Preview Newsletter
ACC AM 7/18/16
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Give EPA Detailed New Chemical Notices, Attorneys Advise
Jul 18, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Manufacturers of new chemicals should give the Environmental Protection Agency strategic, detailed notices about exposures and properties to boost their market chances following changes to the U.S. chemicals law, industry advisors say. -
(ACC Mentioned) Inside a Handsome Tiny House With Solar Shingles
Jul 15, 2016 | Curbed
By Jenny Xie
While most tiny houses seem to be made from wood, one tiny house that’s been traveling around the country is constructed of something a bit more unexpected: plastic. -
EPA PFOA Actions Must Be Probed, Attorney Tells Congress
Jul 18, 2016 | BNA Daily Environment Report
By Rachel Leven
A House oversight committee should consider investigating the Environmental Protection Agency's lag in addressing water contaminated with a potentially carcinogenic chemical, according to an attorney familiar with the issue. -
Study Finds EU Chemicals Compliance Costs $10.5 Billion Annually
Jul 18, 2016 | BNA Daily Environment Report
By Stephen Gardner
Chemicals companies in the European Union incur costs equivalent to 2 percent of their revenues on average every year from compliance with the health and environmental legislation that directly affects them, according to a July 14 study prepared for the European Commission. -
Critics Likely Cannot Sue Over EPA's CEIP Authority, Attorney Says
Jul 15, 2016 | Inside EPA
By Abby Smith
Critics of EPA's existing power plant greenhouse gas (GHG) rule likely cannot legally challenge the agency's authority to create an early action incentive program alongside the rule because they failed to make such arguments in the pending litigation over the GHG regulation, which details much of the basis for the incentive program, an environmental lawyer says. -
Oil, Gas Industry Asked about Methane Emissions Monitoring
Jul 18, 2016 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency is seeking better information on methods to monitor and detect methane leaks from oil and natural gas systems as it gathers the data necessary to regulate existing wells. But industry is questioning the timing of the request. -
Oil and Gas Setback Proposal Could Harm Colorado's Economy
Jul 18, 2016 | BNA Daily Environment Report
A proposed ballot measure (Initiative 78) in Colorado that would impose a 2,500-foot setback for new oil and gas wells could cost the state as many as 54,000 jobs in its first five years, a new study found. -
Court Rejects Greens’ Challenge to Natural Gas Export Facility
Jul 15, 2016 | The Hill - E2 Wire
By Timothy Cama
A federal appeals court Friday rejected environmentalists’ challenge to a liquefied natural gas (LNG) export facility under construction in Maryland. -
(ACC Mentioned) Committee Approves Blocking EPA Chemical Plant Safety Rule
Jul 18, 2016 | BNA Daily Environment Report
By Sam Pearson
A funding bill House lawmakers approved would block the Environmental Protection Agency's main regulatory response to a 2013 Texas fertilizer explosion that killed 15 people. -
(ACC Mentioned) U.S. Congress Clears The Way For Limits On Drone Flights Near Chemical Plants And Refineries
Jul 18, 2016 | Chemical & Engineering News
By Glenn Hess
The U.S. Senate gave final congressional approval on July 13 to bipartisan legislation that paves the way for restrictions on the operation of drones near chemical plants, oil refineries, and other “critical infrastructure” facilities. -
(ACC Mentioned) Chemical Breakdown: Part 4
Jul 16, 2016 | Houston Chronicle
By Susan Carroll and Matt Dempsey
Rickey Giddens turned off the ignition and climbed down from the cab of his tanker truck at the PeroxyChem plant in Pasadena on an overcast January afternoon. -
Federal Toxicity Study Of MCHM Concludes
Jul 16, 2016 | Chemical &Engineering News
By Jessica Morrison
A federal study of 4-methylcyclohexanemethanol (MCHM) concluded this month that exposure to the chemical through the Charleston, W.Va., water supply in 2014 is “not likely to be associated with any adverse health effects.” -
GOP Divided Over $500M For Climate Fund
Jul 17, 2016 | The Hill - E2 Wire
By Devin Henry
Republicans are divided over the future of a major international climate change program.
Congressional Hearings - There are no relevant hearings to report at this time
Industry and Association News - There are no clips to report at this time
TSCA News
Chemical Management News
Energy News
Chemical Security News
Transportation News - There are no clips to report at this time
Environment News
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Give EPA Detailed New Chemical Notices, Attorneys Advise
Jul 18, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Manufacturers of new chemicals should give the Environmental Protection Agency strategic, detailed notices about exposures and properties to boost their market chances following changes to the U.S. chemicals law, industry advisors say.
Pre-manufacture notifications, or PMNs, that makers must submit before they can produce or import a new chemical, and significant new use notifications, which companies must submit before they can make or use certain chemicals in new ways, “need to be much more strategic, thoughtful and detailed,” Lynn Bergeson, managing partner of Bergeson & Campbell PC said during a July 14 webinar the firm organized.
Ernie Rosenberg, president and chief executive officer of the American Cleaning Institute, told Bloomberg BNA July 15 that new chemical manufacturers are asking for trouble if they submit a notification without first checking how analogous chemicals are regulated in Australia, Canada, the European Union and elsewhere.
Richard Dension, lead senior scientist with the Environmental Defense Fund, said the changes the amended law makes to EPA's new chemicals program “are not trivial.”
The changes will make it easier for the public to understand why EPA concludes that new chemicals may or may not enter commerce; what restrictions it may impose on the uses of those chemicals and why, he said during the Bergeson & Campbell webinar.
Easier for EPA to Get Data, Impose Controls
Martha Marrapese, an attorney with Keller and Heckman LLP, said the amended Toxic Substances Control Act makes it easier for the EPA to ask manufacturers to provide more information.
The amended law also makes it easier for the EPA to impose restrictions on the potential uses of a new chemical, Marrapese said during a July 13 Keller and Heckman webinar.
