Preview Newsletter
ACC AM 8/30/16
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(ACC Mentioned) Fee Rule Comments Address Scope of EPA's Chemical Evaluation
Aug 30, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The fees that chemical manufacturers pay the Environmental Protection Agency to conduct risk evaluations should cover only the conditions of use the companies ask the EPA to examine, the American Chemistry Council said. -
(ACC Mentioned) Strategies to Rank Chemicals a Topic in EPA Rule Comments
Aug 30, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency's ability to solicit comments simultaneously on separate but related actions should be made clear in its chemical ranking rule, the Environmental Defense Fund says. -
US EPA Solicits Chemicals Advisory Committee Nominees
Aug 30, 2016 | Chemical Watch
The US EPA has asked the public to nominate experts for its new Science Advisory Committee on Chemicals (Sacc). -
Tack Chemical Review Boost Onto Stopgap Funding Bill, White House Says
Aug 30, 2016 | BNA Daily Environment Report
By Brian Dabbs
The White House is angling to free up $4 million to kick start a highly publicized EPA toxic risk review overhaul at the outset of the coming fiscal year, according to an Obama administration document recently floated to Congress. -
Senator Boxer Urges US EPA Action On Asbestos
Aug 30, 2016 | Chemical Watch
US Senator Barbara Boxer (D–California) has called on the EPA to act quickly on regulating asbestos under the recently reformed TSCA law. -
Environmental Groups, Unions Say EPA Should Take Steps to Regulate Workplace Chemicals
Aug 29, 2016 | Chem Info
By Andy Szal
Advocacy groups earlier this month urged the Environmental Protection Agency to take measures to protect workers exposed to industrial chemicals. -
Emerging Contaminants: An Analysis of Inconsistent U.S. Regulations
Aug 30, 2016 | BNA Daily Environment Report
By Janet K. Anderson, Ph.D and James K. Wilhelm and Philip E. Goodrum Ph.D.
As agencies and other organizations attempt to be proactive about emerging chemicals and their management, inconsistencies in government rules can hinder effective approaches. A technical team from Integral Consulting Inc. explores how efforts to anticipate risks sometimes get bogged down in differing standards for chemicals. -
EPA Received 58 Pre-Manufacture Notices In July
Aug 30, 2016 | Chemical Watch
The US EPA received 58 pre-manufacture notices (PMNs) in July. Of these, 43 had the name of the manufacturer or importer withheld as confidential business information (CBI). -
State Commissioners To Speak At NY Senate's PFOA Hearing
Aug 30, 2016 | AP (In The Wall Street Journal)
Top Cuomo administration officials will face questions from lawmakers regarding the state's response to drinking water contamination in the village of Hoosick Falls. -
Colorado Drillers Dodge $10 Billion-a-Year Threat to Output
Aug 29, 2016 | Bloomberg Markets
By Jim Polson and Jennifer Oldham and David Wethe
Oil and natural gas explorers from Anadarko Petroleum Corp. to Synergy Resources Corp. have escaped a vote in Colorado that would have limited drilling and threatened to halt about $10 billion worth of oil and natural gas production a year. -
Two Anti-Drilling Initiatives Don't Make Colorado Ballot
Aug 30, 2016 | BNA Daily Environment Report
By Tripp Baltz
Two citizens' initiatives seeking stringent restrictions on drilling in Colorado failed to qualify for the November ballot after the Colorado secretary of state determined they didn't submit a sufficient number of petition signatures. -
Don't Expect Colorado Anti-Drilling Opponents to Pack Up, Says Industry
Aug 29, 2016 | Natural Gas Intelligence
By Carolyn Davis
Two citizen-backed initiatives that could have put a major squeeze on Colorado's oil and natural gas industry may have failed to make the November ballot, but don't expect anti-drilling groups to give up. There will be a next time, industry professionals said at last week's Rocky Mountain Energy Summit in Denver. -
Pipelines: The Worst Way to Move Oil, Except For All the Rest
Aug 28, 2016 | Fortune
By David Z. Morris
The past week has seen a huge increase in attention and momentum for protests against the Dakota Access oil pipeline. -
Alaska Refinery Hazmat Spill Claims Revived on Appeal
Aug 30, 2016 | BNA Daily Environment Report
By Steven M. Sellers
The former owner of an oil refinery in North Pole, Alaska, is on the hook for environmental damage caused by the migration of a solvent from the facility into drinking water, the Alaska Supreme Court ruled Aug. 26 (Flint Hills res. Alaska v. Williams Alaska Petroleum, Inc., 2016 BL 278880, Alaska, No. S-15654, 8/26/16). -
North Carolina To Buy PTC Equipment With Federal Funds
Aug 29, 2016 | Progressive Railroading
The North Carolina Department of Transportation (NCDOT) will equip five converted cab control units with interoperable electronic train management systems using federal funds designated for positive train control (PTC) implementation. -
White House Calculates Social Costs of Methane, Nitrous Oxide
Aug 30, 2016 | BNA Daily Environment Report
By Rachel Leven
A White House working group calculated social damage estimates for two more greenhouse gases, methane and nitrous oxide. -
EPA Plans To Revise Ozone NAAQS 'Anti-Backsliding' Rule
Aug 29, 2016 | Inside EPA
EPA will voluntarily rework part of its ozone regulations for “anti-backsliding” measures that aim to prevent the relaxing of emissions controls in areas that once failed to meet revoked federal ozone standards, after a federal appeals court granted the agency's request to revise the rules to make them more legally defensible. -
Obama To Join Paris Climate Pact 'As Soon As Possible'
Aug 29, 2016 | The Hill - E2 Wire
By Timothy Cama
President Obama is planning to formally join the Paris climate agreement “as soon as possible,” a top adviser said.
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(ACC Mentioned) Fee Rule Comments Address Scope of EPA's Chemical Evaluation
Aug 30, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The fees that chemical manufacturers pay the Environmental Protection Agency to conduct risk evaluations should cover only the conditions of use the companies ask the EPA to examine, the American Chemistry Council said.
“The requester should not bear the burden of any associated additional costs,” the council said in comments it recently submitted to the EPA. The comments, which were due Aug. 24, address a rule on fees that the EPA said it will propose by December.
The rule, required under the newly amended Toxic Substances Control Act, will set fees chemical manufacturers and processors would pay to offset costs the agency incurs as it manages chemicals in commerce and reviews new ones that companies want to manufacture.
The chemistry council's comments addressed one of those fees, specifically the fee the EPA would charge chemical manufacturers for risk evaluations they request and for which they pay.
Under the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. Law No. 114-182), which amended TSCA June 22, chemical manufacturers that ask the EPA to undertake a risk evaluation must pay 50 percent of the costs if the chemical already is on the agency's Work Plan list of chemicals it intends to assess. Companies would pay 100 percent of the EPA's risk evaluation costs if the chemical is not on that list.
