Preview Newsletter
ACC AM 8/16/2016
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Old TSCA, New TSCA, and Chemical Testing
Aug 16, 2016 | BNA Daily Environment Report
By Charles M. Auer
The Frank R. Lautenberg Chemical Safety for the 21st Century Act significantly amends the Toxic Substances Control Act (TSCA), including Section 4 concerning the development of information and testing. -
Biotechnology Sector May Face Increased Data Requirements Under TSCA
Aug 16, 2016 | Inside EPA
By Maria Hegstad
Revisions to the way EPA assesses chemicals' potential risks under the amended Toxic Substances Control Act (TSCA) could require the nascent biotechnology industry to provide EPA with additional information to aid the agency in determining risks to sensitive subpopulations and conditions of use, an attorney tracking the issue says. -
(ACC Blog) Finland Listens To The Science On BPA
Aug 15, 2016 | American Chemistry Matters
By Steven Hentges, Ph.D
The Finnish Institute of Occupational Health and the National Institute for Health and Welfare recently released a report on exposure of hairdressers to several chemicals, one of which was bisphenol A (BPA). First for the bottom line: “According to the results, hairdressers in Finland are not exposed to…bisphenol A…any more than the rest of the population.” -
(ACC Mentioned) Rethink How Chemical Hazards Are Tested
Aug 16, 2016 | Nature
By John C. Warner& Jennifer K. Ludwig
John C. Warner and Jennifer K. Ludwig propose three approaches that would help inventors to produce safer chemicals and products. -
(ACC Mentioned) Solvay Takes Lightweight To New Levels
Aug 16, 2016 | EPPM
Solvay is taking lightweighting to new levels with its K 2016 showcase, which will plumb new depths of cutting-edge plastics technology with sustainability solutions and additive manufacturing. -
Three New Chemicals Can Enter Market: EPA
Aug 16, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Three more new chemicals are unlikely to present an unreasonable risk and may enter the market, according to recent Environmental Protection Agency analyses. -
US EPA Issues Three PMN Determinations
Aug 16, 2016 | Chemical Watch
The US EPA has issued three determinations for pre-manufacture notices (PMNs) of new substances. -
Consumer Groups Say Food Additive Rule ‘Lost Opportunity'
Aug 16, 2016 | BNA Daily Environment Report
By Casey Wooten
Consumer groups are calling the Food and Drug Administration's recent final rule regulating chemical ingredients in food a “lost opportunity” to tighten oversight of the food industry. -
The Future Of Formaldehyde For Furniture Manufacturers
Aug 15, 2016 | Woodworking Network
By Frank Devlin
Many furniture manufacturers are improving the efficiency of their processes, eliminating unnecessary costs, and improving quality by using structural plywood and oriented strand board (OSB) in their frames. OSB produced to U.S. Product Standard PS 2, and structural plywood produced to PS 2 or U.S. Product Standard PS 1 are typically used as floors, walls, and roofs. -
Fossil Fuel Industry Faces 'Existential Threats' as Shareholders, Regulators Push for Emissions Cuts
Aug 15, 2016 | Natural Gas Intelligence
By Carolyn Davis
The oil, natural gas and coal industries have found themselves under increasing pressure from shareholders, activists and government officials to reduce carbon emissions, with their fortunes and the stability of the Earth's climate now locked in a zero-sum game, according to a Rice University energy expert. -
States’ Efforts To Curb Fracking-Related Earthquakes Appear To Be Paying Off
Aug 15, 2016 | The Washington Post
By Jen Fifield
Stopping an earthquake before it starts? It sounds like a feat possible for only a superhero. But policymakers in Kansas and Oklahoma are showing that insofar as humans are causing earthquakes, they can stop them, too. -
Court Improperly Blocked Fracking Rules: Interior
Aug 16, 2016 | BNA Daily Environment Report
By Alan Kovski
A federal district court misconstrued the broad authority granted to the Bureau of Land Management when the court blocked the bureau's new regulations of hydraulic fracturing on federal and Indian lands, the Obama administration told an appeals court Aug. 12 (Wyoming v. Jewell, 10th Cir., No. 16-8068, 8/12/16). -
In Appeal Of US Fracking Ruling, Arguments Center On Precedent
Aug 15, 2016 | Platts
By Brian Schei
"The decision ignores decades of case law," said Mike Freeman, a Colorado-based attorney with Earthjustice. "We respectfully think that the judge got it flat wrong." -
EPA Issues New Fracking Analysis On Migration Pathways
Aug 15, 2016 | Inside EPA
EPA has issued a new component of its major study examining the potential impacts of hydraulic fracturing on drinking water, releasing a report analyzing well operator files from 2009 to 2010 to provide insight on the potential for fracking fluids to migrate to underground sources of drinking water. -
API Chief Asks EPA To Refuse Refiners' Biofuel Petition
Aug 15, 2016 | PoliticoPro - Whiteboard
By Elana Schor
American Petroleum Institute CEO Jack Gerard today formalized his group's opposition to a refiner-led effort to change which segment of the energy industry is responsible for meeting the Renewable Fuels Standard, escalating a long-simmering lobbying battle over the issue. -
Chemical Board to Probe Texas Fuel Terminal Fire
Aug 16, 2016 | BNA Daily Environment Report
By Sam Pearson
Federal chemical safety investigators will travel to a Houston-area Sunoco Logistics Partners fuel terminal where seven workers were injured Aug. 13. -
Oil Refiners Not Doing Enough to Prevent Explosions: Safety Board
Aug 16, 2016 | BNA Daily Environment Report
By Sam Pearson
The American Petroleum Institute failed to do enough to prevent a type of potentially deadly explosions at oil refineries, the U.S. Chemical Safety Board said. -
Cantwell Presses DOE On Oil-By-Rail
Aug 15, 2016 | The Columbian
By Lauren Dake
When an oil train derailed in Mosier, Ore., earlier this summer, the firefighting foam that first responders rely on to extinguish oil fires dissolved before it could suppress the flames. -
FRA Awards $3 Million Toward SMART's PTC Efforts
Aug 16, 2016 | Progressive Railroading
The Federal Railroad Administration has provided $3 million to implement positive train control (PTC) along a 2.1-mile extension of the Sonoma-Marin Area Rail Transit (SMART) system, California Rep. Jared Huffman (D-San Rafael) announced last week. -
Exxon Test Of PHMSA Gives Agency A Chance To Roar
Aug 15, 2016 | PoliticoPro
By Elana Schor and Andrew Restuccia
A legal battle between ExxonMobil and the Obama administration's pipeline safety watchdog over a 2013 oil spill could turn into a proving ground for regulators' efforts to show that their agency finally has teeth after years of outside criticism. -
Court Filing From 6 States Supports EPA Ozone Standard
Aug 15, 2016 | E&E News PM
By Sean Reilly
A coalition of six states and state air quality agencies have explicitly endorsed U.S. EPA's new primary ozone standard, saying in a court filing that the change was needed to protect public health and that potential compliance costs are essentially irrelevant to the agency's decision. -
Defending NAAQS, Coastal States Downplay 'Background' Ozone Problems
Aug 15, 2016 | Inside EPA
By Stuart Parker
Northeastern states and California are defending EPA's decision to tighten its ozone air standard by downplaying concerns raised by critics that naturally-occurring and foreign-sourced “background” ozone levels will make the standard impossible to achieve, while also backing the agency for not considering costs in revising the standard. -
‘Race to Bottom' on Labor, Environment Norms Without TPP: Official
Aug 16, 2016 | BNA Daily Environment Report
By Chris Marr
A regional trade deal led by China could help inspire a “race to the bottom” on global labor and environmental standards if Congress fails to ratify a 12-nation Pacific Rim pact, a senior U.S. trade official told Atlanta business leaders. -
Jerry Brown Moves To Slip Cap And Trade Into Major Climate Bill
Aug 15, 2016 | The Sacramento Bee
By David Siders
In a bid to preserve California’s cap-and-trade program beyond 2020, Gov. Jerry Brown has quietly proposed amending major environmental legislation to expressly authorize the regulation’s extension.
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Old TSCA, New TSCA, and Chemical Testing
Aug 16, 2016 | BNA Daily Environment Report
By Charles M. Auer
Charles M. Auer is the President of Charles Auer & Associates, LLC, where he provides consulting services to clients on a wide range of old and new TSCA issues. He is also affiliated with Bergeson & Campbell, P.C. Mr. Auer, a chemist by training, was formerly the Director of the U.S. Environmental Protection Agency's Office of Pollution Prevention and Toxics (EPA/OPPT). He retired from the Agency in January 2009, after a 32-year career with EPA working on chemical testing, assessment, and risk management issues on new and existing chemicals under the Toxic Substances Control Act (TSCA). As the Director of OPPT, he was responsible for oversight of TSCA and its efforts to assess and manage new and existing chemicals.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act significantly amends the Toxic Substances Control Act (TSCA), including Section 4 concerning the development of information and testing. The Act was signed into law by President Obama and entered into force on June 22, 2016. Amended TSCA has been identified as Pub. L. No. 114-182 (henceforth this article uses “new” TSCA to refer to Pub. L. No. 114-182 and “old TSCA” when referring to its predecessor (Pub. L. No. 94-469)).
Introduction
I worked in the U.S. Environmental Protection Agency's (EPA) Office of Pollution Prevention and Toxics (OPPT) and its predecessor offices for some 32 years. Since the 1980s until my retirement in 2009, I held various technical and management positions that provided longstanding experience in and perspective on using old TSCA's Section 4 to require the development of test data. It is my view that the central failing of old TSCA was its inability to produce the testing needed by EPA to assess and understand the hazards, exposures, and risks of existing chemicals. New TSCA makes important changes to the authority available to EPA to compel industry to generate the information needed by EPA to meet the purposes articulated under the new law.
This paper briefly reviews the issues and problems that EPA encountered in using old TSCA for this purpose, discusses the improvements in new TSCA, and discusses why I believe they offer the potential of future success in the testing area.
Background on Old TSCA
The basic structure of old TSCA Section 4 required EPA to use rulemaking that involved satisfying legal findings to require testing as summarized below (an italicized shorthand descriptor is provided for each finding and bolding indicates how the findings operated):
• That certain commercial activities associated with the chemical may present an unreasonable risk to human health or the environment; or
• That the chemical has substantial production and substantial or significant exposure (exposure-based); and
• That there are insufficient data and experience available to determine the health or environmental effects of the chemical; and
• That testing is neccessary to develop such data.
A test rule required EPA to develop and issue a proposed regulation and then, after considering comments, promulgate the rule. The rule was required to include the identity of the chemical to be tested, the enforceable “standards” by which the testing would be conducted, and the schedule for completing the testing. EPA often made both manufacturers and processors of the chemical subject to the test rule but, in practice, manufacturers fulfilled the requirements without involving processors in conducting the testing. Old TSCA also included exemption provisions whereby companies otherwise subject to a test rule could request and be granted an exemption from having to conduct the testing, although reimbursement requirements could still apply.
EPA had broad discretion to require needed testing. EPA also developed and codified test guidelines that could be adapted, as needed, in the test rule to obtain enforceable testing on health and environmental effects, environmental fate, and physical-chemical properties (available at 40 C.F.R. Parts 796 through 798). This process involved EPA specifying enforceable “shall” requirements in the rule text for the laboratory to apply in conducting the test.
There is litigation history for Section 4 dating back to the 1980s that illustrates the issues EPA faced in requiring testing, including with respect to:
• The may present finding, where courts have upheld EPA's test rules where the basis for EPA's “may present” finding is “substantial” such that “there is a more-than-theoretical basis for suspecting that some amount of exposure occurs and that the substance is sufficiently toxic at that exposure level to present ‘an unreasonable risk of injury to health.’” (Chem. Mfrs. Ass'n v. EPA, 859 F.2d 977, 988-89 (D.C. Cir. 1988); See also Ausimont U.S.A., Inc. v. EPA, 838 F.2d 93, 97 (3d Cir. 1988) (a test rule cannot be “based on little more than scientific curiosity,” but the agency can act “when an existing possibility of harm raises reasonable and legitimate cause for concern”)).
