute, is forming an internal task force to consider changes to its climate change messaging and policy, POLITICO has learned.
Senate Spending Bill Blocks International Climate Funding
Jun 28, 2016 | The Hill - E2 Wire
By Devin Henry

A spending bill approved by a Senate panel on Tuesday would block American money from going to an international climate change fund, a key Obama administration project.
EPA Floats Options For Four States To Address CSAPR 'Budgets' Remand
Jun 28, 2016 | Inside EPA
By Anthony Lacey

EPA is floating options for four states to address a federal appeals court ruling that remanded the states' “budgets,” or allowable emissions levels, under the Cross-State Air Pollution Rule (CSAPR) to the agency for being too strict, with EPA saying the states can either voluntarily adopt the budgets or resolve the issue on a case-specific basis.

Industry and Association News

(ACC Mentioned) NFIB Nabs Addington

Jun 28, 2016 | Politico Influence

By Isaac Arnsdorf and Brianna Gurciullo

ADDINGTON TO NFIB: The National Federation of Independent Business hired David Addington as senior vice president, general counsel, and chief legal officer. He was group vice president for research at The Heritage Foundation. He served as Republican staff director, chief counsel or counsel for four congressional committees; assistant general counsel of the CIA and as special assistant and then deputy assistant to the president for legislative affairs under President Ronald Reagan; special assistant to the secretary of defense, deputy secretary of defense and general counsel in the George H.W. Bush administration; counsel and chief of staff to Vice President Dick Cheney; president of the Alliance for American Leadership PAC, and a lawyer with Baker Donelson, Holland & Knight and the American Trucking Associations.
Story Continued Below
MORE JOBS:
— Microsoft hired three in its D.C. office. Michelle Patron, former special assistant to President Barack Obama and senior director for energy and climate for the National Security Council, is now director of sustainability policy, a new position. Patron previously worked for PIRA Energy Group, the Department of Energy, Deutsche Bank, the International Energy Agency and the Center for International Environmental Law. She also served as energy attache at the U.S. Embassy in Beijing. Recent Georgetown graduate and Sen. Max Baucus internAdrienne (“Audrey”) Jackson is a Project Coordinator. And so is Conor Magee, most recently a sales analyst for Contemporary Staffing Solutions in Philadelphia.
— Drinker Biddle & Reath hired Bryan Tackett, Sarah Mills and Katie Christophersen as members of the district policy group, the firm’s boutique lobbying, public policy, and advocacy practice. Tackett most recently served as director of government relations for PD Frazer Associates and president of Wexford Strategic Advisors. Mills was an analyst at Potomac Research Group, director of federal affairs and state policy adviser under former Mississippi Gov. Phil Bryant (R), and a legislative aide to the U.S. Senate Committee on the Judiciary under Sens. Chuck Grassley (R-Iowa), Jeff Sessions (R-Ala.) and Arlen Specter (R-Pa.). Christophersen was director of external affairs at the National Review Institute and previously worked with the Manhattan Institute and as a senior legislative assistant for former Rep. MicheleBachmann (R-Minn.).
HAPPY #TOT. Benghazi. Tips to iarnsdorf@politico.com.
TRUMP HIRES: Former Republican National Committee communications staffer Michael Abboud (and nephew of Sheldon Adelson political adviser Andy Abboud) will be communications coordinator ... Alan Cobb, formerly an aide to Kansas Republicans Bob Dole, Pat Robertsand Mike Pompeo, will be director of coalitions ... Jason Miller, a former staffer for Ted Cruz’s presidential campaign, will be senior communications adviser.
** A message from the National Collegiate Athletic Association: In the last five years, the lives of college athletes have changed for the better, in some cases dramatically. But we've still got work to do. Find out what our member schools are doing to advance academics, fairness and well-being and the NCAA's commitment to this critical mission at NCAA.org/opportunity. **
NEW BUSINESS:
— Samsung retained Roberti Global to lobby on technology, trade and education. The filing names Izzy Klein (former communications director for Sen. Chuck Schumer (D-N.Y.)), Vincent Roberti and Steven Irizarry (former counsel on the Senate HELP Committee).
— Gregg Rothschild (former chief counsel and deputy chief of staff to the House Energy and Commerce Committee) and Catharine Ransom [former senior climate and environmental adviser to former Sen. Max Baucus (D-Mont.)] of the Glover Park Group registered to lobby forLyft. The Podesta Group also represents the company.
— Gephardt Group Government Affairs subcontracted Prime Policy Group to lobby for Bayer as the German pharmaceutical company looks to acquire Monsanto. Charles Black, Scott Pastrick, Pamela Turner, Gardner Peckham and Paul Brown are representing Bayer, which also has Greenberg Traurig, Raffaniello & Associates and East End Group in its corner. Monsanto’s roster includes American Continental Group, Lincoln Policy Group, Russell Group, Akin Gump, Washington Tax & Public Policy Group and Crawford & Mauro.
AROUND TOWN:
— The Retail Industry Leaders Association has a board meeting today, including the CEOs of Target, Best Buy, Dollar General, Tractor Supply, Petsmart, AutoZone, Foot Locker, Petco, VF, Michaels and Whole Foods. They'll hear from Secretary of Commerce Penny Pritzker. Tomorrow, RILA will host a meeting of member companies' lobbyists to hear from the DSCC and NRSC. Topics on the agenda include cybersecurity, local restrictive scheduling ordinances, the Durbin Amendment (limiting debit card processing fees) and preparing for a new administration.
— The DC Communicators Group hosted a luncheon today featuring pollsters Keith Frederick, Michael Bloomfield, and Tony Fabrizio. The group, led by API’s Eric Wohlschlegel and NRF’s Katie McBreen, was hosted by Christopher Gindlesperger from the National Confectioners Association. Spotted at the luncheon: Carlton Carroll from the National Institute of Certified Public Accountants, Christina Pearson with Microsoft, Kara Ross from UPS, Matt Lavoie at Caterpillar, Anne Kolton with American Chemistry Council, Kristin Gossel with BAE Systems, Katie Laning Niebaum with National Restaurant Association, Ron Bonjean ROKK Solutions, and Dan Whitten with Solar Energy Industry Association.
— About 100 members of the biodiesel industry, including the National Biodiesel Board, will be on Capitol Hill this afternoon advocating for increases to the Renewable Fuel Standard’s biomass-based diesel and advanced biofuel requirements as well as extending the biodiesel tax incentive.
— The Podesta Group is hosting a luncheon for Rep. Elijah Cummings (D-Md.) this afternoon. Muftiah McCartin and Jason Pavluchuk are hosting a reception for Rep. Jim McGovern (D-Mass.) at the Covington & Burling offices this evening.
FREE ROLEXES? The Supreme Court's unanimous decision to overturn former Virginia governor Bob McDonnell’s corruption conviction may make it harder to prosecute politicians and their allies for trading access for money, reports Josh Gerstein for POLITICO. "There are all kinds of things public officials can do short of casting a vote or making a policy decision that are of enormous benefit to an individual and, in essence, become legalized bribery under this decision," said Fred Wertheimer of Democracy 21. The court’s opinion, written by Chief Justice John Roberts, appeared to bless not only official meetings for donors, but also press secretaries selling interviews with their bosses. The decision could impact other politicians in a similar spotlight including Sen. Robert Menendez (D-N.J) and former Gov. Rod Blagojevich (D-Ill.)
BURNOUT: Five coal mining companies — Walter Energy, Patriot Coal, Alpha Natural Resources, Arch Coal and Peabody Energy Corp — spent $95 million lobbying lawmakers and more than a half a billion dollars on salaries for executives before filing for bankruptcy, according to the environmental group the Western Values Project, Bloomberg’s Jennifer Dlouhy reports.
http://www.politico.com/tipsheets/politico-influence#ixzz4CyDl8xf2

