Preview Newsletter
ACC AM 8/9/2016
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(ACC Mentioned) Strong First Half For PVC, HDPE
Aug 9, 2016 | Plastics & Rubber Weekly
By Frank Esposito
US/Canadian PVC resin sales soared in the first half of 2016, with regional sales of high density polyethylene seeing solid growth as well. -
(ACC Mentioned) New TSCA Will Help EPA Meet Goals On Testing
Aug 9, 2016 | Chemical Watch
By Kelly Franklin
The new TSCA law includes “important improvements” to EPA’s powers to require firms to conduct testing that will “help greatly” to provide the information the agency will need to make its decisions on chemicals, says a former EPA official. -
An Analysis of Section 8 of the New Toxic Substances Control Act
Aug 9, 2016 | BNA Daily Environment Report
By By Kathleen M. Roberts, Richard E. Engler, Ph.D., Charles M. Auer, and Lynn L. Bergeson
The Frank R. Lautenberg Chemical Safety for the 21st Century Act significantly amends the Toxic Substances Control Act (TSCA), particularly with regard to Section 8 record keeping and reporting obligations. -
TSCA Reform: Proposed Changes to SNUR Procedures Would, Perhaps Inadvertently, Result in Disclosure of CBI to Third Parties/Possible Competitors
Aug 8, 2016 | The National Law Review
On July 28, 2016, the U.S. Environmental Protection Agency (EPA) proposed to update the Toxic Substances Control Act (TSCA) Significant New Use Rule (SNUR) procedures. 81 Fed. Reg. 49598. -
Chemicals And Cosmetics Feature In Latest TTIP Talks
Aug 9, 2016 | Chemical Watch
The EU and US have concluded the latest set of negotiations on a transatlantic trade and investment partnership (TTIP) . -
FDA Extends Comment Period for Phthalate Review
Aug 9, 2016 | BNA Daily Environment Report
The Food and Drug Administration wants more public input on whether it should conduct a review of the safety of a phthalate chemical and whether companies should be allowed to use it in food packaging. -
ClientEarth Seeks To Overturn DEHP Authorisation
Aug 8, 2016 | Chemical Watch
By Geraint Roberts
NGO ClientEarth is contesting the European Commission's Decision to allow the use of the phthalate DEHP in recycled PVC until 2019. -
Colorado Activists Submit Petitions for Referendums on Fracking
Aug 8, 2016 | The New York Times
By Clifford Krauss
In an effort to halt the advance of the oil industry in Colorado, environmental activists said they submitted enough signatures on Monday to place on November’s ballot two initiatives aimed at severely limiting hydraulic fracturing. -
Ending $4B U.S. Oil Subsidy Seen Having Minimal Impact
Aug 9, 2016 | BNA Daily Environment Report
By Rakteem Katakey
Eliminating $4 billion of petroleum subsidies in the U.S. would have only a minor effect on oil production and demand and boost the country's influence in advocating for global climate change action, according to a report for the Council on Foreign Relations. -
Donald Trump Pledges to Roll Back Energy Regulations, Bolster Coal Industry
Aug 8, 2016 | The Wall Street Journal
By Amy Harder
Republican presidential nominee Donald Trump promised Monday to repeal a host of energy and environmental regulations, save the coal industry and lift restrictions on energy sales. -
Trump Would ‘Massively' Cut Rules, Including Power Plan
Aug 9, 2016 | BNA Daily Environment Report
By Rachel Leven
Donald Trump would temporarily halt issuance of all new federal regulations, and then review and rescind regulations such as the Clean Power Plan as part of his economic agenda to spur economic growth, the Republican presidential nominee said Aug. 8. -
Trump Bets On Dramatic Fossil Fuel Production Increase
Aug 8, 2016 | E&E News PM
By Jennifer Yachnin
Republican presidential nominee Donald Trump today reiterated his vow to create "vast new wealth" in the United States by expanding oil and gas production and revitalizing the coal industry. -
EPA Guide On Air Permit Screening Levels Defers For Now On Rulemaking
Aug 8, 2016 | Inside EPA
By Stuart Parker
EPA is floating non-binding guidance for how Clean Air Act permit writers should use screening tools known as significant impact levels (SILs) when issuing permits for industrial facilities, but the agency is deferring a decision on whether to make the SILs binding until regulators can gain greater experience using the new values. -
Clinton Smacks Fla. Governor’s 'Absurd’ Climate Policies
Aug 8, 2016 | The Hill - E2 Wire
By Devin Henry
Hillary Clinton knocked the climate policies of Florida Gov. Rick Scott (R), a high-powered ally of Republican nominee Donald Trump, on Monday.
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(ACC Mentioned) Strong First Half For PVC, HDPE
Aug 9, 2016 | Plastics & Rubber Weekly
By Frank Esposito
US/Canadian PVC resin sales soared in the first half of 2016, with regional sales of high density polyethylene seeing solid growth as well.
PVC sales in the region grew 7.4% in the six-month period, reaching more than 7.8 billion pounds, according to the American Chemistry Council. Sales of PVC into export markets were up almost 14% in the first half, which helped boost domestic sales growth of almost 5%.
The domestic PVC market benefited from a rebounding US housing market. That market is on track to record around 1.2 million housing starts this year, which would be up almost 10% from 2015. More than 60% of domestic PVC sales went into construction markets in the first half.
Sales of PVC into rigid pipe and tubing were up more than 7% in the first half, while sales of the material into extruded windows and doors jumped almost 20%.
US/Canadian HDPE sales rose 3.5% to almost 9.7 billion pounds for the half, according to ACC, as export sales growth of 21% magnified domestic sales growth of around 1%. Among large domestic end markets, sales of HDPE into sheet were up more than 4 %, while sales of the material into injection moulded pails were up more than 6 %.
“We generally expected domestic growth to be in line with US GDP growth, which was 1%,” an executive with one HDPE maker said of first-half results. “Organic growth clearly has been conservative, but our customers seem healthy, especially in the packaging space.”
First-half sales for other commodity resins weren’t as rosy. Regional sales of polypropylene and low density PE were up less than 1%, while linear low density PE sales were flat and sales of solid PS in the region slid 1.5%.
For PP — including Mexico — domestic sales growth of 1% was weakened by a drop of almost 11% in export sales. Domestic PP sales were boosted by gains of almost 6% in sheet and of almost 5% in injection moulded caps and closures.
LDPE sales grew almost 2% in the domestic market, but that rate was weakened by a 2.5% drop in export sales. LDPE sales into shrink film in the domestic market grew just over 3% for the half.
In the LLDPE market, sales into both the domestic and export sectors essentially were flat in the first half. Domestic LLDPE sales into food packaging film and shrink/stretch film showed signs of strength, growing 4% and almost 5%, respectively.
The 1.5% dip in solid PS sales — including Mexico — took place even as sales into food packaging/food service grew more than 1% and sales into the electrical/electronic market grew almost 6%.
Food packaging/food service accounted for almost 65% of regional solid PS sales for the first half, with electrical/electronic bringing in a market share of more than 9%.
http://www.prw.com/article/20160809/PRW/160809853/strong-first-half-for-pvc-hdpe
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(ACC Mentioned) New TSCA Will Help EPA Meet Goals On Testing
Aug 9, 2016 | Chemical Watch
By Kelly Franklin
The new TSCA law includes “important improvements” to EPA’s powers to require firms to conduct testing that will “help greatly” to provide the information the agency will need to make its decisions on chemicals, says a former EPA official.
Speaking in a recent Chemical Watch webinar, former director of EPA's Office of Pollution Prevention and Toxics, Charles Auer, said “the central failing” under the old law was its inability to produce the testing needed.
“The required rulemaking and findings approach in the old law was difficult to satisfy, and rule-based testing was slow and uneven,” he said.
But Mr Auer said the changes made to the agency’s powers under the Lautenberg Chemical Safety Act (LCSA) “should allow EPA to efficiently meet many, if not most, of its testing and information needs”.Expanded authorities
Christina Franz, senior director of regulatory and technical affairs at the American Chemistry Council (ACC), says that under the new law, the EPA can require testing or additional information about a chemical through rules, orders or consent agreements, based on its determination that this is necessary.
It is, therefore, “much easier for EPA to require manufacturers to provide new information, including for purposes of prioritisation screening, its review of premanufacture notices (PMNs) [of new chemicals], or the risk evaluation and determination process,” she told Chemical Watch.
The EPA has not yet exercised its new order authority. But Ms Franz says the law requires the EPA to publicly document any basis for ordering new information.
This is “an example of the law’s increased transparency, and should help ensure that the information requested is, in fact, needed.”‘Best available science’
Daniel Rosenberg, a senior attorney at the Natural Resources Defense Council (NRDC), agrees that under the LCSA, “it’s going to be easier for EPA to require testing of chemicals and gather information, both on toxicity and exposure.”
The updated law also includes, in section 26, provisions on the role of science. These say that when the EPA makes a decision based on science, regarding testing or for new and existing chemicals, the agency “shall use scientific information, technical procedures, measures, methods, protocols, methodologies, or models, employed in a manner consistent with the best available science”.
