Preview Newsletter
ACC PM 7/29/16
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(ACC Mentioned) Imports Continue to Drive Down PP Pricing
Jul 29, 2016 | Plastics News
By Frank Esposito
The June resin pricing picture offered a little something for everyone in the North American market. -
(ACC Mentioned) You've Been Thinking About Plastics All Wrong
Jul 29, 2016 | Business Insider
By Jeff Wooster
Plastics are an indispensable part of our lives today, and recent advances in material science have delivered truly amazing products from dissolving heart stents to lifesaving air bags to smart packaging that both protects our food and warns us when it’s about to be “past its prime.” -
(ACC Mentioned) Say Aloha to Hawaiian Fun
Jul 29, 2016 | The Columbian
By Scott Hewitt
It’s your kuleana to bring your own ‘omole wai. While you’re at it, bring sufficient gozas for the whole ‘ohana. In English: It’s your responsibility to bring a water bottle. Bring enough lawn mats for the whole family, too. -
ECOS' TSCA Preemption Chart Underscores Law's Complicated Approach
Jul 28, 2016 | Inside EPA
By David LaRoss
The Environmental Council of the States (ECOS), which represents many state environment agencies, has released a new guide for regulators on navigating EPA's policies for preempting some chemical regulations under the revised Toxic Substances Control Act (TSCA), underscoring the complex nature of the new law's preemption regime. -
The “Most Contentious Issue” — Federal Preemption in the Amended Toxic Substances Control Act
Jul 29, 2016 | Lexology
By K&L Gates
Recently signed into law, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (the “Lautenberg Act”), significantly reforms the 1976 Toxic Substances Control Act (“TSCA”) and includes important provisions regarding federal preemption of state laws regulating chemicals. -
Comments on 2011 Proposed SNURs Prompt Proposal Regarding Hierarchy of Controls
Jul 29, 2016 | National Law Review
By Lynn L. Bergeson and Carla N. Hutton
On July 28, 2016, the U.S. Environmental Protection Agency (EPA) proposed changes to the existing regulations governing significant new uses of chemical substances under the Toxic Substances Control Act (TSCA) to align these regulations with revisions to the Occupational Safety and Health Administration’s (OSHA) Hazard Communications Standard (HCS), as well as changes to the OSHA Respiratory Protection Standard and the National Institute for Occupational Safety and Health (NIOSH) respirator certification requirements pertaining to respiratory protection of workers from exposure to chemicals. -
Why Did Walmart Take the Unusual Step to Tackle Chemicals?
Jul 29, 2016 | Environmental Defense Fund
By Michelle Harvey
Walmart recently announced progress on its groundbreaking Sustainable Chemistry Policy, a 2013 plan that set the stage for some 700 suppliers to rethink how they make more than 90,000 home and personal care products. -
U.S. Shale Gas Goes Global, Buoying LNG Trade
Jul 29, 2016 | E&E Energywire
Shale gas produced in the United States is going from domestic to global. -
(ACC Mentioned) Railroads Might Have to Let Rivals Serve Their Customers
Jul 28, 2016 | ABC News
By Josh Funk
Freight railroads could be forced to allow competing railroads to serve some customers along their tracks if federal regulators approve a new rule. -
Western Cities Turn to Local Action to Block Oil Trains
Jul 29, 2016 | E&E Energywire
This week, Spokane, a city in Washington where some main rail lines converge, has decided to call for a ban on crude oil trains running across the city. -
Democratic Convention: Winners and Losers
Jul 29, 2016 | E&E Greenwire
By E&E Staff
Coal miners and climate activists were among the winners, "Berniecrats" and fracking foes the losers as this week's Democratic National Convention wrapped up last night. -
Clinton Accepts Nomination, Declares 'I Believe in Science'
Jul 29, 2016 | E&E Climatewire
By Evan Lehmann
Hillary Clinton raced into a sharpening phase of her campaign last night by appealing to anxious Americans in hardscrabble coal towns and Texas borderlands, in the first address by a female major-party nominee for president in U.S. history. -
D.C. Circuit's Latest Air Rulings Fault Boiler Standards But Back PM Policy
Jul 29, 2016 | Inside EPA
By Anthony Lacey
The U.S. Court of Appeals for the District of Columbia Circuit in a pair of rulings issued July 29 is giving EPA mixed results on its air program, vacating or remanding key portions of its boiler rule while rejecting environmentalists' suit over a rule extending deadlines to meet the agency's particulate matter (PM) standards.
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(ACC Mentioned) Imports Continue to Drive Down PP Pricing
Jul 29, 2016 | Plastics News
By Frank Esposito
The June resin pricing picture offered a little something for everyone in the North American market.
Regional prices for polypropylene and solid polystyrene both fell, while PVC prices rose and prices for all grades of polyethylene and PET bottle resin treaded water.
Regional PP prices continued their slide in June, dropping another 4 cents per pound on average. Some buyers saw drops of 3 cents for the month, with others experiencing a 5-cent reduction. These amounts were in combination with the amount of decrease they had seen in previous months.
The June move is the fourth straight monthly decline seen by PP. Prices for the material had slid a total of 5 cents in March-April-May, with buyers seeing different amounts at different times. Growing supplies of PP imported from outside of North America have caused regional suppliers to drop their prices to meet competitive situations.
Import materials have found a home in North America as the region’s PP production has struggled to keep up with demand. This is partly the result of large amounts of PP production capacity being eliminated when demand fell during the recession. Operating rates for North American PP plants now are in the high 90s.
North American PP demand growth has been moderate in the first five months of 2016, according to the American Chemistry Council. Overall sales were up only 0.5 percent, as domestic growth of 1.5 percent was weakened by a 32 percent drop in export sales.
Other changes
For solid PS, a 2-cent June drop continues a bumpy pattern which saw prices flat in May after increasing by 5 cents in April. The June slip was connected to a 4 percent price decline for benzene feedstock, which is used to make styrene monomer. Benzene prices had seen a similar 4 percent drop in May, but PS makers were able to keep prices flat.
On the demand front, solid PS struggled a bit in the first five months of 2016, with sales falling 1.3 percent. Much of the sales decline came from reduced sales to resellers/compounders (down 10 percent) and into the consumer/institutional end market (down 7 percent).
Solid PS sales markets showing gains in North America through May included food packaging/food service (up almost 2 percent) and electrical/electronic (up 5 percent).
While PP and solid PS were sliding down in June, regional PVC prices were heading in the other direction. Strong construction activity sent prices for that material up an average of 2 cents per pound in June.
That marked the third time in four months that regional PVC prices had increased. Prices had been flat in May after climbing a total of 6 cents per pound in March and April.
An improving housing market has boosted U.S./Canadian PVC demand and paved the way for these price hikes. U.S. housing starts in May were at an annual rate of 1.16 million units. That’s up more than 9 percent vs. the same month in 2015.
The U.S. housing market continues to recover from the recession of 2008-09. Housing starts peaked at more than 2 million per year before the recession, but plummeted to around 500,000 when the market collapsed. The market bounced back above 1 million starts by 2014 and continued to grow almost 11 percent in 2015 to reach 1.112 million units.
Through May, U.S./Canadian PVC sales were up 8.6 percent, according to ACC. Domestic sales growth of almost 5 percent was boosted by a gain of almost 18 percent in export sales. Construction-related uses accounted for almost 64 percent of U.S./Canadian PVC sales for the five-month period.