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Chemical Management News

(ACC Mentioned) Updated Law Boosts EPA Regulatory Power Over Chemicals

Jun 28, 2016 | Chemical & Engineering News

By Cheryl Hogue

Armed with new powers from Congress, the Environmental Protection Agency is readying for action on chemicals. EPA is training its regulatory sights on three long-used solvents that agency scientists determined may pose a serious risk to consumers’ health.
What’s unusual is that for the first time in more than a quarter of a century, EPA is poised to restrict chemicals that have long been on the market. And in a striking change from the past, the likelihood of a federal court knocking down these regulations is much lower.
EPA’s odds of successfully restricting or banning chemicals improved markedly in June. After years of wrangling, Congress passed legislation to overhaul the nation’s 40-year-old statute governing chemicals, the Toxic Substances Control Act (TSCA). President Barack Obama signed it into law on June 22, enacting the Frank R. Lautenberg Chemical Safety for the 21st Century Act. The law is named for the late Sen. Frank Lautenberg, a New Jersey Democrat who for decades championed legislation to improve the safety of chemicals and the chemical industry.
In what is possibly the biggest change under the updated law, Congress has mandated that EPA systematically review the safety of commercial chemicals—defined as substances that aren’t regulated as food, drugs, or pesticides. The agency’s goal is to ensure that no chemical in U.S. commerce poses an unreasonable risk to human health or the environment.
Many health and environmental groups, product formulators, and chemical manufacturing companies are cheering this change. Activists anticipate that this new regulatory scrutiny will eliminate harmful substances from consumer products and protect people’s health. The chemical industry, meanwhile, hopes that EPA findings of no risk for specific compounds will rebuild consumers’ eroded faith in the safety of their products.
Although the safety reviews are likely to account for the biggest overall impact of the law, the Lautenberg Act makes another momentous change to TSCA. It unfetters EPA’s ability to regulate chemicals that are on the market.
The agency hasn’t even tried to regulate a commercial substance since 1991, when a federal appeals court slapped down the agency’s ban under TSCA of cancer-causing asbestos products. “The court effectively found that EPA had to prove it had analyzed every conceivable way of restricting asbestos and had chosen the one that was least burdensome to industry,” explains a statement from Safer Chemicals, Healthy Families, a coalition of health and environmental groups that lobbied for TSCA reform. The enormous legal onus of showing that it had chosen the least burdensome option effectively halted EPA from regulating chemicals currently in commerce.
Notwithstanding the court decision, EPA under the Obama Administration in 2009 began to scrutinize and plan for possible regulation of a handful of controversial chemicals or classes of substances, including bisphenol A and phthalates. The agency expanded this work in 2011 and now is working on 90 compounds or classes of chemicals. Those substances are linked to adverse reproductive or developmental effects; are persistent, bioaccumulative, and toxic substances; are probable or known carcinogens; are chemicals found in children’s products or consumer products; or are chemicals detected in human blood, urine, or tissue in biomonitoring programs. EPA has finished reviewing some of these compounds, determining that some pose no risk and flagging a handful for deeper examination or regulation.
In the modernized law, Congress directs EPA to build on the agency’s ongoing work. The agency must start by conducting mandatory risk reviews of 10 chemicals selected from the 90 it is already focused on and expanding those numbers in coming years.
The task of reviewing the risks posed by each chemical in commerce is huge and could drag on for a generation. Completing safety reviews of the estimated tens of thousands of chemicals now on the market is likely to take a couple of decades, observers from industry and environmental organizations agree. Plus, any restriction, ban, or phaseout of a particular chemical would take effect years after EPA completes a safety review of the substance, points out Melanie Benesh, a legislative attorney with the Environmental Working Group. Given the deadlines established in the law, Benesh figures it will take 35 years for the Lautenberg Act to fully affect chemicals on the market today.
In addition to requiring safety reviews and clearing the way for regulation, the updated law clearly empowers EPA to order chemical manufacturers to provide safety data about their products.
In contrast, the old statute put the agency in a bind. If EPA suspected that a chemical might pose a risk, the agency had to document that the substance actually presents a risk before it could require chemical makers to produce additional information. Plus, EPA could demand the information only by going through the formal federal regulation-making process. This takes a minimum of 18 months to complete but usually takes years. Now, EPA can issue an administrative order requiring manufacturers to provide toxicity data in addition to using the formal process.
Another change that Congress made in the law involves company trade secrets. Like the original TSCA, the revised statute requires EPA to shield from public view any data that chemical manufacturers claim as confidential business information. Health and environmental groups have complained—and many in industry agreed—that companies overused these assertions, which never expired under TSCA and didn’t require EPA review. Under pressure from the Obama EPA, chemical manufacturers have voluntarily lifted a multitude of outdated or questionable claims.
In a major change, the Lautenberg Act requires chemical makers to provide evidence to support a confidentiality claim when they make it. Claims will expire after a decade unless companies reassert and again substantiate them.
“We’re going to create a system that’s more transparent, that creates opportunities for information to be disclosed while appropriately protecting proprietary interests,” says Michael P. Walls, vice president of regulatory and technical affairs at the chemical industry group American Chemistry Council.
The rewritten law also directs EPA to review the thousands of trade secretclaims for chemicals’ identities that companies made in their TSCA filings over the past four decades. Companies seeking to maintain those claims must reassert and substantiate them, and EPA must determine whether they are still justified, says Richard Denison, lead senior scientist at the Environmental Defense Fund.
Up-front substantiation of confidentiality claims is one of several costs that small and midsized chemical manufacturers are worried about under the revised law, says Daniel Newton, senior manager of government relations at the Society of Chemical Manufacturers & Affiliates. EPA’s new powers to demand toxicity information will likely require greater outlays by companies too, Newton says. On top of this, Congress gave EPA the authority to impose fees on chemical makers and processors to offset some of the agency’s costs of implementing the various provisions of the Lautenberg Act. The agency will set those fees after consultation with industry, and the law specifies that small businesses will be charged less.
Overall, the amended law “is going to raise the cost of doing business,” Newton says.
But in the updated law, chemical makers also got a key provision that they sought as a way to rein in future regulatory costs. The Lautenberg Act makes it far more complicated for states to ban or regulate individual chemicals.
In the past decade, a patchwork of state laws and regulations grew because EPA didn’t—and couldn’t—act on chemicals of concern. Collectively, actions by states became a key motivator for the chemical industry to drop its long-standing, wholesale resistance to TSCA reform and begin lobbying Congress for changes.
Negotiators on Capitol Hill were long stuck on whether and how to override state action on chemicals. In a bipartisan compromise that led to final passage of the Lautenberg Act, lawmakers allowed states to retain bans and other chemical-related laws and regulations that were enacted by April 22 of this year. If EPA either determines a compound poses no unreasonable risk to human health or the environment or decides to regulate the substances, the law forbids states from acting on that chemical. States, however, may act on chemicals that EPA hasn’t reviewed or isn’t in the process of assessing.
Another key result of Congress’s revision of TSCA isn’t written into the Lautenberg Act. As EPA implements the statute, lawsuits challenging the agency’s moves are certain to crop up, attorneys for industry and environmental groups tell C&EN. Litigation asking courts to interpret the legal limits of a statute is par for the course when Congress gives new powers to an agency.
“Whatever can be challenged will be challenged,” Benesh says.
Less animal testing is a goal of the Lautenberg Act
The new U.S. chemical safety law aims to reduce the use of laboratory animals in toxicity tests.
It mandates that EPA opt, whenever practicable and scientifically justifiable, to rely on results of tests that are alternatives to chemical toxicity studies done with vertebrates.
“Those methods have to be scientifically reliable, relevant,” and capable of providing scientific information that is equivalent to—or better than—the data generated by long-used toxicity testing methods that rely on lab animals, says Michael P. Walls, a vice president at the American Chemistry Council, an industry group.
Alternatives are expected to include computational toxicity—a field that blends molecular biology, chemistry, and computer science—and high-throughput, cell-based assays that the pharmaceutical industry has long used. EPA has for years been exploring the use of data from these animal-free tests to support regulation of chemicals.
Animal welfare groups are strongly endorsing this part of the new law.
“Poisoning animals in chemical tests does not protect humans or the environment, plain and simple,” says Jessica Sandler, vice president for regulatory testing at People for the Ethical Treatment of Animals.
“By minimizing animal testing and focusing on the use of faster, cost-effective, and more reliable testing methods, private companies and the federal government can save lives, time, and money,” says Wayne Pacelle, chief executive officer of the Humane Society of the United States.
Results from new methods such as those involving computational toxicology may first be applied in efforts to prioritize chemicals for further scrutiny, Walls says. As these tests become more scientifically reliable, their results may be incorporated into risk assessment and regulatory decisions.
“At some point these approaches will no longer be alternatives but will be accepted practices for information gathering,” says the Society of Toxicology, a scientific and professional organization.
To date, EPA has not identified any methods to replace animal tests that it relies on for risk assessment and regulatory decisions.
http://cen.acs.org/articles/94/i27/Updated-law-boosts-EPA-regulatory.html

