Preview Newsletter
ACC AM 8/01/16
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(ACC Mentioned) Environmental Working Group Recommends Ten Chemicals EPA Should Assess First Under Amended TSCA
Jul 29, 2016 | Lexology
By Megan P. Caldwell
The Environmental Working Group (“EWG”), a nonprofit, nonpartisan organization, issued a report on July 21, 2016 recommending the ten chemicals it thinks should be assessed first under the amended Toxic Substances Control Act (TSCA). -
TSCA: Proposed Revisions to Significant New Use Rules Reflect Current Occupational Safety and Health Standards
Aug 1, 2016 | The National Law Review
By Bergeson & Campbell, P.C.
The U.S. Environmental Protection Agency (EPA) proposed on July 28, 2016, revisions to the regulations governing significant new uses of chemical substances under the Toxic Substances Control Act (TSCA) with revisions to the Occupational Safety and Health Administration's (OSHA) -
Testing Toxic Chemicals: Manufacturters Say New Law Will Help Streamline Procedures
Aug 1, 2016 | T&D
By Gene Zaleski
Local company officials say the new federal law governing toxic chemicals will help bring more uniformity to the testing process that in some cases is handled on the state level. -
(ACC Mentioned) Canada Chemicals Sector Hopeful for Regulatory Cooperation With U.S.
Aug 1, 2016 | BNA Daily Environment Report
By Peter Menyasz
Chemicals companies on both sides of the U.S.-Canada border hope to see progress on joint assessments of chemical substances during the next 12 months, regardless of the outcome of the U.S. presidential election. -
California Extends BPA Warning Requirement for Retailers
Aug 1, 2016 | BNA Daily Environment Report
Warning signs for bisphenol A will be required at California stores selling canned and bottled foods and beverages through 2017. -
EPA Issues Final Rule Implementing Formaldehyde Emission Standards
Aug 1, 2016 | The National Law Review
By John McGahren and Duke K. McCall III
Final rule seeks to reduce exposure to formaldehyde vapors by establishing emission standards and labeling requirements for certain wood products. -
Ecovative Bio-Based Engineered Panel And Resins Meet EPA Formaldehyde
Jul 29, 2016 | Woodworking Network
The U.S. Environmental Protection Agency Federal regulations to reduce public exposure to toxic formaldehyde emissions from engineered wood cite Ecovative’s formula for biofabricating MycoBoard panels as an innovative alternative to the traditional manufacturing of particle board and other composite wood products. -
White House Reviewing EPA Degreaser Ban
Aug 1, 2016 | BNA Daily Environment Report
By David Schultz
The Environmental Protection Agency has sent a proposed ban on a widely used degreasing chemical to the White House for final review, indicating that the measure is close to being unveiled to the public. -
How Fracking Has Helped Drain Profits From Plastics Recycling
Jul 30, 2016 | AP (In Fuel Fix)
The past couple of years of relatively cheap crude oil and natural gas have upended the industry with the greenest image: recycling. -
Golden Pass LNG Export Project Gets Final EIS
Jul 29, 2016 | Natural Gas Intelligence
By Joe Fisher
FERC staff issued a favorable final environmental impact statement (FEIS) for the Golden Pass liquefied natural gas (LNG) export project in Texas. The project would entail expansion of an existing LNG import terminal to add liquefaction and export capability and construction of a short natural gas pipeline. -
Trump Indicates Towns, States Should Be Able To Ban Fracking
Jul 29, 2016 | The Hill - E2 Wire
By Timothy Cama
Donald Trump seemed to support state and local bans on fracking in a Colorado interview Friday. -
Trump Agrees With Clinton On Fracking Debate
Jul 29, 2016 | Politico
By Elana Schor
Donald Trump today told a Colorado TV station that he supports local control over fracking, wading into a controversial issue that has pitted oil and gas companies against environmentalists - and agreeing with Hillary Clinton. -
(ACC Mentioned) Boiler Emissions Ruling a Win for Environmental Groups
Aug 1, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
A federal appeals court sided with environmental organizations in identifying several legal flaws in the Environmental Protection Agency's emissions standards for boilers, while also rejecting several industry challenges to key aspects of the rule (U.S. Sugar Corp. v. EPA, 2016 BL 245584, D.C. Cir., No. 11-1108, 7/29/16; Am. Forest & Paper Ass'n v. EPA, 2016 BL 245584, D.C. Cir., No. 11-1125, 7/29/16; Am. Chemistry Council v. EPA, 2016 BL 245584, D.C. Cir., No. 11-1141, 7/29/16). -
Court Sides With Greens On EPA Boiler Rule
Jul 29, 2016 | The Hill - E2 Wire
By Timothy Cama
A federal appeals court Friday agreed with environmental groups and tossed out part of a contentious air pollution rule for boilers for an improper exemption within the regulation. -
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. -
Industries Lament Regulatory Uncertainty After EPA Boiler MACT Vacatur
Jul 29, 2016 | Inside EPA
By Anthony Lacey
Wood, paper and other industries are lamenting what they warn will be significant regulatory uncertainty following the U.S. Court of Appeals for the District of Columbia Circuit's unanimous decision that vacated some EPA air standards for certain categories of large “major” source boilers and remanded other provisions to the agency. -
Appeals Court Upholds EPA's Fine Particulate Matter Rule
Aug 1, 2016 | BNA Daily Environment Report
By Ben Remaly
A federal appeals court upheld the Environmental Protection Agency's decision to reset deadlines for states to submit plans to comply with national fine particulate matter standards (WildEarth Guardians v. EPA, D.C. Cir., No. 14-1145, 7/29/16). -
EPA: Chemical Shouldn't Be Regulated as Ozone Precursor
Aug 1, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
A chemical used for cleaning medical devices and electric components should no longer be regulated as a volatile organic compound under the Clean Air Act, according to the Environmental Protection Agency. -
Clinton Vows To Meet Paris Climate Pledge, But It Won't Be Easy
Aug 1, 2016 | The Hill - Pundits
By Daniel Cohan,
In her acceptance speech Thursday, Democratic presidential nominee Hillary Clinton vowed to uphold the U.S. commitment to climate actions under last year's Paris agreement. -
California's Cap-And-Trade Program Has Cut Pollution. So Why Do Critics Keep Calling It A Failure?
Aug 1, 2016 | Los Angles Times
By Michael Hiltzik
After cruising along for more than two years, California’s vaunted cap-and-trade program to cut carbon emissions has run into a few recent snags.
Congressional Hearings - There are no relevant hearings to report at this time
Industry and Association News - There are no relevant hearings to report at this time
LCSA News
Chemical Management News
Energy News
Chemical Security News - There are no relevant hearings to report at this time
Transportation News - There are no relevant hearings to report at this time
Environment News
Full Text of Stories Below
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Jul 29, 2016 | Lexology
By Megan P. Caldwell
The Environmental Working Group (“EWG”), a nonprofit, nonpartisan organization, issued a report on July 21, 2016 recommending the ten chemicals it thinks should be assessed first under the amended Toxic Substances Control Act (TSCA).
The report goes on to recommend an additional ten chemicals for early action, to be evaluated after the first ten: lead, formaldehyde, vinyl chloride, bromoform, chromium-6, styrene, arsenic, ethylbenzene, cadmium, and 1,4-dioxane.
Meanwhile, there has been chatter indicating that, to select the ten initial TSCA chemicals, EPA may draw from the 90 chemicals that EPA’s chemicals office selected for risk assessment prior to TSCA being amended last month. Liz Bowman, a spokeswoman for the American Chemistry Council, has stated: “We think that the 10 substances must be drawn from the existing TSCA Chemical Work Plan and that Work Plan substances for which EPA has had significant work underway are logical candidates for the first 10 substances under review.” EWG’s lists drew from EPA’s work plan and includes some chemicals that EPA has already begun to assess. EPA’s list of the first ten chemicals to be evaluated is due to be released by December 22, 2016, according to the statute’s deadline. As EPA completes its evaluations, EPA must add new chemicals to the rolling list.
http://www.lexology.com/library/detail.aspx?g=c93a3c7e-3216-4372-96c9-ef08af70e80b
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Aug 1, 2016 | The National Law Review
By Bergeson & Campbell, P.C.
The U.S. Environmental Protection Agency (EPA) proposed on July 28, 2016, revisions to the regulations governing significant new uses of chemical substances under the Toxic Substances Control Act (TSCA) with revisions to the Occupational Safety and Health Administration's (OSHA) Hazard Communications Standard (HCS) occasioned by OSHA's March 2012 final rule modifying the HCS to conform to the United Nations' (U.N.) Globally Harmonized System of Classification and Labelling of Chemicals (GHS), changes to OSHA's 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. EPA states that it is also proposing changes to regulations based on issues that it identified, as well as issues raised by public commenters, for significant new use rules (SNUR) previously proposed and issued under these regulations. Additionally, EPA claims to propose a "minor" change to reporting requirements for premanufacture notices (PMN) and other TSCA Section 5 notices. EPA states that it expects the changes "to have minimal impacts on the costs and burdens of complying, while updating the significant new use reporting requirements to assist in addressing any potential effects to human health and the environment." Comments are dueSeptember 26, 2016.Commentary
Although the notice downplays them (which is reflected in the anodyne trade press articles on the proposal), the proposal raises significant and complex issues. There may well be good reasons for several of the proposed changes. The minimal discussion provided in the notice and the lack of adequate public debate having occurred prior to its issuance raise troubling questions about the legal basis for, scope of, and complexity of the proposed changes, some of which may apply retroactively. The confusion the proposal can be expected to cause could have been avoided had adequate discussion preceded its publication, or at the least EPA could have raised these issues in the proposed rule's preamble to focus stakeholders' attention appropriately.
We see several issues. First, stakeholders in the pesticide area know well the challenges and legal and regulatory ambiguities that have arisen regarding EPA's efforts to align pesticide labeling under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) with GHS requirements. EPA has devoted considerable effort to clarifying the application of HCS/GHS requirements to FIFRA labeling, and unresolved issues still remain. See Pesticide Registration (PR) Notice 2012-1, Material Safety Data Sheets as Pesticide Labeling; 77 Fed. Reg. 23713 (Apr. 20, 2012).