Regional polyethylene prices were flat for the second consecutive month in June after rising an average of 4 cents per pound in April. PE prices stayed the same even though crude oil prices declined slightly from $49 per barrel to $48 during the month. Oil is a global price setter for PE, although natural gas is the most common PE feedstock in North America.
The April PE increase was the second consecutive monthly hike for the material. Prices had dropped in the first two months of 2016. A 5-cent January/February drop had been canceled out by a 5-cent gain in March.
U.S./Canadian PE sales fared well in the first five months of 2016. Sales of high density PE surged almost 5 percent, with flat domestic sales magnified by gains of 26 percent in export sales. Linear low density PE sales were up just over 1 percent for the quarter with domestic and export sales both growing around 1 percent. Low density PE managed five-month growth of 2 percent, as a domestic sales gain of 2.5 percent was softened by flat export sales.
North American PET bottle resin prices also were flat for a second straight month in June. Prices for the material had ticked up 2 cents per pound in April, with warmer weather improving seasonal demand for bottled water and carbonated soft drinks. The April move was the second straight monthly PET price hike, following a similar 2-cent move in March.
http://www.plasticsnews.com/article/20160729/NEWS/160729769/imports-continue-to-drive-down-pp-pricing
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(ACC Mentioned) You've Been Thinking About Plastics All Wrong
Jul 29, 2016 | Business Insider
By Jeff Wooster
Plastics are an indispensable part of our lives today, and recent advances in material science have delivered truly amazing products from dissolving heart stents to lifesaving air bags to smart packaging that both protects our food and warns us when it’s about to be “past its prime.”
But over time, and with plastic being used in a growing number of products, some people have come to believe that these modern materials have greater environmental impacts than the materials they are replacing.
Is this true? Simply put, no – according to a comprehensive new study on the comparative environmental impacts of plastics.
A new study by the environmental consulting firm Trucost, “Plastics and Sustainability: A Valuation of Environmental Benefits, Costs, and Opportunities for Continuous Improvement,” is based on natural capital accounting methods. This methodology measures and calculates the value of environmental impacts—such as consumption of water and emissions to air, land, and water—that typically are not factored into traditional financial accounting.
The findings likely will surprise many. The study finds that the environmental cost of using alternative materials is four times more than that of using plastics. Trucost found that replacing plastics in consumer products and packaging with a mix of alternative materials that provide the same function would increase environmental costs from $139 billion to a whopping $533 billion annually. That’s primarily because strong, lightweight plastics help us do more with less material, which provides environmental benefits throughout the entire life of products and packaging.
These results disrupt the commonly accepted narrative around plastics—the assumption that traditional materials have less environmental impact. In fact, these findings stand that assumption on its head.
The study builds on earlier research by Trucost for the United Nations Environment Programme (UNEP) that looked at the environmental costs of using plastics. That study did not ask: compared to what? In other words, since we need cars, packaging, electronics, and other consumer goods, what would be the impact of using materials other than plastics to make them? The new study answers that question.
Everything we do impacts the environment, whether simply breathing air, mining bauxite, or harvesting trees. The Trucost study takes a comprehensive look at these impacts and their costs. It looks at the entire life cycle of products and packaging—from extraction to disposal—and gives us a fuller look at the overall environmental impacts.
Natural capital cost accounting is similar to life cycle analyses, which is now accepted as the most comprehensive way to assess the impacts of materials, products, and packaging. To help ensure that the study’s methodology and data were sound, the results were reviewed by two of the most respected practitioners of life cycle studies—Denkstatt in Europe and Franklin Associates in the US.
By comparing the environmental costs of various materials we use, and by using decision-making tools made possible by these studies, we can make better decisions.
For example, the study will help consumer product companies and policymakers make smarter decisions about what we produce and how we produce it. By understanding the environmental impacts of the materials used to make car bumpers, food containers, electronics, and athletic wear, we can transparently enhance sustainability and reduce our impacts on the environment. In other words, this study can help drive informed policies that deliver greater benefits to people and the planet.
While comparing environmental impacts is critical, we must dig deeper. We also need to reduce those impacts. The report’s authors recommend steps to help further reduce plastics’ overall environmental cost, such as by increasing the use of lower-carbon electricity in plastics production, adopting lower-emission transport modes, developing even more efficient plastic packaging, and increasing recycling and energy conversion of post-use plastics to help curb ocean litter and conserve resources.
They also called for enhanced environmental leadership by the plastics industry, noting that the industry has “direct influence, or indirect influence… over a significant share of the environmental costs of plastic use… (and) is well positioned to play an enhanced leadership role in driving improvements in the environmental performance of the plastics value chain.” The plastics industry has embraced this challenge and has committed to ongoing innovations that will advance sustainability across major market sectors and the globe.
This new study helps provide the clearest and most comprehensive picture to date of the relative environmental costs and benefits of plastics compared to alternative materials. And by providing a path forward to further reduce these relative costs, the study provides valuable insights into how these materials can even further contribute to sustainability.
Jeff Wooster is global sustainability director for Dow Packaging and Specialty Products and chair of the American Chemistry Council’s packaging team. The Trucost study may be found here.
http://www.businessinsider.com/dow-chemical-jeff-wooster-on-plastics-2016-7
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(ACC Mentioned) Say Aloha to Hawaiian Fun
Jul 29, 2016 | The Columbian
By Scott Hewitt
It’s your kuleana to bring your own ‘omole wai. While you’re at it, bring sufficient gozas for the whole ‘ohana.
In English: It’s your responsibility to bring a water bottle. Bring enough lawn mats for the whole family, too.
This weekend’s “Three Days of Aloha” festival in Esther Short Park promises to be a bit more fun — if that’s even possible — as well as a bit more serious than in previous years.
The extra fun happens tonight (July 29), with a free screening of “The Hawaiian Room,” a new documentary film by Ann Marie Kirk, about a New York City nightclub that played a key role popularizing Hawaiian music and dance in America — and also provided a warm welcome and community node for island-born performers who’d never experienced anything like that huge, cold, crazy North American metropolis.
“The Hawaiian Room” starts rolling today at dusk — but you can help transform the park into an open-air Hawaiian Room as early as 5 p.m., when the annual Hapa Haole Hula Competition begins. According to the rules, solo and group hula dancers, and the music that accompanies them, must all be in the classic “Hapa Haole” style of the early 20th century — when cultural crossover between Hawaii and the mainland generated a boatload of unforgettably poppy English-language tunes, such as “Little Grass Shack,” “Hukilau” and “Tiny Bubbles.”
There are numerous age, gender and style divisions, and winners selected by a panel of expert judges will receive prizes and recognition — and an invitation to enjoy some additional spotlight during the next day’s main event.
That’s the Ho’lke and Hawaiian Festival, running from 10 a.m. to 7 p.m. July 30 and filling the park with lots more song and dance, food and drink, arts and crafts, activities for all ages. Top dancers and musicians from across the U.S. and Canada (and Hawaii) are regular attendees — and so are thousands of fans — so you’re sure to enjoy plenty of spectacular sights and sounds, and come away simply brimming with what natives call the “aloha spirit.”
(Word to the early bird: this three-day festival actually began on July 28, with workshops at Clark College on topics such as hula dancing, ukulele playing, Hawaiian stories and values, lei making and even canoe paddling; those start up again bright and early July 29, but you must show up in person to register and pay. Same-morning registration is also available for an 8 a.m. July 30 “Aloha 5K Fun Run” along the Columbia River waterfront. Visit the website for complete information.)