Mr Rosenberg pointed out, however, that while the law directs the EPA to use information consistent with the “best available science”, it doesn’t define what this is.
“It’s a mandate on EPA, but it is a little bit unclear,” he said.
The same section also requires the agency to “consider as applicable” five pillars of science, in these decisions. These are:the extent to which information is “reasonable for and consistent with” its intended use;the information's relevance to a decision about a chemical substance or mixture;its clarity and completeness;the extent to which variability and uncertainty is evaluated and characterised; andthe level of independent verification or peer review.
But Mr Rosenberg pointed out: “The way it’s written – ‘shall consider as applicable’ – presents a question as to how much flexibility EPA has in considering each of these factors in all of the decisions it’s making”, with regard to testing and new and existing chemicals.
“I think it’s fair to say that virtually every word in this bill was combed over by many people. But I don’t think there’s real agreement or understanding by everybody as to what each of those means, or what the intent is.”
https://chemicalwatch.com/49063/new-tsca-will-help-epa-meet-goals-on-testing
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An Analysis of Section 8 of the New Toxic Substances Control Act
Aug 9, 2016 | BNA Daily Environment Report
By By Kathleen M. Roberts, Richard E. Engler, Ph.D., Charles M. Auer, and Lynn L. Bergeson
Kathleen M. Roberts is vice president of Bergeson & Campbell PC's (B&C®) Consortia Management LLC (BCCM). Ms. Roberts provides cost-effective administrative and management services to industry groups engaged in regulatory advocacy, ensuring that their interests are protected and their voices are heard.
Richard E. Engler, Ph.D. is a senior chemist with B&C. Dr. Engler is a 17-year veteran of the Environmental Protection Agency and is one of the most widely recognized experts in the field of green chemistry, having served as senior staff scientist in the EPA's Office of Pollution Prevention and Toxics (OPPT) and leader of the EPA's Green Chemistry Program.
Charles M. Auer is president of Charles Auer & Associates LLC. Mr. Auer was formerly the director of the EPA's OPPT from September 2002 to January 2009, where he was responsible for the management and direction of the nation's chemical and pollution prevention programs.
Lynn L. Bergeson is managing partner of B&C and practices extensively in all matters involving the Toxic Substances Control Act (TSCA) and related global chemical notification programs.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act significantly amends the Toxic Substances Control Act (TSCA), particularly with regard to Section 8 record keeping and reporting obligations. The act, identified as Pub. L. No. 114-182, was signed into law by President Obama on June 22, 2016. The date of signature is both the date of enactment and of entry into force of the amended TSCA (we will use “new” or “amended” TSCA to refer to Pub. L. No. 114-182 and “old TSCA” when referring to the prior version (Pub. L. No. 94-469)). Below we highlight a number of important changes and deadlines of which companies subject to TSCA should be aware.
Potential Revisions for
Small Business CriteriaAmended TSCA Section 8(a)(3)(C) requires the Environmental Protection Agency to consult with the Small Business Administration (SBA) regarding the adequacy of the small manufacturer standards, provide for notice and comment, and make a determination as to whether revision of the standards is warranted no later than 180 days after the June 22, 2016, enactment date, or by Dec. 19, 2016.
As currently defined in 40 C.F.R. §704.3, a small manufacturer or importer must meet either of the following standards:
(1) First standard. A manufacturer or importer of a substance is small if its total annual sales, when combined with those of its parent company (if any), are less than $40 million. However, if the annual production or importation volume of a particular substance at any individual site owned or controlled by the manufacturer or importer is greater than 45,400 kilograms (100,000 pounds), the manufacturer or importer shall not qualify as small for purposes of reporting on the production or importation of that substance at that site, unless the manufacturer or importer qualifies as small under standard (2) of this definition.
(2) Second standard. A manufacturer or importer of a substance is small if its total annual sales, when combined with those of its parent company (if any), are less than $4 million, regardless of the quantity of substances produced or imported by that manufacturer or importer.
This definition of small manufacturer has not been revised since it was originally incorporated into the 1986 Inventory Update Rule (IUR) guidance. Using the Bureau of Labor Statistics' inflation calculation, $4 million in 1986 is equivalent to $8,767,000 in 2016. Given the significant differential between the monetary thresholds, it seems reasonable to conclude that the initial consultation between the EPA and the SBA will result in a decision to revise the small manufacturer standard.
While a revision of the small manufacturer definition is reasonable to expect, it will not be completed in time for the ongoing 2016 Chemical Data Reporting (CDR) cycle. It should, however, occur in time for the next CDR cycle in 2020. Depending on the timing of the promulgation of this change, it could affect other early reporting under new TSCA, such as the TSCA Inventory “reset” discussed below.
Reporting Under Section 8(a)
and the Potential Expansion
of CDR Reporting to ProcessorsAs was the case under old TSCA before June 22, under new TSCA, the EPA retains the authority to apply Section 8(a) reporting to processors as well as manufacturers. The most important of the currently applicable reporting requirements under TSCA Section 8(a) is the CDR rule. The TSCA CDR rule, 76 Fed. Reg. 50816 (Aug. 16, 2011), enables EPA to collect and publish information on the manufacturing, processing, and use of certain commercial chemical substances and mixtures on the inventory. It applies only to manufacturers (note that Section 26(p)(1) makes clear that the CDR rule remains in effect). Other revisions to Section 8(a) offer additional guidance and impose new requirements on EPA that it must consider and meet in imposing future Section 8(a) reporting requirements. Section 8(a)(4) states that EPA may impose different reporting and record keeping requirements on manufacturers (including importers) and processors and that it shall include the level of detail and the manner by which use and exposure information may be reported. At Section 8(a)(5), the EPA is directed to avoid reporting requirements that are unnecessary or duplicative, minimize the cost of reporting and compliance for small manufacturers and processors, and impose reporting requirements to those entities “likely to have information relative to the effective implementation” of the new law.
More generally, review of these new TSCA provisions suggests several new uses for CDR-type reporting information. These include use of CDR data in Section 6(b) prioritizations and risk evaluations and for identifying chemicals for testing under the “additional” testing authority at Section 4(a)(2), including to obtain prioritization testing. This provision does not require EPA to make findings, and EPA is authorized to issue testing orders in addition to requiring testing by rulemaking and consent agreement.
The changes to the language in Section 8(a), in conjunction with new needs and uses for CDR-type information by EPA, suggest strongly that yet another round of changes will be imposed on the regulatory community under the 2020 CDR. This may not be news welcomed by the chemical community, which has been witness to significant changes in CDR reporting in every reporting cycle since 2006.
Some stakeholders will likely support the inclusion of processors under an amended CDR umbrella because of the potential to improve the level of information made available to the EPA regarding volumes, uses, and exposures associated with processing activities, and the utility of this information for purposes of the EPA's regulatory decision-making process. Requiring submission of this information also could, however, impose significant new reporting burdens on chemical processors. At this point, it is unclear whether businesses will be reporting as both manufacturers and processors, and if so, how reporting functionalities will be managed given the Congressional directive to the EPA to minimize costs to processors.
Another area to watch is the EPA's approach to Congress's mandate that the agency apply reporting requirements to entities “likely to have information relative to the effective implementation” of the Act. The EPA also will have to consider carefully how it will collect information, consistent with this requirement, from manufacturers and processors while avoiding duplicative or unnecessary reporting. The EPA could, for example, conduct an initial analysis of information reported as “not known or reasonable ascertainable” (NKRA) under the CDR, evaluate whether those information elements might be known to processors, and modify the reporting rule accordingly. The EPA also could modify the current “joint submitter” mechanism under CDR to connect manufacturer and processor information for reported chemicals.
Section 8(a)(6). Negotiated Rulemaking to Limit Inorganic Byproduct
Reporting RequirementsAs defined by the Negotiated Rulemaking Act of 1990 (Pub. L. No. 101-648), a “negotiated rulemaking” is defined as rulemaking through the use of a negotiated rulemaking committee, and the “negotiated rulemaking committee” or “committee” is defined as an advisory committee established by an agency (in this case, EPA) in accordance with Title 5, U.S. Code Subchapter III and the Federal Advisory Committee Act to consider and discuss issues for the purpose of reaching a consensus in the development of a proposed rule (5 U.S.C. §562).
The EPA is required to enter into a “negotiated rulemaking” to propose a rule to limit CDR reporting requirements on manufacturers of inorganic byproducts, when such byproducts, whether generated by the byproduct manufacturer or by any other person, are subsequently recycled, reused, or reprocessed. This initiative is to occur no later than three years after enactment, or by June 22, 2019, and the final rule must be issued within three and a half years after enactment, or no later than Dec. 22, 2019. The short time between when negotiated rulemaking must begin and must be completed suggests that EPA will begin the process significantly in advance of its June 22, 2019, deadline.
A “byproduct” is defined under TSCA as a “chemical substance produced without a separate commercial intent during the manufacture, processing, use, or disposal of another chemical substance or mixture” (40 C.F.R. §720.3(d)).