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EPA to Post Chemicals Law Implementation Plan

Jun 29, 2016 | BNA Daily Environment Report

By Pat Rizzuto

The Environmental Protection Agency will post plans by July 1 for implementing the amended Toxic Substances Control Act, a senior agency official said June 28.
Within a week to 10 days, the agency will release its first decisions about whether certain new chemicals can enter commerce based on the regulatory standards established by the newly amended chemicals law, said Jim Jones, EPA's assistant administrator for chemical safety and pollution prevention. He spoke at an American Bar Association luncheon.
As the EPA reviews new chemicals, it already is requiring chemical manufacturers to substantiate claims they make that would require the agency to keep information confidential, Jones said.
He referred to a provision of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amended TSCA and became law on June 22.
Under the confidential business information (CBI) provision of the amended law, chemical manufacturers and processors must justify, or “substantiate,” their business reasons for requiring the EPA to keep chemical identity and certain other information confidential. CBI claims sunset after 10 years although they can be re-substantiated.
EPA Restarted Reviews
Jones was among eight speakers to provide updates on TSCA during a luncheon sponsored by the ABA's Pesticides, Chemical Regulation, and Right-to-Know Committee.
Once the TSCA amendments became law, the agency officially “restarted” its evaluations of all new chemicals it was in the process of reviewing, Jones told Bloomberg BNA.
The intent was to make sure the agency reviewed the premanufacture notices for those new chemicals in accordance with the amended law, he said.
The agency is working to complete those reviews under the same schedule by which they would have been finished before the law was amended, Jones told Bloomberg BNA.
The first decisions will be announced within a week to 10 days, he told the audience.
The release of its implementation plan, new chemical decisions and its requirement for CBI substantiations are the first public actions the agency is taking to carry out its new responsibilities under the amended law, Jones said.
Identifying 10 Chemicals for Risk Evaluation
It also has begun to identify the first 10 chemicals it will evaluate for health and environmental risks, in accordance with the amended law, he said.
No decisions have been made, Jones said, but “serious candidates” include ones such as 1-bromopropane (1-BP) and certain flame retardants that the agency already began to assess under the work plan initiative it announced in 2012.
“We may not need the whole 180 days,” Jones said.
Working on Four Rules
The amended TSCA requires the EPA to issue three final rules within one year. Those rules cover the processes the agency will use to:
• reset the TSCA inventory into two categories; an active list of chemicals in commerce; and an inactive list of chemicals that had been in commerce, but currently are not;
• categorize a chemical as either a high or low priority for further evaluation; and
• evaluate risks of chemicals in commerce.
The EPA will host public meetings soon on the prioritization and risk evaluation processes it will develop, Jones said.
The fourth rule the agency will work on will set fees on chemical manufacturers and processors for services, such as reviewing new chemicals and risk evaluations that the agency provides, he said.
Teeing Up Fees:
The TSCA amendments did not set a deadline for the fee rulemaking, but “we will treat it as if it has a one-year deadline,” Jones said.
Under the updated TSCA, the agency can work with chemical manufacturers and processors to propose fees without having to establish a formal federal advisory committee, he said.
Legislators' idea was that the agency should first work with the parties that would pay the fee and then accept viewpoints from all interested parties during the notice and comment stage of rulemaking, Jones said.
EPA will reach out to small, medium and large manufacturers and processors soon, he said.
Jones, whose politically appointed position would end with the incoming administration, said his role during his remaining time is to “set up a structure in a way that will allow my successors to succeed.”

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=92830360&vname=dennotallissues&fn=92830360&jd=92830360

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Toxic Substances Control Act: Landmark Amendments to Federal Chemical Safety Law Enacted

Jun 29, 2016 | The National Law Review

By Leah Hurtgen Ziemba and Todd E. Palmer

On June 22, 2016, President Obama signed H.R. 2576, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (theLautenberg Act or the Act) into law. The legislation is the first comprehensive update to the Toxic Substances Control Act (TSCA)since Congress first enacted the law in 1976 and is expected to have far-reaching impacts on the U.S. industry.
TSCA is the federal law that gives the Environmental Protection Agency (EPA) authority to regulate a broadly defined class of chemicals. Because the Act requires EPA to evaluate chemicals currently used in commerce as well as new products, it significantly expands EPA’s authority to regulate widely used industrial chemicals—including those that were grandfathered in by the 1976 law. Accordingly, any business that uses chemicals in its operation should brace for regulatory changes and supply chain impacts. As President Obama noted during the bill signing ceremony last week, “this is a big deal.”
The Act caps off a ten-year effort to reform the TSCA, which was widely considered to be outdated and ineffective. Implementation will occur over the course of several years and will involve numerous rulemaking efforts. Industries impacted should plan now to stay engaged and provide feedback to EPA on how the law should be applied.
The legislation contains a number of key reforms that enhance EPA’s regulatory powers and alter state authority to regulate chemical use. Listed below are several key areas to keep in mind.Preemption of State Regulation
The Lautenberg Act grandfathers in existing state regulation of chemicals, but may limit future state efforts to regulate chemical manufacture and use. State laws and regulations which were in effect before April 2016 and that address a specific chemical will remain in force. Going forward, states will be permitted to restrict specific chemicals until EPA moves to define the scope of its risk evaluation, and then states would be precluded from regulating uses or exposures that are within the scope of EPA’s review.Risk Prioritization
Under the new law, EPA will be required to establish a process for evaluating and prioritizing chemicals for risk assessment within the next year.
One criticism of the original TSCA was that it grandfathered more than 62,000 chemicals into the regulatory framework, making it difficult for EPA to target these chemicals for additional safety measures. Now, EPA will be charged with prioritizing both new and existing chemicals for review and additional regulatory efforts. EPA’s evaluation must consider the hazard and exposure potential for a chemical, including the chemical’s environmental persistence and whether certain populations may be significantly exposed or are particularly vulnerable to exposure.Confidential Business Information (CBI)
The Act makes several changes to when manufacturers of chemicals can keep certain business information confidential. Under the new law, certain proprietary business and production information can be kept confidential without substantiation, but many other classes of information (including chemical identity) and will require manufacturers to substantiate their CBI claims every ten years. Importantly, EPA will be required to review all chemical identity CBI claims (unless the chemical has not been offered for commercial distribution) and at least 25 percent of a representative subset of all other CBI claims, indicating that this review process will likely be a significant hurdle for manufacturers.
http://www.natlawreview.com/article/toxic-substances-control-act-landmark-amendments-to-federal-chemical-safety-law

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Courts Likely To Address TSCA Reform 'Cost-Effectiveness' Requirement