The good news is that companies that provide the EPA with sufficient exposure, toxicity or physical-chemical information to convince the agency the new chemical would meet the law's safety standard can make or import their new chemical before the 90-day review period is over, Marrapese said.
Under the previous version of TSCA, chemical manufacturers had to wait 90 days to make a new chemical, even if it raised no concerns for the EPA, she said.
Law Establishes New Decisions, Criteria
As amended June 22 by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub.Law No. 114-182), TSCA now allows companies to commence manufacture of a new chemical as soon as they receive a letter or other notification from EPA stating it has concluded the compound is not likely to present an unreasonable risk, Marrapese said.
She referred to one of the explicit decisions the Lautenberg Act requires the EPA to make as it reviews new chemicals.
For example, the agency's risk evaluation must focus on the chemicals “conditions of use.”
The EPA also must determine whether the new chemical would pose an unreasonable risk to “potentially exposed or susceptible subpopulations.”
Bergeson, Marrapese and Rosenberg discussed the implications of these new decisions and criteria and the impact they may have on the chemical industry's ability to innovate new products.
Law: EPA Must Not Impede Innovation
Both the old and newly amended TSCA say the EPA's “authority over chemical substances and mixtures should be exercised in such a manner as to not impede unduly or create unnecessary economic barriers to technological innovation,” Bergeson said, referring to Section 2601(b)(3).
The new law makes “very consequential changes” to the new chemicals provisions of TSCA as the EPA will have to carefully balance the requirements imposed by different sections of the law, she said.
Rosenberg, who years ago helped manage the agency's new chemicals program, said the EPA has always been sensitive to the importance of innovation as it reviews new chemicals.
The amended law does impose additional decision-making criteria on the EPA, he said.
Cite Evidence, Rosenberg Says
The new criteria in the law mean chemical manufacturers will have to use evidence to back their assumptions, Rosenberg said.
Many of the EPA's potential concerns may be addressed by citing exposure data, such as information that would show a compound's molecular structure would not migrate from a car bumper or baby's teething ring, he said.
Manufacturers may need to search for data on similar chemicals, and will have to tap chemical databases from around the world, Rosenberg said.
Manufacturers also should check whether an analogous chemical has had its uses restricted in another country, he said.
“Everyone will be looking much more carefully. They'll want EPA to make the finding that their chemical is likely to meet the safety standard,” Rosenberg said.
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(ACC Mentioned) Inside a Handsome Tiny House With Solar Shingles
Jul 15, 2016 | Curbed
By Jenny Xie
While most tiny houses seem to be made from wood, one tiny house that’s been traveling around the country is constructed of something a bit more unexpected: plastic.
Built as part of the American Chemistry Council’s Plastics Make It Possible campaign—which hopes to show the innovative and positive aspects of an oft-maligned material—the 170-square-foot tiny house is a custom design by Zach Giffin, co-host of the FYI Network show Tiny House Nation. Completed last year in Boulder, Colorado for about $50,000, the structure wants to prove that plastics and recycled plastics can be incorporated into pretty much every component of a tiny house, and with energy-efficient results.
Across the dwelling, you’ll find, for example, recycled plastic decking, low-maintenance vinyl flooring made to look like wood, and a plastic foam board used as rigid insulation between the interiors walls and the siding. One of the most interesting details is the series of engineered plastic solar shingles on the roof, which allow a discreet, streamlined way to incorporate renewable energy. All this is probably plastic overload for any home, but the project does offer some alternatives for each component of the tiny house building process.
The house, which was on exhibit in Los Angeles earlier this year, is now parked on a lawn at Pittsburgh’s Carnegie Science Center and open for tours daily through September 11. The video below takes you inside the tiny house and highlights several construction details.
http://www.curbed.com/2016/7/15/12201574/tiny-houses-design-build-materials-plastic
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EPA PFOA Actions Must Be Probed, Attorney Tells Congress
Jul 18, 2016 | BNA Daily Environment Report
By Rachel Leven
A House oversight committee should consider investigating the Environmental Protection Agency's lag in addressing water contaminated with a potentially carcinogenic chemical, according to an attorney familiar with the issue.
That would mean expanding the House Oversight and Government Reform Committee's inquiry into perfluorooctanoic acid (PFOA) contamination in Hoosick Falls, N.Y., attorney Robert Bilott said. The EPA's lag in New York is indicative of the agency's actions since 2001, when his team first requested the EPA address the contamination in several states, he said.
“Despite these repeated pleas for EPA assistance, the residents were forced to pursue clean water, blood testing, health studies/monitoring, and other relief through many years of expensive private litigation,” Bilott said in a July 14 letter to the committee, adding that the EPA's actions since have resulted in stopping new PFOA releases, but remediation is still an issue.
The letter—and the committee's investigation—come on the heels of the EPA's issuance of a nonbinding lifetime health advisory for PFOA that the agency set at 70 parts per trillion. Environmentalists, former manufacturers and others disagree about whether the EPA's advisory is not stringent enough or overly conservative.
Bilott has worked on PFOA-related issues for more than a decade, including pushing West Virginia and the EPA to address PFOA contamination in the vicinity of the Washington Works, a DuPont subsidiary-owned facility, and leading a successful class action against DuPont in 2005 over PFOA water contamination.
Bilott is an attorney for Taft Stettinius & Hollister LLP. The letter was addressed to the House committee's chairman, Rep. Jason Chaffetz (R-Utah), and the chairwoman of the Oversight Subcommittee on the Interior, Rep. Cynthia Lummis (R-Wyo.).
The House committee and the EPA didn't immediately respond to Bloomberg BNA's messages requesting comment.
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Study Finds EU Chemicals Compliance Costs $10.5 Billion Annually
Jul 18, 2016 | BNA Daily Environment Report
By Stephen Gardner
Chemicals companies in the European Union incur costs equivalent to 2 percent of their revenues on average every year from compliance with the health and environmental legislation that directly affects them, according to a July 14 study prepared for the European Commission.