Given the number and complexity of issues covered in the proposed rule, it is evident that EPA has been working on it for some time. Sixty days leaves little time to comment, particularly given the summer holiday season and the many important TSCA initiatives underway and on which stakeholder attention is focused as a result of EPA's implementation of TSCA reform. As EPA knows well, stakeholders are busy and preoccupied in working to understand the new requirements, preparing for the upcoming public meetings on August 9-10 and the industry meeting on August 11-12, and preparing for all of the other issues and requirements that have a short clock (not least of which are the effects of the changes in Section 5).
Second, we also question why, after an extensive legislative debate that produced an amended TSCA, EPA would propose to include the hierarchy of controls (HOC) approach in its significant new use provisions. We recognize and appreciate the importance of HOC as an element in a system to manage or eliminate occupational risks and note the inclusion of this approach proposed in earlier legislative TSCA reform. These included S. 3209, the Safe Chemicals Act of 2010 (which included HOC in changes to Section 9(c)) and H.R. 5820, the Toxic Chemicals Safety Act of 2010 (which proposed to include HOC in Section 6(c)(2)(F)). As it debated TSCA reform over the succeeding six years, Congress decided in its wisdom not to include the concept of HOC in TSCA as amended. The re-emergence of HOC embedded in a proposed rule issued with no fanfare, and which studiously avoids reference to any of these important implications, raises many questions, not the least of which is if Congress declined to pursue this approach in amending TSCA, is it at least worth discussing the wisdom of its inclusion in this proposed rule? The subtly of EPA's messaging here is troubling.
Third, we question whether EPA considered the impact of amended TSCA on the proposal. Based on a quick read, we note the citations to TSCA appear to be to old TSCA. Apart from correcting the citations, however, new TSCA may materially impact the content of the proposal and it is unclear if EPA's review considered this possibility.
Finally, we will discuss in a separate memorandum some interesting anomalies that appear in the proposal's discussion of bona fide requests and the disclosure of information potentially considered confidential. We will explore this issue in a separate memorandum next week.Proposed Changes to 40 C.F.R. Section 721.63, Protection in the Workplace
According to the notice, EPA is proposing changes to 40 C.F.R. Section 721.63 based on changes that have occurred in respiratory protection requirements since 1989. In June 1995, NIOSH updated and modernized its federal regulation for testing and certifying non-powered air-purifying particulate respirators (42 C.F.R. Part 84). The 42 C.F.R. Part 84 respirators have passed a more demanding certification test than older respirators previously certified under 30 C.F.R. Part 11, and provide increased worker protection. In January 1998, OSHA replaced the respiratory protection standards it adopted in 1971 with the revised Respiratory Protection Standard (29 C.F.R. Section 1910.134). In August 2006, OSHA modified the Respiratory Protection Standard by adding definitions, as well as maximum use concentration, and assigned protection factor requirements.
According to EPA, due to these changes, the respirators currently listed in 40 C.F.R. Section 721.63 may no longer meet the current NIOSH/OSHA criteria for respirator selection and use. EPA proposes to update the language pertaining to respiratory protection requirements to be consistent with both OSHA and NIOSH requirements. Under the proposed rule, 40 C.F.R. Section 721.63(a)(4), which requires that respirators be used in accordance with 30 C.F.R. Part 11, would instead cite 42 C.F.R. Part 84, the most updated NIOSH regulation for testing and certifying respirators. EPA states that the change would apply to all previously issued SNURs that contain significant new use requirements pertaining to respiratory protection to make clear that manufacturers and processors subject to current SNURs can follow updated respiratory protection requirements without triggering a significant new use notification (SNUN) requirement. EPA will cite the updated language when issuing new SNURs as appropriate. EPA is proposing updated NIOSH-certified respirator language in 40 C.F.R. Section 721.63(a)(5) to standardize the use of the new respirator language by allowing EPA to cross-reference the respirator language for new chemical SNURs rather than impose the respirator language on a case-by-case basis. The proposed rule would allow persons subject to SNURs with older respirator requirements to avoid triggering a SNUN requirement by continuing to use those respirators, if they are available.
EPA proposes to revise 40 C.F.R. Section 721.63 to make it a significant new use not to implement a HOC to protect workers. Persons subject to applicable SNURs 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 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. EPA notes that it received comments to proposed SNURs that it issued on December 28, 2011. According to EPA, 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 did not follow the best occupational health and safety practices. In the June 26, 2013, final SNURs, EPA agreed that a HOC should be applied and that PPE should be the last option to control exposures. EPA states that all new chemical SNURs published since June 26, 2013, have included language to consider and implement engineering controls and administrative controls where feasible when the SNURs contained significant new uses pertaining to the lack of PPE for workers. EPA proposes to revise 40 C.F.R. Section 721.63(a)(1) and (a)(4) to add language that requires consideration and use of engineering and administrative controls where feasible before PPE for worker protection. The proposed change would affect SNURs issued after this proposed rule becomes a final effective rule, and would affect previously issued SNURs that incorporate worker protection referencing the existing 40 C.F.R. Section 721.63(a)(1) and (a)(4) regulations.
EPA proposes changes to 40 C.F.R. Section 721.72 based on the changes to 29 C.F.R. Section 1910.1200, OSHA's modified HCS. In March 2012, OSHA modified the HCS to conform to the UN's GHS to enhance the effectiveness of the HCS by ensuring that employees are apprised of the chemical hazards to which they may be exposed, and by reducing the incidence of chemical-related occupational illnesses and injuries. The HCS modifications include revised criteria for classification of chemical hazards; revised labeling provisions that include requirements for use of standardized signal words, pictograms, hazard statements, and precautionary statements; a specified format for safety data sheets (SDS); and related revisions to definitions of terms used in the HCS and requirements for employee training on labels and SDSs.
EPA proposes to add new paragraphs (i) and (j) that EPA would use when issuing hazard communication requirements for SNURs issued after this proposed rule has been issued in final. The new paragraph (i) would require that a written hazard communication program be developed and implemented for the substance in each workplace in accordance with the OSHA HCS. According to EPA, this proposed approach would maintain consistency in compliance for persons subject to TSCA and OSHA regulations for the same activity. The new paragraph (j) describes specific statements and other warnings that could be required for SNURs for substances identified in Subpart E. EPA states that the specific statements and warnings that could be required would be based on EPA's risk assessment of the chemical substance and would be consistent with the OSHA HCS and GHS recommendations.
EPA proposes to update 40 C.F.R. Section 721.72 paragraphs (a) through (h) to be consistent with both OSHA requirements and GHS recommendations. When the rule is issued in final, these changes would apply to individual SNURs in Subpart E issued before the effective date of the final rule. EPA proposes changes to 40 C.F.R. Section 721.72 paragraphs (a), (c), and (d) to change using the word material safety data sheet (MSDS) to SDS and to allow easily accessible electronic versions and other alternatives to maintaining paper copies of the SDS. According to EPA, these changes would apply to any previously issued SNUR in Subpart E that cites these paragraphs. EPA also proposes changes pertaining to hazard and precautionary statements that are listed in 40 C.F.R. Section 721.72 paragraphs (g) and (h) to be consistent with statements required under the OSHA HCS and recommended by the GHS. The proposed changes would add new precautionary and hazard statements. According to the proposed rule, while the previously issued SNUR precautionary and hazard statements would be retained solely for previously issued SNURs, EPA proposes to identify which of the proposed new statements can be used as alternatives. EPA proposes that manufacturers and processors subject to a previously issued SNUR have the option to use the prior older precautionary and hazard statements or use the new alternative statements that are consistent with the OSHA HCS or GHS recommendations to comply with the SNUR. EPA proposes language allowing any person subject to a previously issued SNUR for a substance identified in Subpart E containing requirements for 40 C.F.R. Section 721.72 paragraphs (a) through (h) to comply with those requirements by following the requirements of the proposed 40 C.F.R. Section 721.72 paragraph (i), which is being proposed for use in future SNURs, and using any statements specified for that substance in the proposed 40 C.F.R. Section 721.72 paragraphs (g) or (h).Clarification of the Use of 40 C.F.R. Section 721.80, Industrial Commercial and Consumer Activities
EPA states that it is clarifying its use of the significant new use for new chemical SNURs described at 40 C.F.R. Section 721.80(j), which identifies as a significant new use, "Use other than as described in the premanufacture notice referenced in subpart E of this part for the substance." When EPA issues a SNUR using the designation at Section 721.80(j) and that use described in the PMN is claimed as confidential, EPA cites Section 721.80(j). In identifying the significant new use in Subpart E for certain previously issued SNURs where the use described in the PMN was not claimed confidential, EPA cited 40 C.F.R. Section 721.80(j) and included the PMN use described in the PMN in parentheses. EPA states that it has received public comments in response to proposed SNURs and pre-notice inquiries for SNUNs that manufacturers and processors subject to SNURs "find it confusing when EPA cites 40 CFR 721.80(j) and then identifies the PMN use in parentheses." According to these comments and inquiries, when EPA cites the new use this way, it appears as though the significant new use is the use in the parentheses, where the significant new use is actually use other than the use in parentheses. To identify the significant new use more clearly, EPA states that it has changed this procedure to cite 40 C.F.R. Section 721.80(j) only when the use described in the PMN is confidential. When the use described in the PMN is not confidential, EPA intends to identify the significant new use by describing the use, such as in the following example: "A significant new use is any use other than as a pesticide intermediate."Proposed Changes to 40 C.F.R. Section 721.91, Computation of Estimated Surface Water Concentrations: Instructions
When EPA issues a new chemical SNUR citing the significant new uses described in 40 C.F.R. Section 721.90 (a)(4), (b)(4), and (c)(4), the SNUR requires a SNUN if the results of the equation for computation of estimated surface water concentrations in 40 C.F.R. Section 721.91 exceed the level specified for that SNUR in Subpart E. The equation estimates surface water concentrations based on the amount of a chemical substance released from industrial processes and the flows of the water body. According to the proposed rule, the current equation does not consider amounts of a chemical substance released to a surface water after control technology such as wastewater treatment. EPA proposes to revise this requirement to allow manufacturers and processors to account for reductions in surface water concentrations resulting from wastewater treatment.