Expanded Assessments
Chemical manufacturers that request a risk evaluation should be assessed a fee only for the specific conditions of use identified in their request, the chemistry council told the agency.
The EPA would have the discretion to expand a particular risk evaluation beyond the conditions of use identified by a manufacturer or processor, but the agency—not industry—would pay for that expanded risk evaluation, the chemistry council said.
By contrast, the Environmental Defense Fund said: “EPA, not the manufacturer requesting a risk evaluation of one of its chemicals, should always establish the scope of the risk evaluation.”
The fees chemical manufacturers are required to pay by the amended law must cover either all or 50 percent of the agency's risk evaluation costs, the environmental organization said citing Section 26(b)(4)(D) of amended TSCA.
The chemistry council and Environmental Defense Fund also disagreed on nearly every issue each raised in their comments.
For example, the chemistry council said risk evaluation fees should be paid at specific steps in the process with the EPA being paid in full only after it completes its evaluation.
“EPA should not initiate industry requested risk evaluations until it has received the applicable fees mandated to defray its costs,” the Environmental Defense Fund said.
Higher Fee, Quicker Action?
The American Petroleum Institute urged the agency to offer industry the option of paying a higher fee to secure an expedited, or “fast track,” review of a new or existing chemical.
“Companies should not be allowed to pay a higher fee in order to expedite EPA's review,” the defense fund said.
The law forbids the EPA from giving special treatment to companies that pay for a chemical to be evaluated, it added.
The suggestion also raises equity concerns for small businesses that could not afford to “buy their way to the front of the line,” the defense fund said.
Finally, the proposal to expedite chemical reviews for companies that could pay a higher fee “suggests that EPA's mission is somehow to provide a service to a company in exchange for the fee, rather than protect human health and the environment,” the Environmental Defense Fund said.
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(ACC Mentioned) Strategies to Rank Chemicals a Topic in EPA Rule Comments
Aug 30, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency's ability to solicit comments simultaneously on separate but related actions should be made clear in its chemical ranking rule, the Environmental Defense Fund says.
“EPA should articulate in the rule its authority to combine public comment periods,” the defense fund said in comments it submitted to the agency about a draft rule the agency plans to propose by December. The rule would propose procedures the EPA would use to determine which chemicals are high priorities for risk evaluations and which are low priorities.
The defense fund was among many groups that offered the EPA ideas for meeting the many deadlines Congress set in the Toxic Substances Control Act as amended June 22 by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. Law No. 114-182). Comments on the EPA's ranking and two other rules the agency intends to issue by December were due Aug. 24.
As an example of its suggestion that the EPA combine public comment periods, the defense fund pointed to the two 90-day periods the amended TSCA requires the agency to offer as it makes a decision about whether a chemical should be a low or high priority for risk evaluation.
The EPA could combine requests for information about a chemical it may designate as a low or high priority with the separate request for comments it must offer on proposed low or high designations, the defense fund said.
Another strategy the EPA could use to meet the deadlines the law imposes for chemical prioritization and risk evaluation is to routinely require companies to submit toxicity and exposure data they already have for chemicals the agency will need to rank, the defense fund said.
Use Scoring System to Rank
The American Chemistry Council urged the EPA to update a scoring system to rank chemicals based on their intrinsic hazards and known or potential exposure. The agency used a scoring approach as it developed the list of “Work Plan” chemicals it had begun to evaluate prior to TSCA being amended.
The approach the agency used should be updated to take additional factors, detailed in the updated law, into account, the council said. These additional factors include:
• whether certain populations could face a greater chance of being exposed to or harmed by chemical;
• whether a chemical is stored near significant sources of drinking water;
• how a chemical is used; and
• the volume in which it is manufactured, imported or processed.
Information about these factors could support a low or high priority designation, the council said.EPA Urged to Consider Other Screening Efforts
The EPA should consider conclusions reached about chemicals that have been screened through other EPA initiatives or by Canada, the chemistry council said.
These chemical screening efforts include the EPA's former Voluntary Childrens Chemical Evaluation Program, or VCCEP; the agency's former Chemical Assessment and Management Program, or ChAMP, and the prioritization program Canada has used to screen about 19,000 chemicals, the council said.
The High Temperature Insulation Wool (HTIW) coalition, however, said outdated information from the EPA's Integrated Risk Information System, or IRIS, database should not be used as it would not meet the data quality requirements imposed by the revised law. The coalition's members include Morgan Thermal Ceramics and Unifrax I LLC.
Gradient, an environmental and risk sciences consulting firm, focused on the requirement in the revised TSCA that the EPA within 3.5 years have designated 20 chemicals as high priorities with ongoing risk evaluations and 20 chemicals as low priorities.
That means most chemicals implicitly will be in a priority not yet designated category, the consulting firm said.
The agency should consider getting data for chemicals that nearly met either the low- or high-priority designation, Gradient said.
Many Other Issues Raised
Many of the comments the EPA received addressed concerns broader than how the agency should make a decision about a chemical's priority.
The American Chemistry Council repeated a perspective it voiced during meetings the agency held Aug. 9 and 10. The EPA's prioritization rule must show how requirements the TSCA amendments established for data quality will be used to rank chemicals, the chemistry council said.
The forthcoming rule must show how the agency will use best available scientific information to rank a chemical as a low or high priority; it must show how it will use weight of evidence to make that determination; and it must publish the reasoning it used to decide the chemical's ranking, the chemistry council said.
The University of Massachusetts's Toxics Use Reduction Institute, which helps companies reduce their use of toxic chemicals, urged the agency to evaluate groups of chemicals.
“This approach can help avoid a situation in which businesses may switch from one chemical to another that is similar and equally toxic,” the institute said.
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US EPA Solicits Chemicals Advisory Committee Nominees
Aug 30, 2016 | Chemical Watch
The US EPA has asked the public to nominate experts for its new Science Advisory Committee on Chemicals (Sacc).
The committee is a requirement of the recently enacted Lautenberg Chemical Safety Act (LCSA). This updated TSCA for the first time in 40 years.
The committee will provide independent advice to the EPA on:technical aspects of risk assessments;methodologies; andother aspects of implementing the LCSA.
It will have 14 members. Nine of these may potentially come from the existing membership of the EPA's Chemical Safety Advisory Committee (CSAC).
Nominations will be accepted until 11 October. In addition to candidates' scientific expertise, the EPA will consider "differing perspectives and breadth of collective experience needed to address EPA's charge to the Sacc".