The study found that on average, each year between 2004 and 2014, the EU chemicals sector incurred costs of 9.5 billion euros ($10.5 billion) from compliance with the bloc's REACH law (Regulation No. 1907/2006 on the registration, evaluation and authorization of chemicals) laws on industrial emissions, rules on chemical classification and labeling, and workplace safety legislation.
Calculated as a proportion of value added, or the difference between costs and revenues, compliance costs are equivalent to 12 percent for EU chemicals companies, the study said.
The study found varying costs for different subsectors within the chemicals industry, with regulatory compliance costing the equivalent of 23.2 percent of value added for pesticides producers, 16.7 percent of value added for speciality chemicals producers, and 12.1 percent and 11.3 percent, respectively, for inorganic and organic basic chemicals.
The share of compliance costs was greatest at 33 percent for legislation related to industrial emissions and environmental permits, including the EU Emissions Trading System Directive (2003/87/EC) and the Industrial Emissions Directive (2010/75/EU), while compliance with REACH made up 29 percent and compliance with workplace safety legislation made up 24 percent of the total cost of compliance for chemicals companies, the study said.
Post-2018 Drop
The European Commission, the EU's executive arm, said, “no policy conclusions can be drawn at this stage” because the study considered only compliance costs and did not look at the benefits of regulation.
The commission ordered the study as part of a broader initiative to assess the costs of regulatory compliance for EU industrial companies in comparison with costs for similar companies in other jurisdictions.
A follow-up study will compare costs that EU companies face with “regulatory costs for chemical companies in other regions, such as the United States, China and India,” the commission said.
The European Chemical Industry Council said in a statement July 14 that the study showed a “significant burden” from “Europe's complex regulatory framework,” and that compliance costs could be expected to rise because of “stricter emissions limit values, with more ambitious CO2 emissions reduction targets and energy efficiency objectives.”
The commission study said, a “noticeable reduction of administrative burden is expected in the future” for REACH because compliance costs will decline after the final REACH deadline in May 2018, by when all substances made or sold in the EU in annual volumes of 1 metric ton or more should be registered with the European Chemicals Agency.
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Critics Likely Cannot Sue Over EPA's CEIP Authority, Attorney Says
Jul 15, 2016 | Inside EPA
By Abby Smith
Critics of EPA's existing power plant greenhouse gas (GHG) rule likely cannot legally challenge the agency's authority to create an early action incentive program alongside the rule because they failed to make such arguments in the pending litigation over the GHG regulation, which details much of the basis for the incentive program, an environmental lawyer says.
“If people are saying there's a lack of authority for the” incentive program, it is “noteworthy that no one raised that claim in the challenge to the Clean Power Plan that is pending,” the source tells Inside EPA, adding that opponents effectively missed their chance to raise the issue in litigation because the fundamentals of the incentive program are outlined in the final rule.
As such, they likely cannot pursue attempts to legally scrap the incentive program even if they were to challenge subsequent agency actions related to the program, the source says.
The power plant rule's voluntary incentive program -- dubbed the Clean Energy Incentive Program (CEIP) -- is a voluntary program that seeks to encourage states to deploy clean energy ahead of the start of power plant rule's compliance by offering states and affected entities credit for certain renewable energy projects and low-income energy efficiency projects.
The program is distinct in that it straddles two rulemaking processes. Many of the fundamental details establishing the existence, intent and outline of the program were finalized in the existing source performance standards (ESPS) rule last summer.
But the agency at that point noted it would initiate a subsequent proposal outlining further design elements following an informal stakeholder process.
EPA released that proposal, outlining further design details -- including a shift in the eligibility dates to account in part for the renewable tax credit extensions, an expansion of the types of renewable energy eligible for credit and clarification of how allowances will be divided among the renewables and energy efficiency credit pools.
While the proposal's release sparked critics' charges that EPA's action on the program violated the Supreme Court's stay of the ESPS, it also renewed arguments from some critics that the agency lacks the statutory authority to even create the incentive program.
Several ESPS critics charge that EPA does not have explicit Clean Air Act authority to create any sort of program that awards regulatory credits for early or voluntary GHG reductions, citing several attempts by both the George W. Bush administration and by lawmakers to grant EPA and other agencies this authority that ultimately fizzled.
Nevertheless, the agency's dual approach to establishing the CEIP could now help protect the program from future legal challenges, as the environmental lawyer says critics could not dispute the legal basis and foundation of the CEIP in any challenges to the subsequent program update after it is finalized.
“My surmise is that parties could challenge elements of the final CEIP that were, in fact, considered and adopted in this follow-on rulemaking,” the lawyer says.
Lacks Authority
But because opponents did not include CEIP arguments in pending appellate litigation over the ESPS, the lawyer says critics cannot challenge the program's legal basis and fundamental existence in any suit over the latest update. “What you can challenge is what the rulemaking was about, not every prior thing that was part of the regulatory background or baseline for it,” the source said.
The lawyer notes that EPA states as much in its recent CEIP proposal, taking particular care to specify what the proposal sought to clarify and what it was not reopening for consideration.
“The rationale and legal authority for the CEIP in particular are also set forth in the final Clean Power Plan. . . . Nothing in this action reopens the legal determinations or rationale set forth in the final Clean Power Plan,” EPA writes in the CEIP proposal.
More specifically, the agency adds: “In this action, the EPA is not reopening its decision to establish the CEIP, the maximum size of the matching pool, the requirement for states to include a mechanism in their plans that ensures that the award of early action [credits] will not impact [their ability to meet the ESPS targets], any other design parameters not expressly opened for comment or proposal in this notice, or its determination of legal authority and rationale for the CEIP provided in the preamble to the final Clean Power Plan.”
Despite failing to raise the issue in litigation, several ESPS opponents have criticized EPA's creation of the CEIP, charging that the agency lacks authority to create such a program -- a charge that is proven, they say, by a history of attempts just prior to and during the Bush administration to create a similar voluntary incentive program for GHG reductions that never materialized.