EPA states that because of "numerous questions" from manufacturers and processors about the phrase "predictable or purposeful release" in 40 C.F.R. Section 721.90, it proposes to clarify the meaning of that phrase. EPA uses the phrase to qualify significant new uses pertaining to releases to water in 40 C.F.R. Section 721.90. According to the proposed rule, as described in the April 29, 1987, proposed rule, Proposed General Provisions for New Chemicals Follow-up, the phrase predictable or purposeful does not include releases where true emergency conditions exist and SNUN is not possible. Therefore, EPA states, routine or repeated activity that results in releases to water or non-routine releases to water that are not due to emergency conditions would be included in the term predictable or purposeful. EPA did not intend the phrase "predictable or purposeful release" to limit its strict liability authority under the statute.
EPA notes that some new chemical SNURs have a significant new use designation that is a production volume limit or use other than described in the PMN that is based on confidential business information (CBI) contained in the PMN and that is therefore not disclosed in the published SNUR. Currently, for each SNUR that contains a significant new use designation that is CBI, that SNUR cross-references the bona fide procedure in the specific SNUR in Subpart E for 40 C.F.R. Section 721.1725. When the chemical identity in a SNUR is CBI, 40 C.F.R. Section 721.11 provides a means by which bona fide submitters can determine whether their substance is subject to the SNUR. EPA notes that chemical identity is not the only information contained in a SNUR that may be claimed as CBI, however. EPA proposes to modify the bona fide procedure in 40 C.F.R. Section 721.11 so that it applies to all SNURs that contain any confidential information in the SNUR, including the significant new use. EPA states that it "believes it would be more efficient to have a bona fide procedure for determining confidential significant new uses in subpart A rather than referencing 40 CFR 721.1725(b)(1) each time EPA issues a SNUR containing a confidential significant new use designation." In addition, EPA proposes to modify the bona fide procedure that allows EPA to disclose the confidential significant new use designations to a manufacturer or processor who has established a bona fide intent to manufacture (including import) or process a particular chemical substance.Proposed Changes for Submission of SDS(s) with PMNs, SNUNs, Low Volume Exemptions (LVE), Low Release and Exposure Exemptions (LoREX), and Test Marketing Exemption (TME) Applications
EPA proposes to revise requirements in 40 C.F.R. Sections 720.38, 720.45, and 723.50 to require that any SDS already developed to comply either with OSHA requirements or already developed by a notice submitter for other purposes must also be submitted as part of the notification (PMN, SNUN, LVE, LoREX, or TME application) under TSCA Section 5. According to EPA, many submitters already submit available SDSs as part of their submission and the information contained in SDSs is "often useful" for EPA's assessments of chemicals. EPA states that the proposed revision would not require submitters to develop an SDS. It would only require a submitter to submit an SDS that has already been developed to the extent it is known or reasonably ascertainable by the submitter.Fixing Typographical Errors and Other Non-Substantive Changes
EPA proposes to correct several typographical errors and more accurately use the terms manufacture, manufacturer, and manufacturing in the regulatory text of 40 C.F.R. Parts 720, 721, and 723.
http://www.natlawreview.com/article/tsca-proposed-revisions-to-significant-new-use-rules-reflect-current-occupational
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Testing Toxic Chemicals: Manufacturters Say New Law Will Help Streamline Procedures
Aug 1, 2016 | T&D
By Gene Zaleski
Local company officials say the new federal law governing toxic chemicals will help bring more uniformity to the testing process that in some cases is handled on the state level.
"This law modernizes the Toxic Substances Control Act while also providing a framework for the U.S. chemical industry, allowing the industry to keep pace with scientific advancements since TSCA originally became law 40 years ago," SI Group Senior Director of Southeast Operations Jeff Prickett said in a prepared statement.
"The amended TSCA bill provides the chemical industry with a streamlined process through which health and environmental risks will be evaluated and managed. The changes will also give consumers more visibility into the EPA’s assessment of chemicals."
Prickett said the Orangeburg plant "looks forward to the implementation and improvement of TSCA regulations that will lead to a more consistent, science-based regulatory system."
"These changes allow SI Group to continue to develop innovative products while protecting American jobs at our industrial plants," Prickett said.
The Si Group plant, located on Cannon Bridge Road, was formerly operated by Albemarle Corp.
President Barack Obama on June 22 signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act, named after the late senator who introduced a version of the bill in 2013.
This marks the first overhaul to the law, which is the nation’s main legislation governing toxic chemicals.
There are more than 80,000 chemicals registered for use today, many of which haven’t been studied for safety by any government agency.
Public health and environmental advocates protested for decades that TSCA was too old and too weak to shield Americans from toxic chemicals.
More than 60,000 commercial chemicals were allowed on the market without safety testing. And regulators had to prove a substance posed an “unreasonable risk” before they could take action – a burden of proof so difficult that the Environmental Protection Agency couldn’t ban asbestos, a known carcinogen that still kills 15,000 people each year.
Under the new law, however, the EPA now has wide-ranging authority to order testing of and regulate the thousands of chemicals that are in use, as well as the hundreds of new substances that come on the market each year. The EPA no longer has to prove that regulating a chemical is cost-effective and only has to show that it is harmful to public health or the environment.
The EPA will review a minimum of 20 chemicals at a time, and each has a seven-year deadline. The industry may then have five years to comply after a new rule is made. At that pace, it could take centuries for the agency to finish its review.
DAK Americas spokesman Ricky Lane said at this point in time, the company does "not have enough information to anticipate any significant item or issue of concern."
"As more information is published, we will execute our procedures to be in compliance with such new regulations," Lane said. "DAK Americas is aware of this new act and awaiting associated rules and procedures that will accompany it to be developed and published."
Lane said the initial focus of the law will be on "more hazardous chemicals."
"This would not likely include the main chemicals in use at our facilities, including our site in Gaston" Lane said. "We follow all regulations and take the safety of our employees, our community and the environment as a top priority."
Zeus Corporate Marketing Manager Wayne Black said the new law is not expected to directly impact its manufacturing operations as the company specializes in resin extrusion for tubing, but he says indirectly the company does use chemicals as cleaning agents.
"It will force these manufacturers to label it (chemicals) better and increase workplace safety," Black said. "We have been a big proponent of that."
Black said Zeus diligently maintains material safety data sheets for all chemicals it brings into the facility.
The law also blocks states from taking action to control chemicals.
For decades, states have filled the gap in strong federal rules by crafting their own protections, but manufacturers complained it created a patchwork of regulations and increased costs. A strong state preemption was crucial to getting industry on board.
The latest version of the law received bipartisan support. It passed the Senate on June 7. The House approved it in May.
Manufacturers will also have a harder time making trade secret claims to keep basic chemical information confidential. It also allows agency findings to preempt state regulations.
Critics of the law are worried that EPA might lack the resources to effectively regulate and that the law cedes too much to the chemical industry.
The burden is still on consumers to educate themselves about what toxins could be in the things they buy.
http://thetandd.com/news/local/testing-toxic-chemicals-manufacturters-say-new-law-will-help-streamline/article_052cca3b-3fef-5f34-ab52-ae654f5f4165.html
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(ACC Mentioned) Canada Chemicals Sector Hopeful for Regulatory Cooperation With U.S.
Aug 1, 2016 | BNA Daily Environment Report
By Peter Menyasz
Chemicals companies on both sides of the U.S.-Canada border hope to see progress on joint assessments of chemical substances during the next 12 months, regardless of the outcome of the U.S. presidential election.
Work on closer cooperation between the U.S. and Canadian governments on risk assessments of chemicals has been slower than planned, but should lead to concrete results during the coming year, Gordon Lloyd, vice president of technical affairs with the Chemistry Industry Association of Canada, said July 28.
The initiative under the bilateral Regulatory Cooperation Council already has weathered a change of government in Canada and is expected to survive the upcoming U.S. presidential election, Lloyd told Bloomberg BNA.
“There does seem to be a lot of momentum behind it,” he said. “It has huge potential, and there's a lot of effort being put into it by both governments.”
The U.S. chemicals sector also supports the effort to align assessments and believes the U.S. government is committed to the partnership with Canada through the Regulatory Cooperation Council , Christina Franz, senior director of regulatory and technical affairs with the American Chemistry Council , said July 29.
“We strongly support that commitment and cooperation between the U.S. and Canada, and will send that message to the new administration, regardless of who wins the presidential election,” Franz told Bloomberg BNA in an e-mail.
Officials from the U.S. Environmental Protection Agency and Environment and Climate Change Canada have put in place an approach to align regulatory requirements and minimize unnecessary differences in how chemicals are assessed in each country, Lloyd told Bloomberg BNA.
“That's exactly how industry has looked at this from the start,” he said. “We'd ultimately like to see, in certain circumstances, if one can accept the other's risk assessment work. That's our long-term wish.”
The process isn't “hugely fast.” but the work to date has led to closer relationships between officials in the two countries, which could be at least as important as any formal regulatory alignment that eventually happens, he said.
Lloyd said he particularly hopes the working group can help better align chemicals inventories in the U.S. and Canada. The U.S. inventory currently has about 80,000 chemicals, while Canada's has only about 24,000, and making them more consistent would make alignment easier, he said.
It would also be good if the two countries could agree on the issue of workplace exposure to chemicals, as the U.S. current takes that into account in its risk assessments but Canada doesn't because that is considered a provincial responsibility, he said.
In addition, industry would like government officials to find a way to safely share confidential business information, he said.
Ongoing Work
Industry was responding to a July 28 webinar hosted by the U.S. Environmental Protection Agency and Environment and Climate Change Canada on a recently released progress report on the regulatory cooperation process.
No new work is being considered as officials from both countries continue to work on the initial items assigned to the Regulatory Cooperation Council's technical working group on chemicals management, Greg Carreau, executive director of Environment and Climate Change Canada's Program Development and Engagement Division, told webinar participants.