Descriptions of the nominees will be published in the Federal Register and will be subject to 30-day public comment.
https://chemicalwatch.com/49308/us-epa-solicits-chemicals-advisory-committee-nominees
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Tack Chemical Review Boost Onto Stopgap Funding Bill, White House Says
Aug 30, 2016 | BNA Daily Environment Report
By Brian Dabbs
The White House is angling to free up $4 million to kick start a highly publicized EPA toxic risk review overhaul at the outset of the coming fiscal year, according to an Obama administration document recently floated to Congress.
Administration budget officials urged Congress to allow the Environmental Protection Agency to access that sum in a stopgap funding bill to ensure the agency meets new statutory deadlines. Those appropriations would then be offset by revenue generated under the new law, the document says.
President Barack Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. No. 114-182) on June 22, creating a new system to prioritize legacy chemical reviews and vet products new to the market.
Congress returns to Capitol Hill on Sept. 6 following nearly two months of summer recess. Lawmakers must pass appropriations legislation before Oct. 1 to ensure federal funding in fiscal year 2017.
Experts overwhelmingly believe Congress will opt for a short-term continuing resolution. None of the 12 appropriations bill are signed into law.
Unanticipated Budget Request
The White House called for the $4 million to “implement immediate, new requirements and activities.”
The law sets off a series of deadlines for EPA rulemaking. The agency must finalize rules on risk-based screening process, risk evaluation process and inventory reset by June 2017, and EPA officials are also expected to unveil an industry fee rule to generate revenue under the law.
The document says the EPA must propose the three rules by the end of December, adding that the fee rule is expected in a similar time frame.
The White House didn't anticipate these mandates when issuing its FY17 budget request in February, the document indicates.
“Without this anomaly, EPA would risk missing the new statutory deadlines under the act or would need to obtain the necessary funding by reducing other operating budget activities such as enforcement or technical assistance to states and tribes,” says the document, which is unsigned and undated.
Murky Details
Murky language in the document makes discerning the precise origin of the sum or the obligation to pay the amount back difficult to determine, experts told Bloomberg BNA.
“It would appear the administration is giving the EPA $4 million in money to jump start TSCA reform implementation,” said former EPA Assistant Administrator Jim Aidala, referring to the Toxic Substances Control Act. The new law is widely regarded as TSCA reform.
Still, the document says the sum will be sent to the newly created Service Fee Fund for expenses tied to chemical risk reviews. The White House says the EPA would pay back the money through revenue generated, making the provision budget neutral.
Revenue that exceeds the $4 million authorization will stay in the fund for EPA salaries and other expenses.
Regardless of the fees, the White House request would also prohibit Congress from dropping appropriations for the Chemical Risk Review and Reduction program, the program that oversees risk review currently, below FY14 levels. Congress has approved nearly $56 million for that program over the course of the past several years, including FY14.
The EPA deferred to the White House for comment on the document, which declined to comment on specifics.
“The package you refer to is an internal technical assistance communication between OMB and the Appropriators to ensure government functions and services operate under a [continuing resolution] until full-year appropriations legislation is enacted,” said an Office of Management and Budget official. “We do not publicly comment on the specifics of it.”
Congressional aides say they received the document roughly one week ago.
The White House document also urged Congress to provide $16 million to the Bureau of Land Management for oil and gas operation applications, along with other, minor environmental provisions.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96477456&vname=dennotallissues&fn=96477456&jd=96477456
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Senator Boxer Urges US EPA Action On Asbestos
Aug 30, 2016 | Chemical Watch
US Senator Barbara Boxer (D–California) has called on the EPA to act quickly on regulating asbestos under the recently reformed TSCA law.
In a letter to the agency's administrator Gina McCarthy, Ms Boxer urged the EPA to include asbestos in the first 10 substances it evaluates under the Lautenberg Chemical Safety Act (LCSA).
TSCA was widely considered to have been paralysed by a 1991 court ruling that overturned the EPA's final rule to ban asbestos. The agency has not attempted to regulate an existing substance under section 6 of the law since then.
According to Ms Boxer, "numerous members of Congress cited asbestos as an example of why the law must be revamped and emphasised that the new TSCA legislation would remove the roadblocks that stymied EPA's first attempt to regulate asbestos.
"Now that the impediments in the original TSCA law are gone, completing the job started by EPA in 1989 would send a strong signal that the new law can be effective in addressing the most dangerous chemicals in commerce."
Under the LCSA, the agency must identify 10 substances from its existing list of workplan chemicals and formally initiate a risk evaluation of them by 22 December.
Several NGOs have also named asbestos as a top pick for the EPA to include on the list.
https://chemicalwatch.com/49311/senator-boxer-urges-us-epa-action-on-asbestos
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Environmental Groups, Unions Say EPA Should Take Steps to Regulate Workplace Chemicals
Aug 29, 2016 | Chem Info
By Andy Szal
Advocacy groups earlier this month urged the Environmental Protection Agency to take measures to protect workers exposed to industrial chemicals.
Bloomberg reports that the EPA held meetings on Aug. 9 and 10 to discuss how to implement the Frank R. Lautenberg Chemical Safety for the 21st Century Act.
The bill, which overhauled the outdated Toxic Substances Control Act, alters how the EPA analyzes and regulates thousands of chemicals currently used in commerce and puts procedures in place to evaluate new chemicals.
But the agency must enact a series of federal regulations to put the bill's requirements into practical effect.
Environmental advocates and union representatives, according to Bloomberg, told the EPA that regulators should consider workers in chemical facilities to be among the "exposed or susceptible subpopulations" that could be protected under the law.
Not only does the new law allow the agency to take that action, they contended, but it would also help in areas where the Occupational Safety and Health Administration has fallen short.
“OSHA isn't doing it,” Earthjustice attorney Eve Gartner told the publication.
Unions, in particular, expressed hope that the EPA's new authority would complement current workplace safety regulations.
“This is a whole new world, we're looking forward to EPA working on chemicals,” added Anna Fendley of the United Steelworkers union.
Although the chemical industry largely supported the TSCA overhaul, analysts predicted that companies and trade groups would likely push back hard on suggestions that the EPA encroach on occupational safety.
“People aren’t going to sit back and watch EPA take over regulations of chemicals in the workplace,” W. Caffey Norman, a Washington, D.C., attorney who represents chemical companies, told Bloomberg.
https://www.chem.info/news/2016/08/environmental-groups-unions-say-epa-should-take-steps-regulate-workplace-chemicals
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Emerging Contaminants: An Analysis of Inconsistent U.S. Regulations
Aug 30, 2016 | BNA Daily Environment Report
By Janet K. Anderson, Ph.D and James K. Wilhelm and Philip E. Goodrum Ph.D.
As agencies and other organizations attempt to be proactive about emerging chemicals and their management, inconsistencies in government rules can hinder effective approaches. A technical team from Integral Consulting Inc. explores how efforts to anticipate risks sometimes get bogged down in differing standards for chemicals.