• The exposure-based finding, where the court generally upheld EPA's factual findings in the rule, but instructed EPA to “articulate the standards or criteria on the basis of which it found the quantities … to be ‘substantial.’”(Chem. Mfrs. Ass'n v. EPA, 899 F.2d 344, 360 (5th Cir. 1990)) In response, EPA promulgated a statement in 1993 interpreting the relevant provision, known as the “B Policy” (TSCA Section 4(a)(1)(B) Final Statement of Policy; Criteria for Evaluating Substantial Production, Substantial Release, and Substantial or Significant Human Exposure, 58 Fed. Reg. 28736 (May 14, 1993)) and has since relied upon it.
EPA used its testing authority to require testing on several hundred chemicals over the years, a result that was criticized as inadequate to meet the need. For more information on the issues identified, See, e.g U.S. Government Accountability Office, “Chemical Regulation: Options Exist to Improve EPA's Ability to Assess Health Risks and Manage Its Chemical Review Program,”, GAO-05-458 (June 13, 2005) (GAO Report), available at http://www.gao.gov/products/GAO-05-458. EPA also attempted to use voluntary approaches to obtain testing, with the best example being the High Production Volume (HPV) Challenge program. A link to a description of the HPV Challenge program could not be located on EPA's website; however, archived information is available athttps://web.archive.org/web/20150307183557/ and http://www.epa.gov/chemrtk/. Under this program, industry voluntarily agreed to generate and make publicly available basic information on 2,800 HPV chemicals. EPA used the screening information dataset developed by the Organization for Economic Cooperation and Development as the information menu under the HPV challenge. Additional information on the contents and use of the Screening Information Data Set is available athttp://acts.oecd.org/Instruments/Show-InstrumentView.aspx?InstrumentID=56&InstrumentPID=53&Lang=en&;
Book=False. The HPV Challenge program, although it resulted in public access to significant additional amounts of test data, nonetheless fell short of its goal as shown by GAO's statement that “the chemical industry has not agreed to provide testing for 300 chemicals originally identified in the HPV Challenge Program” (See GAO Report at 4-5).I believe that the net result of EPA's efforts to obtain testing information was inadequate to meet EPA's need for information to assess chemicals under TSCA. This failing contributed significantly to the problems that EPA had historically in reviewing and managing the risks of TSCA existing chemicals.
The Promise of New TSCA
The improvements under new TSCA Section 4 begin with its use of the concept of “information” as opposed to old TSCA's arguably narrower term “data.” Recognizing the weaknesses in old TSCA's rule and findings-based approach to require testing, new TSCA provides additional authority that holds the promise of more effectively enabling EPA to compel industry to generate needed information. EPA also gained explicit authority to require testing for exposure. Finally, in an important development, new TSCA recognizes and brings considerations regarding reducing vertebrate animal (e.g., fish or rodent) testing into the TSCA testing arena.
While old TSCA's rule and findings-based approach is retained (Section 4(a)(1)), new Section 4(a)(2)(A) provides important additional authority, as follows:
• The chapeau gives EPA authority to use rules, orders, and consent agreements under this subsection; and
• In using this authority, per Section 4(a)(2)(A), EPA is not required to make legal findings, but must determine that the testing is necessary for any of several purposes, including to:
» Review a notice under Section 5 or perform a Section 6(b) risk evaluation;
» Implement a requirement imposed on a new or existing chemical; or
» Meet a regulatory testing need requested by another federal agency.
In a very significant enhancement, EPA now has explicit authority (Section 4(a)(2)(B)) to require development of information needed to establish the priority of a chemical under Section 6. Given the well-known limitations on the public availability of test data on chemicals, a fact pattern that led to the development and implementation of the voluntary HPV Challenge, this new authority will be crucially important to the successful realization of an effective prioritization effort. As structured, subsection (i) also requires that EPA make a prioritization decision under Section 6(b) within 90 days of receiving such testing and, upon designating a chemical as high-priority, EPA is required to initiate a risk evaluation (Section 6(b)(3)(A)). I read Section 4(a)(2)(B) as intending that EPA use the prioritization testing authority in a somewhat “metered” fashion, such that the Agency requires the development of such information when needed to inform prioritization judgments and tee up risk evaluations generally consistent with EPA's available capabilities and resources. Other “nonmetered” interpretations may be available, however, although subsection (ii) states that the provision cannot be used to “establis[h] or implemen[t] a minimum information requirement of broader applicability.”
In using the new authority, EPA is required per Section 4(a)(3) to identify or explain several aspects, including to: identify the need for the new information; describe how reasonably available information was used to inform decisions regarding needed testing; explain decisions to require vertebrate animal testing; and, if using order authority, explain why this approach (e.g., as opposed to rulemaking) is warranted. Finally, Section 4(a)(4) requires that EPA “employ a tiered screening and testing process,” whereby the results from the first tier inform decisions regarding higher-tier testing. EPA, however, can proceed directly to advanced testing if it justifies the need.
The new law also makes explicit that EPA can require testing regarding exposure and exposure potential, an aspect that was only implicit in old TSCA. The inclusion of such authority, while exceedingly valuable in EPA's efforts to implement the new law, raises the question of the test methods to be used in conducting exposure studies. While old TSCA used the term “test standards” to describe such methods, new TSCA uses “protocols and methodologies”; both laws require that legally enforceable testing be conducted. This can be seen in the definition of the term at new TSCA Section 3(15): “The term ‘protocols and methodologies for the development of information’ means a prescription of … (i) the manner in which such information are to be developed, (ii) the specification of any test protocol or methodology to be employed in the development of such information, and (iii) such other requirements as are necessary to provide such assurance” (emphasis added). EPA responded to the requirement for legally enforceable testing under old TSCA in part by undertaking a major multi-year effort to develop an extensive catalog of codified test guidelines, available at 40 C.F.R. Parts 796 through 798, as noted earlier.
While many exposure test methods are available in the literature or from voluntary consensus standards-setting organizations such as ASTM International (https://www.astm.org), EPA will need to adapt those methods to make them enforceable, a process that involves specifying “shall” requirements in the rule or order. It is also worth noting that the National Technology Transfer and Advancement Act (Pub. L. No. 104-113) generally directs EPA to use voluntary consensus standards in its regulations, when relevant standards exist and can meet EPA's needs. To the extent that EPA decides to undertake an effort to codify test guidelines for exposure testing, this would likely represent a major scientific effort over many years. This is because of the wide array of such tests that could be relevant to characterizing, as appropriate, consumer, general population, workplace, and environmental (air, water, soil) exposures to TSCA chemicals. Interestingly, the requirement to apply tiered testing also applies explicitly to exposure testing; thus, EPA will need to develop its thinking and approach for screening versus higher tier exposure testing. EPA's Office of Pesticide Programs has exposure test guidelines that were developed for Federal Insecticide, Fungicide, and Rodenticide Act purposes See, e.g, EPA, Series 875 — Occupational and Residential Exposure Test Guidelines, available at https://www.epa.gov/test-guidelines-pesticides-and-toxic-substances/series-875-occupational-and-residential-exposure), and these exposure test guidelines could serve as a starting point for work under new TSCA.
The inclusion of Section 4(h) and its provisions concerning the reduction and replacement of vertebrate animal testing acknowledge and speak to the emergence of animal welfare as a societal issue of consequence since TSCA's 1976 enactment. The provisions require that EPA:
» “[R]educe and replace” the use of vertebrate animals “to the extent practicable, scientifically justified, and consistent with the policies” of TSCA (Section 4(h)(1)). In meeting this obligation, EPA is required to:
» “[Take] into consideration” “reasonably available existing information” including toxicity information, computational toxicology, and high-throughput screening methods; and
» Encourage and facilitate the use of strategies to reduce and replace such testing, group chemicals into categories where testing strategies could be used to develop information on other members of the category, and others.
A good argument can be made that these information sources and tools encompass predictive approaches such as Structure Activity Relationships (SAR) as an alternative to vertebrate animal testing. SAR was developed historically and relied upon by EPA in assessing new chemicals that were frequently notified under TSCA Section 5 without any accompanying test data. Over the past almost four decades, SAR has shown itself to be a most powerful force in reducing vertebrate animal testing under old TSCA and elsewhere in the world. For a more detailed discussion of EPA's approach to SAR under old TSCA, see C. Auer and J. Alter, 2007, “The Management of Industrial Chemicals in the USA,” Risk Assessment of Chemicals: An Introduction, edited by C.J. van Leeuwen and T.G. Vermeire, 553-74. Dordrecht, The Netherlands. For more detailed information on the use of SAR globally to predict fate-related physicochemical properties and health and environmental toxicity endpoints, and to develop intelligent testing strategies, see chapters 9 through 11 in Risk Assessment of Chemicals: An Introduction.
New TSCA requires that EPA develop and periodically update a strategic plan to promote alternative test methods. There is also a provision concerning voluntary testing intended for submission to EPA that requires the developer to “first attempt” to test using alternative methods identified by EPA.
Conclusions
I opened the article with my statement that the central failing of old TSCA was the inability of Section 4 to produce the information and understanding needed by EPA to assess and manage the risks of existing chemicals. New TSCA provides increased authority, whereby EPA should be able to efficiently and effectively compel the development of needed information for a variety of purposes. As revised, the law offers great potential as a means to ensure that EPA can generate timely information when needed to assess human and environmental toxicity endpoints, and exposure situations and scenarios. The information will be used for the purposes of reviewing new chemicals and for prioritization and risk evaluation of existing chemicals and, thereby, will inform risk management decisions required under the Act. The new law also demonstrates its sensitivity to the current societal tension between the need for testing as a means to provide information and understanding required to protect human health and the environment versus the competing need to reduce and replace vertebrate animal testing when this can be scientifically justified and practicably achieved. I offer my congratulations to all who contributed to the achievement of these stellar outcomes.
In closing, I encourage EPA to apply its new testing authority wisely and appropriately to meet the purposes under the new law, and reflect particular sensitivity in deploying this authority in the case of new chemicals notified under Section 5(a)(1). It is my view that new chemicals for which EPA has made the “insufficient” information (Section 5(a)(3)(B)(i)) or “exposure”-based (Section 5(a)(3)(B)(ii)(II)) determinations under new TSCA should be allowed to enter commerce while testing requirements are met over time. In my experience while running the Section 5 program at EPA, the usual regulatory outcome for “exposure-based” new chemical cases was limited to a Section 5(e) consent agreement imposing “triggered” testing requirements. Under this approach, the needed testing was required to be developed following commercialization based on a time or volume “trigger” that specified when the test data reports needed to be submitted. I believe, based on my experience while at EPA, that upfront or too-heavy a testing burden can have a stifling effect on commercialization of new chemicals. This would be unfortunate if realized as, over the course of my EPA career, I came to see new chemicals as a source of continuous innovation in the introduction, over time, of progressively safer and greener chemicals. I encourage EPA to apply both the letter and spirit of new TSCA Section 2(b) to ensure that new chemicals continue to be healthy contributor to innovation:
“It is the policy of the United States that — (1) adequate information should be developed with respect to the effect of chemical[s]…on health and the environment and that the development of such information should be the responsibility of those who [manufacture and process such chemicals]; … (3) authority over chemical[s]…should be exercised in such a manner as not to impede unduly or create unnecessary economic barriers to technological innovation while fulfilling the primary purpose of this Act to assure that such innovation and commerce in such chemical[s]…do not present an unreasonable risk …to health or the environment.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95854738&vname=dennotallissues&fn=95854738&jd=95854738
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Biotechnology Sector May Face Increased Data Requirements Under TSCA
Aug 16, 2016 | Inside EPA
By Maria Hegstad
Revisions to the way EPA assesses chemicals' potential risks under the amended Toxic Substances Control Act (TSCA) could require the nascent biotechnology industry to provide EPA with additional information to aid the agency in determining risks to sensitive subpopulations and conditions of use, an attorney tracking the issue says.
Lynn Bergeson, managing partner with the firm Bergeson & Campbell, told a National Academy of Sciences (NAS) biotechnology panel recently that she anticipates changes to Sections 3, 4, and 5 of TSCA will have the greatest impact on biotechnology firms. Though the new law does not address biotechnology specifically, changes to these sections will affect companies engaged in biotechnology projects, Bergeson said during an Aug. 2 webinar.