“We still have a lot on our plate to finish,” Carreau said.
The focus during the next 12 months will be on completing the working group's initial work plan and reviewing a “parking lot” of future areas of cooperation, he said. More details on future work will be released in the next month or so, consultations will be held in fall 2016 on the future items and the next formal update on the overall work plan will be published in June 2017, he said.
Issues that have been “parked” for future consideration include prioritizing substances and risk assessment, data sharing, aligning chemical inventories, and communicating requirements to the chemicals supply chain.
Tala Henry, director of the Risk Assessment Division in EPA's Office of Pollution Prevention and Toxics, said the group's work on comparing how each country does risk assessments and requires industry to report new uses of chemicals—Canada's significant new activity notices (SNACs) and the EPA's significant new use rules (SNURs)—has uncovered many similarities.
There is clearly room to work together, particularly when assessing the same substances, Henry said in the webinar. That information will be used to complete, by the end of 2017, an assessment collaboration framework that will help better align the two countries' regulatory processes, she said.
Henry said pending amendments to the U.S. Toxic Substances Control Act won't be a setback for the joint efforts. The amendments would change how EPA sets priorities and conducts risk assessments, but don't “vastly change” the assessment process, she said.
Sue Fraser, a program engineer with Environment and Climate Change Canada, said one of the working group's goals is to allow industry to provide “parallel” notification to both jurisdictions on new chemicals. That would lead to joint discussion of the substances and potentially aligned notification requirements, Fraser said in the webinar.
Officials have identified some new substances as candidates for joint assessment and are considering whether some existing substances could be jointly reviewed, she added. The working group hopes to finalize by early 2017 its recommendations on better aligning new activity notifications, she said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=94774795&vname=dennotallissues&wsn=494816500&searchid=28103514&doctypeid=1&type=date&mode=doc&split=0&scm=DELNWB&pg=0
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California Extends BPA Warning Requirement for Retailers
Aug 1, 2016 | BNA Daily Environment Report
Warning signs for bisphenol A will be required at California stores selling canned and bottled foods and beverages through 2017.
The state's Office of Environmental Health Hazard Assessment issued an interim rule July 29, extending the point-of-sale requirement to warn customers of potential exposure to bisphenol A (BPA), which is used in polycarbonate, plastics and epoxy resins found in can linings and the lids of jars and bottles.
California listed BPA as a reproductive toxicant under Proposition 65 in May 2015, triggering the warning requirement. OEHHA's interim rule extends an emergency rule about to expire.
The new rule will give OEHHA time to develop a product-specific warning regulation that establishes a maximum allowable dose level for oral exposure for the chemical. A public hearing on extending the warning requirement is set for Sept. 12 at the California Environmental Protection Agency headquarters. Written comments on the interim rule are due Sept. 26.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=94774816&vname=dennotallissues&fn=94774816&jd=94774816
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EPA Issues Final Rule Implementing Formaldehyde Emission Standards
Aug 1, 2016 | The National Law Review
By John McGahren and Duke K. McCall III
Final rule seeks to reduce exposure to formaldehyde vapors by establishing emission standards and labeling requirements for certain wood products.
Six years after the passage of the Formaldehyde Emission Standards for Composite Wood Products Act of 2010 (42 U.S.C. 2697), the US Environmental Protection Agency (EPA) has finally issued its final rule implementing the act (Final Rule). The Final Rule—based off the formaldehyde regulation issued by the California Air Resources Board (with which EPA collaborated in formulating the Final Rule)—seeks to reduce exposure to formaldehyde vapors by establishing emission standards and labeling requirements for certain wood products.Background and Health Risks Associated with Formaldehyde
Formaldehyde is a chemical that is commonly used in wood glue for furniture and flooring. The potential health risks associated with this chemical were highlighted in the 2005 aftermath of Hurricane Katrina. After Katrina destroyed thousands of Gulf Coast residents’ homes, families were forced to live in temporary trailers provided by the Federal Emergency Management Agency (FEMA). After these displaced residents began reporting respiratory problems and eye irritation, air tests were conducted inside the trailers. These tests revealed high levels of formaldehyde fumes that had been leaking from wood used in the hastily constructed trailers.
Since this incident, some studies have linked formaldehyde to nasopharyngeal cancer, eye irritation, and respiratory problems, while other studies have raised questions about the chemical’s potential role in causing asthma and allergic conditions, particularly among children. In 2008, in response to these health concerns, California became the first US jurisdiction to issue emission limits on formaldehyde in building materials and furniture used in homes. Two years later, the US Congress enacted the Formaldehyde Emission Standards for Composite Wood Products Act, which added Title VI to the Toxic Substances Control Act (TSCA). This act directed EPA to issue regulations implementing the act.Summary of EPA’s Final Rule and Exceptions to Certain Products
The Final Rule sets formaldehyde emission standards applicable to hardwood plywood, medium-density fiberboard and particleboard, and finished goods containing these products that are sold, supplied, offered for sale, imported into, or manufactured in the United States. To show that they are in compliance with the emission standards, within one year, these products will need to be labeled as TSCA Title VI compliant. Furthermore, the Final Rule establishes an EPA TSCA Title VI Third-Party Certification Program to ensure that composite wood panel producers comply with the emission limits. Under this program, Third-Party Certifiers (TPCs) will regularly inspect composite wood panel producers and conduct emissions tests. TPCs who wish to participate in the program must apply to EPA for approval and receive program recognition before certifying products.
The Final Rule also includes exemptions for de minimis products and certain laminated products:
Products that contain de minimis amounts of composite wood products (defined as products containing 144 square inches or less of regulated composite wood products) are exempt from the labeling requirements.
The definition of “hardwood plywood” specifically exempts laminated products made by attaching a wood or woody grass veneer to a compliant core or platform with a phenol-formaldehyde resin or a resin formulated with no added formaldehyde as part of the resin cross-linking structure. To be eligible for this exemption, laminated product producers must maintain records demonstrating eligibility.Implications of the Final Rule
Many manufacturers and industry groups have raised concerns about the costs associated with the Final Rule. Specifically, small businesses have argued that the rule’s testing, labeling, and recordkeeping requirements will disproportionally impact smaller firms that aren’t equipped to handle additional costs. Since EPA’s initial version of the rule was first released for public comments in June 2013, the rule has undergone revisions in an attempt to address these concerns. Although EPA has attempted to minimize the Final Rule’s costs, it still estimates the new requirements will cost firms anywhere from $38 to $83 million per year. Furthermore, critics contend that even the Final Rule’s exemptions contain hidden costs because the application process for those exemptions still contains its own burdensome requirements.
http://www.natlawreview.com/article/epa-issues-final-rule-implementing-formaldehyde-emission-standards
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Ecovative Bio-Based Engineered Panel And Resins Meet EPA Formaldehyde
Jul 29, 2016 | Woodworking Network
The U.S. Environmental Protection Agency Federal regulations to reduce public exposure to toxic formaldehyde emissions from engineered wood cite Ecovative’s formula for biofabricating MycoBoard panels as an innovative alternative to the traditional manufacturing of particle board and other composite wood products.
MycoBoard panels are premium, customizable, and certified sustainable. Rather than being bound together using formaldehyde and other toxic resins, it is literally grown together using Ecovative’s mResin adhesive system. Derived from the mycelium in mushrooms, this “nature’s glue” is formaldehyde-free, safe, and healthy. This versatile, non-toxic engineered wood, which offers acoustic and fire-resistant properties, can be molded into custom shapes or pressed into boards, making it an ideal solution for the architectural and design community.
“We welcome the EPA’s new lower urea-formaldehyde emission standards and are thrilled to be referenced as a potential solution in the guidelines. At Ecovative we believe that less bad is not enough. That’s why we are scaling our mResin™ adhesive system for mill level deployments as well as designing, developing, and selling biofabricated furniture for the home and office. All are grown from natural materials without any added toxic glues,” said Eben Bayer, Ecovative co-founder and CEO.
“Today Ecovative is working with mills across North America and Europe to pilot our mResin adhesive system. By using a living organism to transform existing feedstocks, primarily wood fiber, into glue, we can help mills raise their product performance rather than just focusing on meeting these lower emission standards. While our pilot program is currently full, we hope to have capacity to work with other mills starting in 2017,” said Gavin McIntyre, Ecovative co-founder and Chief Scientist.
MycoBoard panels are now available directly from Ecovative, as well as through its west coast distribution partner Trinity Innovations. Ecovative is also using its innovative mycelium-based technology to produce a range of products for the home and office under its Ecovative Interiors line.
The EPA’s Formaldehyde Emission Standards for Composite Wood Products; Final Rule--Prepublication Copy includes the following reference to Ecovative (pg 46-47):
Overall, EPA has exercised its discretion in making its determination so as to fulfill the primary purpose of TSCA Title VI without impeding unduly or creating unnecessary economic barriers to technological innovation. See 15 U.S.C. 2601(b)(3). In fact, EPA encourages laminated product producers and the wood products industry to explore all avenues for reducing formaldehyde emissions from composite wood products. In addition to established resins, such as soy-based resins or phenol formaldehyde resins, new resin technologies may be developed that provide adequate performance while contributing minimal formaldehyde emissions.
Similarly, while there are established alternatives to regulated composite wood products, e.g., lumber or solid wood, it is likely that new alternatives will be developed. For example, in 2014, EPA awarded a grant through EPA’s Small Business Innovation Research program competition toEcovative Design, LLC.
Ecovative makes packaging, building materials (furniture and panels) and automotive products by growing them from agricultural byproducts and mycelium, a fungal network of threadlike cells that are like the roots of mushrooms. These materials are not hardwood plywood, particleboard, or MDF, and thus are not subject to this final regulation. EPA encourages laminated product producers to consider all aspects of their production processes when deciding how best to lower formaldehyde emissions from laminated products and achieve compliance with this regulation.
Through the Federal Small Business Innovation Research (SBIR) program, Ecovative has received Federal research funding from the Environmental Protection Agency (EPA), the National Science Foundation (NSF), and the US Department of Agriculture. Ecovative was founded in 2007, and received its first SBIR program related grant in 2008. In 2013 Ecovative received the SBA’s prestigious Tibbetts Award honoring high-tech small businesses “for the critical role they play in research and development for the government and for their success in driving innovation and creating new jobs.”