The EPA has stated that byproducts “without separate commercial value are nonetheless produced for the purpose of obtaining commercial advantage, since they are part of the manufacture of a chemical substance produced for commercial purposes” (40 C.F.R. §720.3(r)).
For this reason, byproducts are considered a manufactured substance under TSCA and are, therefore, reportable under the CDR rule. Byproducts are exempt from CDR reporting if their only commercial purpose is use by public or private organizations that burn it as a fuel, dispose of it as a waste, or extract component chemical substances from it for commercial purposes (40 C.F.R. §720.30(g)). This last provision will be the subject of the negotiated rulemaking.
The EPA's current regulatory interpretation of the “extract component chemical substances from it” phrase applies only if the extracted chemical component in the byproduct is removed through a process that does not involve a chemical reaction. The EPA has stated the component to be extracted must exist already as a distinct chemical substance in the byproduct. When the chemical substance present in the byproduct and the chemical substance extracted from the byproduct are different chemical substances, neither the manufacture of the byproduct nor the manufacture of the extracted chemical substance qualify for the 40 C.F.R. §720.30(g)(3) exemption (76 Fed. Reg. at 50849).
Under the EPA's interpretation, any chemical reaction that occurs during the process to extract the subject chemical component defeats the application of the byproduct exemption, and triggers TSCA reporting for the byproduct. Industry has long argued that this interpretation discourages recycling programs that require a chemical reaction to extract commercially valuable metals or other materials from byproducts that previously were disposed of as waste. Regardless of the outcome of the process, a negotiated rulemaking offers a very promising venue for crafting a workable regulation in this complicated area. Note that the negotiated rulemaking involves relief from “reporting requirements, under this subsection [i.e., Section 8(a)], for manufacturers of any inorganic byproducts,” not relief from listing the byproduct on the Inventory.
Section 8(b)(3). TSCA Inventory
and NomenclatureNew TSCA specifically addresses several Inventory and nomenclature issues. We discuss each below.
Statutory Mixtures.
Under new TSCA, the EPA must treat the individual members of the categories of chemical substances identified by the EPA as statutory mixtures as being on the Inventory. These statutory mixture categories have been defined in Inventory descriptions established by EPA. Arguably, this provision is intended to clear up the somewhat unclear and controversial issue of statutory mixtures that has extended over many years. For a more detailed discussion of these issues see Lisa R. Burchi, Charles M. Auer, Kathleen M. Roberts, and Lynn L. Bergeson, “Are TSCA Section 8(b)(2) Statutory Mixture Categories Subject to Reporting Under the Chemical Data Reporting Rule?,” Bloomberg BNA Toxics Law Reporter, April 12, 2012. There are six categories identified for statutory mixtures, as defined in the existing guidance for “Products Containing Two or More Substances: Formulated and Statutory Mixtures” (See EPA, Toxic Substances Control Act Inventory Representation for Products Containing Two or More Substances: Formulated and Statutory Mixtures, available at https://www.epa.gov/sites/production/files/2015-05/documents/mixtures.pdf.):
1. Cement, Portland, Chemicals;
2. Cement, Alumina, Chemicals;
3. Glass, Oxide, Chemicals;
4. Frits, Chemicals;
5. Steel Manufacture, Chemicals; and
6. Ceramic Materials and Wares.
Section 8(b)(3)(A)(iii) states that a substance that is a member of one of these categories “shall” be treated as being “included” on the Inventory. Such a statement seems to obviate the need for notification under Section 5(a) for the individual chemical components of the subject statutory mixture, but it is unclear how it will impact CDR reporting obligations.
Nomenclature.
Per Section 8(b)(3)(A)(i) and 8(b)(3)(A)(ii), the EPA must maintain the use of Class 2 nomenclature and the Soap and Detergent Association (SDA) Nomenclature System.
Multiple Nomenclature Listings.
Section 8(b)(3)(B) states that if a manufacturer or processor “demonstrates to” the EPA that a substance appears multiple times on the Inventory under different Chemical Abstracts Service (CAS) numbers, EPA may recognize the multiple listings as a single substance.
This language seems intended to lower the barrier to interchangeability of source-based names beyond the substance names in the SDA System. The SDA system allows manufacturers to use substances from different SDA-listed sources interchangeably when producing chemical substances identified by SDA nomenclature.
For example, under old TSCA, a manufacturer could produce a fatty acid methyl ester (FAME) biodiesel from corn oil and identify that FAME as either:
• Fatty acids, corn-oil, Me esters (CAS Registry Number (CASRN) 515152-40-6); or
• Fatty acids, C16-18 and C18-unsatd., Me esters (CASRN 67762-38-3).
The manufacturer could switch to a soybean oil source, and still manufacture Fatty acids, C16-18 and C18-unsatd., Me esters (CASRN 67762-38-3) because soybeans are identified in the SDA system as a source of “C16-18 and C18-unsatd. fatty acids.” Conversely, the manufacturer could not call the soybean FAME by the name Fatty acids, corn-oil, Me esters (CASRN 515152-40-6) because the source was soybean oil, not corn oil. The language in new TSCA can be read to allow, but not require, EPA to treat two source-based identities as interchangeable (i.e., the same substance) even when the substances are not identified using SDA nomenclature if the manufacturer can “demonstrate” that the substance “appears multiple times” on the Inventory. Note that, excluding SDA names, the EPA may argue, perhaps reasonably, that no substance “appears multiple times under different CAS numbers.”
A Senate Environmental and Public Works Committee report on S. 697 provides some additional insight into the legislative language. Note that the final text of H.R. 2576 relating to nomenclature is slightly different from S. 697, and that the joint committee report is not yet available at the time of this writing. In particular, the Senate report states:
[Treating multiple listings as a single substance] will help prevent duplicative safety assessments and determinations by ensuring that substantially equivalent chemicals are considered at the same time, as appropriate. The Committee believes this approach will also help enhance EPA's ability to evaluate substances from new sources against existing substances for equivalence, enabling similar substances to rely on the Inventory listing of an existing substance (S. Rep. No. 114-67, at 20 (2015) (emphasis added)).
The “substantially equivalent” language does not appear in the text of the new law, but because there are multiple substances listed on the TSCA Inventory that could be considered “substantially equivalent,” it may be that the Senate's intent is for EPA to consider “substantial equivalence” instead of actual “sameness” to determine if a substance is listed multiple times. Note that amended TSCA is silent on how to “demonstrate” multiple Inventory listings; new TSCA permits, but does not require, EPA to recognize the multiple listings as a single substance, and the substances that are being compared must both be on the Inventory (so this approach seems not to be available in the case of a bona fide request or new chemical notice).
Sections 8(b)(4) through
(6). Inventory “Reset”By June 22, 2017, (within 1 year of enactment), the EPA must publish a rule to “reset” the Inventory (Section 8(b)(4)(A)). Per TSCA Section 8(b)(6), the EPA must designate the chemicals reported under the 2016 CDR as the “interim” list of active substances. The rule also must require manufacturers and may require processors to notify the EPA, no later than 180 days after the final rule is published, as to which substances on the Inventory were manufactured or processed in the 10 years prior to enactment (i.e., June 22, 2006, through June 21, 2016). The final notification deadline will depend on when the final rule is published, but will occur between December 2017 and June 2018.
Active Substance Notification.
If a notice is received under Section 8(b)(4)(A)(i), the substance must be designated by the EPA as “active.” If no notice is received, the EPA must designate the substance as “inactive.” Inactive substances stay on the Inventory and, if subsequently intended for manufacture, import, or processing, do not trigger requirements for premanufacture notices (PMN) (per Section 8(b)(4)(A)(iv)) but, as described below, do trigger a requirement to notify EPA before the date of manufacture or processing.
Submitters notifying the EPA of active substances listed in the confidential portion of the Inventory must assert and substantiate an “existing claim.” Pursuant to Section 8(b)(8), a submitter cannot claim the identity of a substance as Confidential Business Information (CBI) for any substance not already listed as CBI.
If, as part of an “active substance” notice, a substance currently listed on the confidential portion of the Inventory does not receive any substantiated CBI claims for chemical identity, Section 8(b)(4)(B)(iv) requires that the EPA list the substance on the public portion of the Inventory. Inactive CBI substances remain CBI.
An updated version of the Inventory that includes active and inactive designations must be made available to the public. Although there is no deadline in new TSCA, this updated version of the Inventory will likely be published about six months after the final active substance notification deadline. We would expect a final, updated Inventory to be available by the end of 2018.
Activating an Inactive Substance.
Once the updated Inventory is published, Section 8(b)(5)(B) requires that manufacturers, importers, or processors notify the EPA prior to manufacturing, importing, or processing an inactive substance. New TSCA does not specify a mechanism for such notification or a required time frame, only that it occur before the date that such commercial activities occur. In an activation notice for an inactive substance on the confidential portion of the Inventory, a submitter must assert any existing CBI claim for chemical identity and further substantiate the CBI claim within 30 days, or else the substance will be activated as a non-CBI substance. Upon activation, EPA designates the substance as active, “promptly” reviews the CBI claim and associated substantiation, and may review the priority of the substance (for Section 6 review) as EPA determines necessary.