Janet Anderson has 15 years of experience specializing in translating human health toxicology data into state and federal regulatory policy decisions and performing critical reviews of federal and state risk assessment guidance and regulations. James Wilhelm is an associate scientist with a background in coastal ecology, limnology and tropical biology, with experience leading ecological field studies. Philip Goodrum is a senior managing scientist with more than 25 years of experience in quantitative risk assessment and modeling, specializing in applications to human health and ecological risk assessment, sediment remediation, groundwater compliance monitoring, and natural resource damages.
Tens of thousands of chemicals are produced or imported annually into the U.S. and other industrialized countries. Many of these have been detected in the environment and yet have not been well-characterized with respect to environmental fate or potential human health or ecological effects.
Lately, the term “emerging contaminants” (ECs) has been used to describe contaminants with increasing scientific, regulatory or public concern, but either health-based standards are lacking, or existing standards are being reassessed. The presence of a mixture of such chemicals in environmental media, especially in drinking water, often leads to rapid regulatory actions and public outcry, despite the lack of comprehensive understanding of potential risks to humans or the environment.
There often are disparate and conflicting state and federal regulatory agency actions and opinions on these emerging contaminants. This inconsistency is a significant challenge to private industry, especially those with EC uses, products and emissions with an environmental footprint in multiple states.
This challenge is perhaps most acutely present for municipalities that are seeking to regain the public trust regarding chemicals present in drinking water that do not present a risk to human health. It often is challenging to track which emerging contaminants should be included in monitoring programs, difficult to understand why a certain chemical has been included or excluded from the target list and, even more so, perplexing to know what, if anything, is subject to legal action or should be done proactively to best mitigate public, environmental and corporate risks to changing chemical regulations.
This article explores the current status of emerging contaminants regulation in the U.S., with a focus on the approaches and actions implemented across the 50 states and the District of Columbia. We first define emerging contaminants and then discuss federal programs that provide the backdrop against which state programs are developed. State programs are compared and contrasted and a case study of EC regulation is presented.
What Is an Emerging Contaminant?
There is no consistent definition for emerging contaminants across federal or state regulatory or public health agencies. In fact, the term also is referred to as “constituents of emerging concern,” “contaminants of emerging concern,” “emergent contaminants,” or “unregulated contaminants.”
A draft white paper titled Aquatic Life Criteria for Contaminants of Emerging Concern, prepared by the U.S. Environmental Protection Agency (EPA) Emerging Contaminants Workgroup in 2008, defines emerging contaminants as “chemicals and other substances that have no regulatory standard, have been recently ‘discovered’ in natural streams … and potentially cause deleterious effects in aquatic life at environmentally relevant concentrations. They are pollutants not currently included in routine monitoring programs and may be candidates for future regulation depending on their (eco)toxicity, potential health effects, public perception, and frequency of occurrence in environmental media.”
The U.S. Geological Survey (USGS) defines emerging contaminants as “any synthetic or naturally occurring chemical or any microorganism that is not commonly monitored in the environment but has the potential to enter the environment and cause known or suspected adverse ecological and (or) human health effects.”
As we look to state regulatory and public health agencies, the terms used and definitions for unregulated contaminants of emerging concern become even more variable. For example, at the 2015 Arizona Water Association Conference, the chair of the Arizona Department of Environmental Quality Advisory Panel on Emerging Contaminants Outreach and Education Committee listed numerous terms and phrases that often are used without a clear understanding of the definition or distinction between terms.
The lack of consensus regarding the universal definition of emerging contaminants underscores one of the basic challenges currently surrounding their regulation in the U.S. As the first step to gaining consensus for their regulation, we propose a definition of emerging contaminants that reflects the evolving science and provides a framework for moving forward. This definition is built off the one developed nearly a decade ago by the joint Environmental Council of States and Department of Defense Sustainability Workgroup, which stated that an emerging contaminant “has a reasonably possible pathway to enter the environment; presents a potential unacceptable human health or environmental risk; and does not have regulatory standards based on peer-reviewed science, or the regulatory standards are evolving due to new science, detection capabilities, or pathways.”
We propose a further clarification of this definition:
• Type 1 ECs are chemicals without federal regulatory standards;
• Type 2 ECs are those with regulatory standards, but for which threshold values are inconsistent and changing based on new science, detection capabilities, pathways or policies.
This distinction between Type 1 and Type 2 emerging contaminants is useful when devising a risk management strategy, because it facilitates a clearer understanding of potential risks and options for truly unregulated chemicals versus those whose regulations are changing.
A number of emerging contaminants has been identified under state and federal agency programs. We identified the most consistently discussed emerging contaminants and grouped them into the following eight categories to provide a more holistic picture of trends and foci:
State Programs
State regulatory agencies have the delegated authority to regulate and enforce environmental and public health requirements. The 50 states have different resources and priorities and have taken different approaches to regulating emerging contaminants. Although charged with the authority of protecting public health and the environment within their jurisdictions, states often have limited resources to conduct rigorous research on toxicity and health risks, much less occurrence of ECs in the environment.
Many rely on initiatives at the federal level. Some states, however, have EC-specific programs aimed at identification, prioritization, evaluation or regulation of emerging contaminants within their state in advance of federal requirements. In fact, we are starting to see a shift, with much more state-led regulatory actions regarding emerging contaminants in the absence of federal guidance, which is resulting in a patchwork of inconsistent regulations and public health priorities.
We conducted a state-by-state survey to identify how U.S. states and the District of Columbia are addressing emerging contaminants. State regulatory initiatives for them were identified using standardized research methods and one-on-one interviews with state regulatory representatives. We reviewed state agency websites and relevant open-source documents. States were evaluated based on the level of monitoring of scientific and regulatory developments for emerging contaminants, the development of regulatory guidance or standards for them, and whether or not they had established specific programs to address human or environmental impacts from emerging contaminants in their state. The full compendium of this information is available online at http://www.integral-corp.com/capability/health/emerging-contaminants/.
Federal Guidance as a Starting Point
Federal programs often provide valuable information, guidance and resources for state regulatory and public health agencies. Perhaps the most well-known and identifiable EPA EC program is the Office of Water's Unregulated Contaminant Monitoring Program. In 1996, Safe Drinking Water Act amendments established the Unregulated Contaminant Monitoring Rule (UCMR). Under this rule, EPA issues a list of no more than 30 unregulated contaminants once every five years, to be monitored by public water systems with the goal of understanding national occurrence in public drinking water. The most recently administered UCMR3 program included seven volatile organic compounds, one synthetic organic compound, six metals, one oxyhalide anion and six perfluorinated compounds. Occurrence data can be downloaded from the EPA UCMR Web page (http://www.epa.gov/dwucmr/occurrence-data-unregulated-contaminant-monitoring-rule).