The NAS committee has been tasked with giving federal agencies advice on how best to update their efforts to regulate biotechnology. The effort stems from a memo the White House Office of Science Technology Policy sent last year, which calls on EPA, the Food and Drug Administration (FDA) and the Agriculture Department (USDA) to work together to update the 30-year-old agreement on how the three agencies share oversight of biotechnology.
Bergeson, in speaking to the panel about how the TSCA changes affect biotechnology, pointed to the changes in how EPA is to assess chemicals. For example, Section 3 now requires EPA risk analysts to consider subpopulations that may may be exposed to a chemical under assessment or may be particularly susceptible to exposures to the chemical under assessment. Another new concept in Section 3 also directs EPA analysts to consider the chemical in the context of its intended use, a term Bergeson describes as a "centralizing concept by which EPA determines how a chemical is manufactured, processed, used, and disposed," in slides she presented at NAS.
These two new concepts and their definitions are "a very important add to the law," Bergeson said, noting that when EPA risk assessors are reviewing chemicals to determine whether they meet the new statue's risk standard of not posing an unreasonable risk to human health or the environment, they must consider these two elements. "To me this is a very [important] aspect of new TSCA," she said.
Bergeson also pointed to changes in testing language in Section 4. Bergeson said that while she personally agrees with language in the new law that encourages EPA to consider alternative methods of testing chemicals' toxicity before resorting to traditional animal toxicology tests, this may impact biotechnology companies.
"Animal testing per se is now to be disfavored, per section 4. But absent rats or mice, we would suggest that an immuno absent organism is not the only standard against which to be measured," she said. "A move away from animal testing is of course great, but raises question of what will replace that." Bergeson pointed to one technique, known as Structural Activity Relationship modeling (SAR), long used in EPA's pre-manufacturing notice (PMN) program for assessing new chemicals, which she called "a very useful tool in assessment."
EPA's Authority
Bergeson added that overall, the changes to Section 4 "significantly expands EPA's ability to have information generated. It allows EPA to test for exposure -- very important. It is not clear as we speak now what the protocols and methodologies to generate these . . . will be." These changes "will have an impact on the review of new and existing chemicals," she said.
In the original TSCA, existing chemicals -- those on the market when the original law passed into effect in 1976 -- were treated markedly differently from new chemicals. They were largely grandfathered under TSCA while manufacturers of new chemicals had to notify EPA before commencing manufacture of their new products. EPA then had 90 days to review these submissions if it chose to do so, and had the authority to restrict or bar the chemical from entering the market.
The new TSCA, which took immediate effect when President Obama signed it into law June 22, requires EPA to review all such new chemical submissions, and to reach one of several conclusions: that the chemical presents an unreasonable risk to human health or the environment, that EPA has insufficient information to make a determination, or that is not expected to present an unreasonable risk.
TSCA has traditionally considered microorganisms as part of its definition of the "chemicals" that it regulates, Bergeson noted, and that has not changed with the new reform law. As before, EPA will consider some applications for use of new biotechnologies through its Section 5 authority to issue microbial commercial activity notices (MCANs). As with PMNs for new traditionally-generated chemicals, EPA must make one of these same three affirmative findings for MCAN submissions.
There will be an "impact on biotech, sure," Bergeson said, adding that EPA was "not historically required to process many MCANs. They are not generally found to be lacking information." She also noted that EPA last year -- acknowledging a growing number of MCAN proposals and expecting more -- started the process of updating its advice to biotechnology companies on what kinds of information agency staff find useful as they review MCANs.
"Lack of information may impact biotech industries," Bergeson said of EPA's review of some of these new products. "Including review of potential exposures of susceptible subpopulations [and conditions of use] will have an impact, because it's not clear at this early time" how these terms will be addressed.
Steven Evans, an NAS panelist and fellow at Dow AgroSciences in seeds discovery research, asked Bergeson what "might be substantially different about getting those organisms through this new process? If someone has made a new organism intergenically, will it be more difficult or less difficult to make something as a chemical that is already on the market?"
Bergeson replied that "obtaining any new chemical, and new use notification will be more difficult than status quo. Whether it will be substantially more difficult is hard to say." But "it will be more difficult, more time consuming, and more costly, depending on how the fee situation sorts out," to get them on TSCA inventory, she said.
Regulating Chemicals
The new law also directs EPA to take a more active role in regulating existing chemicals, by directing the agency to prioritize existing chemicals for assessment and requiring the agency to assess a certain number of these chemicals each year.
Biotechnology in some cases turns this dichotomy on its head -- as in the case of using a new and different process to create an existing chemical on the TSCA inventory. For example, using a modified algae to create an existing chemical that traditionally is produced with petrochemical feedstocks -- the kind of scenario that NAS touted in a 2015 report as a major advantage of the biotechnology industry.
Bergeson said that she did not expect the other changes to TSCA, while they may be impactful to the chemical industry broadly, to affect the biotechnology industry in the same way. As examples, she pointed to changes in Section 6, which are expected to make it easier for EPA to ban or restrict a chemical that it finds presents unreasonable risk to human health or the environment; the law's requirement that EPA update its TSCA inventory or changes to TSCA's trade secrets provisions.
Bergeson said she did not think that the changes to Section 6 will impact the biotechnology sector. "Unlike many of the other existing substances . . . some of the historic non-reviews for more conventional substances simply doesn't apply" to biotechnology-produced chemicals, Bergeson said. "Similarly, I don't believe that many of the biotech chemicals present the type of risk that Section 6 is designed to address."
http://insideepa.com/daily-news/biotechnology-sector-may-face-increased-data-requirements-under-tsca
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(ACC Blog) Finland Listens To The Science On BPA
Aug 15, 2016 | American Chemistry Matters
By Steven Hentges, Ph.D
The Finnish Institute of Occupational Health and the National Institute for Health and Welfare recently released a report on exposure of hairdressers to several chemicals, one of which was bisphenol A (BPA). First for the bottom line: “According to the results, hairdressers in Finland are not exposed to…bisphenol A…any more than the rest of the population.”
You’re probably not reading this blog because you’re interested in the health of Finnish hairdressers, but this seemingly innocuous finding reveals several important points about the safety of BPA. For some time, concerns have been raised that hairdressers may be exposed to unsafe levels of various chemicals from use of hair care products in the salon. We can now be sure that BPA is not one of them.
Even if you’re not a hairdresser, this conclusion is still worth noting, assuming you use hair care products. If hairdressers, applying hair care products throughout their workdays are not exposed to BPA, it seems highly likely that consumers using the same products on their own hair would also not be exposed to BPA.
The report’s findings shouldn’t be surprising—BPA has no known use in hair care products, or other personal care products for that matter. Even though BPA is primarily used to make polycarbonate and epoxy resins, there’s a common misconception that BPA is an “everywhere chemical.” (If you don’t believe me, google “everywhere chemical BPA” to see what “facts” the internet has to offer.)
Perhaps most importantly, the conclusion of this new report is consistent with the views of many other government bodies worldwide that have reviewed BPA. The Finnish report concluded that “the measured urinary concentrations of these chemicals are below the available health-based guidance values,” meaning no health risks were identified.
Similarly, the European Food Safety Authority recently concluded that “BPA poses no health risk to consumers of any age group (including unborn children, infants and adolescents) at current exposure levels.” Even more to the point, the U.S. Food and Drug Administration answers the question “Is BPA safe?” with the straightforward answer “Yes.” They’re all just listening to the science on BPA.
https://blog.americanchemistry.com/2016/08/finland-listens-to-the-science-on-bpa/
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(ACC Mentioned) Rethink How Chemical Hazards Are Tested
Aug 16, 2016 | Nature
By John C. Warner& Jennifer K. Ludwig
John C. Warner and Jennifer K. Ludwig propose three approaches that would help inventors to produce safer chemicals and products.
Around the world, safety regulations are being revised as new information about the health and environmental effects of chemicals becomes available. In June, US President Barack Obama signed the first bill to reform the Toxic Substances Control Act since its enactment 30 years ago. The revised act mandates greater public transparency and the timely assessment of existing chemicals by the US Environmental Protection Agency (EPA). Elsewhere, the European Union's REACH (registration, evaluation, authorization and restriction of chemicals) legislation and similar laws are also evolving.
Improved regulation is necessary to protect people and the environment from harmful substances. But it does little for inventors who face the perplexing task of creating safer chemicals and products1. In the current system, safety information is gathered after a chemical is invented, or in many cases, after it is incorporated into products and distributed to the public. The molecular interactions of chemicals within products are unaccounted for, meaning that ingredients lists may be misleading as sources for product safety information. Such factors make it nearly impossible for an inventor to avoid the risk of creating an unsafe chemical or product.
The evaluation and communication of chemical and product safety needs to change. Three approaches are proposed here to start a conversation between scientists, business representatives and policymakers about our future public and environmental health.Three ways forward
Standardize chemical-safety tests. Controversy on chemical safety often arises when organizations, from corporations to research centres and government agencies, test the same compound using different methods. One technique may suggest that a compound is hazardous, another that it is benign. For example, glyphosate, a widely used herbicide, was in 2015 deemed a “probable human carcinogen” by the International Agency for Research on Cancer2. Many other regulatory agencies, including the European Food Safety Authority, conversely concluded that the herbicide was “unlikely to be carcinogenic”. The discrepancy lies in the different studies taken as evidence, which leaves the public more confused about the safety of glyphosate than before.
Standardized tests reduce the use of replacement chemicals that are as problematic as, or worse than, the original substance. For example, some structural analogues of bisphenol A (BPA), which are used in a variety of plastic products, have similar toxicity and hormonal effects to BPA3. Likewise, hydrofluorocarbons and hydrochlorofluorocarbons are often used as substitutes for chlorofluorocarbons (CFCs), ozone-depleting chemicals that were used widely as refrigerants and aerosol propellants. Although not as harmful as CFCs, the substitutes still damage Earth's ozone layer4.
Further, by knowing which tests must be carried out in advance, inventors will save time and money, making it easier to rationalize the large investment necessary to develop a material.
Creating a set of nationally or internationally standardized safety tests will require input and compromise from industrial, academic and governmental organizations, such as the American Chemistry Council, the Environmental Working Group and the EPA. Everyone will endorse some tests, such as those for physical chemical properties. Others will be difficult to agree on or are yet to be established, such as those for endocrine disruptors, a type of hormone-mimicking molecule5. Information gaps will need to be identified, such as methodologies for testing the various phases of materials. A mechanism to periodically review and amend the list of tests should be put in place, based on existing processes for evaluating individual molecules used by the EPA, REACH, corporations and government bodies.
Test finished products. Ingredients entering a manufacturing process do not necessarily represent the chemical composition of the final product. Some molecules disappear; others interact to form new compounds when exposed to different substances or changes in temperature and pressure. A better way to understand a product's impact on human health and the environment is to test the final product. For example, one study that screened a sample of pizza box6 revealed many unidentifiable compounds, raising questions about the content and safety of everyday products.
A product could be graded on a scale of 1 to 10 (1 being benign and 10 being highly toxic) based on its performance in a series of standard tests in different categories. Consumers would be informed of product safety and suppliers need not reveal trade secrets. If a product's performance in one or more of the tests is unacceptable, the manufacturer can look down its supply chain, identify which material is problematic, and make modifications.
Make test results public. The quantitative results of chemical and product tests should be disclosed and presented in an unbiased way. Organizations, including government agencies, non-governmental organizations and trade associations should create policies and processes to interpret the data. For example, a product might be scored for carcinogenicity, emissions and endocrine-disrupting potential. If all products in a commercial category provide this information, a consumer can make an informed decision by comparing the numbers. Consumer or non-governmental organizations should prepare guidelines on what scores one should look for.
It is important to ensure consumers know that no product is without risk. Producers with 'unacceptable' product scores would have to explain to the public why they feel that the exposure of humans and the environment to a substance is justified. Government agencies and other groups can ban products or product categories that score poorly.Path to progress
The first step towards better chemical safety is to create a list of desired endpoints — the information we would like to know about a product, such as liver toxicity, ozone depletion or carcinogenicity. There shouldn't be so many goals that the task of achieving them is impossible, or so few that it is meaningless.
Step two is to identify specific tests for each endpoint. Where consensus cannot be achieved, a mechanism for reaching agreement must be developed.