CBI Claim Review.
Within one year of compiling the active/inactive list, Section 8(b)(4)(C) requires that EPA promulgate a rule with a plan to review all claims of CBI for the chemical identity of active substances on the confidential portion of the Inventory. The CBI review rule must require manufacturers or processors to assert confidentiality claims, unless a previous claim was substantiated during a five-year period preceding a date specified by EPA.
In reviewing CBI claims, both new (e.g., claims from “active notices”) and old (e.g., claims from a recent Notice of Commencement), Section 8(b)(4)(C) requires that EPA determine if the claim qualifies for protection from disclosure. EPA must approve or deny each claim, but can approve part and deny part of a claim. In accordance with Section 14, CBI claims sunset after ten years (but may be renewed), although claims may sunset earlier if the submitter withdraws the claim or if EPA “becomes aware that the information does not qualify for protection from disclosure.”
EPA must complete the CBI identity claim review process within five years of publishing the Inventory reset, but may extend the review period for two additional years if the available resources are overwhelmed by the number of claims.
Important Inventory Reset Items:
• Companies should begin to assess which substances qualify as “active” in their supply chains as they are compiling information about manufacturing, importing, and processing chemicals as required for 2016 CDR. In addition to complying with reporting obligations, companies are well advised to retain records of substances in their supply chain which are exempt from reporting under this CDR cycle. The CDR reporting, along with documentation of exempt substances, may provide much of the information that may be required by the Inventory reset rule. Stakeholders should recognize that there is no volume threshold for reporting chemicals as “active.” Furthermore, the ten-year window for the reset is considerably longer than the four-year CDR reporting cycle. A careful review of historical records will be necessary to ensure all chemicals potentially eligible for the active list are identified and considered.
• While processors may not be required to notify, it will likely be in their best interest to do so. Alternatively, they can work closely with their supplier to ensure that the requirement to report is satisfied. Regardless, processors must take care to ensure that any substances that they regularly or periodically process are on the active Inventory. While chemicals can easily be activated as described above, there could be enforcement issues if a company, for example, inadvertently processes a long-standing but infrequently used chemical (perhaps held in the company's storage room) that has not been reported for the active Inventory.
• It is not clear if notifications must be substantiated to demonstrate manufacturing, importing, or processing of a substance over the ten-year window and, if required, what would constitute substantiation.
Section 8(b)(10): Mercury
Inventory ProvisionNew TSCA added subsection (10) to Section 8(b), which requires EPA to create an inventory of supply, use, and trade of mercury and mercury compounds in the United States by April 1, 2017, and every three years thereafter. The goal of this provision, which also was highlighted in the Mercury Use Reduction Act of 2012, is to give EPA relevant information on any continued use of mercury in the U.S. with the intent of identifying opportunities for further reducing such use. This reduction could occur through proposed revisions of federal law or regulations in mercury use.
EPA must issue a final rule for periodic reporting of the manufacture of mercury or mercury-added products, or intentional uses of mercury in the manufacturing process by June 22, 2018 (two years after enactment). To meet this deadline, EPA would need to propose a rule by December 2017. Entities engaged in the generation, handling, or management of mercury-containing waste will not be required to report, unless they manufacture or recover mercury in the management of that waste.
It is important to note that the legislative text of amended TSCA under Section 8(b)(10)(A) -- Definition of Mercury states (emphasis added): In this paragraph, notwithstanding section 3(2)(B), the term “mercury” means (i) elemental mercury; and (ii) a mercury compound.
TSCA Section 3(2)(B) provides exclusions for chemical substances regulated under other federal statutes, such as drugs, pesticides, tobacco, and food or food additives. The “notwithstanding” clause in the mercury definition language means that mercury and mercury compounds used as drugs, pesticides, or in uses otherwise regulated under other federal laws that are usually exempt from TSCA will be included within the scope of the mercury inventory and reporting provisions. Thus, the reporting that will be required under Section 8(b)(10) will apply to any and all mercury or mercury compounds, or any intentional use of mercury in a manufacturing process (e.g., as a catalyst), including those compounds or manufacturing processes used as or relevant to drugs, pesticides or for other applications.
Potentially impacted organizations should carefully monitor how EPA proceeds with implementation. The legislation defines “mercury” as elementary mercury or a mercury compound. The lack of definitional detail for “mercury compound” may be problematic given that mercury can and does occur naturally at low levels. Industry stakeholders engaged in the negotiations for the Minamata Convention on Mercury worked diligently to ensure that the definitions for mercury, mercury compound, and mercury-added products were carefully constructed to ensure that materials with naturally occurring mercury or mercury compounds contained in many minerals and metals at low levels were not captured. The Minamata Convention on Mercury is a global treaty to protect human health and the environment from the adverse effects of mercury. Seehttp://www.mercuryconvention.org/Home/tabid/3360/Default.aspx.
Given the mandate to update the mercury inventory every three years, the periodic mercury manufacture/use reporting will likely be separate from the CDR under Section 8(a), which is on a four-year reporting cycle.
Conclusion
The change within Section 8 that will have the broadest impact is resetting the Inventory. If not already begun, industry stakeholders should begin working to research and prepare the list of chemicals that they intend to report as “active” when EPA proceeds with rulemaking.
Other changes that are expected to be significant include changes to Section 8(a) concerning the ability to impose different requirements on manufacturers versus processors while minimizing unnecessary or duplicative reporting, and the notation at Section 8(b)(4)(A) that EPA “may require processors” to report under the Inventory reset rule. It seems reasonable to expect that the EPA will more frequently require reporting by processors under Section 8 of the new law. In contrast, reporting by processors was very uncommon under old TSCA.
While perhaps not as immediately significant, the other potential changes under Section 8 may have long-lasting impacts on industrial stakeholders and, therefore, warrant close attention. These include a revised small business definition and the inclusion of processors in CDR.
This also may be true of the pressures being placed on confidential chemical identities of active and inactive chemicals under the provisions in Section 8 and Section 14. The fact that such claims are only available when there is already an existing claim for confidential chemical identity could have unforeseen but potentially regrettable economic consequences. This could result when, perhaps a decade or more hence, novel new uses and applications are identified for an inactive chemical that did not have an existing claim for CBI chemical identity. The innovator would be unable to claim the identity of the substance CBI as it reenters commerce as an active chemical and, because of the limitation on CBI identity claims in new TSCA, it would not be possible to claim the chemical identity as CBI in CDR or other future Section 8(a) reporting. While the innovator could protect from disclosure other aspects of the chemical's commercialization, such as volume and uses, the mere fact that a chemical has suddenly reappeared and remains steadfast in commerce could provide foreign and domestic competitors with critical commercial information that would not otherwise be available to them.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95242562&vname=dennotallissues&wsn=499974500&fn=95242562&split=0
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Aug 8, 2016 | The National Law Review
On July 28, 2016, the U.S. Environmental Protection Agency (EPA) proposed to update the Toxic Substances Control Act (TSCA) Significant New Use Rule (SNUR) procedures. 81 Fed. Reg. 49598. As discussed in our previous memorandum on this proposed rule, Proposed Revisions to Significant New Use Rules Reflect Current Occupational Safety and Health Standards, while some of the proposed changes are not consequential, other changes, such as those related to workplace protections, are more clearly consequential. An issue that was noted but not discussed in detail in our previous memorandum is EPA's proposal to modify the procedures for determining if a specific substance or chemical use is subject to a SNUR when the substance, production volume, or use is claimed as confidential business information (CBI). Specifically, EPA has proposed changes to 40 C.F.R. § 721.11 to address these procedures. Below, we review the current procedures and then address how the proposed language would change those procedures -- changes of which stakeholders should be aware.
To put the changes into context, we first consider the current regulations relating to establishing a bona fide intent to manufacture (bona fide intent) a substance that has confidential identity or confidential conditions in a SNUR. Under the current procedure, determining if a specific substance is listed on the confidential portion of the TSCA Inventory (Inventory) and if the substance is subject to a SNUR requires the submission of a bona fide intent notice (BFN), according to the procedures codified at 40 C.F.R. § 721.11(b). If EPA determines that the submitter has established a bona fide intent, EPA will inform the submitter that the substance is listed on the Inventory and provide "which section in subpart E of this part [40 C.F.R. § 721] applies." This provision would not necessarily reveal any CBI information regarding use or production volume restrictions that are conditions of the SNUR, only the specific 40 C.F.R. § 721 citation.
Whether the identity of a substance is confidential or not, the substance may have SNUR restrictions applied to it that are considered CBI. In particular, production volume and/or specific use(s) may be considered CBI and be part of a SNUR imposed on the substance. The procedures for determining the confidential SNUR restrictions are similar to the procedures to determine if a substance is listed on the confidential portion of the Inventory. It requires submitting a BFN to EPA. In the past, when EPA needed to refer to the procedures for submitting a BFN to determine the confidential SNUR conditions, it referred to the procedures codified at 40 C.F.R. § 721.1725(b)(1). This is in contrast to the BFN procedures for determining if a specific substance is subject to a SNUR listed in 40 C.F.R. § 721.11(b).