So far, based on UCMR3 data, the EPA has decided that the presence of strontium in U.S. drinking water could present a human health risk and has proposed to develop a federal drinking water maximum contaminant level (MCL) for this contaminant. UCMR4 was proposed Dec. 11, 2015, and monitoring will be conducted on an accelerated schedule between 2018 and 2020. Contaminants on this list include 10 cyanotoxins, two metals, eight pesticides, one pesticide manufacturing byproduct, three brominated haloacetic acid groups, three alcohols and three other semivolatile chemicals.
The UCMR program more recently has been used by states to identify emerging contaminants in their local drinking water systems. This shift from a national program to gather occurrence information for national prioritization and regulation to a federal program that provides local-level information on unregulated contaminants (Type 1 ECs) in public drinking water has raised significant concerns. Not all public water supply systems test for emerging contaminants under UCMR; therefore, there is inconsistent coverage of potential public exposure.
Second, by definition, the underlying health effects information for the emerging contaminants that are tested under UCMR is immature and often debatable. As such, states and local water districts often rely on advisory information that is not meant to be a promulgated standard and threshold requirement, or they adopt their own regulations. This incongruent process bypasses the requirements within the Safe Drinking Water Act to assess socioeconomic impacts of drinking water regulations and also creates a situation wherein standards fluctuate and are inconsistent from one state to the next.
USGS has a prominent program for emerging contaminants that has been operational for more than a decade. The USGS Emerging Contaminant Program develops analytical methods to measure emerging contaminants in environmental media, assesses the environmental occurrence of them at national, regional, state and local scales, aims to characterize the sources and source pathways that contributes to an emerging contaminants detection in the environment, researches their fate and transport in the environment, and looks for ecological effects from emerging contaminants exposures. More information can be found here:http://toxics.usgs.gov/investigations/cec/index.php?src=QSA014.
A number of studies have been completed by USGS, including the landmark 2002 publication by Kolpin et al. published in Environmental Science and Technology that was the first national-scale analysis of emerging contaminants, including pharmaceuticals and other chemicals in U.S. streams. Currently, USGS is conducting a national study of environmental releases of emerging contaminants from landfill leachate. Although USGS has no regulatory authority, this federal agency contributes significantly to the scientific understanding of occurrence, fate and transport and serves as an important source of scientific information for state agencies.
The U.S. Centers for Disease Control and Prevention (CDC) is the lead federal agency for public health in the U.S. Although not explicitly a program designed to address emerging contaminants, the CDC's National Health and Nutrition Examination Survey (NHANES) program provides valuable information about human exposure to chemicals. Since 1999, the NHANES program has provided a continuous assessment of the exposure of the U.S. population to environmental chemicals (including regulated chemicals and emerging contaminants) and provides prevalence statistics and information on contaminant levels, paired with health information gleaned from interviews and physical examinations. Human biological samples are analyzed for more than 200 chemicals, including volatile organic chemicals, metals, pesticides, endocrinedisrupting chemicals and perfluorinated compounds. This information is useful in numerous ways; however, specifically for emerging contaminants, it helps scientists and regulatory agencies understand demographic factors that could be associated with human exposure, as well as potential links between emerging contaminants exposures and health effects.
To assist state agencies, the CDC has offered two funding opportunities for state-led biomonitoring projects through the agency's National Biomonitoring Program. In 2009, the CDC launched the first round of funding under the State Biomonitoring Cooperative Agreement. The goal of this initial five-year project was to expand the awarded state's capability and capacity to conduct biomonitoring of environmental chemicals. California, New York and Washington were awarded five-year grants, each splitting $5 million annually.
In 2014, the CDC announced a second round of biomonitoring grants and awarded funding to five states (California, Massachusetts, New Hampshire, New Jersey and Virginia) and a consortium of four states, called the Four Corners States Biomonitoring Program (Utah, Arizona, Colorado and New Mexico).
Combined, the federal agencies within the U.S. have programs to assess emerging contaminants occurrence and potential risk in drinking water (e.g., EPA UCMR), commerce (e.g., EPA Toxic Substances Control Act), environmental media (e.g., USGS and the National Oceanic and Atmospheric Administration) and the human population (e.g., CDC). Of these initiatives, only the EPA programs have regulatory authority, and these programs often are criticized for being time-intensive and unhelpful in addressing environmental concerns at the local level. Because states have the authority to implement and customize federal guidance within their jurisdictions, it is imperative to understand how state programs are addressing emerging contaminants. It is likely that state-specific regulations will continue to affect industry and municipalities most directly in the near term.
State-by-State Comparison
The majority of states do not have an explicit program directed at emerging contaminants and do not appear to address them via promulgated regulations in advance of federal programs. A limited number of states, however, have begun to address emerging contaminants by establishing specific programs aimed at identification, screening, or prioritization and evaluation. Additionally, many states now are contributing resources toward limited initiatives such as conducting occurrence studies, or setting guidelines or standards before federal values are established.
The map below shows the differences in the EC level of activity for each state, based on our survey. Inactive states almost exclusively rely on federal actions, guidance and regulations. Very active states such as California, Minnesota, Massachusetts and Maine have developed specific risk management programs addressing emerging contaminants. States listed as active or limited could have one or two initiatives that begin to gather state-specific information; however, they do not have an explicit program for emerging contaminants and do not tend to devote significant resources to these initiatives.
Arizona, California, Maine, Minnesota, New York, New Jersey and Washington all have state programs explicitly designed to address potential EC impacts to human health and the environment throughout their respective jurisdictions. For the remaining 43 states and the District of Columbia, EC-specific initiatives vary from one or two chemical-specific regulations or occurrence monitoring to only limited response actions following a site-specific driver. Just over a dozen states have no emerging contaminants program or initiatives and rely exclusively on federal actions, guidance and regulations.
State agencies are increasingly taking the initiative to gather data, usually occurrence information, to help prioritize their regulatory actions. The most commonly identified state-led initiative for emerging contaminants was environmental sampling to assess occurrence frequency and levels.
We identified more than 30 states with some kind of environmental occurrence program. We found that the most common emerging contaminants with state guidelines or standards included those that we categorized in the industrial chemical group. Approximately half of Type 1 ECs with state guidance or standards (absent at the federal level) are for industrial chemicals. Interestingly, however, the most commonly detected category of emerging contaminants is pharmaceuticals, logically found in surface waters impacted by various urban water treatment systems.
The decision-making process for prioritization and regulatory actions is often not readily transparent. From a national perspective, it can be difficult to locate and track each state's pertinent advisories, criteria and the underlying rationale for those values. There did not appear to be a clear geographical distinction or rationale as to why some states addressed certain categories more than others; regional differences do not account for this pattern. Based on our in-depth examination into how state and federal agencies are addressing the task of deciding which emerging contaminants need assessment, how they are assessed and how regulations are promulgated, we concluded that a more consistent and transparent process is needed.