Ecovative is a leading biomaterials company growing high performance, premium, award-winning products that are safe, healthy, and certified sustainable. Products include MycoBoard panels for furniture and construction, MycoFoam™ packaging materials, and other consumer goods in its biofabricated Ecovative Interiors line. Ecovative products enable customers—including Fortune 500 companies, international mills, and furniture makers—to meet their design, production, and delivery needs while achieving sustainability goals. Founded in 2007, the pioneer and world leader in mycelium-based biomaterials uses biology to grow materials with exceptional properties unattainable through conventional chemistry.
http://www.woodworkingnetwork.com/wood/panel-supply/ecovative-bio-based-engineered-panel-and-resins-meet-epa-formaldehyde
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White House Reviewing EPA Degreaser Ban
Aug 1, 2016 | BNA Daily Environment Report
By David Schultz
The Environmental Protection Agency has sent a proposed ban on a widely used degreasing chemical to the White House for final review, indicating that the measure is close to being unveiled to the public.
The proposal would enact sweeping new restrictions on use of the chemical trichloroethylene, or TCE, a substance used to remove grease in metalworking, dry cleaning and other industries. It was sent to the White House's Office of Management and Budget July 27 for final review.
The timing of this action, just weeks after passage in Congress of the landmark chemical regulatory reform law, suggests that this proposal doesn't rely on the new authority granted to the Environmental Protection Agency through the legislation, according to environmental attorney Judah Prero.
“This shows that EPA was clearly gearing up, even absent reform,” Prero, with the firm Sidley Austin, told Bloomberg BNA.
Partial or Full Ban?
The details of the EPA's proposed action on TCE won't become public until after the White House completes its review. Prero said it is unclear whether the agency will propose a partial ban, aimed at preventing workplace exposure to the chemical, or a full ban.
After the agency formally introduces its proposal for TCE (RIN:2070-AK03), it will hold a public comment period before finalizing any action.
According to information on OMB's website, the EPA plans to use Section 6 of the Toxic Substances Control Act as its authority in promulgating the ban. Wendy Cleland-Hamnett, director of the EPA's Office of Pollution Prevention and Toxics, said earlier this year at a conference that her office hasn't taken action under Section 6 in 30 years.
A ban on TCE could affect a huge number of companies, according to Richard Engler, a senior chemist at the law firm Bergeson & Campbell. “This would affect any business that removes grease from metal,” Engler told Bloomberg BNA. “That could be mechanics large and small. … . I think it's lots and lots of users.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=94774803&vname=dennotallissues&fn=94774803&jd=94774803
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How Fracking Has Helped Drain Profits From Plastics Recycling
Jul 30, 2016 | AP (In Fuel Fix)
The past couple of years of relatively cheap crude oil and natural gas have upended the industry with the greenest image: recycling.
Yes, it’s still an advantage for many businesses and municipalities to recycle rather than have the junk hauled to a landfill.
But only a few years ago, there was plenty of cash in reselling that trash — paper, plastics and metal — to provide a nice profit for the recycling companies and give back money to the cities and companies producing the waste.
No longer. And if that doesn’t turn around, it may mean some people will pay relatively more for trash pickup than if the market for recycling were better.
The problem is not only about the cheap oil and gas made possible by fracking in America’s shale fields, and particularly in Texas. It’s also linked to a slump in the world demand for raw materials.
A used plastic water bottle that once might have been turned into a few threads of polyester in a pair of Chinese-made jeans, woven into a carpet or been part of another bottle is now struggling to find a new home.
Nationwide, about 200 of more than 7,000 scrap recycling companies have gone belly-up over the past couple of years, said Joe Pickard, chief economist for the Institute of Scrap Recycling Industries. Many others have throttled back operations, he said.
“The price volatility makes it really hard for our guys to do business,” he said.
But not impossible.
Houston-based Waste Management is the largest trash-collecting company in America. About 10 percent of its business is recycling. And most of that has been what’s called “single-stream” — when a many kinds of potentially reusable material are dumped together, like in the household blue bins.
The company issued its second-quarter earnings report this week. Recycling revenues were down about $5 million from a year ago. In the past year, Waste Management has renegotiated or lost contracts in many cities. Houston and Dallas both switched companies.
“We started calling it a crisis last year,” said Brent Bell, vice president of recycling for Waste Management.
And the commodities market has gotten no better since then. Two years ago, the price of domestic crude oil was above $100 a barrel. It was hanging around $42 a barrel this week.
Natural gas, an even more important precursor to a lot of plastic, was trading at about $4.80 per million BTU two years ago at the Henry Hub in Louisiana. The most recent price was around $2.80.
“Our customers are telling us it is cheaper to buy virgin material than recycled content,” Bell said this week.
Even the metals market has been crunched by the slump in oil prices. A significant part of supply and demand for some metals comes from the drilling fields. And the number of rigs in operation remains near historic lows in much of the United States.
Across the board, as recycling companies work through new contracts, these new economic realities are getting baked in. So cities and companies that once expected a significant return on their waste stream are getting less — or even facing the possibility of paying fees.
The long slump in oil and gas isn’t all bad for recyclers, said Chaz Miller, director for policy and advocacy for the National Waste and Recycling Association.
“It’s a Hobson’s choice,” he said. “You aren’t upset at paying less for your truck fuel.”
Like many companies in the oil patch, too many recycling companies got too used to high prices for their materials, he said.
“What we are seeing, bluntly, is a lot of companies forgot that recyclables are commodities,” he said.
Count Dallas-based Texas Recycling as one company that got the message early about being more efficient.
Unlike Waste Management, the family-owned company only takes in post-commercial, already separated materials: Truckloads of plastic arrive relatively uncontaminated with paper; loads of plastic have little metal to pull out. A huge pile of cans needs only to be loaded into the monstrous baling machine to be ready for re-sale.
But the downturn in prices has meant the company had needed to be more selective with the kinds of materials it takes in. Some grades of plastic the company once accepted are now virtually unmarketable, said Kathy DeLano, who handles the plastics end of the business.
Last year, the company moved from several buildings to what was once a Ford plant. That made processing cheaper, company President Joel Litman said. Which helps with the bottom line in an otherwise tough market.
Paradoxically, there’s little indication that the amount of material being recycled has dropped much over the past couple of years, if any. Getting recent data is tough: The EPA’s newest numbers are more than 2 years old. But since much of what’s recycled is from individuals who are doing it for environmental motives, the downturn in scrap prices doesn’t affect that, experts say.
So that leaves municipalities with the challenge of finding ways to get rid of the the material in an environmentally responsible manner. Which means recycling business can cut their paybacks or even charge fees to take some kinds of trash.
Like people in the oil and gas business, leaders of this industry talk hopefully about an eventual return to higher prices. But that may be more hope than reality, said Waste Management’s Bell.
“We don’t think we will see the return levels we saw in 2011,” he said. “We think the world looks differently now and will look differently in the future. We are preparing our customers for that future.”
http://fuelfix.com/blog/2016/07/30/how-fracking-has-helped-drain-profits-from-plastics-recycling/
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Golden Pass LNG Export Project Gets Final EIS
Jul 29, 2016 | Natural Gas Intelligence
By Joe Fisher
FERC staff issued a favorable final environmental impact statement (FEIS) for the Golden Pass liquefied natural gas (LNG) export project in Texas. The project would entail expansion of an existing LNG import terminal to add liquefaction and export capability and construction of a short natural gas pipeline.
A favorable draft EIS was issued for the project last March (seeDaily GPI, March 28). Once completed, bi-directional flow of natural gas/LNG would be possible at Golden Pass, allowing for both import and export of LNG.
The project would add to the existing terminal three liquefaction trains, a truck unloading facility, refrigerant and condensate storage, safety and control systems, and associated infrastructure; supply dock and alternate marine delivery facilities; 2.6 miles of a 24-inch diameter pipeline loop adjacent to the existing Golden Pass pipeline; three new compressor stations; five new pipeline interconnections and modifications at existing pipeline interconnections; and miscellaneous appurtenant facilities [CP14-517, -518].
Environmental harms caused by the project could be adequately mitigated through proposed and recommended measures, FERC staff said.
The Golden Pass LNG Terminal near Sabine Pass, TX, is a joint venture formed by affiliates of Qatar Petroleum (70%), ExxonMobil (17.6%) and ConocoPhillips (12.4%). Among the largest terminals in the world, it is capable of importing approximately 2 Bcf/d of through its dual berth ship docks.
Golden Pass Products currently expects to complete permitting in 2017. Following a decision on investment, the project would cost about $10 billion over five years to build liquefaction facilities. The project has received U.S. Department of Energy authorization for exports to Free Trade Agreement (FTA) countries and awaits DOE authorization to export to non-FTA nations.
The Golden Pass LNG import project began in November 2003 (see Daily GPI, Nov. 21, 2003). Construction of the Golden Pass Pipeline was completed in 2009, followed by completion of the terminal construction in 2010. Golden Pass received its first LNG cargo in October 2010.
http://www.naturalgasintel.com/articles/107237-golden-pass-lng-export-project-gets-final-eis
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Trump Indicates Towns, States Should Be Able To Ban Fracking
Jul 29, 2016 | The Hill - E2 Wire
By Timothy Cama
Donald Trump seemed to support state and local bans on fracking in a Colorado interview Friday.
In a departure from the usual position of Republicans and the wishes of the oil and natural gas industry, the GOP nominee for president said he thinks voters should be able to ban fracking at the state and local level, despite his personal support for the practice.
“I’m in favor of fracking, but I think that voters should have a big say in it,” Trump told Denver television station KUSA in an interview, a portion of which was posted Friday. “I mean, there’s some areas, maybe, they don’t want to have fracking. And I think if the voters are voting for it, that’s up to them.”
He went on to say that while fracking is needed, “if a municipality or a state wants to ban fracking, I can understand that.”