To put these changes in context, let us first examine the current procedures for EPA's response to a BFN submitted to determine the CBI provisions of a SNUR. 40 C.F.R. § 721.1725(b)(1)(iv) states:
If EPA determines that the person has a bona fide intent to manufacture, import, or process the chemical substance, EPA will tell the person whether the use for which the person intends to manufacture, import, or process the substance is a significant new use [(SNU)] under paragraph (a)(2)(i) of this section. If EPA tells the person that the intended use is not a significant new use under paragraph (a)(2)(i) of this section, EPA will tell the person what activities would constitute a significant new use under paragraph (a)(2)(ii) of this section.
This means that upon making its determination that a submitter has demonstrated a bona fide intent, EPA either:
Tells the BFN submitter that the use specified in the BFN is a SNU, in which case the submitter must prepare and submit a Significant New Use Notice (SNUN) at least 90 days prior to manufacturing the substance for the particular use of the substance; or
Tells the BFN submitter that the use specified in the BFN is not a SNU, in which case EPA tells the submitter what activities would constitute a SNU for the substance.
Note that in the first scenario, where a SNUN is required, EPA does notinform the submitter of the existing confidential SNUR conditions. EPA subsequently makes a determination based on the information in the SNUN when submitted, and informs the SNUN submitter of any restrictions imposed to manage risks associated with the use described in the SNUN. The new restrictions could either be unique to the conditions of the SNUN or could result in a modification of the previously established CBI SNUR restrictions. Also, EPA could amend the confidential portion of the SNUR to include any new permissible activities as a result of the SNUN (e.g., add another CBI use) without informing either manufacturer of the other's confidential SNUR conditions.
In the second scenario, where EPA determines that the BFN submitter's use is not a SNU, EPA informs the BFN submitter of any restrictions associated with that use that might further restrict the BFN submitter or its customers (e.g., the BFN submitter's use is permitted, but that the production volume is capped by the SNUR). As a matter of practice, EPA informs the original submitter that another submitter has demonstrated a bona fide intent, but this practice is not codified in the C.F.R. Furthermore, the original submitter is not informed of the BFN submitter's intent, only that the BFN submitter's use was not a SNU, whereas the BFN submitter knows the heretofore confidential specific use and production volume ceiling (if any). These two outcomes are not aligned. The first scenario is more protective of both entities' CBI. The second scenario provides the BFN submitter some visibility of the original submitter's CBI, but not the reverse.
For example: Manufacturer 1 submits a premanufacture notice for a non-confidential chemical substance to be used as an intermediate to manufacture a pesticide and claims the use as confidential (with a generic use of "intermediate"). EPA makes a determination that the use specified in the PMN does not present an unreasonable risk to health or the environment, but other uses may present issues, so EPA imposes a SNUR invoking 40 C.F.R. § 721.80(j) limiting its use to the use listed in the PMN (intermediate to manufacture a pesticide). Manufacturer 1 then commences commercially manufacturing the substance and files a Notice of Commencement (NOC), placing the substance on the public portion of the Inventory. Some time later, Manufacturer 2 seeks to use the same substance as an intermediate to manufacture an anti-oxidant lubrication additive. Manufacturer 2 submits a BFN and EPA informs Manufacturer 2 that its use is a SNU. Manufacturer 2 then submits a SNUN for its use, also claiming the specific use as confidential and listing "intermediate" as the generic use. EPA evaluates the SNUN and determines that this particular use is not likely to present unreasonable risk to health or the environment, but other uses may present issues, so EPA adds the new use to the confidential uses permitted for the substance, but leaves the other SNUR provisions in place and neither manufacturer knows the specific use of the other.
We note that manufacturers must communicate SNUR restrictions to their customers. 40 C.F.R. § 721.5 requires that to avoid submitting a SNUN, each manufacturer must provide the SNUR conditions to its customer(s). 40 C.F.R. § 721.5(a)(2) requires that "[a] person who intends to manufacture, import, or process for commercial purposes a chemical substance [with a SNUR], and intends to distribute the substance in commerce" must submit a SNUN. Most manufacturers avoid this SNUN requirement by taking advantage of the provisions of 40 C.F.R. § 721.5(a)(2)(i) that state that a SNUN is not required if the manufacturer can document:
That the person [manufacturer] has notified the recipient [customer], in writing, of the specific section in subpart E of this part which identifies the substance and its designated significant new uses.
In the example above, each manufacturer notifies its own customers of the appropriate C.F.R. citation and SNUR restrictions (Manufacturer 1 informs its customer that the use is limited to use as an intermediate for a pesticide; Manufacturer 2 informs its customer that the use is limited to use as an intermediate for an antioxidant). The customers of each manufacturer remain in compliance with the SNUR and 40 C.F.R. § 721.5, assuming each customer restricts its use based on the information provided by the separate manufacturers. In this scenario, all four parties (both manufacturers and both customers) can be in compliance without EPA disclosing the confidential use of one manufacturer to the other.
EPA has proposed incorporating the BFN procedures for determining whether an activity is a SNU under the confidential provisions of a SNUR into 40 C.F.R. § 721.11(a) (the proposed key changes are emphasized):
A person who intends to manufacture or process a chemical substance which is subject to a significant new use rule in subpart E of this part may ask EPA whether the substance or a proposed use is subject to the requirements of this part if that substance is described by a generic chemical name or if the significant new use is confidential and therefore not described specifically in the rule. EPA will answer such an inquiry only if EPA determines that the person has a bona fide intent to manufacture or process the chemical substance for commercial purposes.
This change is innocuous. It simply incorporates the two BFN procedures into a single paragraph. EPA's proposal on procedures for its response to such a BFN, proposed to be codified at 40 C.F.R. § 721.11(e) alters procedures for how EPA responds (again, proposed key changes emphasized):
If the manufacturer or processor has shown a bona fide intent to manufacture or process the substance and has provided sufficient unambiguous chemical identity information to enable EPA to make a conclusive determination as to the identity of the substance, EPA will inform the manufacturer or processor [the BFN submitter] whether the chemical substance is subject to this part and, if so, which section in subpart E of this part applies,and identify any confidential significant new use designations.
Under the proposed rule, once a submitter has established a bona fide intent, EPA will disclose to the BFN submitter any confidential significant new use designations, including specific use and production volume restrictions, whether or not those restrictions are relevant to or would limit the BFN submitter's commercial activity as proposed in the BFN. As proposed by EPA, this disclosure would be made to the BFN submitter without regard for the existing CBI claims on the information, and without informing the original entity holding the CBI claim before or after making this disclosure.
Importantly, this change means that EPA is switching from a presumption of protecting CBI in the SNUR to actively informing later submitters of information proprietary to the original submitter. While 40 C.F.R. § 721.11(f) states that informing later submitters of SNUR restrictions "will not be considered public disclosure of [CBI] under Section 14," it is an unavoidable fact that EPA's proposed approach involves disclosure of CBI to an additional party, one that could be a competitor to the original submitter (both are, after all, manufacturing the same substance), a fact pattern that is very likely to be of considerable concern to the original submitter.
We do not read provisions in either old or new TSCA to authorize EPA to disclose CBI in the way that is proposed in this notice. The CBI SNUR requirements do not fall into any of the information types discussed under Section 14(b) of new TSCA that concerns information not protected from disclosure. The BFN submitter cannot be considered to have official duties or needs related to those discussed at Section 14(d) of new TSCA, the provision that allows CBI disclosure under certain circumstances. The BFN submitter only needs to know if the proposed use is a SNU or not. If EPA informs the BFN submitter that the proposed use is not a SNU, the BFN submitter is effectively bound to the use terms laid out in the BFN and would need to submit a new BFN if other uses or changes in the initially proposed use are contemplated.
Based on the foregoing, with the proposed language, the second submitter is unavoidably privy to the CBI claimed by the first submitter, but there is no provision in the C.F.R to inform the first submitter of the conditions sought by the second submitter. This is in contrast to the provisions in 40 C.F.R. § 720.25(b)(6) in which the original submitter is notified if and when a second entity has demonstrated a bona fide intent that is listed on the CBI portion of the Inventory. Both the original submitter and the BFN submitter are informed that another entity is manufacturing the substance for a TSCA purpose.
EPA must provide the statutory basis and rationale for informing a BFN submitter of confidential use or production volume conditions. If EPA can provide the statutory basis for such disclosure, EPA must also explain why it must disclose such information to the BFN submitter. If EPA can somehow justify disclosing the CBI SNUR conditions, it should codify its obligation to notify the original CBI submitter that such disclosure has occurred. The current proposed SNUR provides for neither equal disclosure nor equal confidentiality as a result of BFN submission.
TSCA stakeholders should carefully consider commenting on the changes to 40 C.F.R. § 721.11 to be sure that EPA is acting within its statutory authority, justifying why disclosure is necessary, and providing for notification of the original CBI holder. While the consequences of these proposed provisions may be inadvertent, the proposed rule either needs to be withdrawn and re-proposed to reflect the law, or rationalized in a way that our careful reading of TSCA does not allow.
http://www.natlawreview.com/article/tsca-reform-proposed-changes-to-snur-procedures-would-perhaps-inadvertently-result
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Chemicals And Cosmetics Feature In Latest TTIP Talks
Aug 9, 2016 | Chemical Watch
The EU and US have concluded the latest set of negotiations on a transatlantic trade and investment partnership (TTIP) .