Bottle ban
Here’s the serious part. This year, for the first time, Three Days of Aloha has a theme, and it’s “E Malama i ka ‘Aina.” That means “caring for the land.”
What it really means is, no plastic water bottles at the event, which has been declared a Plastic-Free Zone. So have all happenings hosted by the Ke Kukui Foundation, which promotes Hawaiian and Polynesian culture through classes and workshops as well as several big community events each year.
“This is a very important concept to us. It’s a big theme,” said Ke Kukui board president Mari Helenihi. “Plastic bottles are a huge problem for the fish and wildlife on beaches in Hawaii.”
Scientists surveying Hawaiian beaches for debris from the 2011 Japanese tsunami found precious little of that treasure, it was recently reported; what they did find, in shockingly vast quantities, was run-of-the-mill plastic pollution.
“Most of it seemed to be ordinary garbage carelessly tossed away by humans,” the Washington Post reported. “All in all, plastic accounted for 47 percent of the debris identified on Hawaiian shorelines.”
The American Chemistry Council estimates that the average consumer uses 166 plastic water bottles each year, and recycles very few of them. Estimates of the number of individual plastic bottles that Americans just throw away every year begin at around 22 billion and go as high as 35 billion.
Plastic doesn’t decompose like organic material — it just breaks apart, into small and even microscopic fragments. The tinier it is, the easier it is for birds, fish and other sea creatures — not to mention human beings — to ingest or even just absorb it.
The Ke Kukui Foundation has asked all its event vendors not to sell plastic water bottles, and urges you to bring your own reusable bottle, or buy one at the venue.
“We’re taking on a huge expense on this, but we’ll have plenty of ice cold water for free,” Helenihi said.
http://www.columbian.com/news/2016/jul/29/say-aloha-to-hawaiian-fun/
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ECOS' TSCA Preemption Chart Underscores Law's Complicated Approach
Jul 28, 2016 | Inside EPA
By David LaRoss
The Environmental Council of the States (ECOS), which represents many state environment agencies, has released a new guide for regulators on navigating EPA's policies for preempting some chemical regulations under the revised Toxic Substances Control Act (TSCA), underscoring the complex nature of the new law's preemption regime.
Separately, industry attorneys on a July 28 webinar hosted by the law firm Foley & Lardner warned that provisions governing EPA's handling of information on chemicals, including data requests and confidential materials, are potentially as significant for regulated entities as the preemption provisions.
EPA is taking steps to implement the TSCA overhaul that President Obama signed into law June 22, and which gives the agency extensive new power to regulate existing and future chemicals -- as well as creating a process for when state chemical management programs are preempted by federal action.
ECOS on July 22 published its flowchart for determining when state laws and chemicals rules are “paused” by EPA's process of assessing the safety of a chemical under the revised TSCA, or preempted over the long term by a final agency finding on whether the substance presents an “unreasonable risk.”
The flow chart is intended to help states determine when their new or existing chemicals policies will be suspendedbased on EPA action, including either a safety assessment of a chemical or a final determination on whether the chemical poses “unreasonable risk of injury to health or the environment."
Following enactment of the reform bill, TSCA now “pauses” state actions on chemicals when EPA defines and publishes the scope of the safety assessment for those chemicals. The pause ends when the agency either finalizes its resulting safety determination or misses a three-and-a-half year deadline for issuing the determination.
If EPA finds no unreasonable risk, state policies on the chemical are immediately preempted over the long term based on the federal certification that it passes muster under TSCA. If the agency does find unreasonable risk, however, the state rules come back into effect and are only preempted more permanently when regulators issue a final TSCA rule restricting the substance based on that risk finding.
However, there are many exceptions to the “pause,” including the first 10 chemicals the law requires EPA to assess, industry-requested chemicals designated for risk assessment, and state policies “grandfathered” by the reform law. The complex series of steps and exclusions -- a result of lengthy compromise negotiations among legislators -- could result in a host of guides like ECOS' for navigating the regime.
Business Hurdles
Meanwhile, attorneys on the July 28 Foley & Lardner webinar highlighted the new law's treatment of business information as a hurdle for companies subject to TSCA regulations.
Speaking on “significant implications” for industry from the reform law, attorney Sarah Slack highlighted a more stringent test for confidential business information (CBI) -- a shift from provisions in the prior law that allowed companies to claim data was CBI without specific justification, and have that claim reviewed only after the fact.
“It can't just be that they want to keep the information confidential -- you have to demonstrate that it would actually cause harm to your company if they were to make the information public,” she said.
Slack also pointed to a lower threshold for EPA to justify requests for industry to submit data on chemicals. “There is seemingly a somewhat lower burden for requiring data generation -- it's a need standard,” which is expected to lead to more of the requests, she said.
However, she cautioned that how those changes will play into risk evaluations is likely to remain uncertain until the next decade thanks to the time it takes to fully assess chemicals' safety.
“It's probably going to take four to five years to complete the first round of risk evaluations, so we'll have to see what will come out of that,” Slack said.
http://insideepa.com/daily-news/ecos-tsca-preemption-chart-underscores-laws-complicated-approach
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The “Most Contentious Issue” — Federal Preemption in the Amended Toxic Substances Control Act
Jul 29, 2016 | Lexology
By K&L Gates
Recently signed into law, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (the “Lautenberg Act”), significantly reforms the 1976 Toxic Substances Control Act (“TSCA”) and includes important provisions regarding federal preemption of state laws regulating chemicals. Federal preemption issues related to TSCA reform had been discussed for years, and Senator James Inhofe (R-OK) described the preemption provisions in the Lautenberg Act as “the most contentious issue of the negotiations as well as the most important linchpin in the final deal” this year. By examining the compromise reached by Congress, this alert focuses on how TSCA, as amended, preempts state regulation of chemicals and preserves certain state laws and regulatory authority, and notes how businesses can best position themselves to prepare for the new requirements.