Republicans around the country have fought fiercely against local and state fracking bans.
Localities in both Texas and Colorado have passed bans on fracking within their boundaries. Texas’ legislature voted last year to prevent local fracking bans, and Colorado’s highest court ruled this year that that state’s laws prohibit such bans.
Republicans in New York tried for years to get that state to allow fracking, but Gov. Andrew Cuomo (D) banned it in 2014.
Trump in April criticized New York’s fracking ban.
“It’s just so incredible and we never took advantage,” he told a radio station at the time, according to the Journal News.
Democratic presidential hopeful Hillary Clinton said in a March debate that local and state governments should be allowed to block fracking within their borders.
http://thehill.com/policy/energy-environment/289851-trump-let-towns-states-ban-fracking
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Trump Agrees With Clinton On Fracking Debate
Jul 29, 2016 | Politico
By Elana Schor
Donald Trump today told a Colorado TV station that he supports local control over fracking, wading into a controversial issue that has pitted oil and gas companies against environmentalists - and agreeing with Hillary Clinton.
The GOP nominee told Denver's NBC station that "I'm in favor of fracking, but I think that voters should have a big say in it. I mean, there's some areas, maybe, that don't want to have fracking, and I think if the voters are voting for it that's up to them."
Colorado has played host to multiple battles over local control of fracking operations, and in May the state Supreme Court ruled against fracking bans put in place by two towns. Clinton has supported allowing local communities to ban fracking as a key element in her promised plans to rein in the oil and gas extraction tactic.
"We're going to use every authority we have to ensure that local communities are protected," Clinton adviser Trevor Houser told POLITICO at the Democratic National Convention this week.
It was unclear from Trump's remarks whether he is familiar with the ongoing Colorado battles over local fracking curbs, which could reach another climax this fall if activists can defeat an industry-backed campaign and reach the 100,000-signature threshold necessary by next week in order to put two new anti-fracking initiatives before the state's voters.
http://www.politico.com/story/2016/07/donald-trump-hillary-clinton-fracking-226459#ixzz4G4d1iyVi
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(ACC Mentioned) Boiler Emissions Ruling a Win for Environmental Groups
Aug 1, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
A federal appeals court sided with environmental organizations in identifying several legal flaws in the Environmental Protection Agency's emissions standards for boilers, while also rejecting several industry challenges to key aspects of the rule (U.S. Sugar Corp. v. EPA, 2016 BL 245584, D.C. Cir., No. 11-1108, 7/29/16; Am. Forest & Paper Ass'n v. EPA, 2016 BL 245584, D.C. Cir., No. 11-1125, 7/29/16; Am. Chemistry Council v. EPA, 2016 BL 245584, D.C. Cir., No. 11-1141, 7/29/16).
The opinion, issued July 29 by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, held that the EPA wrongly excluded high-performing boilers when calculating emissions standards for various subcategories of boilers. The court also found the EPA's justification for several aspects of the rule, including the agency's choice of carbon monoxide as a surrogate for various hazardous air pollutants, to be lacking.
James Pew, an Earthjustice attorney who argued the case on behalf of various environmental organizations, told Bloomberg BNA that he was “pretty pleased” with the ruling, both because the court agreed with the environmental groups on several key arguments and because the court rejected all arguments raised by U.S. Sugar Corp., the American Chemistry Council and other industry petitioners.
“Industry got nothing,” Pew said in a phone interview. “The claims they were raising would have done an enormous amount of damage.”
The maximum achievable control technology standards for major source boilers, commonly referred to as Boiler MACT, apply to more than 14,000 existing boilers at petroleum refineries, chemical manufacturing plants and other industrial facilities. The EPA estimated that it would cost industry $1.6 billion annually to come into compliance with the limits on hazardous air pollutants.
Most owners of coal-fired industrial boilers either shut down or switched fuel sources to natural gas in order to comply with the Boiler MACT standards by a Jan. 31, 2016, deadline, an industry trade group told Bloomberg BNA earlier this year. Still, industry was looking to the D.C. Circuit to provide relief on some aspects of the standards, including the issue of excess emissions that result from malfunctions.
In addition to the major source boiler standards (RIN:2060-AQ25; RIN:2060-AR13), the D.C. Circuit's opinion also addresses legal challenges to EPA's standards for area source boilers (RIN:2060-AM44; RIN:2060-AR14) and commercial and industrial solid waste incinerators (RIN:2060-AO12; RIN:2060-AR15).
Courts Rejects Malfunction Argument
D.C. Circuit judges Karen LeCraft Henderson, Janice Rogers Brown and Thomas Griffith rejected a number of industry challenges to key aspects of the standards, including the EPA's handling of malfunctions for boilers and incinerators.
William Wehrum, a partner at Hunton & Williams LLP who argued on behalf of the industry petitioners, told the court in December that the EPA acknowledged that malfunctions will occur, but failed to take that fact into account when calculating emissions standards that apply at all times.
The court rejected the industry argument that the EPA's approach to rely instead on enforcement discretion to address malfunctions violates a Clean Air Act requirement that national hazardous pollution emissions standards issued under Section 112 must be achievable. The court cited statutory language defining achievability to be no less than “the emission control that is achieved in practice” by the best performing sources. The “best controlled similar source” that EPA must base its standards on is unlikely to be a malfunctioning source, the court said.
“If anything, then, the statutory language on its face prevents the EPA from taking into account the effect of potential malfunctions when setting MACT emission standards,” the court said. “At the very least, the language permits the EPA to ignore malfunctions in its standard-setting and account for them instead through its regulatory discretion.”
The EPA has faced legal difficulty over its past efforts to address excess emissions during times of startup, shutdown and malfunction. The agency included affirmative defense language that shielded industry from civil penalties related to unavoidable malfunctions, but the D.C. Circuit ruled in 2014 that doing so is not within the agency's Clean Air Act authority (NRDC v. EPA, 749 F.3d 1055, 2014 BL 108218, 78 ERC 1369 (D.C. Cir. 2014)).
Some Standards Vacated
The court ruled in favor of the Sierra Club, Environmental Integrity Project and other environmental petitioners on several issues. The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, the majority owner of Bloomberg L.P., parent of Bloomberg BNA.
One key issue on which the court decided in favor of the environmental organizations was the EPA's method for calculating minimum emissions standards known as MACT floors for different subcategories of boilers. The court concluded that the EPA reasonably created subcategories based primarily on the type of fuel used, but held the EPA erred when it excluded certain high-performing units from its calculation.
While the EPA allowed sources that combust at least 10 percent of a fuel to be considered part of a subcategory, the agency declined to consider emissions from any source that burned less than 90 percent of the fuel when determining the best-performing sources for the purposes of setting the MACT floor. That methodology excluded several of the best-performing sources within some subcategories, the court said.
“The [Clean Air Act], however, demands that source subcategories take the bitter with the sweet,” the court said. “If the EPA includes a source in a subcategory, it must take into account that source's emissions levels in setting the MACT floor.”
The court vacated the emissions standards for all major boiler subcategories that would have been affected had EPA considered all sources. Pew told Bloomberg BNA that he was still reviewing the ruling and could not quantify how many emissions standards are affected by that portion of the ruling, though he said he was glad that the court agreed that the EPA's approach to screen out some of the best-performing sources was “pretty ridiculous.”
Court Seeks More Explanation
The court ruled against the EPA on several other aspects of the boiler and incinerator standards, though the court remanded those issues back to the EPA without vacating the relevant portions of the rule.
The remanded issues include EPA's selection of carbon monoxide as a surrogate for non-dioxin/furan organic air toxics. The court found that the EPA's contention that good combustion would minimize emissions of both carbon monoxide and those hazardous air pollutants is “not alone sufficient” to support its selection of carbon monoxide as a surrogate.
“The EPA could not conclude that [carbon monoxide] acts as a reasonable surrogate...without at least considering a key factor: whether the best performing boilers might be using alternative control technologies and methods that reduce organic [hazardous air pollutant] emissions beyond what they achieve by regulating [carbon monoxide] alone,” the court said.
The legal issue reviewed by the court is not as broad as the practical consequences if it's determined that the EPA can't justify carbon monoxide as a surrogate, Pew said. The only way the agency is regulating benzene, polycyclic organic matter and other harmful pollutants is through standards on carbon monoxide emissions, he said. If carbon monoxide isn't a valid surrogate, then the EPA would be in violation of the Clean Air Act requirement that all of those pollutants be regulated, according to Pew.
The court declined to vacate the carbon monoxide standards because it would cause “substantial disruptive effects” through the removal of emissions limits for regulated hazardous pollutants. The court also said it expects that EPA will be able to offer an adequate explanation for its choice of carbon monoxide as a surrogate.
The court also remanded parts of the boiler and incinerator standards back to the EPA with instructions to:
• set emissions standards for cyclonic burn barrels under incinerator regulations;
• determine whether burn-off ovens, soil treatment units and space heaters are commercial and industrial solid waste incinerators, and, if so, set standards for those devices;
• adequately explain the exclusion of synthetic boilers from operating permit requirements under Title V of the Clean Air Act; and
• adequately explain the choice to set more lenient generally available control technology standards instead of MACT standards for non-mercury metals.
Industry: Decision ‘A Step Back.'
The American Wood Council , which represents wood product manufacturers, issued a July 29 statement describing the D.C. Circuit's decision as a “step back” for industry.
“It is unfortunate that the rule was partially vacated and remanded in several key areas by the D.C. Circuit,” Robert Glowinski, president and chief executive officer of the council , said. “AWC worked long and hard with EPA to develop a rule that was protective of health and the environment, yet pragmatic and well tailored for safely burning carbon neutral biomass residuals in our boilers...we remain committed to these objectives going forward.”
The association's statement also highlighted the court's decision to reject key industry challenges to the Boiler MACT rule, including the malfunction issue and a requirement that boiler operators conduct an energy assessment. The court rejected an industry argument that the energy audit provision was beyond the scope of EPA's Clean Air Act authority because the study requires an analysis beyond the boiler that is the source of pollution.