Jun 28, 2016 | Inside EPA

By Bridget DiCosmo

Federal courts are likely to weigh in on how to interpret provisions in the Toxic Substances Control Act (TSCA) reform law that requires EPA to consider cost when developing risk management rules for a chemical, observers say, as environmentalists and the chemical sector are expected to have opposing views on how to assess costs.
Under the original 1976 TSCA, the agency in deciding to regulate a chemical had to weigh economic factors as well as pursue the "least burdensome" requirements. Those provisions were long considered a major obstacle in EPA's ability to regulate chemicals, following a 1991 U.S. Court of Appeals for the 5th Circuit ruling in Corrosion Proof Fittings v. EPA that struck down as unreasonable the agency's ban on asbestos, a known carcinogen.
The court held that EPA was required to consider both alternatives to a ban and the costs of any proposed actions and to "carry out this chapter in a reasonable and prudent manner [after considering] the environmental, economic, and social impact of any action." The ruling set such a high bar for cost reviews that President Obama at a June 22 signing ceremony for the TSCA overhaul noted the overly "complex" regulatory system.
The new law gives EPA more ability to regulate new and existing chemicals, expands the agency's powers for testing of substances, and includes other measures aimed at strengthening the agency's TSCA authority. It would also for the first time expressly prohibit EPA from considering cost when assessing a chemical's risk.
Instead, the new law would remove the "least burdensome requirement" provisions from the prior toxics law and set a list of factors based on "reasonably available information" that the agency would have to consider in proposing a risk management rule under section 6 of TSCA, which covers regulation of existing chemicals.
Among those factors are the benefits of the chemical; its effects on health or the environment and magnitude of exposure; costs and benefits and "cost-effectiveness" of the proposed rule and "of one or more alternatives;" reasonably ascertainable economic consequences of the rule; and likely effect of the rule on national economy, small business, technological innovation, health and the environment. The new language requires EPA, in selecting among the prohibitions and other restrictions, to factor in these considerations "to the extent practicable."
The language is generally seen as an improvement over the previous language in TSCA that hindered EPA's attempted ban on asbestos because the cost considerations would be kept distinctly separate from the agency's risk evaluation. Instead, cost considerations would occur later in the process, when EPA determines what type of restriction is adequate -- while still mandating that the chemical must be regulated to guard against unreasonable risk.
'Potential Controversy'
But observers say that the language is still likely to draw a legal challenge once EPA begins implementing the new law and pursues a risk management rule of a chemical under section 6.
"That's one area of potential controversy," one industry source says of the new cost effectiveness provision, pointing out there is likely to be a widely divergent view on the cost impacts of a proposed rule.
A second industry source notes that "one interesting thing about the cost language in TSCA is" that the law specifies at least one primary alternative, but does not require EPA to consider every possible option. "That may be an area where courts chime in" on the extent to which EPA should look at alternatives," the source says.
The language on "cost-effectiveness" is undefined, according to an environmentalists, who says that the new law could therefore "could still tie EPA's hands" from a legal standpoint. "We don't really know what that means," one environmentalist says, and therefore there is "a lot of opportunity for litigation and for it to be settled by the courts."
One former agency source says of the TSCA law that "the language is still clearly an improvement over current TSCA," saying the new law "makes pretty clear when" EPA is required to consider cost.
The new law also "goes a long way toward ensuring the agency makes decisions based on health and safety" and only considers cost when deciding which restriction to impose, the source adds.
The source says that while there is "always a risk" of litigation any time a new law is overlaid atop an existing statute, adding that without a formal conference on the bill, which Congress opted against, EPA faces an increased challenge in trying to interpret various terms like "cost-effective" absent explicit congressional guidance.
"The reality is that the agency always considers cost when considering regulations and imposing restrictions," the source says, adding "I don't see that as being a big roadblock for EPA."
Democrats' Analysis
In a June 7 legislative analysis signed by four Democratic senators, the lawmakers sought to clarify that the cost considerations do not require EPA to conduct "a second risk evaluation-like analysis to identify the specified information," but rather to use already available information rather than develop a new analysis.
The lawmakers also said that the agency's consideration of costs and benefits is "limited to the requirements of the rule itself and the one or more primary alternatives it considered, not every possible alternative," echoing what the second industry source says.
The Democratic analysis says it is "clear that the considerations in the statement" do not require "EPA to demonstrate benefits outweigh costs, to definitively determine or select the least-cost alternative, or to select an option that is demonstrably cost-effective or is the least burdensome adequately protective option."
Rather, EPA is only required to take into account the cost considerations in deciding which restriction to impose, the analysis says, saying the law "clearly rejects the regulatory approach framework that led to the failed asbestos ban and phase-out rule" in the Corrosion Proof Fittings ruling.
The Democrats' analysis is signed by Udall, EPW ranking member Sen. Barbara Boxer (D-CA) and fellow Senate Democrats Edward Markey (MA) and Jeff Merkley (OR).
http://insideepa.com/daily-news/courts-likely-address-tsca-reform-cost-effectiveness-requirement

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Understanding Basic Process Flows Under the New TSCA

Jun 28, 2016 | Environmental Defense Fund

By Richard Denison

As an additional resource for people delving into the new Lautenberg Act that wassigned by President Obama last week, I have developed some flow charts depicting the basic processes applicable to existing chemicals already in commerce and new chemicals prior to market entry.
Comparisons are shown between the processes under the old and new laws.
A PDF version is available here [http://blogs.edf.org/health/files/2016/06/FRL21-TSCA-flowcharts-6-28-16.pdf]; or click on the thumbnails below

http://blogs.edf.org/health/2016/06/28/understanding-basic-process-flows-under-the-new-tsca/

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Energy News

(ACC Mentioned) Chemists Find New Method For Recycling Common Plastics As Fuel

Jun 28, 2016 | Forbes

By Janet Burns

If you still lack the motivation needed to kick-start your recycling efforts but appreciate energy efficiency, a team of chemists may have just the innovation to get your engines revving.
Researchers from the Shanghai Institute of Organic Chemistry (SIOC) and University of California, Irvine (UCI) have discovered a new way to process the millions of tons of waste plastic we produce each year into usable fuel. As described in an article published this month in Science Advances, the project involved developing a method for using byproducts of oil refining processes to break down polyethylene plastic, the most common commercially available type, into useful compounds of polymer molecules, including liquid fuel.
The new method poses an efficient way of tackling two of our biggest environmental concerns: disposing of potentially harmful, slow-dissolving waste, and securing access to cleaner, cheaper energy. “Synthetic plastics are a fundamental part of modern life, but our use of them in large volume has created serious environmental problems,” UCI chemist Zhibin Guan explained in a press release. “Our goal through this research was to address the issue of plastic pollution as well as [achieve] a beneficial outcome of creating a new source of liquid fuel.”
In recent years, researchers and companies around the world have been exploring how to better utilize certain waste products as resources, from re-imagining used cardboard to recycling unused nuclear fuel. The Ocean Recovery Alliance’s Doug Woodring and the American Chemistry Council’s Steve Russell told Live Science in 2012 that because plastics are predominantly made using energy feedstocks from oil or natural gas (typically the latter in the U.S.), the stuff is particularly suited for reclaiming some energy from our waste stream. They explained,
The hydrocarbons that make up plastics are embodied in the material itself, essentially making plastics a form of stored energy, which can be turned into a liquid fuel source … [So it] makes sense that people are asking how to keep more of this valuable fuel in play, even after plastics are used, and how to keep it out of landfills.
The push to develop “waste-to-energy” options for our garbage has already had various companies processing plastic bags and bottles into liquid fuel, but methods-to-date have required the use of toxic, caustic chemicals (called “ radicals”) and large energy expenditures to break down the bonds between polymers, UCI and SIOC researchers point out. With their new method, waste plastics are instead broken down more efficiently through a process called cross-alkane metathesis, which uses “readily available” byproducts of oil refining as catalysts.
The team is still working to make the process even more efficient and to bring its costs down, but the project’s success is a happy harbinger for waste-to-energy recycling methods to come. A press release for the project noted, too, that the team is also looking ahead toward finding the right catalytic processes to “turn other plastic trash into treasure.”
A more detailed breakdown of the team’s innovative chemical process is available here from the experts at Science.
http://www.forbes.com/sites/janetwburns/2016/06/28/uc-irvine-chemists-find-new-method-for-recycling-common-plastics-as-fuel/#4a2572984613

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Shell Exec Offers More Details on Pennsylvania Ethane Cracker