Background
Largely due to federal inactivity and the lack of robust regulation of chemicals under TSCA since its enactment in 1976, individual states themselves began to regulate commercial activities in the chemical sector. In the years leading up to enactment of the Lautenberg Act, chemical manufacturers, chemical distributors, and product retailers grew increasingly concerned by this growing patchwork of state chemical regulations. As the scope of state regulations expanded, associated compliance costs escalated for the industry. Seeking nationwide regulatory uniformity and more certainty, the chemical industry wanted strong federal preemption provisions to be part of any TSCA reform legislation. Disagreements about the federal preemption issues had doomed TSCA reform efforts in previous years, but in 2016 legislators reached a preemption compromise that ultimately paved the way for passage of the bill that became the Lautenberg Act. Going forward, industry will still need to comply with state-level regulations, but these regulations will be more limited due to the new preemption provisions.Federal Preemption of State Law
The Lautenberg Act includes two significant new preemption provisions. First and foremost, TSCA now precludes state action on a chemical if the United States Environmental Protection Agency (“EPA”) determines through a risk evaluation that such chemical does not present an unreasonable risk or if EPA promulgates a rule to address the identified risks posed by the chemical. The scope of federal preemption matches the scope of the hazards, exposures, risks, and uses or conditions of use of a given chemical included in EPA’s final action on such chemical. For example, if EPA were to conduct a risk assessment limited to a particular use of a chemical and did not evaluate or take final action related to other uses of the chemical, then preemption would not apply to such other uses. Importantly, preemption based on final action by EPA (whether by a determination of no unreasonable risk or a final rule addressing chemical risks) is effective when such final action occurs. Additionally, the amended law also precludes states from requiring the development of information regarding a chemical that would be “reasonably likely” to duplicate information that will otherwise be required to be developed under TSCA, such as in the course of an EPA risk evaluation.Second, the law creates the new concept of “pause preemption.” Under this concept, a state is temporarily preempted from imposing any new restrictions on a given chemical from the time that EPA defines the scope of a risk evaluation for a high-priority chemical until EPA publishes its final risk evaluation or when the deadline for completing the evaluation expires, whichever is earlier. The scope of the preemption matches the scope of EPA’s risk evaluation, so if certain risks or chemical uses are not included in the scope of EPA’s risk evaluation, the “pause preemption” does not apply, and a state could take new action on such chemical related to risks or uses that are outside that scope. Since EPA must provide at least one year between identifying a chemical for prioritization and publishing the scope of the associated risk evaluation, states would have an opportunity to place restrictions on a chemical by statute or administrative action prior to the pause preemption taking effect. If EPA publishes a final risk evaluation concluding the chemical presents an unreasonable risk, a state has another opportunity to impose new restrictions while EPA promulgates a final rule regarding such chemical. In addition, pause preemption does not apply to the first ten risk evaluations of high-priority chemicals that EPA conducts or to any risk evaluations nominated by a manufacturer unless such evaluations are of chemicals listed on the most recently published TSCA Work Plan for Chemical Assessments, a list used to indicate which existing chemicals EPA intended to target for assessment under the original law.
Preservation of Certain State Regulatory Authority
Under the amended law, states maintain significant regulatory authority. For example, states can act on any chemical or particular use of a chemical that EPA has not yet addressed and can implement reporting, monitoring, or disclosure requirements not imposed under federal law.States also can adopt and enforce chemical regulations that are identical to the federal regulations. As a practical matter, this empowers states to adopt parallel regulations and then to interpret and enforce them independently of EPA. One unresolved question is whether activist state regulatory authorities will interpret their parallel regulations differently from, or enforce them more aggressively than, EPA.
Similarly, states can adopt regulations related to water quality, air quality, and waste treatment or disposal notwithstanding EPA action. However, such regulations cannot (i) restrict the manufacture, processing, distribution, or use of a chemical substance and (ii) address the same hazards and exposures, with respect to the same conditions of use included in EPA’s risk evaluation. States may be able to exert substantial, indirect influence over the use of chemicals through the adoption and enforcement of water quality, air quality, and waste treatment or disposal regulations by addressing different hazards, exposures, uses and conditions of use.
Perhaps most important, however, the Lautenberg Act includes two significant grandfathering provisions:
States may continue to enforce any actions taken or requirements imposed regarding specific chemicals prior to April 22, 2016; and
States may continue to enforce and take new regulatory actions regarding chemicals pursuant to state laws that were in effect on August 31, 2003.
The grandfathering provisions were a critical part of the compromise reached by legislators on preemption. In particular, the August 31, 2003 date preserves California’s Proposition 65 law and regulations and Massachusetts’ Toxics Use Reduction Act.
Additionally, the amended TSCA does not preempt state “right to know” or other laws requiring disclosure of the presence of, or exposures to, a chemical. For example, the amended law will not affect the obligations to make disclosures regarding exposures to numerous chemicals pursuant to California’s Proposition 65. Common law rights of action, laws granting remedies for civil relief, including damages, or penalties for criminal conduct also are not preempted.
Recent, California regulatory action illustrates the interplay between state and federal regulation, and preemption, following enactment of the Lautenberg Act. On July 15, 2016, California’s Department of Toxic Substances Control (“DTSC”) released draft regulations that would identify the flame retardant chemicals TDCPP or TCEP, which had commonly been used in children’s foam-padded sleeping products, as “priority chemicals” pursuant to California’s “Safer Consumer Products” program. If adopted, the new regulation would require consumer product manufacturers to remove products containing those chemicals from the California marketplace or to conduct an “Alternatives Analyses” to determine if safer alternative chemicals or products can be used. DTSC would have a variety of options available to regulate the chemicals in California following completion of Alternatives Analyses, including banning the chemicals from the California marketplace.
However, EPA is already in the process of assessing risks from flame retardants pursuant to its TSCA Work Plan Chemical Assessment process. This assessment includes TDCPP and TCEP. It remains to be seen whether and to what extent the EPA assessments will lead to action that preempts California’s proposed regulation, or whether California will request a preemption waiver notwithstanding EPA action.
State Waivers of Preemption
Reducing the reach of the federal preemption provisions, the Lautenberg Act includes substantial state waiver provisions. Specifically, states may seek a mandatory waiver from pause preemption or a discretionary waiver from general preemption where certain criteria are established. Under the waiver provisions, EPA must grant a state a waiver from pause preemption if the state enacted a statute or proposed or finalized an administrative action intended to prohibit the use of a chemical no later than 18 months after EPA initiates the prioritization process for a chemical or when EPA publishes the scope of its risk evaluation, whichever is sooner. EPA must also grant a waiver regarding pause preemption if a state applies to EPA and demonstrates that a proposed state restriction would not unduly burden interstate commerce and would not cause a violation of federal law, and the state’s concern about the chemical in question is based on peer-reviewed science.States may also apply to EPA for discretionary waivers from the general preemption provisions. However, such waivers require rulemaking by EPA based on a determination that (i) compelling conditions warrant granting the waiver to protect health or the environment, (ii) compliance with the proposed state requirement would place no undue burden on interstate commerce, and (iii) the proposed state requirement is designed to address a risk that was identified using the best available science. Given the requirement for rulemaking and the required substantive determination, it appears unlikely that discretionary preemption would be feasible in any but extraordinary circumstances. However, there are many open questions regarding the role of this discretionary waiver. One important open question is whether EPA could grant a waiver if EPA had previously promulgated a final rule regarding a given chemical that included a safety standard that was weaker than the standard proposed by the state in its waiver application.
Conclusion
In addition to other significant provisions of the Lautenberg Act discussed in prior alerts, the TSCA amendments include complicated preemption provisions that determine the relative authority of states and EPA to regulate the chemical industry. Understanding how and when states, as well as EPA, may regulate manufacturing, processing, and distribution in commerce of chemical substances is an important component of realizing the full effect of the new regulatory framework for chemicals in the United States.Looking forward, industry players would be well advised to engage legal and policy professionals to advocate for their interests as EPA develops rules and guidance during the next few years. The extent to which state laws will be preempted will be substantially affected by the hazards, exposures, risks, and uses or conditions of use studied by EPA in its risk evaluations. In addition to participating in the initial rulemaking process, businesses should also carefully monitor chemical risk evaluations on the federal and state level as an indicator of significant regulatory risk related to a given chemical or category of chemicals.