One such attempt came from Bush himself, who directed the Energy Department (DOE) in 2002 to enhance its voluntary GHG reporting program under the Energy Policy Act and “to give transferable [tradable] credits to companies that can show real reductions,” wrote Marlo Lewis, a senior fellow at the Competitive Enterprise Institute in an August 2015 blog post.
Lewis explained that DOE received several comments on its rulemaking arguing that no federal agency had the authority “under current law” to establish such a program. “The critics prevailed. At the last major stakeholder meeting, the facilitator announced, unceremoniously and without explanation, that DOE's general counsel had determined the agency lacked statutory authority to provide transferable credits,” Lewis wrote.
In addition, several lawmakers, led by then-Sen. Joe Lieberman (D-CT), in the 105th and 106th Congresses introduced legislation called the “Credit for Early Voluntary Reductions Act,” which aimed “to amend the Clean Air Act to authorize the President to enter into agreement to provide regulatory credit for voluntary early action to mitigate greenhouse gases.” Neither bills gained traction in Congress at the time.
Lewis argued in his blog post that the very existence of such legislative proposals underscored the fact that, “absent such legislation, the President has no authority to award early credits and, thus, may not direct any agency to do so.”
He also noted that, during this period, advocates had admitted the administration lacks authority to grant regulatory credit for early or voluntary reductions.
Lewis quoted the Pew Center for Global Climate Change -- now known as the Center for Climate and Energy Solutions -- describing its analysis that “finds that federal agencies do not have sufficient legal authority to provide the certainty that firms need to make significant early investments. Congress must provide the legislative framework to remove disincentives to early action.”
Lewis did not return calls seeking comment.
Not Sensible Target'
Nevertheless, the environmental lawyer charges that critics' reluctance to include these arguments against the CEIP in the pending ESPS litigation reveals that they are not convinced their claims hold merit.
“It must be a measure of the critics' assessment of the strength of their argument or the importance of the issue to them that none of them challenged the CEIP” in the ESPS litigation in the U.S. Court of Appeals for the District of Columbia Circuit.
Beyond that, the source notes that a program like the CEIP could help ease compliance in many states, and that ultimately states will want the CEIP in place if the rule is upheld.
“Some of the challenge . . . that EPA has done too much . . . that's part of a broader political attack,” the lawyer says, adding that such sentiment will be “partly blunted” if the rule ultimately survives the litigation.
“Despite all the rhetoric, the Clean Power Plan and lots of features of it are actually designed to go about reducing carbon emissions in a way that is flexible and attentive to cost,” the source adds, noting a “disconnect between the rhetoric of constant opposition” and what would be beneficial to a state trying to “position itself to do well in a carbon-constrained world.”
If the rule is upheld, many of the states aggressively litigating the rule will begin to buckle down and craft an ESPS compliance plan that works for the state's specific situation, the source argues. At that point, the CEIP might be an example of something “that would not be a sensible target.”
http://insideepa.com/daily-news/critics-likely-cannot-sue-over-epas-ceip-authority-attorney-says
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Oil, Gas Industry Asked about Methane Emissions Monitoring
Jul 18, 2016 | BNA Daily Environment Report
By Andrew Childers
The Environmental Protection Agency is seeking better information on methods to monitor and detect methane leaks from oil and natural gas systems as it gathers the data necessary to regulate existing wells. But industry is questioning the timing of the request.
The EPA is requesting information on technologies such as the optical gas imaging system that can be used to monitor various emissions points across the oil and natural gas system, according to a notice to be published in the Federal Register July 18. The agency is also asking for additional input on ways to mitigate methane leaks across the oil and gas sector.
The EPA will accept comments on the request until Nov. 15. However, the oil and gas industry said that deadline conflicts with a requirement to report annual greenhouse gas emissions to the EPA later this year as well as the agency's other ongoing information collection request on methane emissions from the industry.
“It's kind of the worst timing possible that EPA could have picked,” Sandra Snyder, regulatory attorney for environmental and personnel safety at the Interstate Natural Gas Association of America, told Bloomberg BNA July 15. “It's many of the same employees, too.”
The latest notice follows the EPA's broader information request as it collects the data on various aspects of the oil and gas industry necessary to consider methane regulations for existing oil and gas wells under Section 111(d) of the Clean Air Act. Those standards would follow similar methane limits the agency set on new and modified wells (RIN:2060-AS30) under Section 111(b). The comment period on that broader information collection request closes Aug. 2.
Howard Feldman, director of regulatory and scientific affairs at the American Petroleum Institute, estimated that broader information collection process could cost the industry as much as $100 million. Despite that, he said the information collection is a necessary step before the EPA pursues any regulations.
“EPA should gather all the info they need before making any decisions,” Feldman said.
Comments on the latest information request can be made at http://www.regulations.gov and should reference docket No. EPA-HQ-OAR-2016-0346.
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Oil and Gas Setback Proposal Could Harm Colorado's Economy
Jul 18, 2016 | BNA Daily Environment Report
A proposed ballot measure (Initiative 78) in Colorado that would impose a 2,500-foot setback for new oil and gas wells could cost the state as many as 54,000 jobs in its first five years, a new study found.
Requiring oil and gas producers to comply with the 2,500-foot setback requirement—which is the minimum distance between new wells and occupied buildings such as homes, schools, churches and hospitals—also could lower Colorado's gross domestic product by an average of $7.1 billion in the first five years of effectiveness, according to the study, released July 14. The study was conducted by the Business Research Division at the University of Colorado and commissioned by the Metro Denver Economic Development Corp.
“This study illustrates the dire effects of a full attack on an industry that has been historically vital to our state's economy,” said Tom Clark, CEO of the economic development organization. “Companies simply would not be able to operate here. This initiative, were it to pass, would usher in the probable demise of the oil and gas industry in Colorado.”
Additionally, the proposal would put 95 percent of land in the top five oil-and-gas-producing counties in Colorado off limits for new drilling and fracturing projects, he said.