Jun 28, 2016 | NGI's Shale Daily

By Jamison Cocklin

A unit of Royal Dutch Shell plc decided to proceed with a multi-billion dollar ethane cracker in Western Pennsylvania for three primary reasons: cost-advantaged feedstock, market proximity and strong local support, one of the project's leading executives said Tuesday.
"To answer the question, why Pennsylvania, why here? The basic answer is very simple," said Ate Visser, vice president of Appalachia petrochemicals at Shell Chemical LP. "You're sitting here on a world-class resource base at the doorstep of your customer. And this will give us a low-cost, sustainable and competitive advantage."
Visser gathered with other project executives from Shell to address and mingle with a packed crowd on Tuesday for the second day of the Northeast U.S. & Canada Petrochemical Construction Conference in Pittsburgh, one of the region's first shale-related petrochemical conferences. Shell's facility, which is expected to employ 600 permanent employees and another 6,000 during construction, took center stage and drove many of the event’s conversations and presentations.
Visser offered a reason for the excitement. He said -- as others repeated throughout the conference -- that 70% of the polyethylene market is within 700 miles of Western Pennsylvania, "which means that the customers will have shorter supply chains, will have more reliable supply chains, will have good capital savings and lower costs." With Shell's announcement, conference presenters said, Ohio, Pennsylvania and West Virginia can now focus on building a robust petrochemicals industry, which will have its start in Pennsylvania (see Shale Daily, June 27).
"We have been given economic development, job creation and investment savings from the state of Pennsylvania," Visser said. "I can tell you, with hand to my heart, that without these incentives, we would not have made this investment decision."
Without the state's Act 2 law, or what's more commonly known as its land recycling program, the cracker would not have been possible, Visser said. Act 2 provides for the revitalization of brownfield sites in the state. Shell announced its final investment decision on June 7, saying it would begin construction in 18 months on the ethane cracker (see Shale Daily, June 7).
The facility would be built on the 400-acre site of a former zinc-smelting plant near the Ohio River in Potter and Center townships in Beaver County, about 30 miles northwest of Pittsburgh. The facility would have the capacity to produce 1.6 million metric tons/year (mmty) of polyethylene and 1.5 mmty of ethylene, which are key building blocks for plastics. Visser told NGI's Shale Daily that the cracker would also have the capability to consume a little more than 100,000 b/d of ethane, providing one key solution for what has been a challenge for Appalachian exploration and production companies.
Matt Curry, founder of the consultancy Dreadnought Solutions LLC, noted that anywhere from about 55-60% of the typical barrel of natural gas liquids in the Appalachian Basin consists of ethane. With the production gains of recent years and the specifications of crucial interstate pipelines, it has become increasingly important to recover, rather than to reject, ethane.
Visser said 10 natural gas producers have signed 10-20 year agreements to anchor the facility. While he didn't name them all, they include Antero Resources Corp.; Ascent Resources LLC; Consol Energy Inc.; Eclipse Resources Corp., Hilcorp Energy Co.; Noble Energy Inc., and Penn Energy Resources LLC. Some of the producers, Visser added, have committed all of their ethane volumes to the cracker.
"The ethane we will use will be produced in the lowest-cost shale resource in the United States," Visser said of the volumes that will come from both the Utica and Marcellus shales. "We're doing it here instead of having to ship it to the U.S. Gulf Coast, which of course saves us costs."
Visser said the company has already moved 7.2 million cubic yards of dirt at the Beaver County site, completed a heavy long-haul bridge to eliminate traffic in the area and relocated nearby railroads. A load-on and load-off dock on the Ohio River is also nearly complete so the facility can accept barges. Currently, Visser said, 400 people are employed in the site preparation work alone.
As far as the time it will take to begin construction, Visser said, "This is consistent with matching our capital discipline in the current low price environment. But we use this time to complete our engineering, our design work and site preparation, which means that when we start with the main construction, we have all of our ducks in a row."
Production at the facility is slated to begin sometime in the early 2020s. Visser said this aspect is important because development of similar facilities on the "Gulf Coast will come on stream in 2017 and 2018." He added that "we expect the market will have absorbed additional demand when we come on stream, so the timing actually fits the market."
Mike Devanney, a retired petrochemical industry executive that worked in the Appalachian Basin, kicked off the conference on Tuesday by telling attendees that eight petrochemical facilities have either been announced or are under construction in the U.S. Most of those are in Texas and will come online before the Shell facility by 2020. Shell's Pennsylvania cracker would benefit from a second wave of anticipated demand when it comes online early next decade.
http://www.naturalgasintel.com/articles/106909-shell-exec-offers-more-details-on-pennsylvania-ethane-cracker

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Activist Groups Up Pressure to Oppose Energy Bill Talks

Jun 29, 2016 | BNA Daily Environment Report

By Ari Natter

Environmental groups are increasing pressure on the Senate to reject a motion to go to conference with the House on energy legislation as Democrats consider whether to throw their support behind holding a formal negotiation.
The League of Conservation Voters, the Sierra Club, and 350.org were among a coalition of 24 groups who wrote the Senate June 28 in opposition to reconciling the two bills, saying in a letter the House bill “is a radical giveaway to polluting fossil fuel industries that would also undermine the Clean Air Act, Clean Water Act, National Environmental Policy Act, Endangered Species Act, and other bedrock environmental laws.”
“It does not represent a serious starting point for any negotiation that will lead to a positive bill that truly modernizes the energy policy of the United States,” the groups said.
Specifically, the groups said they opposed the House's move to strip out provisions that would boost energy efficiency and clean energy funding and instead add bills opposed by the White House streamlining the mining permitting process and limiting environmental reviews for hydropower and pipeline projects.
Compromise Remains Out of Reach
The letter, the latest from environmental groups opposed to even holding talks to work out the differences between the two chambers, comes as the key architects of the bills have held rounds of talks but have yet to reach a compromise Democrats have said is needed for them to support a Senate conference vote.
“I share their concerns,” Sen. Jeanne Shaheen (D-N.H.), a former Senate Energy and Natural Resources Committee member told Bloomberg BNA. “I'm very worried about the fact the House is talking about taking out all of the voluntary building codes. They are not mandatory. And that's where most of the savings is, so it is very concerning to me that the House would be taking out those provisions.”
Shaheen is the co-author of long-stalled energy efficiency legislation (S. 720) that was largely incorporated into the Senate's bill. The efficiency bill, which is backed by companies ranging from Dow Chemical Co. and National Grid, includes a section establishing national building codes designed to increase energy efficiency that are opposed by the National Association of Home Builders, among others.
Plums for ‘Big Oil.'
The “House GOP-passed energy bill is ridden with partisan plums for special interests like big oil,” Sen. Chuck Schumer (D-N.Y.), the Senate's No. 3 Democrat said on Twitter June 28, hours before the issue was among those discussed at the Democrats weekly caucus luncheon. “It's simply not a bill we can conference on.”
“We ought to have a bipartisan negotiation because nothing will get done,” Schumer told reporters following the meeting. “You can't get anything done in this Congress if you don't do it in a bipartisan way. That's plain and simple. That's how it works. And if Republicans don't want to do it in a bipartisan way they are just going to tie the place in a knot, whether its energy, Zika or anything else.”
While Senate aides previously said a vote on energy legislation was possible this week, the chairman of the Senate Energy and Natural Resources Committee said she has not received assurances from Democrats they wouldn't block the vote.
Some Still Deciding
“I would like to see that sooner than later, but I'd also like to see a successful vote,” Sen. Lisa Murkowski (R-Alaska) told reporters. “I think what we need to do here in the Senate is figure out how we get to our vote.”
Meanwhile, senators like Angus King (I-Maine), a member of the Energy Committee, told Bloomberg BNA he has yet to make up his mind on whether he would vote in favor of going to conference.
“I'm going to make my decisions on whether its good policy,” he told Bloomberg BNA. “I'm not sure yet.”