http://www.lexology.com/library/detail.aspx?g=326e2b26-4142-467f-9b3e-510d7fb5f26c
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Comments on 2011 Proposed SNURs Prompt Proposal Regarding Hierarchy of Controls
Jul 29, 2016 | National Law Review
By Lynn L. Bergeson and Carla N. Hutton
On July 28, 2016, the U.S. Environmental Protection Agency (EPA) proposed changes to the existing regulations governing significant new uses of chemical substances under the Toxic Substances Control Act (TSCA) to align these regulations with revisions to the Occupational Safety and Health Administration’s (OSHA) Hazard Communications Standard (HCS), as well as changes to the OSHA Respiratory Protection Standard and the National Institute for Occupational Safety and Health (NIOSH) respirator certification requirements pertaining to respiratory protection of workers from exposure to chemicals. One of the proposed changes would be to make it a significant new use not to implement a hierarchy of controls to protect workers. Persons subject to applicable significant new use rules (SNUR) would be required to determine and use appropriate engineering and administrative controls before using personal protective equipment (PPE) for worker protection, similar to the requirements in the OSHA standards at 29 C.F.R. Section 1910.134(a)(1) and guidance in Appendix B to Subpart I of 29 C.F.R. Part 1910. According to EPA, this change is being proposed partly due to comments received on recently promulgated SNURs. As reported in our December 28, 2011, blog item, EPA proposed on December 28, 2011, SNURs for 17 chemical substances that were the subject of premanufacture notices (PMN). Of particular interest, seven of the chemical substances were multi-walled carbon nanotubes, while six were fullerenes, and the proposed SNURs prompted significant comment. In the July 28, 2016, proposed rule, EPA states that in response to the December 28, 2011, proposed SNURs, it received comments from 26 public submissions. According to EPA, each of the comments generally stated that EPA’s approach of exclusively identifying the absence of adequate PPE as a significant new use instead of engineering and administrative controls is not following the best occupational health and safety practices. The commenters suggested approaches that EPA could adopt. Several commenters identified the industrial hygiene “hierarchy of controls” approach for workplace health and safety, where elimination, substitution, engineering controls, and workplace or administrative controls should be implemented before use of PPE for worker protection. Several commenters stated that persons subject to SNURs should follow the OSHA requirements to use controls that are higher in the hierarchy of controls before requiring employees to use PPE. Some commenters suggested that EPA should specifically incorporate the OSHA requirements at 29 C.F.R. Section 1910.134(a)(1) into each SNUR or modify standard requirements for SNURs at 40 C.F.R. Section 721.63 to require a hierarchy of controls. EPA promulgated final SNURs on June 26, 2013, and responded to the comments, agreeing that a hierarchy of controls should be applied and that PPE should be the last option to control exposures. Below is a sample of comments on the December 28, 2011, proposed SNURs:
American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), urging EPA to adopt control hierarchy as it is practiced in occupational safety and health;
NIOSH, recommending a hierarchical approach to reduce worker exposures that relies on respiratory protection only after other approaches have been attempted;
International Center for Technology Assessment (ICTA), stating that EPA must employ the hierarchy of controls and revise its regulations to protect workers better “from what might become the next asbestos crisis”; and
A coalition of unions and environmental health groups representing worker and public health, arguing that EPA could formally interpret its existing regulations as already requiring compliance with the hierarchy of controls.
Under TSCA, EPA requires manufacturers of new chemical substances, including new nanomaterials, to submit PMNs. EPA’s web page on the control of nanoscale materials under TSCA lists actions EPA has taken to control and limit exposures to new nanoscale materials, including requiring the use of PPE and engineering controls. In light of EPA’s proposed rule, however, and the influence comments on EPA’s December 28, 2011, proposed SNURs have had, manufacturers of new nanomaterials should implement a hierarchy of controls whenever possible.
http://www.natlawreview.com/article/comments-2011-proposed-snurs-prompt-proposal-regarding-hierarchy-controls
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Why Did Walmart Take the Unusual Step to Tackle Chemicals?
Jul 29, 2016 | Environmental Defense Fund
By Michelle Harvey
Walmart recently announced progress on its groundbreaking Sustainable Chemistry Policy, a 2013 plan that set the stage for some 700 suppliers to rethink how they make more than 90,000 home and personal care products.
Result: The world’s largest retailer drove out more than 11,000 tons – 23 million pounds, or 95 percent by weight – of prioritized chemicals from that group of products in less than 30 months.
A lot still remains to be done. But this story is a good one and Walmart’s leadership, sustainability team and buyers – deserve credit for what they accomplished.
What’s perhaps equally extraordinary is that they chose to do so at all.
Sustainability wins are typically also economic wins. Reduce greenhouse gas emissions, and your energy expenses drop. Address water use in drought-prone areas, and you avoid costly supply chain disruptions that cause price spikes and make customers unhappy.
But chemicals? The business case can be thin to none.
Changing chemicals is difficult and risky
Even when the science says it’s time to make a change because one or more legal ingredients we once believed to be safe turn out not to be – changing a product formula without changing the product can be difficult. It also takes time: on average 18 to 24 months.
Product ingredients are the smell, the feel and the way a product cleans or softens or does whatever it’s supposed to do. Change it, and you risk sales if customers reject the alternative.
There are few-to-no marketing wins here, either. Despite the fact that pretty much everything and everybody is a chemical mixture, people don’t want “better” chemistry. They want no chemistry, and keep looking for chemical-free products that don’t exist.
Walmart decided to tackle ingredient chemistry anyway. It begs the question: Even with years of persistent nudging from Environmental Defense Fund, why would Walmart do this?
Three plausible business reasons
One answer is that customers – along with scientists, advocates and bloggers – were really starting to voice concerns over chemicals in products, so it made good business sense to respond.
Another is that the timing was right. A lot of companies were already making formulation changes, so a request for improvements could be achievable.
Also important to note is that Walmart and other retailers have paid hefty fines over improper product disposal. So eliminating regulated substances from product ingredients could reduce the risk of more penalties.
All three are plausible business reasons. You’ll have to ask Walmart why to get their answer.
But what I’ve experienced – and the reason I’ve stayed in Bentonville for almost 10 years – is what’s stated in Walmart’s sustainable chemistry policy itself: “Walmart and Sam’s Club believe that customers/members should not have to choose between products that they can afford and products that are better for them and the environment.”
The people with whom I’ve worked at Walmart, especially on product chemistry, live by that statement.
Idea rippled through industry
When Walmart released its policy, the company didn’t just call for the ouster of the high-priority chemicals. Walmart took aleadership stance.
Walmart committed to making the product ingredients transparent to customers. The company embraced informed substitution, which means it’s intent on making sure that ingredients targeted by the new policy are replaced with better ones.
And for its private brand products, Walmart set its sights onSafer Choice, a voluntary labeling program administered by the U.S. Environmental Protection Agency that requires every ingredient to be as safe as possible. Target’s chemicals initiative was announced shortly afterwards.
The ripple effect spread across the personal-care products industry, with companies such as Johnson & Johnson and Colgate-Palmolive following with their own chemicals-focused efforts.
So let’s stop a moment and give credit where credit is due – to the people who chose to make things better, whatever their reasons.
https://www.edf.org/blog/2016/07/29/why-did-walmart-take-unusual-step-tackle-chemicals
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U.S. Shale Gas Goes Global, Buoying LNG Trade
Jul 29, 2016 | E&E Energywire
Shale gas produced in the United States is going from domestic to global. The United States shipped its first tanker of shale gas overseas this year, and in five years, the country will become the world's third-largest liquefied natural gas (LNG) supplier, according to the International Energy Agency.
Gas from the United States is adding to the global glut and will upset the gas price in markets overseas. According to the IEA and Goldman Sachs Group Inc., U.S. gas will become affordable in emerging markets and challenge coal at European power plants.