The court also ruled in the EPA's favor on a number of other challenges, including an industry challenge to the EPA's “pollutant-by-pollutant approach” to setting MACT standards, which the court ruled to be a reasonable interpretation of Clean Air Act language.
The EPA's use of the Upper Prediction Limit, a statistical tool used to predict the level of emissions that the “best-performing” facilities in a source category are expected to meet, also was upheld by the court. The D.C. Circuit in 2013 remanded part of EPA's sewage sludge incinerator standards back to the EPA due to uncertainty with the Upper Prediction Limit (Nat'l Ass'n of Clean Water Agencies v. EPA, 734 F.3d 1115, 2013 BL 220506, 77 ERC 1473 (D.C. Cir. 2013)).
The environmental petitioners argued that use of the Upper Prediction Limit resulted in MACT floors that were less stringent than they should be. However, the court found that the EPA “has carried its burden” of showing that the statistical tool does reflect a reasonable estimate of the emissions achieved by the best-performing sources.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=94774809&vname=dennotallissues&wsn=494812000&searchid=28103514&doctypeid=1&type=date&mode=doc&split=0&scm=DELNWB&pg=0
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Court Sides With Greens On EPA Boiler Rule
Jul 29, 2016 | The Hill - E2 Wire
By Timothy Cama
A federal appeals court Friday agreed with environmental groups and tossed out part of a contentious air pollution rule for boilers for an improper exemption within the regulation.
The lengthy, 162-page opinion issued by the Court of Appeals for the District of Columbia Circuit rejects numerous arguments from industry that the Environmental Protection Agency’s (EPA) package of boiler rules is too strict.
A key piece of the decision found that the EPA was wrong to leave certain boiler units with low levels of emissions out of the subcategories it constructed for the rule.
The Clean Air Act, the judges wrong, “demands that source subcategories take the bitter with the sweet,” and requires “without ambiguity” that all relevant units be kept in a subcategory.
Judges sided with the green groups on a handful of other challenges in the lawsuit, though it is not blocking enforcement of those, instead allowing the agency to go back and fix the problems.
The boiler rule, dubbed boiler MACT for “maximum achievable control technology,” has been one of the more contentious air pollution rules of the Obama administration, and congressional Republicans have tried weakening it in various ways with no success.
The American Forest and Paper Association, whose member companies often use boilers to generate power at their facilities, said the court’s failure to accept any industry arguments was disappointing.
“We are disappointed that after years of back-and-forth the D.C. Circuit Court has ruled against reason in vacating certain key standards and remanding other portions of rules that, by most accounts, are reasonable and achievable despite the extensive technically sound information and test data provide to and relied upon by the EPA,” Donna Harman, the group’s president, said in a statement.
http://thehill.com/policy/energy-environment/289814-court-sides-with-greens-on-epa-boiler-rule
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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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Industries Lament Regulatory Uncertainty After EPA Boiler MACT Vacatur
Jul 29, 2016 | Inside EPA
By Anthony Lacey
Wood, paper and other industries are lamenting what they warn will be significant regulatory uncertainty following the U.S. Court of Appeals for the District of Columbia Circuit's unanimous decision that vacated some EPA air standards for certain categories of large “major” source boilers and remanded other provisions to the agency.
At least two industry groups are vowing to work with EPA on remand to try and influence the next iteration of the boiler rule, while one of the groups is suggesting Congress might need to direct EPA on how to write the rule. The ruling could lead to stricter air toxics limits for various subcategories of boilers, and create additional new limits.
“Unfortunately, this continues the atmosphere of regulatory uncertainty that is harming U.S. competitiveness on a global scale,” said American Forest & Paper Association President (AF&PA) and CEO Donna Harman in a statement released shortly after the three-judge panel of the D.C. Circuit issued its per curiam order in the case. Harman said the court appears to have ignored data that industry submitted to EPA to help it craft its boiler standards.
“We are disappointed that after years of back-and-forth the D.C. Circuit has ruled against reason in vacating certain key standards and remanding other portions of rules that, by most accounts, are reasonable and achievable despite the extensive technically sound information and test data provided to and relied upon by the EPA,” she said.
Harman said AF&PA would work with EPA on the remand and “provide sound information and data” to the agency as it reworks the boiler standards faulted in the court's ruling.
The American Wood Council (AWC), representing more than 75 percent of the U.S. wood products manufacturing sector, called the decision a “step back” and said the vacatur and remands were “unfortunate” decisions. AWC says that going forward it will continue to advocate for a boiler emissions rule that is “protective of health and the environment, yet pragmatic and well-tailored for safely burning carbon neutral biomass residuals in our boilers.”
But the group notes that lawmakers in Congress have previously tried to advance legislation affecting EPA's boiler rules and said their “help may be needed to reestablish workable rules.”
The court's ruling followed oral argument in December in consolidated challenges to the agency's package of combustion rules that included the major source boiler emissions standards, air toxics limits for smaller “area” source boilers, and stricter air limits for commercial and industrial solid waste incinerators.
Court's Ruling
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) Clean Air Act (CAA) standards for all the “subcategories” of boilers for which the agency failed to consider all sources in those different categories of units.
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 decision is a win for environmentalists, because if EPA were to consider better-performing sources that it excluded from the first set of calculations then the new results could lead to stricter MACT floors for some subcategories.
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 fall into the category of commercial and industrial solid waste incinerators 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 carbon monoxide (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 exist 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.
http://insideepa.com/daily-news/industries-lament-regulatory-uncertainty-after-epa-boiler-mact-vacatur
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Appeals Court Upholds EPA's Fine Particulate Matter Rule
Aug 1, 2016 | BNA Daily Environment Report
By Ben Remaly
A federal appeals court upheld the Environmental Protection Agency's decision to reset deadlines for states to submit plans to comply with national fine particulate matter standards (WildEarth Guardians v. EPA, D.C. Cir., No. 14-1145, 7/29/16).
In an unanimous opinion July 29, the U.S. Court of Appeals for the District of Columbia Circuit said the EPA, under the “novel circumstances presented here,” had the authority to change implementation deadlines in order to avoid “imposing retroactive burdens” on states working to comply with air quality standards.
The rule at issue (RIN:2006-AS12) classified all areas that failed to meet the 1997 and 2006 fine particulate standards as “moderate” nonattainment areas, gave states six years to demonstrate compliance in those areas and reset the deadline for submitting a state implementation plan to Dec. 31, 2014.
Paul Cort, an Earthjustice attorney representing WildEarth Guardians and other environmental petitioners in the case, told Bloomberg BNA he was disappointed with the decision.
During Nov. 6, 2015, oral arguments, Cort had argued that the EPA's “reset” of the state implementation submittal deadline was illegal under the Clean Air Act. He said it allowed San Joaquin Valley in California to request a “voluntary redesignation” from moderate to serious attainment that would give the area four years to submit a new implementation plan.
Cort argued the process of voluntary redesignation is only open after an 18-month window following the planning deadline. Questioning at the oral arguments had largely focused on whether a ruling in favor of the environmental petitioners would have any practical effect.
‘Unknown' Deadlines
The appellate court's July 29 decision, authored by Judge Sri Srinivasan, said that if the 18-month window was enforced in this situation, the states would have “unknowingly” lost the chance for reclassification within 18 months of the “unknown” deadline.
“States would be held to long-passed deadlines of which they were unaware, with meaningful legal consequences,” the court said.
Cort told Bloomberg BNA the constitution does not allow the executive branch, in this case the EPA, to rewrite Clean Air Act deadlines and said he hoped the court's decision would have a narrow application.
Brian Lynk of the Justice Department, who had argued on behalf of the EPA, had said at oral arguments that the agency held the discretion to extend outside the 18-month window as it had for more than 20 years.
Cort said the petitioners had not yet made a decision on whether to appeal the decision.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=94774814&vname=dennotallissues&fn=94774814&jd=94774814
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EPA: Chemical Shouldn't Be Regulated as Ozone Precursor
Aug 1, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
A chemical used for cleaning medical devices and electric components should no longer be regulated as a volatile organic compound under the Clean Air Act, according to the Environmental Protection Agency.
The agency, in a direct final rule scheduled for publication Aug. 1, said 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane can be exempted from the definition of volatile organic compound because it makes a “negligible contribution” to the formation of ground-level ozone. The chemical, also known as HFE-347pcf2, is used as a precision cleaning agent that is used to remove oil and contaminants from a variety of items, including jewelry, film and aircraft guidance systems.
AGC Chemicals Americas Inc., a subsidiary of Asahi Glass Co., petitioned the EPA in 2007 to exempt the chemical from the regulatory definition of volatile organic compound. Volatile organic compounds, commonly known as VOCs, are one of the precursors to ozone formation.
If HFE-347pcf2 were no longer considered to be a volatile organic compound, any entity that uses or produces the chemical would no longer need to count the chemical for the purposes of determining compliance with EPA regulations aimed at controlling VOC emissions.
The EPA said it views its decision as a noncontroversial action and anticipates no objections. The EPA will open a 30-day public comment period on the direct final rule, which can be submitted athttp://www.regulations.gov under Docket No. EPA-HQ-OAR-2015-0041.
If no adverse comments are received, the rule will go into effect 30 days later. If adverse comment is received, the agency will proceed with a notice-and-comment rulemaking. The agency Aug. 1 also is publishing a proposed rule to exempt HFE-347pcf2 as a backup plan in case anyone objects to the direct final rule process.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=94774782&vname=dennotallissues&fn=94774782&jd=94774782
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Clinton Vows To Meet Paris Climate Pledge, But It Won't Be Easy
Aug 1, 2016 | The Hill - Pundits
By Daniel Cohan,
In her acceptance speech Thursday, Democratic presidential nominee Hillary Clinton vowed to uphold the U.S. commitment to climate actions under last year's Paris agreement.
"I am proud we shaped a global climate agreement," she said. "Now we have to hold every country accountable to their commitments, including ourselves."
Clinton's vow drew an implicit contrast with Republican nominee Donald Trump, who would renegotiate the agreement "because other countries don't adhere to it, and China doesn't adhere to it." In fact, China is on track to meet its Paris pledge ahead of schedule, as I explained in a recent column.