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=92830352&vname=dennotallissues&fn=92830352&jd=92830352

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Conference 'Doomed to Failure' -- Top Dem

Jun 29, 2016 | E&E Daily

By Hannah Hess

President Obama would veto whatever comes out of a potential conference committee on energy reform legislation, the Senate's No. 2 Democrat predicted yesterday.
"It's doomed to failure," Sen. Chuck Schumer of New York told E&E Daily yesterday when asked about negotiations on a possible framework path forward.
Last month, the House voted to appoint conferees to merge competing energy reform bills, but the Senate has held back. Many Democrats worry about provisions in the updated House language.
"They put through some proposals that have no bipartisanship that are doomed to fail to begin with," Schumer said.
Several items in the House's revised energy package have received veto threats from the White House. Controversial provisions deal with drought, wildfire and riders related to the National Environmental Policy Act.
Republican negotiators say a conference committee is the ideal place to work out disagreements. But Democrats, who helped write the Senate's S. 2012, say they would be at a disadvantage.
"Instead of going to conference -- where they can freeze us out just like they did on Zika -- we ought to have a bipartisan negotiation, [otherwise] nothing will get done. The president will veto whatever they come up with," Schumer said.
As partisan wrangling continues, the Senate could leave as early as today for its Independence Day recess. Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) said yesterday there was no news yet on scheduling a vote on going to conference.
The issue did not come up at the Democrats' weekly caucus lunch, Energy ranking member Maria Cantwell (D-Wash.) said on her way out of the Capitol yesterday afternoon.
When asked what the next step would be, Cantwell boarded a Senate train headed toward her office and said, "I'm going to find out."
For the second time in a seven days, environmental groups urged senators to oppose any motion to go to conference on the House-passed version of the bill (E&E Daily, June 22).
The Sierra Club, 350.org and the League of Conservation Voters were among two dozen groups that signed onto the latest letter, citing "troubling provisions."
They wrote: "We appreciate your efforts to return to regular order and work across party lines on energy policy. But process isn't the same as progress."
The groups added that the House-passed legislation "would undoubtedly take our country down the wrong track and contains so many controversial and problematic provisions it is impossible to see how agreement could be found."
They added, "Rejecting a conference with the current House offer is essential to protect against harm to our environment."
Schumer said nothing will get done unless Congress works in a bipartisan way.
"That's plain and simple. That's how it works," Schumer said. "And if the Republicans don't want to do things in a bipartisan way, they're just going to tie the place in a knot, whether it's energy, Zika or anything else."
Reporters Hannah Northey and Nick Sobczyk contributed.
http://www.eenews.net/eedaily/2016/06/29/stories/1060039572

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Inhofe Still Mulling Bid to Nullify EPA's Methane Rules

Jun 29, 2016 | BNA Daily Environment Reports

By Anthony Adragna

Senate Republicans have not ruled out launching a Congressional Review Act (CRA) challenge to the Environmental Protection Agency's regulations on methane emissions but lack a time frame for doing so, the chairman of the Senate Environment and Public Works Committee told Bloomberg BNA June 28.
Sen. James Inhofe (R-Okla.)—who said in March he “personally, would want a CRA on each one” of the EPA rules finalized in 2016—said there has been no decision about whether and when to mount a bid to nullify EPA's methane standards for new and modified oil and gas wells.
“We haven't really decided, but that's one resource that's out there that we'll try to do,” Inhofe said. “I have not ruled [a CRA challenge] out, no.”
The Oklahoma Republican has been an outspoken critic of the EPA's regulatory efforts on methane and asked the agency to halt all work to curb emissions of the potent greenhouse gas from the oil and gas sector. Inhofe said the agency doesn't understand the industry and has repeatedly questioned the modeling used as the basis for the rules.
The EPA published regulations June 3 curbing methane emissions from new and modified wells as part of new source performance standards (81 Fed. Reg. 35,824; RIN:2060-AS30).
Better Odds Next Year?
The odds of overturning environmental rules through the seldom-used procedure to force an expedited up-or-down vote may increase in 2017 if Republicans win the White House and hold both chambers of Congress in the November elections.
That is because President Barack Obama repeatedly has vetoed resolutions of disapproval for a host of regulatory initiatives, including efforts on climate change, and Congress has come up well short of the two-thirds of members needed to override them.
A Congressional Research Service report predicted final rules submitted after May 16 could be subject to disapproval actions in 2017.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=92830347&vname=dennotallissues&fn=92830347&jd=92830347

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Court Rejects Greens’ Challenges to Natural Gas Exports

Jun 28, 2016 | The Hill - E2 Wire

By Timothy Cama

A federal appeals court rejected environmentalists’ challenges to two liquefied natural gas export projects.
The Sierra Club and its allies faulted the Federal Energy Regulatory Commission’s (FERC) decisions to approve projects in Texas and Louisiana.
They said FERC’s environmental reviews failed to account for the impacts of increased natural gas drilling and the cumulative impacts of multiple natural gas export facilities.
But the Court of Appeals for the District of Columbia Circuit disagreed, saying FERC’s environmental reviews didn’t have to account for those factors.
“The commission’s NEPA analysis did not have to address the indirect effects of the anticipated export of natural gas,” the court wrote in its Tuesday decision regarding the Freeport LNG project in Texas. “That is because the Department of Energy, not the commission, has sole authority to license the export of any natural gas going through the Freeport facilities.”
It used similar reasoning in the case regarding the Sabine Pass facility in Louisiana.
The court’s argument stems from the fact that while FERC is responsible for approving the facilities themselves, the Energy Department has the separate task of considering applications to export natural gas. Therefore, any impacts from exports, like increased gas drilling and increased pollution, are the department's responsibility.
The groups are also suing the Energy Department for its export approvals for the facilities, which the court hinted could turn out differently.
The Sierra Club said the ruling is a big loss for the environment.
“This disappointing decision fails to address the significant environmental harms of increased gas exports, and is not the end of the road in this fight,” said Lena Moffitt, head of the group’s Beyond Dirty Fuels campaign.
“There continues to be a groundswell of grassroots efforts adamant in stopping the extraction, burning and export of gas, and neither their efforts nor our legal efforts to block these dirty, dangerous projects will stop as result of today’s decisions,” she said.
The case is part of a multi-pronged attack from greens on gas exports. The idea of gas exports has picked up steam in recent years as a way to help United States allies while giving a bigger market to the domestic gas industry.
But greens say the Obama administration has been far too lax with its approvals to export, without properly considering the environmental impacts.
Only one gas export facility is currently operating in the contiguous United States. The Sabine Pass terminal, the subject of one of the Sierra Club’s lawsuits, started exporting earlier this year.
http://thehill.com/policy/energy-environment/285175-court-rejects-greens-challenges-to-natural-gas-exports

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EPA Supporters Fight Industry's 'Regulatory Capture' Seen Delaying Rules