"The U.S. clearly changed the picture," said Costanza Jacazio, a senior gas analyst with IEA. "It's going basically from zero to the third-largest LNG capacity holder in the space of five years, and it brings a new flexible dimension to the LNG market."
And the supply will go up further. It is estimated that global gas export capacity will surge 45 percent and the United States' share will jump to 14 percent from nothing, according to Energy Aspects Ltd. The surge of U.S. gas exports has also fueled the global LNG trade. Last year, LNG trade reached about $120 billion, making it the second-largest commodity traded globally.
Meanwhile, the surplus of shale gas has created competition among energies. A cheaper price has allured many developing countries, which have relied on fossil fuels to turn to LNG.
"There are markets like Bangladesh and Pakistan where traditionally they would have gone with coal, but now gas can be the cheaper option once you include the cost of new infrastructure," said Christian Lelong, an analyst with Goldman.
http://www.eenews.net/energywire/2016/07/29/stories/1060040950
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(ACC Mentioned) Railroads Might Have to Let Rivals Serve Their Customers
Jul 28, 2016 | ABC News
By Josh Funk
Freight railroads could be forced to allow competing railroads to serve some customers along their tracks if federal regulators approve a new rule.
The Surface Transportation Board's proposed rule would only apply to certain companies that don't have many shipping options. The companies that have been fighting for this change since 2011 praised Wednesday's announcement while railroads decried the proposal.
President and CEO Cal Dooley of the American Chemistry Council said the new rule should help keep freight rail and manufacturing healthy.
"We welcome STB's decision to move forward on competitive switching, which will help put the marketplace back in the driver's seat and improve the flow of goods throughout our economy," Dooley said.
The proposal to force railroads to allow some manufacturers to hire a competing railroad to haul their products has been championed by the National Industrial Transportation League.
"Our member companies across a host of industries need this type of competitive, market-based rail transportation alternative," said Jennifer Hedrick, executive director of the National Industrial Transportation League.
Citi analyst Christian Wetherbee said in a research note that the proposed rule will likely have a minimal impact on railroad profits because of the restrictions on it.
To get the relief, regulators said every shipper that applies will have to show that the arrangement is in the public interest and necessary to ensure competitive rail service.
But railroads maintain this rule is a bad idea, and they pledged to continue opposing it. President and CEO Ed Hamberger of the Association of American Railroads said forcing railroads to give competitors access to customers on their lines would unnecessarily complicate matters.
"The freight rail industry's position remains unchanged: forced access is an ill-conceived approach that compromises the efficiency of the entire network by gumming up the system through added interchange movements, more time and increased operational complexity," Hamberger said.
An existing rule that would have allowed such freight switching between railroads has been on the books since 1985, but that rule imposed a tougher standard so this has never been approved.
Regulators will accept public comments on the proposal this fall before finalizing the rule.
http://abcnews.go.com/Business/wireStory/railroads-rivals-serve-customers-40958455
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Western Cities Turn to Local Action to Block Oil Trains
Jul 29, 2016 | E&E Energywire
This week, Spokane, a city in Washington where some main rail lines converge, has decided to call for a ban on crude oil trains running across the city.
The City Council's 6-0 vote will allow the city to ask voters in November whether it should prohibit the shipment of crude oil or coal by rail.
After a train derailed along the Oregon-Washington border last month, some city leaders in Spokane said they couldn't wait for tougher federal protections and had to do something to make the city safer. Many other municipalities where oil trains are rolling through have passed local ordinances to block crude oil or coal terminal projects.
Legal advisers say Spokane's proposed ordinance is likely to face a tough legal fight, because it's the federal government that regulates railroad operations and safety. But Councilman Breean Beggs, an attorney, believes a provision of the Federal Railroad Safety Act allows states to adopt certain laws to protect a local safety hazard.
A BNSF Railway Co. spokesman said there's no realistic alternative route to Spokane if the ballot measure is approved.
But Eddie Scher, a spokesman with advocacy group Stand, said Spokane can and should make the case for authority over oil trains.
"Public safety has to come first," he said.
http://www.eenews.net/energywire/2016/07/29/stories/1060040948
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Democratic Convention: Winners and Losers
Jul 29, 2016 | E&E Greenwire
By E&E Staff
Coal miners and climate activists were among the winners, "Berniecrats" and fracking foes the losers as this week's Democratic National Convention wrapped up last night.
Winners
Hillary Clinton: The Democratic presidential nominee might seem an obvious choice, but in week where a lot could have gone wrong, she left with a largely united party (see related story). A full-on mutiny from backers of her rival, Vermont Sen. Bernie Sanders, never materialized; former President Bill Clinton's speech focused on her not himself; and she got a strong endorsement from increasingly popular President Obama.
Climate activists: "Climate matters, climate matters," Rhea Suh, president of the NRDC Action Fund, the Natural Resources Defense Council's lobbying arm, said this week. From a film on global warming by Oscar-winning director James Cameron and shout-outs for action in prime-time convention addresses, global warming mattered a lot to the Democratic base.
Environmental movement: A reception hosted by several activist groups generated such a big crowd that organizers told some interested people not to attend because the room wasn't large enough. Many of the events and discussions around the city were focused on energy and the nation's environmental future.
Gene Karpinski: The president of the League of Conservation Voters won a prominent speaking slot at the convention, just hours before nominee Hillary Clinton. Karpinski, contrasting her to Republican nominee Donald Trump, asked the crowd: "Are we going to elect a climate denier? Or a climate champion? We're stronger together!"
Flint, Mich.: As the impoverished city struggles with its tainted-water crisis, several convention speeches called for federal aid. Mayor Karen Weaver (D) got time at the podium to lambaste congressional Republicans for inaction. And last night, Clinton said she wanted to know the "exact level of lead in the water."
Coal workers: The Clintons and Obama all mentioned coal workers in their speeches. Clinton said she would focus on communities from "Indian Country to coal country." Campaign advisers made similar commitments through economic growth policies in depressed areas. But that doesn't mean coal jobs will return or that national Democrats will stop fighting to move away from fossil fuels.
Jeff Weaver: Bernie Sanders' campaign manager was running a comic book store in Fairfax County, Va., before this campaign. Now he's a hot political commodity.
Philadelphia: Delegates, journalists and politicos complained about having to trek roughly 5 miles between downtown and the Wells Fargo Center. Still, from "Rocky" references to cheesesteaks, the city showcased its glittering downtown, historic Old City, hip waterfront and redeveloped industrial areas with a wide range of events and parties. Special mention to the city's political boss, Democratic Rep. Bob Brady, for putting on a wild opening party.
Public transportation: Many delegates found that the city's much-maligned Southeastern Pennsylvania Transportation Authority subways were the best way to navigate the town this week. SEPTA also provided shuttles for conventiongoers.
Losers
Fracktivists: Thousands of activists welcomed delegates Sunday by demanding stronger action against climate change and fossil fuels. One of their top demands was a ban on hydraulic fracturing for oil and gas. It's a request that Democratic leaders and the Clinton campaign are not agreeing to. New York Gov. Andrew Cuomo (D) mentioned his state's fracking ban while speaking with delegates, but he didn't press for national action.
Berniecrats: Sanders' supporters began the week packing the convention and leading protests all over town in favor of their man. But by the end of the week, after their standard bearer had called for unity, they had dwindled to little more than a nuisance. "We're tired, we're wet," one protester shouted outside the convention hall last night. Hardly the stuff of revolutions.