Examples of the Most Active and “Transparent” State EC Programs
Our detailed review of each state's regulatory framework for environmental contamination and how they address emerging contaminants is best highlighted by some of the more active and transparent state programs, described below.
Minnesota
Minnesota often is identified as one of the states with the most robust and transparent processes for identifying, prioritizing, evaluating and regulating emerging contaminants. The Minnesota Department of Health (MDH) has developed a drinking water program that strives to proactively develop human health-based guidance for emerging contaminants that have been found in state groundwater, surface water and soil, as well as those that have not been found or investigated in Minnesota.
The program also seeks to provide the public with information about how people could be exposed to these contaminants. Program staff screen approximately 20 chemicals and provide guidance for up to 10 chemicals every two years; these chemicals are nominated for investigation by risk managers, stakeholders and the public. Following evaluation, information sheets on these selected emerging contaminants are published on MDH's website.
The Minnesota Department of Health is among the few agencies that have adopted a quantitative scoring system for establishing priorities for emerging contaminants. In the initial toxicity screening, data concerning emerging contaminants is compiled and ranked. The department develops comprehensive information sheets and screening profiles for emerging contaminants reviewed by their program, as well as ECs that were nominated but not selected for further review. The Minnesota Pollution Control Agency also provides information on emerging contaminants for the state. For example, the agency conducts occurrence monitoring of ECs throughout the state's surface waters. Combined, these two agencies supply Minnesota with a robust and active emerging contaminants program.
California
California has several active programs to monitor and regulate ECs throughout the state. California's numerous agencies and programs have initiatives that either explicitly address emerging contaminants, or implicitly address them by virtue of pioneering chemical-specific regulations in advance of federal and other state actions.
For example, the California State Water Resources Control Board (SWRCB) is tasked with setting statewide policy on the administration of water rights and water quality control. The nine regional water quality control boards are responsible for adopting and implementing water quality control plans (also known as basin plans), issuing water discharge requirements, and performing functions including water quality monitoring and control in their respective regions. These entities work together to address emerging contaminants and have developed monitoring strategies for a number of chemicals that could potentially pose human and ecological health risks.
Under the Recycled Water Policy, the SWRCB established an advisory panel to address issues regarding emerging contaminants in recycled water and maintains a list of those that are to be monitored throughout the state's recycled water. Monitoring data for emerging contaminants can be found through the GeoTracker information system within the Groundwater Ambient Monitoring and Assessment Program, which provides detailed sample information, including location and resulting values for a variety of chemicals that have been or are being monitored.
A science advisory panel, created by the SWRCB in conjunction with the David and Lucile Packard Foundation, has issued reports with recommendations for monitoring strategies for emerging contaminants in California's aquatic ecosystems (Anderson et al. 2010 and Anderson et al. 2012). The panel developed a risk-based screening framework to focus on select emerging contaminants based on potential adverse human health effects and their occurrence in waters receiving municipal wastewater treatment plant discharge and stormwater.
After implementing the risk-based screening framework to identify emerging contaminants for initial monitoring, the panel recommended applying an adaptive, phased monitoring approach, with guidelines to update and direct appropriate action corresponding to potential risk. The panel advised the state to promote and support research initiatives in the development of bioanalytical screening tools; identifying data gaps in the source, fate, occurrence and toxicity of emerging contaminants; and relative risk assessment. Follow-on studies based on these initial recommendations have been conducted (e.g., Dodder et al. 2015), including a statewide emerging contaminants monitoring program framework and identification of research needs.
California's Office of Environmental Health Hazard Assessment (OEHHA) is the lead agency for implementation of Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986. Proposition 65 provides a list of chemicals and labeling requirements to protect the state's citizens and drinking water sources from chemicals that can lead to reproductive harms, cancer and birth defects. The list is updated at least once a year and includes around 800 chemicals, including Type 1 and Type 2 ECs. The office also develops for both Type 1 and Type 2 ECs, to aid SWRCB in the creation of regulatory standards for the state's drinking water. Public health goals are not regulatory standards; however, state law requires the SWRCB to set state maximum contaminant levels as close to the public health goal value as possible, considering economic and technical feasibility.
Massachusetts
The Massachusetts Department of Environmental Protection (MassDEP) established an Emerging Contaminant Workgroup to identify and assess public health and environmental problems with emerging contaminants and recommend agency strategies for addressing them. The workgroup composed a preliminary list of 80 emerging contaminants in 2007, of which several were prioritized for further evaluation and possible agency actions. Their initial list was based on information on the presence of emerging contaminants within the state and potential exposure pathways.
An emerging contaminants may be screened out of the Emerging Contaminant Workgroup process if other state or federal regulatory agencies are addressing the contaminant. Additionally, higher priority is given to emerging contaminants that have a more thorough toxicological profile, that occur in several different media and for which the agency can identify tangible outcomes obtainable within their jurisdiction. The MassDEP website maintains the list of priority contaminants and status reports for actions taken for each (http://www.mass.gov/eea/agencies/massdep/toxics/sources/emerging-contaminant-workgroup.html).
Perfluoroalkyl Substances—Case Study for State-Led Actions
One of the most infamous emerging contaminants, with ever-increasing regulatory and public attention, is perfluorooctanoic acid (PFOA). One of several perfluoroalkyl substances (PFASes) under EPA review, PFOA has gained recent notoriety stemming from its detection in public drinking water supplies and the lack of federal requirements, ultimately resulting in dynamic and confusing local standards. The EPA first established a provisional health advisory for PFOA in 2009 in response to a site-specific request in Decatur, Alabama. Prior to that federal provisional guidance was a major class action lawsuit against one of the manufacturers. At the time of the trial, the lack of regulatory guidance or standards led the court to require the manufacturer, DuPont, to fund a site-specific epidemiological study of the affected communities. The results of those studies, called the “C8 Health Study,” have set the stage for individual litigation.
PFOA was included in EPA UCMR3 public water supply testing between 2013 and 2015, with relatively negligible national detection frequencies (~1-2%). Media attention surrounding the DuPont trial, plus attention on the Department of Defense investigations of PFOA in drinking water and groundwater near fire-fighting units on their installations, prompted more aggressive actions from the local communities that had UCMR3 detections of PFOA in their drinking water. Some states decided to rely on the provisional guidance from the EPA, while others decided to derive their own standards, either as guidance values or as fully promulgated requirements. The disparate PFOA guidance and standards vary by 100-fold for water and range from 0.02 to 2.0 μg/L (i.e., parts per billion).