Jun 28, 2016 | Inside EPA

Democratic senators and environmentalists supportive of EPA are seeking strategies for overcoming what they say is a successful strategy by various industry groups to force “regulatory capture” delaying various agency rules, such as creating a regulatory “watchdog” to target what they see as bias in the rulemaking process.
“The current process is loaded with opportunities for powerful industry groups to tilt the playing field in their favor, and corporations take every one of those opportunities,” said Sen. Elizabeth Warren (D-MA) at a June 28 event in Washington, D.C., hosted by the advocacy group Public Citizen.
Warren cited what she described as failures in EPA's process of developing Clean Air Act emissions limits for hazardous air pollutants (HAPs) -- where the agency has held many more meetings with industry groups than with environmentalists and community advocates -- as a major reason for reforming procedures to boost transparency in rulemakings, add “balance” to the public comment process, and simplify the text of rules.
For instance, she said, the vast majority of substantive comments offered on agency rules come from groups representing various industries, citing a split in the HAP rulemakings where just 4 percent of the total comments EPA received came from advocates, as opposed to 81 percent from industry.
“Severely under-resourced public advocates are just simply outgunned. States have experimented with adding a public advocate into the regulatory process,” Warren said, though she did not elaborate on how a federal version of that framework could work.
Sen. Sheldon Whitehouse (D-RI) told the event audience that Congress should focus its efforts on combating regulatory capture, where regulated entities are able to exercise control over rulemaking agencies -- a situation he argued legislators have largely ignored.
He called for a law to create a "regulatory watchdog, whether in the form of a regulatory inspector general or some other entity” as well as broader review of how the phenomenon's “symptoms, effects and cures.”
The legislators are pushing back on Republicans' broad regulatory reform agenda that seeks to add new requirements for agencies to implement rules, especially “major” rules with over $100 million in compliance costs. Whitehouse said at the panel that rather than a sincere effort to pare back burdensome rules, the effort is intended to advance long-standing GOP opposition to the Clean Air Act and other environmental and public-health laws, as well as legislation dealing with the financial sector and the insurance industry.
“Every time they roll out that wagon that has the 'burdensome regulation' curtain on it, look behind that curtain -- it's usually the same old Rottweilers,” he said.
Regulatory Costs
Along with the legislators' broad arguments on regulatory reform, other speakers at the event addressed more specific concerns about the state of the rulemaking process, including long delays between proposing and finalizing rules, inconsistent use of cost-benefit analysis and notice-and-comment policies vulnerable to industry pressure. All of those issues have affected EPA rules, they said.
Georgetown law professor Lisa Heinzerling, who headed EPA's policy office from July 2009 to December 2010, said EPA and other agencies have become too reliant on cost-benefit analyses to justify their rules, instead of looking to the requirements set out in statutory language that often does not mention economic factors.
Specifically, she pointed to EPA's mercury and air toxics standards (MATS) for power plants and the agency's social cost of carbon -- its controversial monetary value for the harm from carbon emissions -- as including “very strange assumptions.”
Heinzerling said the agency's discounting formula for weighting future effects of climate change is so convoluted that "effectively, the future is trivialized.”
She argued that agencies have expanded their use of cost-benefit analysis, as opposed to justifying rules solely through public health or environmental metrics, based on White House directives rather than new mandates from Congress -- meaning a future administration could potentially roll back the paradigm without a change in the law.
However, the Supreme Court's ruling last June in Michigan v. EPA could hamstring such an effort. The court held 5-4 that the agency erred when it failed to consider the costs of the MATS in its initial determination that the rule was appropriate and necessary under the Clean Air Act. Heinzerling acknowledged that "court rulings have started to do damage” to agencies' discretion on cost evaluations.
University of Texas law professor Wendy Wagner also focused on EPA air toxics rules in her discussion of flaws in the notice-and-comment process, arguing that studies found a “significant correlation” between industry comments on those policies and the agency's modifications to its final rules. For every two comments from regulated entities, EPA 'weakened the rule in one way,” she said.
She argued that industry dominance has led to “thinly financed groups” that represent environmentalists and pro-regulatory advocates “dropping out of the rulemaking process.”
Rule Delays
Multiple speakers noted that the average time it takes agencies to craft and review rules has spiked during the Obama administration.
Public Citizen speakers Amit Narang and Michael Tanglis identified EPA rules as among the most delayed, with the agency taking an average of 3.8 years to craft a rule. However, that figure is far short of the 12.5 years they said the Occupational Safety and Hazard Administration (OSHA) takes to craft an average rule.
George Washington University law professor Robert Glicksman noted that EPA was able to quickly advance its greenhouse gas standards for existing power plants despite those delays, and said that rule and the Obama administration's climate agenda in general, shows that “it is possible for agencies to move past some of these delays, but only if the president makes expeditious rulemaking a priority."
Former Congressional Review Service staffer Curtis Copeland said part of the problem comes from prolonged interagency review of pending rules, for which he blamed the White House Office of Interagency and Regulatory Affairs (OIRA), which must review major regulations and approve them prior to their publication in the Federal Register. The time for that office to review a rule or proposal before promulgation has ballooned far beyond the mandated 90 days, Copeland said, and called for action by Congress to accelerate its work.
"OIRA can control this if it wants to, but it has to have a reason to want to," he said. "The introduction of such legislation would probably make OIRA reform its own current practices, because they know how to do it.”
AFL-CIO Safety and Health Director Peg Seminario focused her talk on OSHA's rule delays, in particular its standards for protecting workers from exposure to silica dust, which the agency finalized March 24 -- almost 40 years after its first proposal.
She argued that the long delay shows industry's improper influence over the regulatory process, especially in the George W. Bush administration. There, she said, OSHA initially listed the long-delayed silica standard as a top priority, but "industry said no, they didn't want a standard" and it was left on the table until President Obama took office.
http://insideepa.com/daily-news/epa-supporters-fight-industrys-regulatory-capture-seen-delaying-rules

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Environment News

Deference Ruling Doesn't Apply to Boiler Rule Suit: EPA

Jun 29, 2016 | BNA Daily Environment Report

By Andrew Childers

A recent U.S. Supreme Court decision limiting the deference federal agencies are due in interpreting statutes has no bearing on litigation over the Environmental Protection Agency's emissions standards for boilers, the agencytold a federal court (U.S. Sugar Corp. v. EPA, D.C. Cir., No. 11-1108, response filed 6/27/16).
The EPA established maximum achievable control technology standards for toxic pollutants from industrial boilers and incinerators in a manner consistent with its past application of Section 112 of the Clean Air Act, which means the Supreme Court's recent decision in Encino Motorcars LLC v. Navarro doesn't apply to lawsuits over the rules, the agency told the U.S. Court of Appeals for the District of Columbia Circuit (Encino Motorcars LLC v. Navarro, 84 U.S.L.W. 4424, 2016 BL 196078 (2016)).
The Encino case only dealt with instances where an agency has revised its interpretation of a statute without providing an adequate explanation for its new reasoning, the EPA argued.
“Encino has no application to this case because, as explained in our brief (and discussed at oral argument), EPA has not changed its position on what the Clean Air Act requires,” the EPA said in its June 27 letter to the court. “To the contrary, EPA has consistently determined emission standards for existing sources under Clean Air Act section [112] on the basis of the average of the best-performing sources.”
Ruling ‘Directly Relevant' to Litigation
Environmental groups challenging the boiler and incinerator standards (RIN:2060-AQ25; RIN:2060-AR13) had argued in a June 23 letter to the D.C. Circuit that the Encino ruling is “directly relevant” to the litigation over the boiler and incinerator standards.
The Sierra Club, the Environmental Integrity Project and other groups are challenging the EPA's upper prediction limit, a statistical tool that was used to calculate minimum hazardous air pollutant standards for major source boilers and incinerators.
They argue the EPA has revised its interpretation of “average” as part of the Clean Air Act's requirement that the toxic pollutant standards represent the average emissions level achieved by the best-performing 12 percent of sources in the industrial sector.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=92830356&vname=dennotallissues&fn=92830356&jd=92830356

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API Launches Task Force to Study Climate Strategy