The Colorado Secretary of State approved the petition format for proposed Initiative 78, and supporters are now gathering signatures to place it on the November ballot.
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Court Rejects Greens’ Challenge to Natural Gas Export Facility
Jul 15, 2016 | The Hill - E2 Wire
By Timothy Cama
A federal appeals court Friday rejected environmentalists’ challenge to a liquefied natural gas (LNG) export facility under construction in Maryland.
The decision from the Court of Appeals for the District of Columbia Circuit is the third time in recent weeks that the court has rejected greens’ arguments against an LNG export site.
The green groups, led by Patuxent Riverkeeper, argued that the Federal Energy Regulatory Commission (FERC) did not properly consider the environmental impacts of the Dominion Cove Point project in eastern Maryland.
In particular, the greens said FERC should have considered the impacts of increased production and consumption of natural gas, like climate change and the effects of hydraulic fracturing.
The same court rejected those arguments last month when the Sierra Club applied them to two other natural gas export facilities.
The court ruled in those cases that since the Department of Energy is responsible for approving gas export applications, and FERC is only tasked with approving the facilities, the Department of Energy is the body responsible for evaluating the impact of exports.
“Petitioners’ contentions regarding the indirect effect of increased exports on upstream natural gas production resemble those rejected in Sierra Club (Freeport) and Sierra Club (Sabine Pass),” the court said, citing its cases from June.
“And while those cases did not address whether NEPA reaches the effects of emissions arising from the transport and consumption of exported natural gas, this indirect effect similarly ‘cannot occur unless a greater volume of [LNG] is shipped from [Cove Point] and enters the international marketplace,’” the judges wrote.
Deborah Goldberg, an attorney with Earthjustice who represented the greens in the case decided Friday, disagreed with the ruling.
“We don’t think this makes any sense under NEPA,” she said. “It certainly isn’t what either agency intended.”
The environmental coalition involved in all three cases has already sued the Department of Energy for all three export sites.
Goldberg predicted that the Department of Energy could be in trouble in those cases, since the court implied that the department was responsible for evaluating far more than it actually did.
http://thehill.com/policy/energy-environment/287962-court-rejects-greens-challenge-to-natural-gas-export-facility
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(ACC Mentioned) Committee Approves Blocking EPA Chemical Plant Safety Rule
Jul 18, 2016 | BNA Daily Environment Report
By Sam Pearson
A funding bill House lawmakers approved would block the Environmental Protection Agency's main regulatory response to a 2013 Texas fertilizer explosion that killed 15 people.
Language in the Interior-Environment Appropriations bill (H.R. 5538) would prevent EPA from implementing its update to the risk management program, “Modernization of the Accidental Release Prevention Regulations Under Clean Air Act” (RIN:2050-AG82). The House Appropriations Committee approved the amendment by Rep. Mike Pompeo (R-Kan.) by voice vote July 14.
The provision drew the strong support of the chemical industry's largest trade group, the American Chemistry Council . Previously, the group had largely sought to influence the proposed regulation, not prevent its completion.
The vote “demonstrates the serious concern in Congress with EPA's proposal and the importance of ensuring that changes to the RMP program will deliver concrete safety benefits,” the ACC said in a statement July 14. “The Senate must now take action to prevent this misguided proposal from being finalized and implemented.”
At the same time, ACC's statement acknowledged that the proposal contains “some constructive modifications to the RMP program,” which the policy rider would bar EPA from using any funds to complete.
Scott Jensen, a spokesman for the trade group, told Bloomberg BNA July 15 the idea was to signal to EPA that changes are needed, not necessarily to halt the rule entirely.
“I think it underscores the growing concern with some of the issues” among industry groups, Jensen said.
In public comments, ACC and other groups have warned the rule as proposed March 14 is burdensome to companies and contains impractical requirements for third-party audits, safer alternatives analysis and other challenges.
Bill's Prospects Dim
Still, it is unlikely the spending bill can become law in its current form.
It contains numerous other policy riders strongly opposed by the White House and Senate Democrats, including language to block the Clean Power Plan, (RIN:2060-AR33), the Clean Water Rule (RIN:2040-AF30) and other programs.
The real test of whether lawmakers can block the rule may come in an expected omnibus spending bill or continuing resolution later this year.
The National Association of SARA Title III Program Officials, which represents managers of Local Emergency Response Committees, also in public comments filed May 12 expressed skepticism the proposed rule was achievable.
First Attempt to Block Rule
Chemical safety groups said the industry's shift is troubling.
Many safety advocates criticized EPA's proposal as failing to take a tougher line on plant security, such as by requiring facilities to switch to safer processes if feasible.
“I think they're trying to have it both ways,” Ron White, a public interest environmental health consultant and the former director of regulatory policy at the now-defunct Center for Effective Government, told Bloomberg BNA July 15. “They don't want to publicly come out against anything that looks like it might have to do with protecting public safety, but at the same time, it's clearly on this agenda to try to kill this rule with the hope that the next administration will be friendlier to their view and won't move forward on this.”
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Jul 18, 2016 | Chemical & Engineering News
By Glenn Hess
The U.S. Senate gave final congressional approval on July 13 to bipartisan legislation that paves the way for restrictions on the operation of drones near chemical plants, oil refineries, and other “critical infrastructure” facilities.
The legislation would require the Federal Aviation Administration to establish procedures for chemical plants, refineries, as well as energy production, transmission, and distribution facilities to petition the agency to limit or ban operation of unmanned aircraft close to a facility.
The provision is included in a bill (H.R. 636) that authorizes FAA programs at current funding levels through September 2017. The legislation, which the Senate passed by a vote of 90-4 on July 13, now goes to the White House for President Barack Obama’s expected signature. The House of Representatives approved the measure on July 11.
Drones, unmanned aircraft flown remotely, have surged in recreational popularity. This raised concerns that a drone could accidentally crash into an industrial facility, hit power lines, or be used by a terrorist to surveil potential targets.