The widely variable safety threshold values for PFOA partly reflect the fact that interpretations of the underlying toxicological database for PFOA are still inconsistent and dynamic. The EPA finalized a lifetime health advisory in May 2016, prompting many states to immediately change their screening levels—what was one day deemed “safe,” the next day was considered “at risk” and communities were urged to not drink the water. Yet just a few months prior, in the summer of 2015, the Agency for Toxic Substances and Disease Registry released a draft toxicological profile for PFASes, in which they concluded that the underlying toxicity database was insufficient to calculate a lifetime protective level for PFOA.
This landscape of inconsistent safety thresholds for PFOA in water has prompted confusion and distrust by the public and other stakeholders. PFOA exemplifies how emergent science could still be used by regulatory agencies as a matter of policy to protect public health and how messages of “safe” versus “at risk” are seen as a solid bright line, despite the ability for those lines to fluctuate as different interpretations are provided and the science matures.
Conclusion—Geography Matters and Act Now
It is evident that there is not a transparent, systematic regulatory process for identifying, assessing, prioritizing and making risk-management decisions related to the protection of human or environmental health from emerging contaminants. It is a challenge to identify and piece together the numerous data streams from different sources. Unless resolved, this problem will continue to manifest itself in disparate and conflicting state and federal regulatory actions and opinions on emerging contaminants and will continue to be a significant challenge to the public and private industry.
Geography matters when trying to understand EC trends and regulations. Many states are leading the charge to address emerging contaminants within their jurisdictions, while most await federal guidance. Scientific information, such as occurrence and human or environmental toxicity data, is increasingly being generated and comprehensively reviewed by state agencies in advance of federal assessments. Many of these state-led evaluations lack the scientific rigor and transparency that are implemented at the federal level. Some states will develop guidelines or standards for emerging contaminants despite significant data gaps in exposure or toxicity.
Conversely, these state programs often conduct their assessments in a much shorter time frame, using local, state-specific information and authority. The result is a patchwork of priorities and regulations based on varying data quality. Additionally, EC data gaps can be much broader than for regulated chemicals, causing agencies to apply additional uncertainty factors in the name of the “precautionary principle”; the resulting science policy decisions implemented in the face of uncertainty further drive significant variations between agencies and stringent screening levels.
Stakeholders can watch the precedents set by the most active states and understand the priorities and processes within an individual state to help navigate the impacts that changing chemical regulations could have on their business. Given recent national public and media attention on unregulated chemicals in drinking water, it is likely that there will be increasing pressure on the states, and consequently, from the states on the federal agencies, to more consistently and transparently address emerging contaminants.
Actions can be taken to ensure that stakeholders are prepared for and engaged in addressing potential risks to emerging contaminants. More and more, public participation and comment is becoming a standard step in the regulatory processes at both state and federal programs. Mapping chemical-specific trends among various states could help stakeholders understand what information is available and being used to inform decisions.
Therefore, understanding what data streams are available or are developing for a chemical of interest, understanding how various state and federal programs could utilize that data, and then engaging with those regulatory agencies to ensure a transparent and fair assessment of the science and potential risks will help stakeholders track and respond to emerging contaminants and their potential impacts.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96477422&vname=dennotallissues&fn=96477422&jd=96477422
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EPA Received 58 Pre-Manufacture Notices In July
Aug 30, 2016 | Chemical Watch
The US EPA received 58 pre-manufacture notices (PMNs) in July. Of these, 43 had the name of the manufacturer or importer withheld as confidential business information (CBI).
The submitted PMNs include:two surfactants and one plasticiser;several substances used in asphalt formulations for adhesion promotion or emulsifying; andadditives for various applications, including several for flotation products.
During the same period, the agency received 20 notices of commencement (NOCs) to manufacture new chemicals.
https://chemicalwatch.com/49310/epa-received-58-pre-manufacture-notices-in-july
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State Commissioners To Speak At NY Senate's PFOA Hearing
Aug 30, 2016 | AP (In The Wall Street Journal)
Top Cuomo administration officials will face questions from lawmakers regarding the state's response to drinking water contamination in the village of Hoosick Falls.
Democratic Gov. Andrew Cuomo's health commissioner, Dr. Howard Zucker, and Environmental Conservation Commissioner Basil Seggos are slated to speak Tuesday at a state Senate hearing in the Rensselaer County village.
Also scheduled to testify are numerous residents who have accused the Cuomo administration of taking too long to warn people their water was contaminated with PFOA, a toxic chemical used in making Teflon and similar materials.
DEC is overseeing an investigation and cleanup that includes carbon filtration systems on contaminated public and private wells.
http://www.wsj.com/articles/APd480ee0853a04b8298801d8ab8d485ad
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Colorado Drillers Dodge $10 Billion-a-Year Threat to Output
Aug 29, 2016 | Bloomberg Markets
By Jim Polson and Jennifer Oldham and David Wethe
Oil and natural gas explorers from Anadarko Petroleum Corp. to Synergy Resources Corp. have escaped a vote in Colorado that would have limited drilling and threatened to halt about $10 billion worth of oil and natural gas production a year.
A proposal known as Initiative 78, which would have restricted drilling near homes, fell about 21,000 valid signatures short of the total needed to qualify for a ballot vote, based on a projection in a statement from Colorado Secretary of State Wayne Williams. A measure allowing local governments to ban fracking also failed to attract enough valid signatures. Synergy, a Colorado oil and gas explorer, rose the most in more than seven months on the failed ballot initiatives.
The measures had threatened to wipe out oil and gas drilling in Colorado, the sixth-largest gas producer among U.S. states, according to a Bloomberg Intelligence analysis.Initiative 78 alone could have barred drilling across 90 percent of the state, where explorers extracted about $10 billion worth of oil and gas last year, the report showed.
Energy explorers would’ve left Colorado “in droves if voters ever approved ballot initiative 78,” Bloomberg Intelligence analysts Rob Barnett, Bernard Chen and Vincent Piazza said in the analysis on Monday. Drillers Anadarko, Encana Corp., Noble Energy Inc., PDC Energy Inc. and Whiting Petroleum Corp. account for about 70 percent of the state’s output, they said.Stock Rally
Synergy, based in Denver, gained 3.9 percent to $6.92 at the close in New York, after climbing as much as 12 percent, the most intraday since Jan. 14. Anadarko, Encana and PDC Energy were also up. Synergy was the most exposed of all explorers to the measures, John Freeman, an analyst at Raymond James, wrote in an e-mail.
"This announcement today is a positive in that it removes a potential overhang in operations throughout the state," analysts at Wunderlich Securities wrote Monday in a note to investors. "While these have been considered long shots, the fact is that they still were potentially crippling issues."
Colorado’s Williams said in his statement that a petition section related to Initiative No. 78 “contains several potentially forged signature lines” and that the department referred the section to the attorney general’s office for investigation.Uphill Battle
Food & Water Watch, one of the groups that helped gather signatures, called it an uphill battle.