Third, we must develop protocols to define sample preparation and methods of analysis. The main goal is to create criteria that can be used to audit laboratories that perform the assays. Different states of matter and various product types should be anticipated.
Finally, scientists should convene regularly to evaluate the current state of the art and science, and make decisions based on new knowledge that challenges existing tests or offers improvements. For example, this year marks the twentieth anniversary of the first Green Chemistry Gordon conference; such meetings would be good forums for discussing commercial successes and remaining challenges in sustainable chemistry.
Overhauling chemical regulation is a daunting task, but we need a better way of protecting human health and the environment.
http://www.nature.com/news/rethink-how-chemical-hazards-are-tested-1.20413
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(ACC Mentioned) Solvay Takes Lightweight To New Levels
Aug 16, 2016 | EPPM
Solvay is taking lightweighting to new levels with its K 2016 showcase, which will plumb new depths of cutting-edge plastics technology with sustainability solutions and additive manufacturing.
Under the slogan 'More Protection, More Freedom and More Future', Solvay’s participation in the event will showcase new products, innovative customer applications, manufacturing updates and leading viewpoints on industry trends. The company will also share perspective on its strategic transformation following the recent acquisition of Cytec’s composite materials, additive stabilisation solutions and specialty chemical businesses.
Accelerating advances in polymer chemistry and composites manufacturing are driving once unimaginable opportunities for lightweighting in industries from automotive to aerospace. Solvay experts will be on-hand to discuss the company’s broader strategic outlook for this important trend. These range from Solvay’s high-performance polymers for metal replacement in today's down-sized, turbocharged automotive engines to its growing TegraLite material technologies, which aim to reduce fuel consumption, increase efficiencies and accelerate development of cost-effective, lightweight solutions for the aeronautic industry. Solvay will also share further updates about the Polimotor 2 all-plastic race engine, designed and developed by industry pioneer Matti Holztberg.
Solvay will introduce two Technyl product offerings dedicated to the automotive market: a new series of heat performance polyamide 6.6 (PA6.6) for thermal management applications and an innovative PA6.6 range with a specified and controlled halogen content tailored to fit sensitive electrical and electronic applications.
Further insights into Solvay’s commitment to lightweighting will be shared during K 2016 at a presentation by Sandra McClelland, Business Manager for Transportation at Solvay’s Specialty Polymers global business unit. Scheduled to speak on October 21 at Plastic Europe’s booth (C40, Hall 6) during the K’s Lightweighting theme day, McClelland, who is also the Chairperson for the American Chemistry Council’s Plastics Division Auto Team, will spotlight how advanced polymers are helping reduce CO2 emissions by lowering vehicle weight.
Solvay’s additive manufacturing solutions will also figure prominently at K 2016. In addition to advances in leveraging specialty polymers for additive manufacturing, the company will introduce new additions to its Technyl Sinterline polyamide (PA) powders line. These new products are specially designed for 3D printing applications and for development of 3D printed prototypes for small series, predictive performance simulation and functional testing.
Sustainability, another hot topic at K 2016, is a hot topic for Solvay as well. Resulting from its Move 4earth project, Solvay will launch Technyl 4earth premium recycled solutions for eco-designed applications.
Move 4earth is a breakthrough recycling process able to revalue technical textile waste – initially from airbags – into high-quality PA6.6 grades with performance comparable to prime material.
During the event, the company also plans to feature high-performance materials used for binders and separators for lithium ion batteries that help enhance safety and performance. Solvay will also showcase its Cyasorb Cynergy Solutions for ultraviolet (UV) stabilisation that help polymers resist degradation due to sunlight and other sources such as fluorescent lighting.
Hall 6, Booth C61
http://www.eppm.com/k-extra/solvay-takes-lightweight-to-new-levels/
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Three New Chemicals Can Enter Market: EPA
Aug 16, 2016 | BNA Daily Environment Report
By Pat Rizzuto
Three more new chemicals are unlikely to present an unreasonable risk and may enter the market, according to recent Environmental Protection Agency analyses.
Solazyme Inc., which uses algae to make industrial chemicals, is authorized by EPA to make two of the three chemicals. Its chemicals, both glycerides (P-16-0340 and P-16-0351), will be used as lubricants or lubricant ingredients or to make other chemicals.
The manufacturer of the third chemical (P-16-0392) justified to the EPA's satisfaction its need to keep its name confidential. That company can now modify vegetable oil to produce a chemical that can serve several functions, including being a fuel, fuel additive, lubricant or lubricant additive.
The EPA's recent decisions on the three chemicals mean that as of Aug. 15 it has affirmatively approved the entry of seven new chemicals onto the market using criteria established by the new Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amended Toxic Substances Control Act.
Prior to Lautenberg, TSCA did not require the EPA to make any specific finding when it reviewed chemical manufacturers' premanufacture notices (PMNs), forms companies must submit before they are allowed to make or import a new chemical in the U.S.
Under Lautenberg
Subsequently, if the EPA took no action during the 90-day review period that TSCA provides for new chemicals, the new molecule simply could enter the market after the review period expired.
Now the EPA must review new chemicals using criteria—such as their risk to potentially exposed or susceptible populations—established by Lautenberg.
The amended law also requires the EPA to reach one of four decisions about each new chemical. The agency must find that either the chemical:
• “presents an unreasonable risk,” and the EPA must issue an order authorized under Section 5(f) of TSCA to manage the risk;
• information is insufficient to evaluate the chemical and the EPA must issue a Section 5(e) order to obtain more information;
• “may present an unreasonable risk,” and the EPA must issue a 5(e) order to manage the risk; or
• is “not likely to present an unreasonable risk” and can enter the market.
All seven of the new chemicals for which the agency has announced findings were deemed by the EPA to be “not likely to present an unreasonable risk.”
Hundreds of Decisions Pending
Chemical manufacturers have yet to see what concerns, lack of data or other factors would trigger any of the remaining three findings.
As of Aug. 15, the EPA was reviewing 416 premanufacture notices, an agency spokeswoman told Bloomberg BNA.
A total of 336 PMNs, including the seven for which the EPA has completed its analyses, were under review when President Obama signed the Lautenberg Act into law June 22, the EPA said.
The 90-day review period for those 336 PMNs was reset effective that day although the EPA repeatedly said it was trying to complete its analyses soon after they would have been finished had the law not been amended.
The EPA expects to soon publish a Federal Register notice identifying the premanufacture notices under review, the agency said.
Meanwhile, four Federal Register notices the EPA published since May 2 give some indication of the chemicals it is reviewing. Those notices show that the agency received at least 242 PMNs since March, including the seven it has since allowed to enter commerce.
According to these notices, the EPA received:
• 58 PMNs between March 1 and March 31 (81 Fed. Reg. 26,224);
• 58 PMNs between April 1 and April 29 (81 Fed. Reg. 35,351);
• 66 PMNs between May 2 and May 31 (81 Fed. Reg. 45,148); and
• 60 PMNs between June 1 and June 30 (81 Fed. Reg. 49,976).
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95854749&vname=dennotallissues&fn=95854749&jd=95854749
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US EPA Issues Three PMN Determinations
Aug 16, 2016 | Chemical Watch
The US EPA has issued three determinations for pre-manufacture notices (PMNs) of new substances.
Under the Lautenberg Chemical Safety Act (LCSA) – which modernised TSCA – the agency must make 'an affirmative finding of safety' before a new substance can be placed on the market.
The agency found each of the following three substances "not likely to present an unreasonable risk" during the PMN review:generic glycerides, C8-18 and C18 unsaturated, from fermentation, intended for use as a feedstock for the oleochemical industry;generic glycerides, C14-18 and C16-C18 unsaturated, from fermentation, also intended to be used as a feedstock for the oleochemical industry; andgeneric modified vegetable oil, intended to be used as a wax.
In determination documents for the substances, the EPA found each to be persistent or very persistent. But the agency felt they did not pose an unreasonable risk due to their low potential for bioaccumulation and low human health and environmental hazard.
https://chemicalwatch.com/49129/us-epa-issues-three-pmn-determinations
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Consumer Groups Say Food Additive Rule ‘Lost Opportunity'
Aug 16, 2016 | BNA Daily Environment Report
By Casey Wooten
Consumer groups are calling the Food and Drug Administration's recent final rule regulating chemical ingredients in food a “lost opportunity” to tighten oversight of the food industry.
The Food and Drug Administration released final rules Aug. 12 which clarified guidelines for determining a food ingredient to be GRAS, shorthand for “generally recognized as safe.” The rules also formalized a voluntary notification process in which companies inform the agency of GRAS ingredients. Previously, the FDA used a petition process in which the agency played a larger role in classifying GRAS ingredients.
Unlike food additives, GRAS ingredients are not subject to pre-market approval by the FDA, though they must be widely considered safe by scientific community.
Consumer groups said the final rules put in place a process in which companies vouch for the safety of their own product, presenting a conflict of interest and putting consumers at risk.
“This doesn't do anything to address our central problems with the current system,” Melanie Benesh, a legislative attorney at the Environmental Working Group, told Bloomberg BNA.
Some said the rule's voluntary notification process amounts to preserving a loophole for food companies to add chemical ingredients into their products with little oversight.
“The decision is a lost opportunity to close a widely-abused loophole that allows chemicals to be approved for use in food with no notification or review by FDA,” Tom Neltner, chemicals policy director for the Environmental Defense Fund, said in an Aug. 12 blog post.
In its final rule, the FDA said that the voluntary program streamlines its GRAS evaluation process and enables the agency to spend its resources evaluating higher-priority substances. Both the FDA and food makers have been using the program since rules were first proposed in 1997.
Legislative Response
Sen. Ed Markey (D-Mass.) released a statement Aug. 12 opposing the program and suggested a legislative effort to change the rules.
“The health and well-being of the American people depend on a meaningful food safety regulatory policy, not a self-graded take home exam that industry doesn't even have to hand in,” Markey said. “The FDA missed an opportunity to strengthen the GRAS process by requiring mandatory reporting of GRAS substances. I plan to explore whether a legislative remedy is needed to ensure the safety of our food supply.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95854764&vname=dennotallissues&fn=95854764&jd=95854764
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The Future Of Formaldehyde For Furniture Manufacturers
Aug 15, 2016 | Woodworking Network
By Frank Devlin
Many furniture manufacturers are improving the efficiency of their processes, eliminating unnecessary costs, and improving quality by using structural plywood and oriented strand board (OSB) in their frames. OSB produced to U.S. Product Standard PS 2, and structural plywood produced to PS 2 or U.S. Product Standard PS 1 are typically used as floors, walls, and roofs.
The same strength and durability qualities required by building codes makes these panels excellent for furniture components. These structural panels have become much more common recently as manufacturers work to streamline and automate their assembly processes.
In addition to gaining the strength properties of structural panels, manufacturers achieve efficiencies that make them more competitive against imported furniture products. Recent studies by APA–The Engineered Wood Association reveal that the use of plywood and OSB in furniture frames has grown from 10 percent of the total market in 1992 to 41 percent today.
Due to concern over health issues related to elevated levels of formaldehyde, regulations on formaldehyde emissions from glued furniture components have been implemented in the U.S. Because structural plywood and OSB have been exempted due to their low formaldehyde emissions, many furniture producers are choosing these products as the most effective method of compliance.
The Future for Formaldehyde
On July 27, 2016, the EPA released their prepublication version of the rules for “The Formaldehyde Emission Standards for Composite Wood Products Act of 2010.” This national “formaldehyde act” establishes formaldehyde emission standards for composite wood panels and finished goods made with these products. Composite panels are defined as particleboard, medium density fiberboard (MDF) and hardwood (decorative) plywood. One year after the rule is published, composite wood products and finished goods that are sold, supplied, offered for sale, manufactured, or imported in the U.S. will need to be labeled as TSCA Title VI compliant.
With respect to the structural panels made by APA members, the “formaldehyde act” is technically consistent with the Airborne Toxic Control Measure (ATCM) for composite wood issued by the California Air Resources Board in that structural engineered wood products are exempted from the scope of the act.
For more information on the EPA rules, visitwww.epa.gov/formaldehyde/formaldehyde-emission-standards-composite-wood-...
What is formaldehyde?