Another worry is the threat of industrial espionage through aerial photography. Industry’s anxiety is focused on the possibility that “enterprising individuals will take aerial photos at these sites and try to sell them to competitors,” says John J. Durkay, legal counsel for the International Safety Training Council, which trains contractors and employees at chemical and refining plants in southeastern Texas.
“Drones photographing units can compromise facility trade secrets.” Durkay tells C&EN.
The bill’s provision on drones was authored by Rep. Brian Babin (R-Texas), who represents an area near Houston that has more petrochemical and refining facilities than any other congressional district in the country.
“This carefully crafted language will ensure both the protection of our oil and gas facilities and their employees from unauthorized drone activity, while also respecting the growing business of public and commercial drone use throughout the U.S.,” Babin says.
The American Chemistry Council (ACC), which represents major U.S. chemical companies, urged Congress to restrict drone use around the industry’s facilities. The bill directs FAA “to tackle the very real threat posed by using drones for malicious acts without interfering with their growing use by the public for recreation and their use for commercial applications,” ACC says.
http://cen.acs.org/articles/94/web/2016/07/US-Congress-clears-way-limits.html
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(ACC Mentioned) Chemical Breakdown: Part 4
Jul 16, 2016 | Houston Chronicle
By Susan Carroll and Matt Dempsey
Rickey Giddens turned off the ignition and climbed down from the cab of his tanker truck at the PeroxyChem plant in Pasadena on an overcast January afternoon.
Dressed in a plastic protective suit, goggles and a hard hat, he and three other workers had planned to vacuum out the liquid in Giddens’ truck and transfer it to another tank.
That brown, oily liquid contained a chemical that people routinely use to disinfect wounds or whiten their teeth. But it was reacting with another substance inside the truck’s carbon steel container, and rapidly expanding. The pressure built without warning.
At 12:28 p.m., a heavy, metal valve blew off the truck and tore into Giddens' chest. The blast threw him back into an eye-washing station and cracked his skull and every bone in his back. His lungs were found on the ground near his feet.
The Chemical Safety Board has a name for this type of accident: a reactive chemical incident. Such incidents — defined as runaway reactions that can trigger explosions, fires or releases — killed someone, on average, every two months in the United States for the 21 years ending in 2001. Then the government stopped tracking.
But ever since, the CSB has called for stronger regulation of reactive hazards, and it remains a “critical issue,” said CSB Chairwoman Vanessa Allen Sutherland.
What happened at PeroxyChem was one of at least four reactive incidents this year, including an explosion in North Andover, Mass., that injured four workers, three of them critically.
Other federal agencies have ignored even their own recommendations to more closely regulate reactive dangers, saying that the problem is too complex. The Environmental Protection Agency, for example, only considers toxicity and flammability — not reactivity — under its Risk Management Program, which requires companies to take extra safety precautions.
Texas A&M’s Mary Kay O’Connor Process Safety Center considered all three factors when it evaluated more than 2,500 facilities in the Houston area in partnership with the Chronicle.
Ten of the 55 facilities posing the highest potential for harm in the analysis had chemicals ranked as highly reactive. Most are in industrialized areas like the Houston Ship Channel, Pasadena or Freeport. But not all.
One is in Spring Branch. Two are in Crosby.
Eight of the 10 are less than a mile from residences. Three are that close to a school.
“We’ve investigated way too many violent decompositions or runaway reactions,” Sutherland said. “They continue to have a devastating effect.”
On a September morning in 2002, five CSB board members hosted a public meeting in Houston. The board had been formed four years earlier to investigate accidents and recommend safety improvements, and its first years were spent looking at individual incidents. But that day, the board released an investigation into a whole class of hazards: reactive chemicals.
The 167 incidents tallied by the CSB over two decades spanned from Lido, N.J., to Pasadena, Texas. One was a short drive from the meeting, in Channelview, where an uncontrolled reaction inside a liquid waste tank at the ARCO plant led to an explosion that killed 17 workers.
Board member Gerald Poje said the study evoked memories of an earlier tragedy, when a reaction between methyl isocynate and water at the Union Carbide plant in Bhopal, India, released more than 30 metric tons of toxic gas and killed 3,800 people immediately.
That disaster created ripple effects felt around the world, resulting in voluntary reforms by industry leaders and congressional action on right-to-know policies and improved emergency planning. But chemical accidents kept occurring in the U.S., and in 1990, Congress amended the Clean Air Act.
It specified that OSHA and EPA include highly reactive chemicals in new safety standards for chemical facilities.
OSHA responded by including 40 reactive chemicals in its rules. The EPA created a list of 130 chemicals for its rules but none was selected based on its reactivity, according to the CSB.
Twelve years later, at the Houston meeting, the CSB recommended that OSHA broaden its safety program to include more individual chemicals and processes that can lead to runaway reactions.
It called for the EPA to regulate reactive hazards under the Risk Management Program.
It called for industry to create a database that would allow the public and companies to learn from reactive incidents.
None of those suggestions was followed, though both the EPA and OSHA worked with industry leaders to provide guidance on reactive hazards.
The CSB has no authority to force changes. It just continues to draw attention to the problem.
It did so after a toxic cloud spewed in 2004 at an MFG Chemical plant in Dalton, Ga., which forced the evacuation of about 200 families, and after the 2006 fire at a Synthron Inc. facility in Morganton, N.C., killed one worker and injured 14.
It issued a damning report after a 2,450-gallon reactor blew up in 2007, at T2 Laboratories in Jacksonville, Fla. The explosion — the equivalent of 1,400 pounds of TNT — killed four employees, including Charles Bolchoz, a chemical engineer.
For nearly two years, Bolchoz’s family waited to hear if the accident could have been prevented.
When the CSB investigation was over, then-Chairman John Bresland offered condolences and called it a “tragic, unnecessary loss of life.”
Had OSHA followed the CSB’s recommendation, Bresland said, the facility might have been required to better analyze and manage its reactive hazards.