The 14th round of talks, which took place in Brussels between 11 and 15 July, included discussion on EU proposals on cosmetics and chemicals.
On cosmetics the EU presented its case for a separate annex. In the discussions it argued that:TTIP provisions should cover all products falling under the legal definition of cosmetics in the EU;its proposal on safety assessment of ingredients is non-binding;cosmetics labelling requirements should be aligned with the International Nomenclature of Cosmetics Ingredients Committee;existing national standards should be aligned with those adopted by ISO; andthere is strategic interest to developing and recognising, for regulatory purposes, alternative methods to animal testing.
The major part of the discussions on chemicals concerned the EU proposal that there should be a separate annex or chapter for them.
The EU says this would strengthen cooperation, promote alignment with GHS and improve the exchange of information.
The next round of negotiations will probably be in the autumn.
https://chemicalwatch.com/49035/chemicals-and-cosmetics-feature-in-latest-ttip-talks
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FDA Extends Comment Period for Phthalate Review
Aug 9, 2016 | BNA Daily Environment Report
The Food and Drug Administration wants more public input on whether it should conduct a review of the safety of a phthalate chemical and whether companies should be allowed to use it in food packaging.
According to a Federal Register notice, the FDA is opening a second public comment period on a request from environmental health groups to ban the use of orthophthalate chemicals, which are commonly used in plastics to make them more flexible.
The request came earlier this year from a coalition of environmental advocacy groups, which argued that exposure to orthophthalates can harm reproductive and developmental systems. In the Aug. 8 notice, the FDA said it was reopening the comment period for an additional 45 days to allow more parties to weigh in on the environmental groups' request. Comments can be submitted toRegulations.gov under the docket number FDA-2016-F-1253 through Sept. 19.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95242573&vname=dennotallissues&fn=95242573&jd=95242573
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ClientEarth Seeks To Overturn DEHP Authorisation
Aug 8, 2016 | Chemical Watch
By Geraint Roberts
NGO ClientEarth is contesting the European Commission's Decision to allow the use of the phthalate DEHP in recycled PVC until 2019.
The controversial Decision grants authorisation to three companies. It was backed by most member states on the grounds that there are no suitable alternative substances or technologies that are feasible for the companies, and the socio-economic benefits outweigh the environmental and health risks.
ClientEarth says further grounds for banning the phthalate is that it is an endocrine disrupting chemical. Echa's Member State Committee unanimously agreed that it is an EDC for the environment. A majority decided it is also an EDC for human health.
But a draft Commission Decision updating the grounds for DEHP's (and three other phthalates) classification as an SVHC has yet to be approved by the REACH Committee. This would add that it has "endocrine disrupting properties whose effects to human health give rise to an equivalent level of concern" to other serious health hazards. These include category 1 carcinogen status.Formal request for review
ClientEarth has used powers granted to NGOs under the UN Aarhus Convention on access to information, public participation in decision making and access to justice in environmental issues to ask the Commission to conduct an internal review of its Decision. The Commission has 12 weeks to respond to the 36-page document, although this can be extended by a further six weeks.
If the NGO decides the Commission's response is unsatisfactory, it says it will seek to have the approvals overturned in the European Court of Justice.
The request for review says that in approving DEHP, the Commission:illegally accepted an application missing key information required by law;illegally authorised DEHP even though the companies did not prove the benefits outweighed the risks;illegally ignored proof that safer alternatives were economically and technologically feasible;violated the precautionary principle; andmisused its power.
The Commission and the REACH Committee backed the authorisation applications after following the usual procedure and considering the Opinions – adopted back in 2014 – of Echa's committees on risk assessment and socio-economic analysis.
However, the committees' Opinions were heavily criticised by NGOs and some MEPs. In 2015 the European Parliament passed a Resolution urging the Commission not to approve any authorisation applications for the use of DEHP in recycled PVC. And earlier this year a group of MEPs wrote to Echa executive director Geert Dancet claiming that the socio-economic analysis committee had exceeded its powers and accepted "unsubstantiated arguments" by the applicants.
In response Mr Dancet said the opinions had contained some inappropriate wording, but were "adequate"and based on "all legally required information" from the applicants.
https://chemicalwatch.com/49043/clientearth-seeks-to-overturn-dehp-authorisation
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Colorado Activists Submit Petitions for Referendums on Fracking
Aug 8, 2016 | The New York Times
By Clifford Krauss
In an effort to halt the advance of the oil industry in Colorado, environmental activists said they submitted enough signatures on Monday to place on November’s ballot two initiatives aimed at severely limiting hydraulic fracturing.
If either measure passes, it would represent the most serious political effort yet in the United States to stop hydraulic fracturing, or fracking, the technique used to blast through shale and other hard rocks with water, sand and chemicals to release oil and natural gas.
One of the Colorado ballot initiatives would establish local control over oil and gas operations, including fracking, while the other would prohibit drilling and fracking in a buffer zone 2,500 feet around occupied buildings, waterways and open public spaces like parks. That could effectively prohibit new exploration and production in as much as 95 percent of the surface area of the state’s five top petroleum- and gas-producing counties, according to Colorado regulators.
The Colorado secretary of state’s office has 30 days to authenticate the signatures, and challenges are considered probable. If the signatures hold up, oil industry officials say the contest should be a close, hard-fought battle.
With the exception of New York State, which has banned fracking for its relatively modest reserves, few oil- and gas-producing states have put up any serious barriers to the practice.
Led by a coalition of environmental organizations, activists fanned out across the state to collect signatures. They argue that local communities should have the right to limit fracking, which they say pollutes the air and jeopardizes local water supplies. Some 98,500 signatures are needed to get on the ballot. Activists said they submitted more than 100,000 signatures for each initiative.
“At stake is the people’s right to say no to fracking in their communities, the people’s right to protect their well-being and safety and their families from industrial development in their backyards,” said Jason Schwartz, a spokesman for Greenpeace.
Business groups have begun a concerted effort to oppose the initiatives, raising more than $13 million. Anadarko Petroleum and Noble Energy, the two oil companies that stand to lose the most, have each contributed $5 million or more to the opposition campaign. Opponents have cited a recent study by the University of Colorado that warned that the more stringent initiative — the one that would create buffers — could cost the state 54,000 jobs between 2017 and 2021, and decrease state and local tax revenue.
“This is bigger than any individual company,” said John M. Christiansen, an Anadarko vice president. “These potential ballot measures would carry massive consequences for Colorado’s economy, public education, public services and every consumer.”
The nation’s shale boom of recent years has made Colorado one of the fastest-growing energy producers. Between 2004 and 2014, oil production in the state quadrupled, according to the Energy Department, although it is now slowing because of the slump in prices. The state’s vast Niobrara shale field contains an estimated two billion barrels of oil, making it one of the nation’s largest.
The propositions could also have an effect on the presidential race in Colorado, which is considered a swing state.
Divisions on the issue cross party lines.
Donald J. Trump, the Republican nominee, told a Denver television station last week that he supported fracking but, in a break with the oil industry and many state Republicans, he suggested that localities should have a say in the matter. “There’s some areas, maybe, they don’t want to have fracking,” Mr. Trump said. “And I think if the voters are voting for it, that’s up to them.”
Hillary Clinton, his Democratic rival, has argued in favor of tight regulations on fracking and supported the right of states and localities to prohibit it.
Gov. John Hickenlooper, a Democrat, has opposed a ban on fracking and in the past has encouraged compromise. Representative Jared Polis, also a Democrat, has donated $25,000 to a group that supports local controls on oil and gas operations.
Efforts to put the initiatives on the ballot have been in the works for two years, and were energized by the Colorado Supreme Court’s decision in May to strike down a number of local prohibitions as illegitimate infringements on the right of the state to regulate oil and gas exploration and production.
http://www.nytimes.com/2016/08/09/business/energy-environment/colorado-activists-submit-petitions-for-referendums-on-fracking.html
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Ending $4B U.S. Oil Subsidy Seen Having Minimal Impact
Aug 9, 2016 | BNA Daily Environment Report
By Rakteem Katakey
Eliminating $4 billion of petroleum subsidies in the U.S. would have only a minor effect on oil production and demand and boost the country's influence in advocating for global climate change action, according to a report for the Council on Foreign Relations.
Withdrawing oil-drilling subsidies could cut domestic production by 5 percent by 2030, which could increase international oil prices by just 1 percent, Gilbert Metcalf, a professor of economics at Tufts University, said in the report. Local natural gas prices could rise as much as 10 percent, while both production and consumption would probably fall as much as 4 percent, according to the report.
The viability of the three main oil and gas subsidies in the U.S. has been debated for years. Environmental groups argue that eliminating state support would not only increase government revenue but also push the country toward mitigating climate change. The industry says any changes would lead to large declines in domestic production and cut many jobs. The oil price crash over the last two years has made the U.S. oil industry more vulnerable, enhancing its argument for keeping the subsidies.