Formaldehyde is a naturally occurring organic airborne chemical that can be synthesized for certain industrial uses, such as adhesives used for wood products. It also can be used in the manufacturing of many other household goods, such as medical products, carpets, and even cosmetics.
At room temperature, formaldehyde is a colorless gas, which has a pungent smell at higher concentrations. Formaldehyde is a simple chemical made of hydrogen, oxygen, and carbon. It is produced and present in many natural processes including human bodies, plants and animals, and is naturally present in outdoor air.
In the U.S., formaldehyde regulations of composite wood products began in the early 1980s for particleboard and decorative plywood panels used in manufactured homes. Data indicated that emission levels from moisture resistant phenol formaldehyde adhesives used for structural plywood were very low; therefore, because of the low levels of emissions, the HUD regulations explicitly excluded plywood made with phenol formaldehyde adhesives.
North American Formaldeyde Regulations
Because the vast majority of North American construction involves site-built conditions where exposure to weather is expected, the standards for engineered wood products require moisture-resistant adhesive systems. The inherent structural and moisture durability of these adhesive systems naturally results in very low formaldehyde emissions.
Along with adhesives, four formaldehyde regulations have been placed on other wood products in the U.S. and Canada.
• U.S. HUD Manufactured Home Construction and Safety Standard (CFR 3280.308)
• California Air Resources Board (CARB) Air Toxic Control Measure (ATCM) for Composite Wood Products
• U.S. Formaldehyde Standards for Composite Wood Products Act
• Health Canada Guidelines
o Wood products manufactured in Canada are not regulated for formaldehyde emissions. Health Canada provides guidelines for residential indoor air quality and the recommended formaldehyde exposure levels. The engineered wood products in Canada and the U.S. are manufactured under similar product standards and adhesives, and have similar product performance and formaldehyde emission characteristics, which have been proven to meet the most stringent formaldehyde regulations around the world.
International Engineered Panel Regulations
Wood product standards in other countries often group structural and nonstructural panel types into a common standard, whereby the moisture resistance and formaldehyde emission characteristics are evaluated to specific criteria.
When tested to international formaldehyde emission limits, North American engineered wood products have consistently met the most stringent emission regulations. Some North American engineered wood products have been evaluated to formaldehyde emission standards in Japan, the European Union, Australia, and Korea.
What Furniture Manufacturers Need to Know
APA panels have very low formaldehyde emission levels that they easily meet or are exempt from the world’s leading formaldehyde emission standards and regulations. An APA trademark appears only on products manufactured by APA member mills and signify that panel quality is subject to verification through the APA audit. The audit is designed to assure manufacturers are in conformance with APA performance standards or Voluntary Product Standard PS1-09 for Structural Plywood or Voluntary Product Standard PS 2-10, Performance Standard for Wood-Based Structural-Use Panels.
Upholstered furniture made with structural panels bearing the APA trademark is the most effective method for manufacturers to comply with emissions standards and regulations. It also assures customers that the manufacturer is only selling the highest quality products made from engineered wood components.
http://www.woodworkingnetwork.com/wood/panel-supply/current-and-future-states-formaldehyde-and-what-it-means-furniture-manufacturers
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Fossil Fuel Industry Faces 'Existential Threats' as Shareholders, Regulators Push for Emissions Cuts
Aug 15, 2016 | Natural Gas Intelligence
By Carolyn Davis
The oil, natural gas and coal industries have found themselves under increasing pressure from shareholders, activists and government officials to reduce carbon emissions, with their fortunes and the stability of the Earth's climate now locked in a zero-sum game, according to a Rice University energy expert.
Jim Krane, the Wallace S. Wilson fellow in energy studies at the James A. Baker III Institute for Public Policy, recently published a 19-page working paper, "Climate Risk and the Fossil Fuel Industry: Two Feet High and Rising."
"The risks to the industry correlate with progress on climate goals," Krane said. "Climate's gain is the industry's loss and vice versa."
The Obama administration's multi-faceted actions to curb greenhouse gas emissions, said Krane, are prime examples of the upheaval facing the energy industry (see Daily GPI, Aug. 2). However, U.S. regulatory attempts to reduce carbon are not alone.
The Bank of England’s governor has called for leaving large portions of oil, gas and coal reserves in the ground. The International Energy Agency, the global industry watchdog, has said that two-thirds of known fossil fuel reserves possibly should never be burned in an effort to prevent average global temperatures from rising by more than 2 C (see Daily GPI, March 16). Pope Francis, meanwhile, also has called for "swift and unified global action" on climate change.
"For fossil fuel businesses, such statements represent existential threats," Krane said. "By Citicorp's estimate, large-scale resource abandonment translates into an eye-watering $100 trillion in foregone fossil fuel revenues by 2050."
Carbon emissions are falling, the U.S. Energy Information Administration noted in May (see Daily GPI, May 16). U.S. emissions decreased in 2015 and were 12% below 2005 levels.
The consequences of international action to reduce emissions further remain in doubt, but the call to action is making life "increasingly difficult for businesses that profit from fossil fuels," he said.
For the energy industry, a new set of risks has arisen. Legal and shareholder actions targeting Big Oil's stance on climate change are common, with producers urged to become more transparent in their reporting. ExxonMobil Corp. is in a legal war with some state attorneys general about its transparency in climate change research (see Daily GPI, Aug. 10).
Meanwhile, activist groups are blocking pipeline approvals and are gaining traction at the highest level, with some pipelines now tabled, including the Keystone XL system to move Canadian heavy oil to the Gulf Coast.
The coal industry is taking the brunt of the pressure today, and its fortunes rest with developing nations, where decisions to seek development are being met by international pressure to choose "an alternate path," Krane noted.
However, it's not a dire for natural gas enthusiasts. "In fact, many anti-carbon policies that would damage coal would benefit gas, whether carbon taxes, cap-and-trade schemes, or other restrictions."
By contrast, oil is "insulated by its unique and valuable role in transportation." But that doesn't mean the oil industry is unaffected by pressures from within and outside.
"Expectations of escalating restrictions encourage increases in current production," Krane said. "Environmental regulation could, through the 'green paradox' lead to lower oil prices, increased demand, and a gain in market share by low-cost producers like Saudi Arabia at the expense of higher cost ones like those in North America."
Because upstream investments typically are based on 20- or 30-year timelines, the possibility exists that financial returns will be impacted by climate action and a turn to more renewables, Krane said.
"Competition among producers for market share will be complemented by competition between fossil fuels and renewables. Divestment and policy risks will magnify the challenges."
Sectors threatened by climate change, such as insurance companies, may press for more divestments by fossil fuel companies. In turn, institutional investors and individuals may reward companies based on "future proofing" and penalize those they deem too exposed to carbon.
Royal Dutch Shell plc's takeover of gas-focused BG Group plc is one example of how former oil-directed producers have moved toward capturing more natural gas reserves. ExxonMobil Corp. did the same with its takeover of onshore expert XTO Energy Inc. a few years ago, assuring it would become the No. 1 gas producer in North America. France's oil major Total SA has taken a different path, betting on renewables and battery storage.
"Whether through taxes, legal restrictions, moral arguments, favoritism for competitors or hampered access to financial markets, the industry faces a future that is less accepting of its current practices," Krane noted. "Some businesses will not survive. For others, the risks warrant changes in strategic direction."
However, while businesses "may face existential threats from climate action," Krane said, "these are dwarfed by a far greater risk -- the possibility that climate actions may fail."
http://www.naturalgasintel.com/articles/107416-fossil-fuel-industry-faces-existential-threats-as-shareholders-regulators-push-for-emissions-cuts
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States’ Efforts To Curb Fracking-Related Earthquakes Appear To Be Paying Off
Aug 15, 2016 | The Washington Post
By Jen Fifield
Stopping an earthquake before it starts? It sounds like a feat possible for only a superhero.
But policymakers in Kansas and Oklahoma are showing that insofar as humans are causing earthquakes, they can stop them, too. After restricting oil and natural gas operations in certain hot spots, Oklahoma is feeling an average of about two earthquakes a day, down from about six last summer, and Kansas is feeling about a quarter of the tremors it once did.
Using a growing body of research, along with trial and error, scientists and state regulators are getting closer to pinpointing the cause of the startling increase in earthquakes in the central and eastern parts of the country, and preventing them.
The general cause, scientists have found, is not drilling, but what happens after, when operators dispose of wastewater that comes up naturally during the oil and gas extraction process. The operators inject the wastewater into disposal wells that go thousands of feet underground, which can increase fluid pressures and sometimes cause faults to move.
Since March 2015, Kansas and Oklahoma have placed new restrictions on how much wastewater each operator in certain areas can dispose of at a given time.
About 7 million people in central and eastern states are now at risk of man-made shaking powerful enough to crack walls and knock items off shelves, according to a one-year forecast released by U.S. Geological Survey in March. The report outlined the risk from man-made earthquakes for the first time, listing the states with the highest risk as Oklahoma, Kansas, Texas, Colorado, New Mexico and Arkansas.Political tensions
The tension below ground brought rise to political tension, too. Many of the epicenters are in rural towns in conservative states, which generally shy away from government regulations. The oil industry regulators in Oklahoma and Texas are elected officials, with campaigns often funded in part by contributions from the industry, said Cliff Frohlich, a seismologist with the University of Texas at Austin who has studied man-made quakes in Texas.
In Oklahoma, Gov. Mary Fallin (R) was at first hesitant to connect wastewater disposal with the quakes. Now, she’s taking action. In January, she allotted $1.4 million in emergency funds to the state’s regulators and scientists to increase the monitoring and research.
“Like many other Oklahoma residents, I have felt my walls shake from earthquakes that have struck our state with increasing frequency over the past few years,” Fallin wrote that month.
States in the central part of the country really weren’t ready for earthquakes, because they didn’t need to be. From 1973 to 2008, according to USGS, the region saw, on average, 24 earthquakes of magnitude 3 or larger each year. (These are quakes that can cause at least minor damage.)
The USGS tallied 1,010 earthquakes in the region last year, a number that had increased steadily from 318 in 2009. Parts of this region, including northern Oklahoma and southern Kansas, are now as seismically active as California.
“Every scientist working in the midcontinent of the U.S. is pretty confident that the vast majority of these earthquakes are induced,” said Tandis Bidgoli, an assistant scientist and geologist for the Kansas Geological Survey.
The spike corresponds with the drastic increase in oil and gas operators’ use of hydraulic fracturing, or fracking, a technique in which water, sand and chemicals are pumped at high pressures underground, fracturing rock and freeing trapped oil and gas. Fracking has allowed operators to drill in new places and get much more from each site. While fracking itself is rarely the cause of quakes, it is one reason there is so much more wastewater to dispose of, Bidgoli said.
Injection wells have been safely used for wastewater disposal for decades, with permission from the U.S. Environmental Protection Agency, which has directed operators to bury the water thousands of feet below ground to avoid surface contamination. But now the agency is looking for other options.
Meanwhile, scientists are trying to pin down answers: Is the wastewater being buried too deep, or is there too much being buried, or are large amounts being buried too quickly?
States’ responses to the quakes have varied. Scientists and regulators say that’s mostly a good thing, because the geology of each area varies.
Since 2008, Arkansas, Colorado, Ohio and Texas have placed new restrictions on the disposal of wastewater in injection wells, although those haven’t affected operations as broadly as the new rules in Kansas and Oklahoma.
Kansas was studying the issue in 2014 when a magnitude-4.8 earthquake hit southwest of Wichita. That day, Gov. Sam Brownback (R) announced the expansion of the state’s seismic monitoring system. In March 2015, the Kansas Corporation Commission began limiting wastewater disposal in five zones and two counties.Fewer tremors
Since then, the state has felt fewer tremors. In the last six months of 2015, there were 39 quakes of magnitude 2.8 or larger, compared with 48 quakes during the last six months of 2014. In the first six months of 2016, only 11 were recorded by USGS. This is probably a result of the new restrictions and the slowdown in oil and gas production, said Rex Buchanan, interim director of the Kansas Geological Survey. The number of oil and gas wells drilled in the state declined almost 64 percent, to 2,080, in 2015.