Debbie Wasserman Schultz: The Florida congresswoman and outgoing head of the Democratic National Convention took too long to resign early in the week following leaks showing the party favored Clinton over Sanders during the primaries. Protests by Sanders supporters and her initial insistence on participating in convention-related events gave the media a storyline of division and chaos. It was hardly the kind of "audacity" that her onetime ally Obama called for Wednesday night. "Sometimes you have to take one for the team," she said during the National Jewish Democratic Council reception.
Katie McGinty: The Philadelphia native challenging Sen. Patrick Toomey (R-Pa.) had the prefect launching pad here for her fall campaign, but many observers think she blew it. The former Pennsylvania environmental protection chief appeared at numerous events but spent the first part of the week apologizing for calling Toomey an "asshole." Then in a speech last night before the convention, McGinty, also a former top White House environmental adviser, seemed as wooden as her former boss, Vice President Al Gore.
John Hickenlooper: The Colorado governor was said to be on Clinton's short-list of selections for a running mate. But Democratic activists and Berniecrats said he wasn't progressive enough. And this week, fracktivists protested his call for energy policy moderation. Still, last night Hickenlooper touted his record, saying, "Denver is the fastest-growing big city in America, and Colorado has the second strongest economy in the country."
Uber: Drivers who were ignorant about road closures and routes to the convention angered many users of the ride-sharing service. Uber was a ubiquitous presence in Philadelphia, shuttling people around between downtown and the relatively isolated Wells Fargo Center. Uber also had a tent with numerous staffers to help users. A former Obama aide is a company adviser. But on Monday night, a debacle left hundreds of conventiongoers stranded without rides. The episode forced Uber to send out an apology to customers the next day that blamed the Secret Service, bad weather and large crowds.
Lyft: The other major ride-sharing service was by far not as viable as Uber. Some conventiongoers reported using Lyft, but the company failed to secure the exclusive agreement with event organizers that Uber got.
Donald Trump: The chaos candidate seemed to feed the Democrat's narrative that he's unfit for the presidency with his bizarre call for Russia to conduct counterespionage on Hillary Clinton this week. The Democratic nominee was already likely to get a post-convention bounce; Trump may have only helped it.
http://www.eenews.net/greenwire/2016/07/29/stories/1060040982
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Clinton Accepts Nomination, Declares 'I Believe in Science'
Jul 29, 2016 | E&E Climatewire
By Evan Lehmann
Hillary Clinton raced into a sharpening phase of her campaign last night by appealing to anxious Americans in hardscrabble coal towns and Texas borderlands, in the first address by a female major-party nominee for president in U.S. history.
Clinton challenged rival Donald Trump on his honesty, temperament and empathy in the pointed speech to an unbridled audience that waved American flags and chanted "Hillary, Hillary, Hillary." She also described a nation in pain, with too much poverty and unemployment, while promising to fight for disaffected workers, maligned immigrants and underpaid women.
"A man you can bait with a tweet is not a man we can trust with nuclear weapons," Clinton said.
Referring to Trump's comments questioning the presence of climate change, she said, "And I believe in science," prompting an eruption of applause. She also confronted Trump's assertion that he would repeal the Paris climate agreement, by saying she's "proud" of the United States' participation in the pact finalized last December.
"I believe that climate change is real and that we can save our planet while creating millions of good-paying clean energy jobs," Clinton said. "I believe that when we have millions of hardworking immigrants contributing to our economy, it would be self-defeating and inhumane to kick them out."
Clinton delivered a populist and inclusive message with promises to make job creation her top priority. But she also embraced the historic moment created by her nomination.
"Standing here as my mother's daughter, and my daughter's mother, I'm so happy this day has come," she said, "happy for grandmothers and little girls and everyone in between. Happy for boys and men, too -- because when any barrier falls in America, for anyone, it clears the way for everyone."
Moments before Clinton spoke, her daughter, Chelsea, made an appeal to the audience to see her mother in personal terms. She also sought to repair disunity between the liberal and moderate wings of the party.
"I'm voting for the progressive who will protect our planet from climate change and our communities from gun violence, who will reform our criminal justice system, and who believes that women's rights are human rights, and LGBT rights are human rights," Chelsea Clinton said.
Celebrities and a hoax
The four-day convention propels Clinton into the final stretch of a presidential race that's featuring emotional issues like immigration, crime and income inequality. The Democratic National Convention elevated climate change on the party's list of electoral priorities, a move that's meant to energize progressive voters while casting shadows on Trump's judgment related to science and the environment.
The convention, held at the Wells Fargo Center, a professional basketball arena in the southern outskirts of the city, included appearances last night by celebrities Katy Perry, Kareem Abdul-Jabbar, Sheila E., and Carole King. The lineup also touched on the issue of addressing rising temperatures, a theme that was weaved throughout the convention.
"Climate change is happening now. Yet Donald Trump calls it -- and I quote -- a 'hoax,'" Gene Karpinski, president of the League of Conservation Voters, said in an address to delegates yesterday. "And more than just deny it, his policies would make climate change worse."
Before his address, Karpinski shared a detail about his wardrobe. His tie was a tribute to Jerry Garcia, the late Grateful Dead singer, and is named "Green Landscape." "Perfect," Karpinski said.
On the floor of the arena, where delegates sat shoulder-to-shoulder in folding chairs, famous politicians mixed with local activists. Former Louisiana Sen. Mary Landrieu (D) sat next to a walkway clogged with delegates and reporters, as police officers shouted orders to keep moving. Cable news anchors sat at elevated desks under bright lights; they were within arm's reach of passersby.
Sometimes the faces of forgotten politicians punctuated the crowded floor.
Former California Gov. Gray Davis (D), whose approval rating plummeted following weeks of rolling blackouts in 2000 and 2001, for which Enron and other energy traders were later blamed, said humans are "killing the climate." He said renewable fuels for electricity and transportation could be deployed "fairly quickly" to reduce emissions.
He drew the line at trading the Clean Power Plan, President Obama's regulatory program aimed at power plants, for a federal carbon tax, saying more than one program is needed to cut emissions. Indeed, he only reluctantly said he would support a carbon tax, explaining that he shrinks from new taxes.
"If you forced me to vote yes or no, I would vote yes," Davis said of a carbon tax.
Clean power what?
The Clean Power Plan, which requires utilities nationwide to cut their carbon emissions 32 percent by 2030, is the cornerstone of Obama's efforts to address climate change. It was instrumental in convincing world leaders that the United States could reduce greenhouse gases without congressional cooperation. That helped U.S. negotiators finalize the Paris climate agreement.
But many delegates here feel that too little action is being taken to address global warming. More than a dozen delegates support stronger actions, like a carbon tax. And many didn't know what the Clean Power Plan was when asked about it.
"Absolutely, because we have so much catching up to do," Tom Anderson, a Louisiana delegate, said of a carbon tax. "We gotta tax something to take care of our environment and our climate, or we're a lost planet."
He wasn't familiar with the Clean Power Plan.
"I think it makes sense, you know, helping people go green," said Illinois delegate Brad Ellis of taxing carbon. "The problem with it is it gets passed on to the consumers."
Ellis, who was wearing a Chicago Bears jersey, hadn't heard of the Clean Power Plan.