Jun 29, 2016 | PoliticoPro

By Andrew Restuccia and Elana Schor

The oil industry's powerful lobbying group, the American Petroleum Institute, is forming an internal task force to consider changes to its climate change messaging and policy, POLITICO has learned.
API's move comes as its members grapple with an internal division over a carbon tax and face mounting pressure from activists, lawmakers and state attorneys general over their longstanding opposition to government efforts to reduce emissions.
"The political environment has shifted so dramatically with Paris, with the 'keep it in the ground' campaign having controlled the conversation, with a president making climate change policy part of his legacy," one source said. "So it makes sense for API to be reviewing its approach to climate."
The task force is in its early stages of development, according to three industry sources who said it is expected to take a broad look at the many facets of a climate debate that President Barack Obama has embraced as a major second-term focus. The task force was created after discussions about climate policy and messaging among API’s executive committee members at a meeting earlier this month, according to the source.
Another source said the task force is an attempt to preempt simmering divisions within the industry over the best approach to addressing the climate threat and to avoid a repeat of the messy internal debate over crude oil exports. Last year's export debate splintered many in the oil industry, with producers and refiners forming rival lobbying organizations that butted heads over whether to lift the ban.
A third industry source said the task force will provide companies with an opportunity to develop a more unified response to the attacks on ExxonMobil over its climate research and lobbying. While the source said a carbon tax is likely to be a part of the discussion, he doubted that the divided membership will be able to reach a consensus on the issue. The task force has not met yet, this source said.
Asked for comment on the task force, API spokesman Eric Wohlschlegel said in an email: "We assess all of our priority issues on a regular basis."
Sen. Chuck Schumer (D-N.Y.), the Senate Democratic leader-in-waiting, has saidhis party could pursue a carbon tax if Hillary Clinton wins the White House, although the presumptive nominee has not embraced the policy. Clinton appointees to the Democratic National Committee's platform-writing panel voted down a proposal by Bernie Sanders backers to support a carbon tax in the party's official platform on Friday.
While a carbon tax faces strong political headwinds on Capitol Hill, many in the industry think the concept could gain traction under Clinton if Democrats take back the Senate. Hoping to end the carbon tax discussion before it even begins, the House earlier this month approved a non-binding resolution, largely along party lines, underscoring the GOP's opposition to the policy.
The oil industry's support for a carbon tax would likely be predicated on the elimination of a series of climate change-related regulations from EPA or the Interior Department. Exactly which regulations should be preempted and whether Democrats can be convinced to support the elimination of those regulations are likely to be a hot topic of discussion among those named to the API task force.
The split among API’s members over how and whether to tackle climate change opened in 2009, when Exxon CEO Rex Tillerson first endorsed a carbon tax as “a more transparent and a more effective” means to cut greenhouse gases than the cap-and-trade bill then under discussion in Congress.
But Obama’s hawkishness on climate since he ran for reelection touting a fossil-fuel-friendly "all-of-the-above" energy policy has deepened that schism among oil companies, particularly after six major European oil companies last year urgedUnited Nations climate negotiators to push “government across the world” for a price on carbon. Four of the six are members of API, through their U.S. subsidiaries.
API President Jack Gerard has acknowledged that the industry has conflicting opinions over how to talk about and make policy on climate, telling reporters last year that there are “different views within our industry as to how that should be addressed.” The group’s lack of a black-or-white position on a carbon tax is not without precedent. API also has stayed neutral on the gasoline tax, as Gerard told reporters last year.
This month’s symbolic House vote to condemn the idea of a carbon tax, however, pulled those tensions into the open.
API told Bloomberg that it would take no position on the House proposal, echoing Exxon's stance. The group told POLITICO that it's "had a long history opposing carbon taxes," declining to address whether its position had changed.
Exxon, a high-profile API member, is facing attacks from Democrats and environmentalists over allegations that it misled the public about internal research that underscore the threat of climate change. The company has touted its support for a carbon tax in a bid to counter those attacks.

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Senate Spending Bill Blocks International Climate Funding

Jun 28, 2016 | The Hill - E2 Wire

By Devin Henry

A spending bill approved by a Senate panel on Tuesday would block American money from going to an international climate change fund, a key Obama administration project.
The Senate’s $52.08 billion State Department and foreign operations bill, released on Tuesday, prohibits the federal government from making contributions to the international Green Climate Fund (GCF), a program established to help developing countries cope with climate change.
The Obama administration has pledged $3 billion for the climate fund by 2020, and in March the United States made its first payment of $500 million into the program. Funding the GCF is a major goal for international climate change negotiators, including those within the administration.
The March payment came despite Republican opposition to the Green Climate Fund. The party last year ignored President Obama’s funding request for the program and sought to block funding for it unless the Senate got a vote on the Paris climate deal.
A year-end spending deal, however, didn’t expressly prohibit federal funding for the GCF, and the Obama administration found money for it elsewhere in the State Department’s budget.
The new Senate bill, however, would block such payments, according to an overview of the bill released by the Appropriations Committee.
The provision will likely raise opposition among Democrats. Even so, an Appropriations subcommittee cleared the bill in a matter of minutes of Tuesday, and ranking Democrat Sen.Patrick Leahy (Vt.) indicated members will look to amend the bill during a full committee markup on Wednesday.
http://thehill.com/policy/energy-environment/285197-senate-spending-bill-blocks-international-climate-funding

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EPA Floats Options For Four States To Address CSAPR 'Budgets' Remand

Jun 28, 2016 | Inside EPA

By Anthony Lacey

EPA is floating options for four states to address a federal appeals court ruling that remanded the states' “budgets,” or allowable emissions levels, under the Cross-State Air Pollution Rule (CSAPR) to the agency for being too strict, with EPA saying the states can either voluntarily adopt the budgets or resolve the issue on a case-specific basis.
In a June 27 memo to all EPA regions, acting agency air chief Janet McCabe says either option is expected to satisfy the U.S. Court of Appeals for the District of Columbia Circuit's July 2015 ruling that largely upheld CSAPR on remand from the Supreme Court in EME Homer City Generation, L.P. v. EPA. But the D.C. Circuit in that ruling said that the budgets for Alabama, Georgia, South Carolina and Texas were stricter than the Clean Air Act required.
While the decision left the rest of the landmark sulfur dioxide (SO2) and nitrogen oxides (NOx) emissions trading program intact, EPA was tasked with weighing how to respond to the judges' finding that the caps on SO2 -- which leads to fine particulate matter (PM2.5) formation -- were more stringent than necessary to address the four states' obligations under the air law to reduce their interstate contributions to PM2.5 pollution.
McCabe says that the agency is now floating two options to address EME Homer City. Under the first option, states can either voluntarily choose to continue participating in CSAPR using the existing SO2 budgets.
Under the second option, EPA would remove federal implementation plans (FIPs) that it imposed on the states to implement the SO2 and NOx trading program. The agency would then address any remaining interstate air transport or associated regional haze air pollution obligations for the states “on a state-by-state basis.”
McCabe cautions in a footnote that the memo does not reflect final agency action and does not impose any legally binding or enforceable requirements on the affected states. Any changes to states' obligations under either of the two options would only happen through a future final agency action, the footnote says.
Although the memo is being sent to all EPA regions, McCabe says that plan she outlines is intended only for the four affected states and that it is “only for informational purposes” for other states.
CSAPR aims to help states reduce ozone-forming NOx and to curb PM2.5 created from NOx and SO2, in order to ease attainment of the agency's ozone and PM2.5 air standards. But states have also relied on pollution cuts expected from CSAPR in their state implementation plans (SIPs) for complying with EPA's regional haze air program, which requires cuts in haze-forming emissions to improve visibility in national parks and wilderness areas.
Two Options
McCabe says in the memo that there are two major considerations for how to proceed -- that simply revising the SO2 budgets upwards might not be sufficient to meet air transport obligations or to allow states to continue to rely on CSAPR participation as satisfying their regional haze best available retrofit technology (BART) emissions control requirements; and that any change to the SO2 budgets will likely impact the NOx budgets.
“The EPA has taken these considerations into account in evaluating options to address the SO2 budget remand for these four states,” McCabe writes before outlining the two options for the states in further detail.
“Given the need for a timely response to the remand of the SO2 budgets, the importance of ensuring the continued availability of CSAPR as a BART alternative for states without remanded budgets, the desirability of also maintaining participation in CSAPR as a possible BART alternative for states with remanded budgets, and the other considerations discussed above, the EPA has developed a plan for responding to the SO2 budget remand with a choice of two paths for each of the four states with remanded SO2 budgets,” the memo says.
The first path will allow states to continue to participate in CSAPR but voluntarily adhere to the strict SO2 budgets, and this would also allow continued reliance on CSAPR as BART. If states choose this option and commit to revising their SIPs -- but have not yet done so -- then McCabe says EPA will continue requiring the states to participate in CSAPR's SO2 and annual NOx programs through FIPs while waiting for SIPs it can review.
The second path is for states that want to no longer participate in CSAPR, and under this option EPA will initiate a rulemaking by this fall to remove the states' air pollution sources from CSAPR's SO2 and annual NOx programs. “Any remaining interstate transport or regional haze obligations for such a state will be addressed with SIP or FIP actions, as appropriate, on a state-by-state basis,” according to the memo.
Regardless of which path the states choose, their FIP requirement to participate in CSAPR and comply with the federally-established SO2 budgets will be eliminated, McCabe says.
http://insideepa.com/daily-news/epa-floats-options-four-states-address-csapr-budgets-remand

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