What would it take for the United States to attain our own commitment?
Under the Paris agreement, each nation determined its own contribution to curtailing climate warming emissions. The U.S. pledged to reduce emissions "by 26-28 percent below its 2005 level in 2025."
The EPA's most recent inventory shows net emissions were already down 8.6 percent by 2014. That leaves substantial further progress to be made over the next decade.
The Obama administration outlined five actions to help reach the target. First, the Clean Power Plan was expected to reduce to reduce emissions from power plants. That plan was halted by the Supreme Court in February, and now awaits judicial review.
Power plant emissions are already falling rapidly, thanks in part to cheap natural gas and a mild winter. However, if those conditions change and the plan is overturned, emissions could far exceed the levels Obama's plan had hoped for.
The second action is tightening fuel economy standards for heavy-duty vehicles. The Obama administration issued proposed rules in June 2015, though they remain to be finalized.
Third, the U.S. pledged to curb emissions of methane, a potent greenhouse gas. That pledge took shape in March when the U.S. and Canada jointly agreed to cut oil and gas sector methane by 40 to 45 percent by 2025. That would bring total greenhouse gas emissions 1.4 percentage points closer to the overall target. Targeting landfill methane could yield additional progress.
The U.S. also plans to curtail hydrofluorocarbons (HFCs). These refrigerants can be thousands of times as potent as carbon dioxide, and represent 2.5 percent of the overall inventory. Recent talksin Vienna worked toward developing a global plan for HFCs.
Finally, the U.S. pledged to reduce emissions from buildings and government operations. The impact of those efforts remains unclear.
Taken together, Obama's five steps represent an ambitious undertaking. Even so, they would likely leave the U.S. well short of its 26 percent reduction target.
The Energy Information Administration forecasts energy sector carbon dioxide emissions will fall 5.9 percent from 2014 to 2025. That's for a case that assumes the Clean Power Plan proceeds and heavy-duty vehicle standards are finalized. Factoring in the progress before 2014 and the methane and HFC controls noted above, we would need roughly 8 percentage points of further cuts to meet our Paris pledge.
That gap could be closed in a number of ways. For example, the World Resources Institute (WRI) issued a 10-point plan demonstrating how the U.S. could attain its Paris pledge. Their plan includes, but extends beyond, the actions described above. It would strengthen the Clean Power Plan; enhance energy efficiency across the residential, commercial and industrial sectors; set emissions standards for aircraft; tighten fuel economy standards for cars; reduce travel demand; and enhance uptake of carbon by vegetation.
The WRI crafted the steps to be achievable under existing laws, without requiring legislative action. Their economic modeling claims the plan would have minimal impact on the economy and jobs. Still, the feasibility for a new administration to implement such an ambitious plan remains to be seen.
The Clinton campaign has outlined its own climate plan, including tougher efficiency standards, a $60 billion Clean Energy Challenge and investments in energy infrastructure. The impact of the plan is difficult to quantify, despite its pledge to achieve up to 30 percent emission reductions from 2005 levels by 2025.
Holding ourselves accountable to our Paris commitment will be an ambitious undertaking. However, maintaining that commitment will bolster U.S. credibility in holding other countries accountable as well.
That credibility will be especially crucial when negotiators from around the world meet in Morocco to advance the Paris agreement. Ironically, those talks convene this November, the week of the U.S. election.
http://thehill.com/blogs/pundits-blog/energy-environment/289952-clinton-vows-to-meet-paris-climate-pledge-but-it-wont
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California's Cap-And-Trade Program Has Cut Pollution. So Why Do Critics Keep Calling It A Failure?
Aug 1, 2016 | Los Angles Times
By Michael Hiltzik
After cruising along for more than two years, California’s vaunted cap-and-trade program to cut carbon emissions has run into a few recent snags.
A state appeals court has signaled that it has doubts about how officials are spending billions in revenue from the program — or even if they have the right to collect the money at all. Disagreements have erupted in Sacramento over whether environmental regulators can unilaterally extend the program past 2020 or need to get the legislature’s permission to do so.
More questions arose at the state’s most recent auction of emission permits in May. The permits are the linchpin of the system, which requires businesses to cap their greenhouse gas emissions or buy sufficient permits to cover any excess. For the first time since February 2013, when the quarterly auctions began, bidders stayed away in droves. Only 11% of the available permits were sold. That punched a hole in the state budget, for state finance officials expected that more than $500 million would be raised from the May sales. Instead only about $10 million came in.
Even environmentalists who support the program have acknowledged that the program faces “headwinds” and “uncertainty.” The auction results have prompted critics to go further, forecasting the demise of cap-and-trade.
For some, the collapse couldn’t come soon enough. The California Chamber of Commerce, which brought the lawsuit under review by the appeals court, says the mandate that industries buy emissions permits amounts to an illegally levied tax that imposes “massive financial burdens on a small segment of California’s business community.”
Others point to evidence that the program has driven up gasoline prices by as much as 11 cents per gallon (though that’s a fraction of the increase the oil industry originally predicted). Legislators are irked that the program may not produce all the revenue that was promised and squabble over how to distribute the money that does come in.
But the program’s supporters, including the state Air Resources Board, which runs the program, say cap-and-trade is doing exactly what it’s supposed to do, achieving its goals without holding back economic growth. They’re right.
The state is on course to meet its goal to reduce overall greenhouse gas emissions in 2020 to their 1990 levels. Regulators are confident that the utilities, refineries and other industries covered by the cap-and-trade program will meet the goal of reducing their own emissions to 334.2 million metric tons by 2020, a reduction of more than 15% from 2015.
As part of a sheaf of state anti-pollution programs, cap-and-trade isn’t responsible for all that reduction. But it probably plays a significant role. Indeed, the board reported in November that 2014 emissions from covered industries came in 9% below the mandated limit for that year, prompting Air Resources Board Chairwoman Mary Nichols to declare the program “officially a success.”
The public appears to be on board. A recent poll by the Public Policy Institute of California found that 69% favor the state’s mandated pollution reduction goals and that more than 50% favor cap-and-trade. And Gov. Jerry Brown says he’s determined to protect the program from attacks by the oil industry and other polluters.
So what’s the problem? To understand that, it’s important first to understand how cap-and-trade works.
Regulators basically have two primary ways to reduce pollution. They can order industrial emitters to take a specific step such as installing clean-air equipment — a system known as “command and control” — or they can offer incentives to get industries to act voluntarily.
Under cap-and-trade, the Air Resources Board established a statewide limit on emissions from the industries covered by the law, which are the source of about 85% of the state’s output of carbon dioxide and other greenhouse gases. Companies were assigned individual targets based on their emissions history.
Companies can choose to meet their targets by cutting back operations, installing anti-pollution equipment, or buying emission permits, or “allowances,” via the cap-and-trade system.
The law requires the proceeds from the allowance auctions, which were projected to be $2.4 billion in 2015-16, to be used on programs devoted to battling climate change. A large share of the funds, for example, is designated for construction of the high-speed rail system.
Each year, the allowances are reduced and their price is increased — a key tool for reducing statewide emissions. This year, the statewide cap is about 382 million metric tons of carbon dioxide or its equivalent, and the minimum price of a permit is $12.73 per ton.
A company that figures its cost for pollution control equipment would be less than $12.73 per reduced ton presumably would install the equipment; if the cost would be higher than that, it would buy the needed allowances instead. The goal is to hold businesses to their emissions targets while giving them flexibility in how to do so.
One other factor: Businesses can buy allowances either at the quarterly auctions or in a secondary market, where traders hope to turn a profit by reselling them at a higher price than they paid.
Starting with the first auction in November 2012, there were almost always more bids than available allowances, so the state collected its expected revenue and prices remained stable.
In a surprise ruling Feb. 9, however, the U.S. Supreme Court suspended the Obama administration’s “clean power plan” mandating cuts in emissions from fossil-fueled electric plants until further judicial review. The case didn’t specifically deal with California, but the decision rattled energy traders who buy and sell California carbon permits.
Then, on April 8, a California appeals court unexpectedly asked for additional briefs in the California Chamber of Commerce’s 2012 lawsuit challenging the state’s right to raise money via cap-and-trade. The request hinted that the court might be looking more favorably on the chamber’s position than observers thought.
Throw in uncertainty about the program’s fate after 2020, and traders felt the urge to bail. “Folks in a buy-and-hold mode liquidated their holdings rather than risk exposure to a program that might be terminated,” says Michael Gibbs, a top state air board official.
Suddenly there were abundant allowances for sale in the open market. Prices fell below the minimum auction price. So industries bought up the allowances they needed in the open market and skipped the May auction.
But that’s the way the trading part of cap-and-trade is supposed to work. Those who argue that the program is failing merely because allowance sales aren’t generating the income the state expected have their eyes on the wrong ball. “Cap-and-trade needs to be judged first and foremost on how it reduces emissions,” says Erica Morehouse, who monitors the program for the Environmental Defense Fund. “Raising revenue is not a measure of its success.”
It’s anyone’s guess how long the oversupply of permits could last, dampening auction results. But there’s little reason to expect it to continue indefinitely. The Air Resources Board can hold unsold allowances off the market for at least nine months, squeezing the supply and forcing participants back to the auction.
Some experts take the May auction result as a sign that the cap-and-trade program is working better than expected, or at least that California industry is more adept at cutting pollution than anyone expected when the system was enacted in 2006. “The reality is, this is a very innovative economy,” says Frank Wolak, an energy economist at Stanford. “We’ve reduced greenhouse gases so much that businesses don’t need all the available allowances.”
The key to the program’s continued success, Wolak adds, is its extension beyond 2020, along with more stringent requirements for emissions reductions. Since greenhouse gas reductions affect the climate over long periods, it’s crucial to give industry the assurance that the investments they make today in anti-pollution technology will continue to yield benefits for the long term.
Cap-and-trade is the best way to communicate that, he says. “It would be a tremendous shame to not extend the program to 2030,” he says, “unless you don’t think we should address climate change.”
http://www.latimes.com/business/hiltzik/la-fi-hiltzik-captrade-20160728-snap-story.html
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