Metcalf concluded that “U.S. energy security would neither increase nor decrease substantially” if the three subsidies were repealed. The effect on oil consumption would be “even less noticeable,” implying “emissions of greenhouse gases that cause climate change would not change substantially,” he said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95242563&vname=dennotallissues&fn=95242563&jd=95242563
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Donald Trump Pledges to Roll Back Energy Regulations, Bolster Coal Industry
Aug 8, 2016 | The Wall Street Journal
By Amy Harder
Republican presidential nominee Donald Trump promised Monday to repeal a host of energy and environmental regulations, save the coal industry and lift restrictions on energy sales.
But many of those promises may be challenging to fulfill. A new president cannot easily cancel most regulations, which require a lengthy, exacting process to enact or withdraw.
More broadly, many of the coal industry’s woes are driven by world-wide market trends that are likely to persist regardless of the plans of any particular president.
Mr. Trump, addressing a business-friendly audience at the Detroit Economic Club, painted a vision of a restored energy future. “We will put our coal miners and our steelworkers back to work, where they want to be,” Mr. Trump said.
In an outline accompanying the speech, Mr. Trump cited several targets: Environmental Protection Agency rules that cut carbon emissions from power plants, known as the Clean Power Plan; the EPA’s Waters of the U.S. rule, which brings more water bodies under federal protection; and an Interior Department moratorium on new coal leasing on federal lands.
But few finalized regulations have ever been successfully undone by a succeeding administration, Republican or Democratic. And those that did fall were far less politically charged than the Obama administration’s regulations at issue today.
“Trump could quickly repeal executive orders and agency guidance, but rescinding finished rules isn’t nearly as easy as he made it sound today,” said Kevin Book, managing director of ClearView Energy Partners, an energy analysis and research firm. “It can take agencies years to build administrative records to strike down or significantly modify a final rule.”
Repealing the Clean Power Plan and the Waters of the U.S. rules would require writing and legally justifying regulations to replace them, which could take nearly two years, judging by previous rule-making efforts.
A President Trump could choose not defend those regulations in court, where both face serious legal challenges. The water rule has been suspended by a federal judge while litigation plays out, and the Clean Power Plan, which the Supreme Court temporarily blocked earlier this year, is almost certain to face review at the high court.
But even if a Trump administration abandoned its legal defense of those rules, it would have to go through the process of withdrawing and replacing them.
Still, industry representatives said Mr. Trump would at least apply the brakes to cumbersome rules. “A Trump administration would certainly stop the hemorrhaging” in U.S. coal mining, said Luke Popovich, a spokesman for the National Mining Association. “That’s unarguable.”
While Mr. Trump hasn’t presented any specifics, he has outlined a goal of preserving coal industry employment by slowing down or stopping the implementation of existing regulations, Mr. Popovich said.
Robert Murray, the controlling owner of the nation’s largest privately held coal miner and a Trump supporter, called Mr. Trump’s promises “a very good start.”
The chief executive of Murray Energy Corp. has been an outspoken opponent of the Obama administration, accusing the executive branch of rampaging over fossil fuels. “New regulations on coal, they’re coming out faster than we can read them,” he said, adding that market forces have also not been kind to his sector. Coal competes with natural gas as a fuel for power plants, and low gas prices have challenged coal’s dominance as the U.S.’s primary way to generate electricity in recent years.
“We need to develop all the energy we can and then use it, whatever the low-cost energy is,” Mr. Murray said. “If it’s gas over coal, so be it. I suspect if you eliminate this overregulation it will make coal much more competitive.”
Mr. Trump also said Monday he would cancel the Paris climate agreement, a deal signed by roughly 200 countries last December. While Mr. Trump can’t cancel the entire deal himself, he could withdraw the U.S. from it, which could be a deal-breaking blow to the agreement given the high-profile role of the U.S.
The regulation Mr. Trump might find easiest to undo is the Interior Department’s moratorium on new coal leasing, because it isn’t a formal regulation but simply the department’s current policy.
The broader challenge for Mr. Trump’s proposals may be that the struggles of the coal industry aren't chiefly due to regulation, in the view of most analysts, but rather to sweeping national and global trends.
Persistently cheap natural-gas prices are prompting utilities to shift from coal to natural gas, which emits 50% fewer carbon emissions than coal. And slower-than-expected economic growth in Asia is sapping demand for U.S. coal exports.
Mr. Trump laid out many of his plans earlier this year, and his talk in Detroit is a way to reinject them into the debate in a high-profile way. Promising to roll back energy regulations could be a way for Mr. Trump to contrast himself with Democratic rivalHillary Clinton and possibly help unite the Republican Party.
“A Trump administration will end this war on the American worker and unleash an energy revolution that will bring vast new wealth to our country,” Mr. Trump said.
Some companies are embracing cleaner energy options. Tom Williams, a spokesman forDuke Energy Corp., said the North Carolina-based power company has retired more than 40 coal-fired generating stations since 2011 and cut carbon emissions in the process. Duke expects that trend to continue as the company tries to make its power plants cleaner and more efficient, he said.
Still, Mr. Trump didn't mention two of today’s hardest-fought energy controversies—the dispute over the environmental effects of fracking and the debate over the stringency of auto fuel-economy standards.
http://www.wsj.com/articles/donald-trump-pledges-to-roll-back-energy-regulations-bolster-coal-industry-1470703160
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Trump Would ‘Massively' Cut Rules, Including Power Plan
Aug 9, 2016 | BNA Daily Environment Report
By Rachel Leven
Donald Trump would temporarily halt issuance of all new federal regulations, and then review and rescind regulations such as the Clean Power Plan as part of his economic agenda to spur economic growth, the Republican presidential nominee said Aug. 8.
Sparking “an energy revolution” is a large part of this plan, Trump said. He said his administration would lift “the restrictions on all sources of American energy,” not addressing comments he made last month in support of state and local communities' rights to enact hydraulic fracturing bans.
“The Obama-Clinton Administration has blocked and destroyed millions of jobs through their anti-energy regulations, while raising the price of electricity for both families and businesses,” Trump said in his address at the Detroit Economic Club. “I am going to cut regulations massively.”
These comments on energy production were consistent with his major energy address earlier this year. Trump said rescinding restrictions on oil, gas, coal and “all sources of energy” would benefit the economy by adding jobs and increasing wages, gross domestic product, government revenue and economic activity significantly over the short- and long-term.
More details of his economic agenda will be released in the coming weeks, according to the candidate.
‘Targeted Review.'
Trump said he would implement a moratorium on new regulation once he became president to give businesses “the certainty they need to reinvest in our community, get cash off of the sidelines, start hiring for new jobs, and expanding businesses.” The examples Trump's campaign fact sheet cites for “targeted review” are largely environmental.
For example, Trump would begin a “targeted review” of the Environmental Protection Agency's Clean Power Plan and Waters of the U.S. regulations, as well as a review the Interior Department's federal coal leasing moratorium, according to the fact sheet. Executive actions such as the Climate Action Plan, which includes the power plan and the waters rule, would also be rescinded, the fact sheet said.
“A Trump Administration will end this war on the American worker, and unleash an energy revolution that will bring vast new wealth to our country,” Trump said in his speech.
A spokeswoman for Trump didn't respond to Bloomberg BNA's message requesting comment.
His fact sheet also repeats previous statements that he would rescind the Paris climate agreement, make land in the Outer Continental Shelf available to oil and natural gas producers, protect coal jobs and ask TransCanada Corp. to resubmit its permit application for the Keystone XL pipeline.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95242572&vname=dennotallissues&fn=95242572&jd=95242572
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Trump Bets On Dramatic Fossil Fuel Production Increase
Aug 8, 2016 | E&E News PM
By Jennifer Yachnin
Republican presidential nominee Donald Trump today reiterated his vow to create "vast new wealth" in the United States by expanding oil and gas production and revitalizing the coal industry.
Trump, looking to invigorate his campaign against Democratic nominee Hillary Clinton to succeed President Obama, outlined a series of proposed tax breaks and regulatory reforms in a speech to the Detroit Economic Club.
The former reality television star and real estate mogul incorporated his previously detailed energy platform, reiterating a plan to boost fossil fuel production while slashing climate policies (E&E Daily, May 27).
"A Trump administration will end this war on the American worker and unleash an energy revolution that will bring vast new wealth to our country," Trump said.
Trump vowed to lift restrictions "on all sources of American energy," including ending the Interior Department's recent moratorium on new coal leases.
He also called for making land in the Outer Continental Shelf available to oil and gas production, and reiterated his request for TransCanada Corp. to submit a new permit application for the 1,700-mile Keystone XL pipeline. The Obama administration rejected the project last year.
Trump cited statistics from the free market think tank Institute for Energy Research to argue that allowing unfettered access to federally owned oil, gas and coal resources — including the Arctic National Wildlife Refuge and the Atlantic and Pacific oceans — would create millions of new jobs and add more than $100 billion annually to gross domestic product (Greenwire, Dec. 8, 2015).