Manning Bolchoz, Charles’ oldest brother, remembers CSB officials saying “runaway chemical reaction” over and over. He wondered if more oversight could have helped.
“It left you with kind of an empty feeling,” he said.
The T2 explosion prompted a congressional committee to echo the CSB’s recommendation to OSHA.
And again, nothing changed.
In 2013, 15 people were killed and 160 injured after an explosion at a fertilizer company in West, Texas. The fire was intentionally set and the arsonist is still at large. The CSB said the explosion of ammonium nitrate was another reactive incident, one that prompted President Barack Obama to insist on safety changes to provide more federal oversight.
The wait continues.
***
The PeroxyChem accident illustrates how easily a runaway chemical reaction can occur.
The Harris County Fire Marshal concluded that the Jan. 16 explosion was caused by the rapid expansion of hydrogen peroxide inside the truck’s tank. Hydrogen peroxide is unstable and forms explosive vapors when it is mixed with certain organic materials.
A spokeswoman for the company, Amie Leopold, declined comment about the incident, citing an ongoing investigation.
“Safety is our first and foremost priority in everything we do,” she added in a statement.
Industry leaders have long recognized the danger. Accidents can occur if you don’t mix chemicals properly; if you add them in the wrong order; if you add the wrong materials.
A runaway reaction sent three employees at the KMCO plant in Crosby to the hospital on Christmas Eve 2010.
The plant sits within a mile of a library, a kindergarten and a private school. Workers there couldn’t lower the pressure in a reactor and as they tried to fix a clogged line, they accidentally mixed a caustic solution with maleic anhydride, a normally stable chemical. The result was an explosion and fire.
Some highly reactive chemicals are included under the EPA’s Risk Management Program for their toxicity or flammability; others aren’t covered.
Cumene hydroperoxide is one that is not covered, though it’s the reason five Houston-area companies in the Chronicle/A&M analysis posed a high potential for harm. It explodes when combined with a number of other chemicals and can catch fire or explode if it is shocked or heated.
Arkema, up the street from KMCO, is one of those five companies. It reported housing up to a half-million pounds of cumene hydroperoxide. The nearest homes are less than a half-mile away.
Janet Smith, a company spokeswoman, said Arkema takes numerous measures to prevent a reactive incident. A valve on a line containing cumene hydroperoxide, for instance, requires two employees to verify that it’s closed. The company’s process control system automatically checks that the correct amount of the chemical is in the reactor before anything is added. Arkema does file a Risk Management Plan, but for other compounds.
Enduro Composites, with up to 5,000 pounds of cumene hydroperoxide, is less than a half-mile from a neighborhood. AzkoNobel Polymer Chemicals is authorized for a half-million pounds. It is within a mile of a hotel, homes and a Funcare Children’s Center. Olin Corp. in Freeport, with up to 10 million pounds of the same chemical, is less than a mile from a church, park and day care.
The Shell Gasmer Prototype Facility, less than 2,000 feet from Westbury High and adjacent to Willow Waterhole park, houses up to 50,000 pounds of potassium nitrate, used in fertilizers and a key part of black gunpowder.
When combined with a reducing agent, it can explode. Like cumene hydroperoxide, it also can explode if it’s heated or shocked.
But potassiumn nitrate doesn’t make the EPA’s list.
Shell Gasmer, like most other facilities, did not respond to questions about its safety precautions.
***
The EPA has maintained for years that creating a distinct list of chemicals that pose a reactive threat is too difficult.
It’s important to note, said Nancy Grantham, an EPA spokeswoman, that hazards are driven more by the manufacturing process than the individual chemicals.
So the agency puts the onus on facilities to understand the risks.
Companies can be penalized for violating the General Duty Clause of the Clean Air Act if they don’t operate safely, though the clause does not specifically address reactive hazards. She offered an example: EPA inspectors stopped operations at a facility storing water-reactive chemicals under sprinklers until it fixed the problem.
“Frankly, the General Duty Clause is the backup plan,” said Ron White, senior fellow with the Union of Concerned Scientists. “They don’t really use it at all.” White said the EPA has expertise to draw on and should be able “to figure out an approach to deal with reactives upfront when they’re already doing inspections.”
OSHA also can rely on the General Duty Clause to assess penalties.
Amanda McClure, an OSHA spokeswoman, acknowledged it is “difficult to characterize the chemical reactivity hazard in a manner that easily suits regulation.” She said rather than address reactivity and other issues “piecemeal,” OSHA is including it in planned revions to its process safety standard.
The American Chemistry Council, responding to Obama’s 2013 executive order on improving chemical facility safety, argued that “current regulations already adequately cover reactivity hazards, and expansion is unjustified.”
Rena Steinzor, a University of Maryland law professor specializing in health, safety and environmental regulation, said the argument that companies can voluntarily regulate reactive hazards fails to account for the pressures of profit-making and mid-level managers being blind to risks.
“Self-regulation doesn’t work,” she said.
http://www.houstonchronicle.com/chemical-breakdown/4/
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Federal Toxicity Study Of MCHM Concludes
Jul 16, 2016 | Chemical &Engineering News
By Jessica Morrison
A federal study of 4-methylcyclohexanemethanol (MCHM) concluded this month that exposure to the chemical through the Charleston, W.Va., water supply in 2014 is “not likely to be associated with any adverse health effects.”
MCHM was the largest component of a mixture of chemicals that leaked from a corroded commercial storage tank upstream of the water supply for some 300,000 people.
City officials issued a ban on the use of tap water for drinking and washing that lasted more than a week for some of the affected residents.
Lack of information about MCHM, an alicyclic alcohol used to process coal, and other components of the spilled liquid led the Centers for Disease Control & Prevention (CDC) to request further study from the National Toxicology Program (NTP).