Oklahoma was slower to make sweeping changes, although it began regulating the wells in 2013. In spring 2015, the state took its first broad approach, asking all operators to prove they weren’t drilling too deep. But when quakes continued to increase, the state decided that volume cutbacks were needed. In March, the Oklahoma Corporation Commission began restricting how much wastewater operators dispose of in about 600 of its 3,800 disposal wells, in certain hot spots.
Since the regulations took effect, Oklahoma operators have drilled a million barrels fewer each day, a decrease driven by both the new rules and low oil and gas prices, said Jeremy Boak, a geologist and director of the Oklahoma Geological Survey.
Oklahoma felt 619 earthquakes of magnitude of 2.8 or greater from January through June, compared with 701 during the same time last year, according to USGS data.
Regulators in Kansas and Oklahoma say oil and gas companies resisted the new rules at first, but the companies are now cooperative, even helpful, in providing information about their land and operations.
This is mostly because the companies are a part of the communities they work in, said Steve Everley, a spokesman for Energy in Depth, an advocacy branch of the industry-backed Independent Petroleum Association of America.
“At the end of the day, they just want the earthquakes to slow down and eventually stop,” Everley said. “If that means do this or do that, they are willing to do that.”
Scientists are worried about what will happen when production picks up again. If the business becomes more profitable, more people in larger areas may be at risk of quakes, Bidgoli said.
https://www.washingtonpost.com/national/health-science/states-effort-to-curb-fracking-related-earthquakes-appear-to-be-paying-off/2016/08/15/d0a71108-49ce-11e6-90a8-fb84201e0645_story.html
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Court Improperly Blocked Fracking Rules: Interior
Aug 16, 2016 | BNA Daily Environment Report
By Alan Kovski
A federal district court misconstrued the broad authority granted to the Bureau of Land Management when the court blocked the bureau's new regulations of hydraulic fracturing on federal and Indian lands, the Obama administration told an appeals court Aug. 12 (Wyoming v. Jewell, 10th Cir., No. 16-8068, 8/12/16).
The federal government's opening brief in the appeals court case could have a substantial impact on the economic and regulatory practicality of many oil and gas operations on millions of acres of land, mostly in Western states, where fracking is used on the majority of new wells.
The government told the U.S. Court of Appeals for the Tenth Circuit that a century of precedent and federal regulations supported the bureau's power to regulate oil and gas activities, including fracking, under authority of the Mineral Leasing Act of 1920, Federal Land Policy and Management Act, and Indian mineral statutes.
“BLM and its predecessors have been doing so for nearly 100 years, and modern hydraulic-fracturing operations simply are a new version of historically regulated well stimulation techniques,” the government said.
Courts also owe deference to bureau's interpretation of its authority where statutory ambiguity may have left unclear the exact extent of that authority, the government said.
Focus on Sovereignty Issue
What states and companies fear is that the federal regulations, issued as a final rule in March 2015, will override and overcomplicate existing state regulations for oil and gas activities on federal lands within a state's borders.
For Wyoming, Colorado, Utah, North Dakota and the Ute Indian Tribe, it also is a matter of defending state and tribal sovereignty. For two industry groups, the Independent Petroleum Association of America and the Western Energy Alliance, the arguments to the district court stressed their view that the federal regulations were in many ways impractical and unnecessary.
The U.S. District Court for the District of Wyoming based its June 22 decision entirely on the sovereignty issue, leaving the arguments over practicality to be addressed, if necessary, at a later date. The sovereignty argument also has been referred to as the constitutional argument because of the Tenth Amendment statement that all powers not delegated to the federal government are reserved to the states.
The district court said the laws that the Bureau of Land Management cited did not explicitly give the bureau authority over subsurface activities such as fracking, a well-stimulation technique that creates fractures through which oil or natural gas can flow. Instead, those laws were concerned with managing a leasing regime, preventing waste of resources and minimizing surface disturbance, the court said.
The district court also said the Energy Policy Act of 2005 restricted the Environmental Protection Agency's authority to regulate fracking to situations where diesel fuels were used—an amendment of the Safe Drinking Water Act. That legislation carried with it the implication that the EPA, not the BLM, could exercise a very limited authority over fracking, the court said.
Energy Policy Act Intent Disputed
The Energy Policy Act of 2005 was not designed to limit the bureau, the Obama administration told the appeals court.
“BLM's authority over resources owned or held in trust by the United States is distinct from the SDWA regime, which was enacted under the Commerce Clause, is administered by EPA and the states, and applies to both public and private property,” the government said.
“The SDWA's legislative history specifically states Congress's intent to preserve BLM's authority to prevent ‘groundwater contamination' under the ‘Mineral Leasing Act' and ‘any other legislation,'” the government said.
“And, by its own terms, the 2005 amendment to the SDWA applies only for purposes of Part C of the SDWA,” the government said, referring to the Underground Injection Control program created by Part C of the act.
Appellants along with the BLM are the Interior Department, Interior Secretary Sally Jewell and BLM Director Neil Kornze. Consolidated with the government's appeal is an appeal by several environmental advocacy groups led by the Sierra Club.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95854752&vname=dennotallissues&fn=95854752&jd=95854752
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In Appeal Of US Fracking Ruling, Arguments Center On Precedent
Aug 15, 2016 | Platts
By Brian Schei
"The decision ignores decades of case law," said Mike Freeman, a Colorado-based attorney with Earthjustice. "We respectfully think that the judge got it flat wrong."
On Friday, Earthjustice, along with the Sierra Club, filed opening briefs with the 10th US Circuit Court of Appeals in an appeal case that may ultimately determine whether the federal government can regulate fracking.
The US Department of the Interior also filed briefs arguing that a century of legal precedent and federal regulations allow the agency's Bureau of Land Management to regulate fracking."BLM has the authority to oversee resource extraction on federal and Indian leases, including well-stimulation activities, to protect natural resources and the environment," Interior wrote. "BLM and its predecessors have been doing so for nearly 100 years, and modern hydraulic fracturing operations simply are a new version of historically regulated well stimulation techniques."
In March 2015, BLM finalized new rules that included new chemical disclosure, well construction, and fluid disposal requirements for fracking operations on federal and Indian land. Production on those lands currently accounts for about 5% of total US oil supply, according to the US Energy Information Administration.
Industry groups, including the Western Energy Alliance, and states, including North Dakota and Wyoming, successfully sued to have the rules overturned.
In June, US District Court of Wyoming Judge Scott Skavdahl ruled that Interior's fracking rule was "in excess of its statutory authority and contrary to law."
In his decision, Skavdahl wrote that his decision did not deal with whether fracking is "good or bad for the environment," just whether Interior had authority to regulate the practice.
Freeman with Earthjustice called Skavdahl's ruling a "legal error," and claimed that BLM was simply updating its regulations for the first time in roughly 30 years.
"These aren't radical requests," Freeman said. "Most of the requirements are industry best management practices."
Freeman said that answers from petitioners in the case to the briefs filed last week, including responses from the states and industry groups fighting the rules from taking place, are due by September 16. Replies to those answers are due October 7 and, Freeman said, he expects oral arguments in the case will begin before the end of the year.
The appeal could be decided in early 2017. -
EPA Issues New Fracking Analysis On Migration Pathways
Aug 15, 2016 | Inside EPA
EPA has issued a new component of its major study examining the potential impacts of hydraulic fracturing on drinking water, releasing a report analyzing well operator files from 2009 to 2010 to provide insight on the potential for fracking fluids to migrate to underground sources of drinking water.
The agency's “Review of Well Operator Files for Hydraulically Fractured Oil and Gas Production Wells: Hydraulic Fracturing Operations” examined data from 323 wells operated by nine oil and gas service companies, selected to be representative samples of the 23,2000 wells managed by those companies.
“The objective of this report was to describe, for these wells: (1) well design and construction characteristics of hydraulically fractured oil and gas production wells, (2) the relationship of well design and construction characteristics to drinking water resources, and (3) the number and relative location of well construction barriers (i.e., casing and cement) that can prevent subsurface fluid movement,” EPA said in a statement on its website accompanying release of the report, which the agency posted in July.
The report examined two potential factors that could affect the potential for subsurface fluid movement during fracking: mechanical integrity of the well and the possible intersection of new fractures with protected groundwater resources or nearby existing pathways.
The report found that “Situations that potentially allowed hydraulic fracturing fluids to move to protected ground water resources reported by well operators were identified in a small number of wells,” including well integrity failures in 0.5 percent of the wells surveyed, and cases in which perforations used for fracking were more shallow than the base of the protected ground water resources reported by well operators, which accounted for 0.4 percent.
But for both types of cases, EPA says, “Based on the information contained in the well files, it was not possible to determine whether hydraulic fracturing fluid entered protected ground water resources in these cases.”
The agency also says that it might not be possible to draw conclusions from the estimates about wells fracked after 2010, because fracking practices and regulatory requirements change over time.
Meanwhile, EPA's Science Advisory Board recently sent a letter to the agency urging it to better justify its conclusion that it found no evidence of “widespread, systemic impacts” of fracking on drinking water.
http://insideepa.com/news-briefs/epa-issues-new-fracking-analysis-migration-pathways
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API Chief Asks EPA To Refuse Refiners' Biofuel Petition
Aug 15, 2016 | PoliticoPro - Whiteboard
By Elana Schor
American Petroleum Institute CEO Jack Gerard today formalized his group's opposition to a refiner-led effort to change which segment of the energy industry is responsible for meeting the Renewable Fuels Standard, escalating a long-simmering lobbying battle over the issue.
In a letter to EPA chief Gina McCarthy, Gerard urged the rejection of a petition from the American Fuel and Petrochemical Manufacturers to shift the obligation point from refiners to marketers.
Changing that obligation point would add "[b]urdens to certain small businesses ... [which] would be forced to acquire the necessary personnel, expertise, and materials needed to navigate the complexities of compliance reporting under EPA fuels programs," Gerard wrote.
API's opposition to a change in the RFS blending obligation point first emerged in June, after Valero Energy filed its own petition urging EPA to make the change. But Gerard's letter indicates that the internal industry tensions over the issue are on the rise as lawmakers begin to weigh the long-term future of the biofuel standard.
https://www.politicopro.com/energy/whiteboard#ixzz4HUGNRC1y
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Chemical Board to Probe Texas Fuel Terminal Fire
Aug 16, 2016 | BNA Daily Environment Report
By Sam Pearson
Federal chemical safety investigators will travel to a Houston-area Sunoco Logistics Partners fuel terminal where seven workers were injured Aug. 13.
The U.S. Chemical Safety Board said Aug. 15 it would send an investigative team to the Nederland Terminal in Nederland, Texas. It is not clear if CSB's deployment will lead to a formal investigation of the incident.
According to company statements, Sunoco responded to a fire at a construction project at the facility at about 9 p.m. on Aug. 13.
Seven employees of a contractor performing welding work at the site were injured, three critically, the company said, in what was described as a flash fire originating at a crude-oil pipeline connection. Four of the workers remain hospitalized, the company said.
Chairperson Vanessa Allen Sutherland is traveling to the plant with an investigative team, the CSB said.
The agency has warned of the risks of hot work, including in a 2010 safety bulletin and safety videos in 2010 and 2012.
“The CSB has investigated too many incidents involving hot work,” Sutherland said in a statement Aug. 15. “My thoughts go out to the workers and their families affected by this tragedy.”
The Nederland facility is a significant shipping point for crude oil. The terminal can store about 24 million barrels of crude oil and is connected to pipelines stretching throughout the region, according to the company's website.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95854747&vname=dennotallissues&fn=95854747&jd=95854747
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Oil Refiners Not Doing Enough to Prevent Explosions: Safety Board
Aug 16, 2016 | BNA Daily Environment Report
By Sam Pearson
The American Petroleum Institute failed to do enough to prevent a type of potentially deadly explosions at oil refineries, the U.S. Chemical Safety Board said.
The board released a safety alert Aug. 11 that aims to prevent a damage mechanism called high temperature hydrogen attack (HTHA). It also changed a safety recommendation issued to API in 2014 to “closed - unacceptable action.” The board voted to approve the changes July 13 but announced them last week.
The board identified the problem of HTHA in its investigation of a 2010 explosion at a Tesoro Corp. refinery in Anacortes, Wash., that killed seven workers.