He also hit Clinton over her remarks at a CNN event in March where she suggested her administration would "put a lot of coal miners and coal companies out of business."
The remarks, part of Clinton's attempt to promote her own $30 billion plan for revitalizing distressed communities, including the nation's coal fields, have now appeared in numerous campaign ads in competitive 2016 contests.
"We will put our coal miners and steel workers back to work," Trump said, hitting on a recurring theme in his stump speech.
He then hit Clinton over her promises to restrict hydraulic fracturing through strict regulations. "Clinton not only embraces President Obama's job-killing energy restrictions but wants to expand them, including going after oil and natural gas production that employs some 10 million Americans," Trump said.
Trump reiterated his vow to "cancel" the Paris climate agreement and roll back Obama administration regulations, including U.S. EPA's Clean Power Plan and the Clean Water Act jurisdiction rule.
The Republican's hypothetical White House would also issue a "regulatory moratorium" and require every federal agency to rank its existing regulations "from most critical to health and safety to least critical."
"When we reform our tax, trade, energy and regulatory policies, we will open a new chapter in American prosperity," Trump said. "We can use this new wealth to rebuild our military and our infrastructure."
Environmentalists immediately panned Trump's latest proposals, including League of Conservation Voters National Campaigns Director Clay Schroers, who called the speech a "big polluters first" agenda.
"For a candidate who claims to pride himself on never reading from a script, Trump sure sticks to the big polluters' talking points when it comes to energy and the environment," Schroers said.
"The policies he's espoused — ending regulations, cutting the EPA and attacking the Clean Power Plan — as well as naming billionaire oil executive Harold Hamm as one of his economic advisers, shows that Trump is happy to give away our clean air and water to big polluters in the oil and gas industry with no regard for the damage they will do."
http://www.eenews.net/eenewspm/2016/08/08/stories/1060041339
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EPA Guide On Air Permit Screening Levels Defers For Now On Rulemaking
Aug 8, 2016 | Inside EPA
By Stuart Parker
EPA is floating non-binding guidance for how Clean Air Act permit writers should use screening tools known as significant impact levels (SILs) when issuing permits for industrial facilities, but the agency is deferring a decision on whether to make the SILs binding until regulators can gain greater experience using the new values.
The guidance, posted to EPA's website last week, recommends SILs for use in assessing facilities' expected emissions of ozone and particulate matter (PM) in prevention of significant deterioration (PSD) permits. SILs are de minimis levels of pollution. If a facility is projected to emit below the values, then regulators can avoid an extensive analysis of the site's expected emissions.
Industry officials support the use of SILs because they can ease the PSD permitting process, and have urged EPA to issue the values for its stricter ozone air standard of 70 parts per billion issued Oct. 1.
Environmentalists, however, oppose the use of SILs, saying they risk violations of national ambient air quality standards (NAAQS) by allowing industry to skirt more onerous permit analysis of projects' cumulative impacts. Sierra Club successfully sued EPA over its previous fine particulate matter (PM2.5) SILs in the U.S. Court of Appeals for the District of Columbia Circuit, which remanded the values to the agency for better explanation.
The D.C. Circuit in its January 2013 ruling in Sierra Club v. EPA vacated and remanded a 2010 rule that set SILs for PM2.5, but the court allowed for the future use of revised values. It vacated entirely a related screening tool, also used to avoid more onerous permitting conditions, known as significant monitoring concentrations (SMCs). The SMCs were threshold levels of projected pollution below which a facility need not gather one year's worth of air quality monitoring data to provide a background concentration level to measure future emissions increases.
EPA has been working on a comprehensive response to the ruling in Sierra Club, as well as developing the SILs for its stricter ozone standard that industry groups have urged the agency to issue.
The draft guidance -- signed by Stephen Page, director of the agency's Office of Air Quality Planning and Standards and sent to all 10 EPA regions -- signals EPA's initial approach of proposing non-binding SILs for ozone and PM2.5 that regulators can consider in the PSD permitting process, but does not require their use.
“EPA is providing non-binding guidance so that we may gain valuable experience and information as permitting authorities use their discretion to apply and justify the application of the SIL values identified below on a case-by-case basis in the context of individual permitting decisions,” the agency says.
“Second, the EPA will use this experience and information to assess, refine and, as appropriate, codify SIL values and specific applications of those values in a future, potentially binding rulemaking,” the guidance says. The agency is taking comment on the guidance and related documents through Sept. 30.
Draft Guidance
EPA in the document defends the legal basis for SILs, which it says are a reasonable tool to interpret ambiguous Clean Air Act language regarding what constitutes impacts of air emissions that “cause or contribute” to NAAQS violations.
In a supporting legal memorandum, the agency says, “If Congress had intended in [air law] section 165(a)(3) to preclude permitting authorities from exercising discretion to determine the degree of impact that equals a contribution, it would have used a less ambiguous term or specified that no degree of impact on a predicted violation is permissible.” Section 165 outlines requirements for preconstruction permitting.
However, the agency stresses that the guidance is non-binding, and does not represent “final agency action” that could be subject to judicial review.
Under the draft guidance, EPA sets the SILs at 1 ppb for ozone, 1.2 micrograms per cubic meter (ug/m3) for the 24-hour PM2.5 NAAQS of 35 ug/m3, and 0.2 ug/m3 for the current annual PM2.5 NAAQS of 12 ug/m3, and also the former annual PM2.5 NAAQS of 15 ug/m3.
The agency also sets SILs to determine whether projects will consume too much “increment” of the PM2.5 NAAQS, the maximum permissible emissions increase as defined by EPA. There are no increments established for ozone.
The SILs for PM2.5 increment are the same as those for determining compliance with the NAAQS, except in Class 1 areas, which are national parks and wilderness areas. In such areas, the SILs for increment are 0.7 ug/m3 for 24-hour PM2.5 NAAQS, and 0.4 ug/m3 for annual PM2.5 NAAQS.
EPA says, “permitting authorities may elect to use the SIL values reflected in this memorandum in a preliminary (single-source) analysis that considers only the impact of the proposed source in the permit application on air quality to determine whether a full (or cumulative) impact analysis is necessary before reaching a conclusion as to whether the proposed source would (or would not) cause or contribute to a violation” of NAAQS or increment.
Permitting Analysis
A full analysis of a single source would involve more extensive computer modeling of a project's likely emissions. A cumulative analysis, in addition to the source at issue, “includes the impact of existing sources (on and offsite), and the appropriate background concentration” of pollution, EPA says. The agency gives states wide latitude in how to apply the SILs.
EPA in the draft guidance says the document is designed to complement a forthcoming revision to the agency's “Appendix W” rules on air quality modeling, which the agency proposed July 29, 2015, in response to a Sierra Club petition to improve modeling procedures, including better consideration of precursor chemicals that form air pollutants.
“EPA expects that the final Appendix W revisions will include criteria and process steps for choosing single-source analytical techniques or models to estimate ozone impacts from precursor nitrogen oxide and volatile organic compound emissions. The ozone SIL value recommended in this guidance is intended to complement the Appendix W updates by providing a threshold that may be used to determine whether an impact predicted by the chosen technique or model causes or contributes to a violation,” EPA says.
“With respect to PM2.5, the EPA expects the final Appendix W revisions will include criteria and process steps for choosing single-source analytical techniques or models to assess concentrations of direct and secondarily-formed PM2.5,” EPA adds.
http://insideepa.com/daily-news/epa-guide-air-permit-screening-levels-defers-now-rulemaking
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Clinton Smacks Fla. Governor’s 'Absurd’ Climate Policies
Aug 8, 2016 | The Hill - E2 Wire
By Devin Henry
Hillary Clinton knocked the climate policies of Florida Gov. Rick Scott (R), a high-powered ally of Republican nominee Donald Trump, on Monday.
Speaking in Florida, Clinton highlighted the heavy impact climate change is expected to have on the state. She said Scott should work to invest in green energy jobs, rather than pursue a ban on discussions of climate change there.
The Florida Center for Investigative Reporting last year reported that Scott’s administration had barred employees of the sate Department of Environmental Protection from using the term “climate change” in official communications. Scott denied that report, but it still drew scorn from Democrats, including the White House.
Clinton added her own criticism on Monday.
“You have a governor who actually put out an edict — I mean, this is hard to believe, a governor who put out an edict directing state employees never to say or write the words ‘climate change.’ ” she said.
“That sounds absurd, which of course it is, but it’s also missing a great economic opportunity. Florida could be the center of solar energy in the entire country.”
Clinton promised to “work with members of the leadership in Florida right now” to combat climate change. She also tied Scott to Trump, noting the governor chairs a super-PAC supporting his candidacy.
“It doesn’t surprise me that someone who won’t let anyone in the state government mention the words ‘climate change’ happens to head up Donald Trump’s biggest PAC” she said. “That seems awfully appropriate, doesn’t it? We’ve got to stand against the deniers.”
http://thehill.com/policy/energy-environment/290785-clinton-smacks-florida-governors-absurd-climate-policies
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