Brian Whitecalf, a Nebraska delegate, likes the idea of taxing carbon, but he said it should be called a "fee" to avoid political obstacles.
Asked about the Clean Power Plan, he said, "Is that clean coal?"
It's not surprising that voters, or even some delegates, the most active members of the party, are unfamiliar with the details of regulating greenhouse gases, said Paul Bledsoe, an energy consultant and a former climate aide in the Clinton White House.
"They just want to be sure the climate is being protected," said Bledsoe, who believes Democrats should be saying more about climate change than they already are. "It's time to take the gloves off, on climate and many other issues, and dramatically illustrate how radically out of the mainstream Republicans and Trump really are."
Clinton sketched out a plan for her first 100 days in office, saying she would work with Republicans to create "the biggest investment in new, good-paying jobs since World War II."
"Jobs in manufacturing, clean energy, technology and innovation, small business, and infrastructure," she said. "If we invest in infrastructure now, we'll not only create jobs today, but lay the foundation for the jobs of the future."
http://www.eenews.net/climatewire/2016/07/29/stories/1060040961
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D.C. Circuit's Latest Air Rulings Fault Boiler Standards But Back PM Policy
Jul 29, 2016 | Inside EPA
By Anthony Lacey
The U.S. Court of Appeals for the District of Columbia Circuit in a pair of rulings issued July 29 is giving EPA mixed results on its air program, vacating or remanding key portions of its boiler rule while rejecting environmentalists' suit over a rule extending deadlines to meet the agency's particulate matter (PM) standards.
In the per curiam decision in the boiler air rule case, United States Sugar Corporation v. EPA, et al., a three-judge panel -- Judges Karen LeCraft Henderson, Janice Rogers Brown and Thomas B. Griffith -- vacated the boiler maximum achievable control technology (MACT) standards for all the “subcategories” of boilers for which the agency failed to consider all sources in those different categories of units.
The court also remands, without vacatur, to EPA a slew of provisions in the rule, asking why the agency used limits on carbon monoxide (CO) as a “surrogate” to achieve cuts in non-dioxin or furan organic hazardous air pollutants (HAPs), requiring it to set emissions standards for cyclonic burn barrels, asking why it excluded synthetic boilers from Clean Air Act (CAA) Title V permitting requirements, and other issues.
Separately, Circuit Judge Sri Srinivasan on behalf of a panel that includes Senior Circuit Judges Stephen F. Williams and Douglas H. Ginsburg issued a unanimous opinion in WildEarth Guardians, et al. v. EPA, et al. that rejected as moot a challenge to EPA's change to compliance deadlines for its 1997 fine particulate matter (PM2.5) national ambient air quality standards (NAAQS) and rejected the suit as it applied to the 2006 PM limit.
The PM2.5 ruling is a victory for the agency as it outlines when EPA can use a “reasonable exercise” of its CAA authority to revise enforcement deadlines in unusual situations like those in WildEarth Guardians. Observers had suggested an adverse ruling for EPA could significantly complicate states' PM2.5 NAAQS compliance planning.
But the boiler MACT ruling is a significant setback for EPA and its years-long effort to finalize, revise and once again finalize versions of emissions standards for the units that have faced broad opposition.
It also creates further complications for the agency, which is battling another lawsuit over a related rulemaking that reconsidered parts of its air rule for large industrial, commercial and institutional boilers. In that case, advocates are also faulting the agency's use of CO as a surrogate for cuts in other pollutants.
Boiler Ruling
The United States Sugar Corporation case involved challenges to EPA's package of combustion air rules that included the boiler MACT for large “major” source boilers, a related emissions rule for smaller “area” source boilers, and a stricter air rule for commercial and industrial solid waste incinerators (CISWI).
Highlighting the complicated nature of the consolidated case, the per curiam order notes that the court weighed approximately 30 challenges to the three rules from advocates and industry groups.
At Dec. 3 oral argument in the case, the three judges weighed major air policy disputes in lawsuits that affect the package of combustion emissions rules, including the agency's method for setting air pollution limits and the extent to which EPA can offer some exemptions to those limits.
In the ruling, the court specifically vacates the MACT standards for all major boiler subcategories that would have been affected had EPA considered all affected sources in a category when setting the limits. EPA created subcategories of boilers subject to different MACT limits based primarily on the fuel combusted.
The court says the agency has CAA power to create subcategories, but not to exclude certain units when calculating the minimium level of the MACT standard, or “floor,” for a subcategory. “This disparate treatment makes a difference; several sources excluded from the MACT-floor determination were among the best performing sources (or, in some cases, the single best performing source) in that fuel-based subcategory,” the ruling says.
The court also faults several other provisions of the rule, remanding them to the agency for further action. These include a mandate to set emission standards for cyclonic burn barrels; asking it to determine whether burn-off ovens, soil treatment units, and space heaters are CISWI units and, if so, to set standards for those types of units; to adequately explain synthetic boilers' exclusion from CAA Title V permitting requirements; and to adequately explain the choice of generally available control technology standards over stricter MACT standards for non-mercury metals.
The court similarly remanded without vacatur EPA's use of CO as a surrogate to achieve reductions in non-dioxin/furan organic HAPs. Environmentalists had attacked EPA's use of CO as a surrogate, arguing that adequate controls existing to directly regulate the other HAPs and that the CO standards were too weak.
The court agrees that the agency failed to adequately explain the use of CO as a surrogate, saying, “We recognize that there might be a context where a surrogate’s use is reasonable despite the presence of alternative control methods or technologies, but the Agency does not explain why it did not need to even consider whether such methods might further reduce HAPs here,” but it only remands the issue to EPA and does not vacate the standard.
Particulate Matter
The WildEarth Guardians case contested an EPA rule that responded to a D.C. Circuit ruling from 2013 that faulted the agency for subjecting PM2.5 to weaker controls under the air law's “subpart 1” provisions. The court at the time said that the more-onerous “subpart 4” provisions should apply, as advocates had argued.
EPA set the 1997 PM2.5 NAAQS at 65 micrograms per cubic meter (ug/m3) over 24 hours, and then in 2006 revised and tightened the limit to 35 ug/m3 over 24 hours.
During the time EPA was using the incorrect subpart 1 approach, some of the stricter NAAQS compliance deadlines that would have applied to areas out of attainment with the standard had elapsed. In the rule, EPA adjusted the deadline “to avoid treating states as having already missed deadlines of which they were never aware.”
WildEarth Guardians' suit claimed EPA lacked power to revise the deadlines and must retroactively impose strict subpart 1 controls on states. But the court disagrees, holding that “in the novel circumstances presented here, EPA reasonably acted within its statutory authority in adopting new deadlines aimed to avoid imposing retroactive burdens on states seeking to achieve compliance with governing air quality standards.”
For the 1997 standard, the court says the case is moot because the areas that were subject to the revised deadlines have already improved air quality and attained the standards.
For the 2006 standard the court says the case is not moot because some of the deadlines for states to submit state implementation plans for curbing PM2.5 are still in the future. Nevertheless, the court again acknowledges the unusual circumstances of the case in defending EPA's discretion to revise the deadlines.
“[T]he statute does not address what should happen if, as in the novel circumstances of this case, all affected parties have been long acting on the mistaken assumption that a different framework -- and hence a different schedule -- controls,” the court says, backing EPA's approach.
http://insideepa.com/daily-news/dc-circuits-latest-air-rulings-fault-boiler-standards-back-pm-policy
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