“Alicyclic alcohols and other chemicals of this sort are likely to have similar toxicological properties,” says Scott S. Auerbach, a molecular toxicologist who worked on the study. Still, the toxicological profiles of many chemicals in this class, including MCHM, were unknown prior to completion of the yearlong study, he says.
NTP identified MCHM as a developmental toxicant at concentrations “considerably higher” than the drinking water limit set by CDC after the spill. In its final report, which did not address exposure from inhalation, NTP confirmed that the limit instituted by CDC was adequate and that exposure at or below that level is not likely to pose health effects.
http://cen.acs.org/articles/94/i29/Federal-toxicity-study-MCHM-concludes.html
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GOP Divided Over $500M For Climate Fund
Jul 17, 2016 | The Hill - E2 Wire
By Devin Henry
Republicans are divided over the future of a major international climate change program.
The House this week adopted an amendment to block the Obama administration from providing support to the Green Climate Fund, a program to send money from rich nations to developing countries looking to counter the impacts of climate change.
The Senate, however, has a bill that would not only allow the administration to fund the program, but authorize a $500 million injection into it next year.
A Republican sponsor of the Senate provision acknowledged that there is an uphill fight to convince the bulk of the party to back the climate fund. But the House and Senate's divergent paths expose a difference of opinion within the GOP over how to assist the world in adapting to climate change.
“I think there’s a lot of pressure for the U.S. to uphold its end of the bargain. The rest of the world expects the U.S. to do its part, to fulfill its agreement that it helped broker,” said Karen Orenstein, the deputy director of the Economic Policy program at Friends of the Earth.
“I’m hopeful that the full Congress will see the light.”
The Green Climate Fund is a United Nations program designed to help poor countries pay for upgrades to help them deal with the impacts of climate change. The UN hopes the fund will provide up to $100 billion in climate financing annually by 2020.
President Obama has vowed $3 billion in American money for the fund by 2020, a lofty goal given congressional opposition to his climate change work. Last year, Congress neither funded a U.S. contribution to the GCF, nor blocked the administration from providing money.
The administration did find a funding source in March, when it shifted $500 million from the State Department’s budget.
Obama came to Congress this year with a $750 million request for GCF funding. Appropriators in both chamber initially decided instead to block transfers from State to the GCF like the one made in March.
But that’s where the House and Senate split apart.
Sens. Susan Collins (R-Maine) and Mark Kirk (R-Ill.) and a group of Democrats introduced an amendment to the Senate’s State and foreign operations spending bill to undo the GCF prohibition, and fund the program at a level of $500 million next year. The committee adopted the measure in June.
In the House, though, the Appropriations Committee this week voted down a Democratic amendment to do the same.
The difference in approaches illustrates an emerging split among Republicans about the future of the fund, one that will likely be decided with help from this November’s elections.
Collins and Kirk have long joined their Democratic colleagues in supporting the GCF, writing a letter to top appropriators this year saying the fund “will foster low-emission and resilient development in developing countries.”
Collins said she personally negotiated the terms of her amendment with the White House, including Secretary of State John Kerry and senior Obama adviser Valerie Jarrett.
“I negotiated with the White House, which wanted $750 million, which I thought was far too high, and they agreed to lower the amount to $500 million to secure my support,” Collins said.
But she acknowledged Republican support for the measure is weak, and that the administration may need to press congressional negotiators hard on including the GCF in future spending packages.
“Whether this is an issue that the administration reaches a compromise on, I just don’t know. It certainly matters to the administration.”
Republicans as a whole have different reasons for opposing the GCF. Senators last year said they would withhold funding for it unless they got a vote on the international Paris climate deal, which never came to the chamber for consideration.
Others say the money is better spent elsewhere; during a hearing last month, Sen. Lisa Murkowski (R-Alaska) said she’s concerned about there being enough money to help Alaskan villages hurt by climate change, for example.
Rep. Morgan Griffith (R-Va.), who led a House letter against the GCF last year, said the federal government should focus on funding research into cleaner fossil fuel technology instead of sending funding to an international agency.
“Instead of spending billions of dollars overseas on policies that I don’t think are effective, let’s spend that money here on research,” Griffith said in an interview.
“That’s where we need to go, because just going out and telling other countries that they ought to do this or they ought to do that doesn’t get it done.”
Rep. Kay Granger (R-Texas), the chair of the House Appropriations Committee’s State Department panel, said at a hearing last week that more members requested a prohibition on Green Climate Fund money than on any other part of the department’s budget. She said other international accounts, such as funding for helping refugees and fighting terrorism in the Middle East, should come first.
“These programs are a higher priorities for members on this side of the aisle than providing funds for fighting climate change,” she said.
Members and observes say November’s elections could be the next big moment in the fight over the GCF. Presumptive Republican nominee Donald Trump has said he would undo much of President Obama’s international climate work, while his Democratic opponent, Hillary Clinton, has said she should build on it.
Voters, then, will likely set the path forward for American GCF funding, and Myron Ebell, the director of the Center for Energy and Environment at the conservative Competitive Enterprise Institute, said he doubts it’s a winning issue for political candidates.
“I don’t believe voting for more foreign aid is a winning issue in any state, with any constituency,” Ebell said.
The bills to which the GCF provisions are attached — the State Department spending bills — rarely come to the floor in either the House or Senate, making a lame-duck negotiation over the fund most likely.
Andrew Linhardt, an associate Washington representative for the Sierra Club, said GCF supporters are in a better position this year than last year, thanks to the Senate’s actions.
“The White House has been very clear that this is a legacy issue and an administration priority,” he said. “It will be very hard for the anti-GCF folks to keep barring language in any final deal.”
Ornstein, of the Friends of the Earth, said she hopes Republicans will “come to the table on climate change just because of the physical reality of things that are happening around them.”
But Ebell argues they’ll consider a fiscal argument above all else.
“What I would tell senators is: are you really in for a much larger sum starting in 2020?” he said. “And if you’re not, this money is totally wasted.”
http://thehill.com/policy/energy-environment/287984-gop-divided-over-500m-for-climate-fund
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