Board Faulted Industry Standard
In its final report on the explosion issued in May 2014, one of the safety recommendations urged API to update industry standards for refineries to prevent HTHA. The report said that API's industry standard, called API RP 941, was “written permissively” with “no minimum requirements for refiners to take any action to prevent HTHA failures.”
Ultimately, the CSB report argued, API's standard calls for maintenance practices that are “a weaker safeguard to prevent HTHA failures than the use of materials that are not susceptible to HTHA damage.”
Though API recently issued an industry alert regarding the practice, CSB said it did not go far enough to prevent HTHA.
“The CSB is concerned that the risk of equipment failure due to HTHA may not be fully known or appreciated within the industry,” CSB Chairperson Vanessa Allen Sutherland said in a statement Aug. 11. “Our goal is to help inform and educate industry of potential risk in order to prevent future accidents and to protect workers and the public.”
Michael Tadeo, a spokesman for API, said the group was reviewing CSB's findings and planned to send the agency a written response.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95854739&vname=dennotallissues&fn=95854739&jd=95854739
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Cantwell Presses DOE On Oil-By-Rail
Aug 15, 2016 | The Columbian
By Lauren Dake
U.S. senator's hearing with Energy secretary puts focus on safety with crude
When an oil train derailed in Mosier, Ore., earlier this summer, the firefighting foam that first responders rely on to extinguish oil fires dissolved before it could suppress the flames.
“The fire was burning so hot at that point, the foam disintegrated before it got to the rail cars,” Stephanie Bowman, a commissioner with the Seattle Port Authority, told U.S. Sen. Maria Cantwell, D-Wash., on Monday.
Cantwell convened a hearing Monday in Seattle with U.S. Department of Energy Secretary Ernest Moniz to discuss the increase in crude oil traveling through the state of Washington. The U.S. Energy Department has partnered with the U.S. Department of Transportation to study crude oil’s properties to better understand its volatility and how it reacts in accidents.
Cantwell said the meeting also was meant to impress upon Moniz the need for swift action to improve safety regulations around oil transport.
“After today, he has the context of how important the research is,” Cantwell said, adding that it’s important to the Northwest region, from Vancouver to Spokane to Seattle.
Cantwell is championing the idea of a national standard regulating the volatility of Bakken crude and believes the study is crucial to realizing that goal.
“Huge population centers are depending on this,” she told The Columbian after the hearing.
The region has seen a spike in rail shipments from zero in 2010 to nearly 20 trains per week in the state. Twenty-six cities in Washington have passed resolutions expressing concern or opposition to crude-by-rail, Cantwell said in a statement.
Vancouver city councilors recently approved a ban on new oil refineries and facilities, but it won’t affect the nation’s largest crude-by rail facility proposed for the Port of Vancouver.
In June, a train bound for Tacoma derailed in Mosier, and several tank cars caught fire. Many more trains would likely travel through the Gorge, a National Scenic Area, if Vancouver Energy’s plans to build the oil terminal at the port are approved.
The hearing also addressed the Department of Energy’s role in preparing for other emergencies that could affect the operation of U.S. energy infrastructure, including cyber security attacks and natural disasters such as a Cascadia Subduction Zone earthquake. Cantwell and Moniz listened to testimony from state and local officials to identify where to create public-private partnerships to respond to disasters that could impact the Pacific Northwest.
http://www.columbian.com/news/2016/aug/15/cantwell-hearing-energy-secretary-oil-by-rail-crude-safety/
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FRA Awards $3 Million Toward SMART's PTC Efforts
Aug 16, 2016 | Progressive Railroading
The Federal Railroad Administration has provided $3 million to implement positive train control (PTC) along a 2.1-mile extension of the Sonoma-Marin Area Rail Transit (SMART) system, California Rep. Jared Huffman (D-San Rafael) announced last week.
The money will be used to make improvements to satisfy federal PTC requirements, according to a press release issued by Huffman's office.
The funds also will pay for installing enhanced automatic train control communications and control systems and integrating new grade crossing warning systems on the extension between downtown San Rafael and Larkspur, Calif.
SMART was established in 2003 to manage a publicly owned railroad right of way and develop passenger-rail service in Sonoma and Marin counties. Since 2012, SMART crews have been constructing a 43-mile locally funded commuter-rail line that is expected to begin service by the end of this year.
"This grant will continue our investment in the highest level of safety as we begin the design and implementation of our next phase to Larkspur," said Judy Arnod, chair of SMART.
The SMART system eventually will serve a 70-mile corridor running from Larkspur to Cloverdale, Calif.http://www.progressiverailroading.com/ptc/news/FRA-awards-3-million-toward-SMARTs-PTC-efforts--49147
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Exxon Test Of PHMSA Gives Agency A Chance To Roar
Aug 15, 2016 | PoliticoPro
By Elana Schor and Andrew Restuccia
A legal battle between ExxonMobil and the Obama administration's pipeline safety watchdog over a 2013 oil spill could turn into a proving ground for regulators' efforts to show that their agency finally has teeth after years of outside criticism.
Exxon sued the Pipeline and Hazardous Materials Safety Administration in June to challenge an agency order that requires new safety precautions along the company's entire pipeline network after an aging oil line leaked about 134,000 gallons in Arkansas in 2013. If it prevails, the company would win back the $2.6 million fine it paid to PHMSA.
Story Continued Below
But the regulator, long assailed by complaints from both parties about its slow pace of updating regulations even after major accidents, is fighting back and winning.
The 5th U.S. Circuit Court of Appeals last week ruled against Exxon's effort to delay complying with PHMSA's system-wide safety order, which calls for a broad look at potential vulnerabilities on other pipelines welded using the same older technique that was blamed in connection with the Arkansas spill and several other recent ruptures. Allowing Exxon to avoid investigation of other aging welds on its pipelines "could result in a similar accident at another location on the same scale as what occurred in" Arkansas, the court found.
The case against Exxon, which is also battling state attorneys general over its climate research, offers new PHMSA chief Marie Therese Dominguez a high-profile platform to make good on her vow to fully leverage the agency's enforcement power. Dominguez launched a months-long enforcement assessment after her confirmation and vowed in a statement to POLITICO that PHMA "will continue to use every opportunity and tool at our disposal to raise the bar on safety."
So far in 2016, PHMSA has initiated 23 civil penalty cases and proposed $6.9 million in penalties, according to the agency’s data. That’s more than the penalties proposed in 2014 and 2015 combined, and its fourth largest total since 2002.Pipeline operators and industry observers are taking notice.
“They are starting to push it more this year," a former PHMSA official told POLITICO. "They have significant penalty authority, but they haven’t used all the headroom that they have in the past and I think they’re using more of it.”
Richard Kuprewicz, an expert pipeline engineer who's consulted for industry, environmentalists and the Arkansas water authority that challenged Exxon's Clean Water Act fine after the 2013 spill, agreed that "PHMSA is pushing as best they can, from my perspective."
But pipeline safety advocates say PHMSA still isn’t aggressive enough, noting that the agency’s six- and seven-figure fines pale in comparison to the massive penalties imposed by states like California. The California Public Utilities Commission slapped PG&E with a $1.6 billion fine for a 2010 natural gas pipeline explosion that killed eight residents of a San Francisco suburb.
In contrast, PHMSA recently proposed a $1.6 million penalty for a Louisiana pipeline accident that killed four workers in October.
Even some in the pipeline industry acknowledge the disparity. “It objectively looks weird when a state regulator imposes a bigger penalty than the federal regulator has ever had,” one industry official said.
While PHMSA’s hands are tied to some degree, Pipeline Safety Trust Executive Director Carl Weimer said the agency could do more to impose steeper fines. Weimer, a longtime outside adviser to PHMSA, said it was “confounding” that the agency sometimes doesn’t try to use more of even the limited authority it has.
He also argued that PHMSA’s performance-based regulations make it harder for the agency to find violations: “If the regulations were more prescriptive, they would be much easier to enforce than performance-based rules that have language in them about operators using their best professional judgment. Well, what does that mean?”
Indeed, a 2013 report written by a senior policy adviser to PHMSA supports Weimer’s argument.
“It is widely acknowledged that performance-based regulations are more difficult to enforce,” the report found, adding later that “[u]nless a company simply doesn’t have something that it should have (e.g., a plan to determine valve placement), enforcement can involve considerable judgment and shades of gray.”
The Exxon lawsuit underscores PHMSA's challenge in penalizing the industry for its mistakes using performance-based regulations. The oil giant enlisted a pipeline expert who co-authored a report for the agency on the testing of older pipeline welds, arguing that it was already in compliance with PHMSA's risk assessment rules.
Complying with PHMSA's system-wide order to investigate the pre-1970 welds at issue in the Arkansas case, Exxon says, would cost many times more than the $2.6 million fine it paid for the 2013 spill.
Exxon spokeswoman Ashley Alemayehu said that PHMSA examined the company's broader safety plan and its Arkansas pipeline "on multiple occasions and at no point during those reviews did the agency take issue with" its methods of predicting potential failures before the 2013 spill. "We respectfully disagree with PHMSA's after-the-fact change of its regulatory interpretation.”
Kuprewicz, the engineering consultant, slammed Exxon's arguments in court as hollow. "The claim that they all of a sudden don't know how to deal with [older pipeline welds], that it’s a surprise to them, is disingenuous at best."
But Exxon, which also fought PHMSA over a 2011 penalty for a leak on a Montana oil pipeline, is likely to be only the first company to aggressively push back against the agency’s more muscular posture on enforcement.
“I think you’re going to see more challenges to PHMSA penalties,” said the former PHMSA official, who insisted on anonymity to discuss the agency.
It’s difficult for PHMSA to impose the kinds of massive fines that California levied for the deadly natural gas explosion in 2010. Under a 2011 pipeline safety law, PHMSA can impose a maximum penalty of $200,000 per day for each violation, and $2 million for a related series of violations — a level of fines that is now being put to the test in the Exxon case. PHMSA supports raising its penalty authority, but lawmakers declined to do so in a pipeline safety bill signed into law earlier this year.
PHMSA's defenders point to last week's guilty verdict against PG&E on federal charges of violating pipeline safety law as proof that its enforcement authority can stick in court. Safety advocates and industry officials alike, however, say the agency isn’t transparent about precisely how it calculates its civil penalties.
“No one knows how PHMSA comes up with these numbers,” Weimer said.
California, for example, is more transparent about how it calculates penalties. The CPUC determined that PG&E was in violation of safety regulations for 18 million days, a finding that caused the fine to skyrocket. “They showed the math right in the filing,” Weimer said.
Another industry official, who insisted on anonymity to discuss the issue, dinged the federal agency's process for calculating its penalties as a “black box" and complained that PHMSA has rebuffed industry’s requests to publicly release the documentation outlining its methodology.
“It’s not Guantanamo Bay," the industry official said. "Let us see it.”
Pipeline operators have long raised red flags about the issue. “[T]he lack of information about how the Agency proposes and/or computes penalties becomes a concern as the amount of proposed penalties increases. Virtually all other federal agencies with penalty authority (like EPA, Corps of Engineers, etc.) have penalty policies,” Hunton & Williams lawyers wrote in 2013.
But former PHMSA officials said regulators are reluctant to provide operators with its methodology because it fears companies will game the system, and the agency notes that its system-wide compliance orders typically include a detailed breakdown of how specific penalties are tallied.
https://www.politicopro.com/energy/story/2016/08/exxon-test-of-phmsa-gives-agency-a-chance-to-roar-126410#ixzz4HUFDdDSE -
Court Filing From 6 States Supports EPA Ozone Standard
Aug 15, 2016 | E&E News PM
By Sean Reilly
A coalition of six states and state air quality agencies have explicitly endorsed U.S. EPA's new primary ozone standard, saying in a court filing that the change was needed to protect public health and that potential compliance costs are essentially irrelevant to the agency's decision.
In setting the new 70-parts-per-billion standard, EPA "cannot decide either how to implement it or whether future state implementation strategies will impose costs that are so great as to be harmful to public health," the California Air Resources Board (ARB) and the other coalition members wrote in the friend of the court brief submitted Friday to the U.S. Court of Appeals for the District of Columbia Circuit.
Their stance pits them against Texas, Utah and eight other states asking the court to scrap the standards, in part on the grounds that EPA ignored all cost considerations. They also contend that high levels of background ozone — gas falling from the upper atmosphere, drifting in from overseas or emitted by wildfires — will make compliance impossible in many instances (Greenwire, April 25).
In their brief, California and its allies disputed both assertions. EPA already has mechanisms in place to account for the impact of ozone stemming from "international transport" as well as from wildfires and other exceptional events, they wrote.
Under the Clean Air Act, moreover, states have the lead in deciding how to implement the new standard, they said. Not only does EPA frequently overestimate new regulations' price tags, but in California's case, the agency predicts all the added reductions needed to meet the new ozone standard "will come from controls for which EPA lacks reliable cost data," they said. They also noted that the standard is roughly equivalent to that adopted by ARB more than a decade ago.
Besides ARB, the filers include the states of New York, Rhode Island and Vermont; the Delaware Department of Natural Resources and Environmental Control; and the District of Columbia. California has the nation's worst ozone pollution, the brief said, while the Northeastern corridor also suffers from high levels, caused in part by pollutants carried downwind across state lines.
Ground-level ozone is formed by the reaction of nitrogen oxides and volatile organic compounds in sunlight. Besides helping to trigger asthma attacks, it can irritate lung passageways and worsen emphysema symptoms.
The previous standard, set in 2008, had been 75 ppb. EPA Administrator Gina McCarthy lowered it last October to 70 ppb, citing the legal requirement to protect public health "with an adequate margin of safety" in light of the most recent scientific research.
Not counting California, which is expected to need more time to meet the new benchmark, EPA officials project the annual public health benefits totaling at least $2.9 billion will easily outstrip the $1.4 billion compliance cost.
http://www.eenews.net/eenewspm/2016/08/15/stories/1060041627
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Defending NAAQS, Coastal States Downplay 'Background' Ozone Problems
Aug 15, 2016 | Inside EPA
By Stuart Parker
Northeastern states and California are defending EPA's decision to tighten its ozone air standard by downplaying concerns raised by critics that naturally-occurring and foreign-sourced “background” ozone levels will make the standard impossible to achieve, while also backing the agency for not considering costs in revising the standard.
In a joint amicus brief filed Aug. 12 with the U.S. Court of Appeals for the District of Columbia Circuit in Murray Energy Corporation v. EPA, California, Delaware, Massachusetts, New York, Rhode Island and Vermont, plus the District of Columbia, say EPA's Oct. 1 national ambient air quality standard (NAAQS) is legally sound. EPA last year revised the ozone limit down to 70 parts per billion (ppb), stricter than the former level of 75 ppb set in 2008.
Industry and some states in the case are attacking the NAAQS as unlawful because background ozone levels will make it impossible to meet the standard, given that regulators cannot control those sources of ozone.
Environmentalists in the suit are defending the ozone standard from such attacks, but also criticizing the limit as too weak to protect public health “with an adequate margin of safety,” as required by the air law.
In their amicus brief, California and the Northeastern states defend EPA's standards as “required by the scientific analysis in the administrative record before EPA. And State Amici have reached similar conclusions in their own regulatory proceedings.”
They reject assertions from other states, such as Arizona and New Mexico, that background ozone problems preclude attainment of the 2015 NAAQS. “Even if EPA could consider costs of implementation when setting the level of the primary standard, it may not weaken the primary standard nationwide to account for implementation costs driven by background ozone in a few areas of the country,” they argue.
Background Ozone
Primary NAAQS are designed to protect human health, while secondary NAAQS are designed to protect the environment. In its 2015 rulemaking, EPA set both the primary and secondary NAAQS at the same level of 70 ppb, despite pressure from environmentalists to set a distinct secondary standard.
“The Clean Air Act provides other mechanisms for EPA to address the impacts of background ozone, and State Amici’s experience shows that these other mechanisms work,” they add.
EPA's critics say that these mechanisms in fact are inadequate for the task. These include the “exceptional events” rule that allows states to exclude from regulatory compliance demonstrations air monitoring data gathered during unusual events such as dust storms or wildfires, and air law provisions allowing regulatory exemptions for pollution stemming from other countries.
“Congress anticipated the concerns Petitioners raise about the effects of natural and international sources of background ozone. The effects of natural background ozone are covered under the Act’s Exceptional Events provision, which provides that air quality monitoring data reflecting wildfires, dust storms or similar natural events need not affect an area’s attainment status,” the states say.
“California and other States have used these provisions to address background ozone on multiple occasions.11 States have been able to avoid nonattainment designations by successfully demonstrating that monitoring data has been affected both by wildfires (California, Kansas) and by stratospheric intrusion (Wyoming). States have been able to obtain similar relief in the context of particulate matter--which is also regulated by the NAAQS program - pointing to wildfires (Montana, California, Utah), volcanic activity (Hawaii), high winds (Arizona, Nevada), and even fireworks displays (Illinois, Utah),” the states say.
Implementation Costs
The states also refute the claim by industry petitioners in the case that EPA should have considered implementation costs when setting the NAAQS, because the costs of the stricter limit may affect public health.
The air law, as interpreted by the 2001 landmark Supreme Court ruling in Whitman v. American Trucking Associations, forecloses this claim, the states say. EPA has long stuck to this view of the high court ruling, rejecting arguments that implementation costs impact public health and hence should be considered.
Instead, EPA maintains that implementation costs be considered only in the implementation phase of the NAAQS program, where states take the lead through their state implementation plans for air law attainment.
The Northeastern states say that “by empowering States to choose their own implementation strategies, the Act recognizes that States can best evaluate the costs of potential implementation strategies and determine, in light of those costs, which strategies are most suitable for their States.”
http://insideepa.com/daily-news/defending-naaqs-coastal-states-downplay-background-ozone-problems
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‘Race to Bottom' on Labor, Environment Norms Without TPP: Official
Aug 16, 2016 | BNA Daily Environment Report
By Chris Marr
A regional trade deal led by China could help inspire a “race to the bottom” on global labor and environmental standards if Congress fails to ratify a 12-nation Pacific Rim pact, a senior U.S. trade official told Atlanta business leaders.
Deputy U.S. Trade Representative Robert Holleyman joined an Aug. 15 panel discussion aimed at urging the business community to ramp up its efforts to garner support for the Trans-Pacific Partnership (TPP).
“China's deal is probably going to get done regardless,” Holleyman said, predicting the 16 Regional Comprehensive Economic Partnership (RCEP) countries would reach an agreement by next year, if not this year.
Ratifying the TPP would save U.S. companies from being disadvantaged vis-a-vis Chinese companies and would help elevate the global standards on labor rights and environmental protections, he said. The TPP includes provisions to ensure the ability to unionize and restrictions on forced and child labor, among other standards.
The chief executive of Atlanta-based UPS, David Abney, said UPS executives and local managers around the country are planning a few dozen meetings with members of Congress in their home districts during August and September to make the case for the Trans-Pacific Partnership (TPP).
“This can't just be UPS,” Abney, who is also a member of the President's Export Council, told the gathering in Atlanta, which hosted the final round of TPP negotiations in October 2015. “Anti-trade is very organized. Senators and Congressmen and women are getting a lot of phone calls telling them to vote against this.”
Vocal Opposition
The TPP represents nearly 40 percent of global gross domestic product worth $30 trillion and is expected to facilitate further growth in the 12 participating nations: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the U.S. and Vietnam.
The pact has faced criticism from congressional leaders such as Senate Majority Leader Mitch McConnell (R-Ky.), as well as groups such as the AFL-CIO and the Sierra Club, who say it doesn't go far enough in protecting labor rights and environmental standards, respectively. Republican presidential nominee Donald Trump has said it would be a job killer for the U.S. middle class, and Democratic nominee Hillary Clinton has said she wouldn't support it in its current form.
Holleyman and other supporters say research shows free trade encourages economic growth and job creation.
The U.S. and the 11 other parties to the pact signed the agreement in New Zealand on Feb. 4. If the TPP is not ratified within two years by at least six of the original signatories, which between them represent 85 percent of the total gross domestic product of the TPP nations, the deal will lapse.
‘Significant Leverage.’
Former U.S. Sen. Saxby Chambliss (R-Ga.), who also speaking at the panel discussion organized by the World Affairs Council of Atlanta, urged business leaders to push for the TPP. The next president and members of Congress will have leverage to iron out minor details after ratifying the pact, he said.
For example, Sen. Orrin Hatch's (R-Utah) complaint that the exclusivity periods for pharmaceuticals aren't long enough shouldn't be substantial enough to prevent approval of the deal, he said. Such concerns could be worked out later via “letters, side-bar deals and country-to-country negotiations,” said Chambliss who is now an attorney at DLA Piper in Atlanta focusing on cybersecurity.
The next president also will have authority to make adjustments via the certification and implementation process of the pact, Holleyman said. “There is a significant amount of leverage the next president will have with the TPP in place,” he said.
While acknowledging it will take a heavy political lift, Chambliss said the lame-duck session following November's elections will be the TPP's best chance for passage. Although House Speaker Paul Ryan (R-Wis.) has said he won't bring it up for a vote in the lame-duck session, “he left himself an out,” Chambliss said.
“It's going to take the White House to get this done. [The president] is going to have to call in every chip he's ever given to every member of Congress,” he said.
China's Competitive Gains
Failing to enact the TPP will mean U.S. companies forfeit the benefits of lowered tariffs in partner countries and other protections such as intellectual property safeguards, Holleyman said.
U.S. companies stand to fall further behind if and when China reaches its agreement with many of the same partners, likely reducing tariffs for its own products, he added. China is negotiating a RCEP with 15 other nations, including several of the same trade partners included in the TPP—such as Australia, Japan, Malaysia, Singapore and Vietnam.
Labor and environmental standards aren't the only things at risk if the U.S. fails to ratify the TPP. The U.S. also would give up its leadership role in the region to China, potentially hurting its foreign relations and national security beyond just economic interests, Chambliss said.
“It's critical that we make sure the economies in these countries are doing well,” he said. “We're going to need the leadership of these countries from a national security standpoint.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=95854769&vname=dennotallissues&fn=95854769&jd=95854769
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Jerry Brown Moves To Slip Cap And Trade Into Major Climate Bill
Aug 15, 2016 | The Sacramento Bee
By David Siders
In a bid to preserve California’s cap-and-trade program beyond 2020, Gov. Jerry Brown has quietly proposed amending major environmental legislation to expressly authorize the regulation’s extension.
The draft bill language, obtained by The Sacramento Bee, would have the Legislature direct the California Air Resources Board to exercise its “authority under the California Global Warming Solutions Act of 2006 ... including its authority for market-based compliance mechanisms, to meet a statewide greenhouse gas emissions target by 2030.”
Brown’s office on Monday confirmed it had offered amendments but declined to say what they are.
The proposed amendment could further complicate passage of Senate Bill 32, an already-controversial proposal to extend the state’s greenhouse gas emission reduction targets beyond 2020. Lawmakers were reviewing the proposed text on Monday.
If incorporated into the bill, Brown’s proposed language will likely stir opposition to the broader bill from a subset of environmentalists who say that cap and trade has allowed industries to continue polluting in areas of the state where more poor and Latino people live.
“It looks like the governor is trying to shoehorn some kind of language about cap and trade post-2020,” said Brent Newell, legal director of the Center on Race, Poverty & the Environment. “Senate Bill 32, right now, is legislation that would simply extend and create new targets. It would not extend cap and trade. The governor’s effort to wed the two will provoke our opposition.”
The bill comes amid a tenuous future for cap and trade, in which polluters pay to offset carbon emissions. Critics have argued the program is a tax that must be approved by a two-thirds legislative vote, a position rejected by many environmentalists and legislative Democrats.
The cap-and-trade program is a critical source of revenue to Brown’s plan to build a high-speed rail system in the state.
Brown, a fourth-term Democrat, has made climate change a priority of his administration. But he has struggled with moderate Democrats and Republicans in California’s Legislature.
Earlier this month, Brown opened a new ballot measure committee and a top aide, Nancy McFadden, issued a prepared statement downplaying the significance of any one bill in the Legislature.
“We are going to extend our climate goals and cap and trade one way or another,” McFadden said. “The governor will continue working with the Legislature to get this done this year, next year or on the ballot in 2018.”
http://www.sacbee.com/news/politics-government/capitol-alert/article95752577.html#storylink=cpy
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