"We were outspent 35:1 by oil industry opponents and faced an unprecedented effort to keep the measures off the ballot," Laurie Petrie, the group’s Rocky Mountain director, said in a statement. "The enthusiasm of this citizen-led effort has not been dampened and we will continue to fight to protect the health of Coloradans, and the natural beauty of our state, from fracking."
The initiatives’ backers could challenge the exclusion, but “an appeal would appear to be futile,” David Tameron, a Denver-based analyst for Wells Fargo said in research published Monday.
“Our fellow Coloradans recognize the strong regulatory structure already in place and the disastrous impacts these measures would’ve had on our state,” Robin Olsen, a spokeswoman for Anadarko’s Rockies division, said Monday by e-mail.
https://www.bloomberg.com/news/articles/2016-08-29/drillers-dodge-10-billion-a-year-threat-to-output-in-colorado?cmpid=google
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Two Anti-Drilling Initiatives Don't Make Colorado Ballot
Aug 30, 2016 | BNA Daily Environment Report
By Tripp Baltz
Two citizens' initiatives seeking stringent restrictions on drilling in Colorado failed to qualify for the November ballot after the Colorado secretary of state determined they didn't submit a sufficient number of petition signatures.
The Aug. 29 determination by Secretary of State Wayne Williams (R) means Initiatives 75 and 78 won't go before voters in November unless their backers prevail in court. The proponents have 30 days to appeal the decision to the Denver District Court, Williams said.
The ruling marks the likely end of a pitched and potentially costly campaign pitting the oil and gas industry and its supporters against environmentalists and community groups pursuing much tighter regulatory controls over drilling activities, especially the use of hydraulic fracturing, the high-pressure injection of water, chemicals and sand deep underground to release natural gas and oil from tight shale formations.
Initiative 75 would have increased the authority of local governments to regulate oil and gas, including allowing cities, counties and towns to impose bans on fracking, disposal of waste and other drilling activities. Initiative 78 would have increased Colorado's existing 500-foot setback—the minimum distance between wells and occupied buildings such as homes, schools and hospitals—to 2,500 feet.
90 Percent Off-Limits
Quintupling the mandatory setback would have effectively placed about 90 percent of Colorado's surface areas off limits to new drilling, Matt Lepore, executive director of the Colorado Oil and Gas Conservation Commission, told a group of energy company executives Aug. 23.
Williams said one section of the petition for Initiative 78 contained several “potentially forged signature lines.” He said he has referred the questionable section to the attorney general's office for investigation.
Tricia Olson, spokeswoman for the “Yes for Health and Safety Over Fracking” campaign, the lead organization behind the ballot measures, didn't return Bloomberg BNA's requests for comment. On a social media page, the organization said it would conduct its own investigation into the signatures.
“This fight is far from over,” the group said on its Facebook page. “The movement to protect Coloradan's Health and Safety Over Fracking has never been stronger!”
The secretary of state's ruling is good news for Colorado's economy, industry said.
‘Sigh of Relief.'
“That sound you hear is the state of Colorado breathing a collective sigh of relief,” said Dan Haley, president and chief executive officer of the Colorado Oil and Gas Association, in an Aug. 29 statement. “After this long and unnecessary battle, our state emerges as the winner.”
Without the threat of the initiatives on the ballot, he said, “property owners no longer have to worry about losing their constitutionally protected rights. Local and state governments will continue to get severance and other tax funding for schools, parks, libraries and roads. And working families across the state are protected from the consequences of driving a vital industry out of state. Industry, and Colorado's business community, finally will now be able to enjoy some of the certainty needed to operate.”
The failure of the citizens' campaign to collect enough signatures—the total number of valid signatures necessary was 98,942—is due in part to education and outreach efforts undertaken by industry since several Colorado communities passed local bans and moratoriums as early as 2012, Doug Flanders, director of policy and external affairs for the association, told Bloomberg BNA.
‘Talked to Communities.'
“We've been out talking to communities, running TV commercials, and engaged in a broad information campaign to make sure folks know more about what oil and gas means to the state,” Flanders said. One such effort, Coloradans for Responsible Energy Development, was launched in 2013 by Anadarko Petroleum Corp. and Noble Energy to “provide scientifically sound information about fracking.”
The likely end of the Initiative 75 and 78 efforts “demonstrates that our fellow Coloradans recognize the strong regulatory structure already in place and the disastrous impacts these measures would've had on our state,” Robin Olsen, spokeswoman for Anadarko, told Bloomberg BNA.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96477448&vname=dennotallissues&fn=96477448&jd=96477448
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Don't Expect Colorado Anti-Drilling Opponents to Pack Up, Says Industry
Aug 29, 2016 | Natural Gas Intelligence
By Carolyn Davis
Two citizen-backed initiatives that could have put a major squeeze on Colorado's oil and natural gas industry may have failed to make the November ballot, but don't expect anti-drilling groups to give up. There will be a next time, industry professionals said at last week's Rocky Mountain Energy Summit in Denver.
During the annual Colorado Oil & Gas Association (COGA) meeting, most of the conference talk was about the stringent amendments, which basically would have prevented most new exploration and production in the energy-rich portions of the state. Colorado Gov. John Hickenlooper and other exploration and production executives said they expected the initiatives would fail (see Shale Daily, Aug. 26; Aug. 23). The Colorado Secretary of State’s office announced Monday that there were not enough signatures on the petitions for the restrictive Initiatives 75 and 78 to qualify for the November ballot (see related story).
But they also don't expect the attempts to be the final ones by environmental groups to curtail oil and gas operations. Asked what producers should do if the initiatives failed, Noble Energy Inc. Senior Vice President Chip Rimer, who oversees U.S. onshore operations, gave simple advice.
"Don't stop, keep educating," he told the audience last week. "We've educated our workforce, educated suppliers, gone out into the world. Work as much as you can to tell the story..." to show stakeholders the technology and the things being done to improve operations. "Help them understand how safe operations are, how we keep everything in the pipe.
"We can't stop now," and pretend that protesters won't attempt more constitutional amendments in the next election two years from now. "Keeping it in the ground is not the right answer," but the public has to understand why.
Bayswater Exploration & Production LLC CEO Steve Struna, a Denver native, said he hoped to see the day when the oil and gas industry "was just like any other manufacturing industry...accepted and a viable part of the state. This can be accomplished. It's not a trade off between environmentalists and natural resource development. We can have both."
Rimer served on Gov. John Hickenlooper's energy task force from 2014-2015, a disparate group that cobbled together agreements giving local governments more opportunities to work on energy development, among other things (see Shale Daily, Jan. 26). Once opponents of oil and gas drilling understood how many jobs and how much revenue were provided -- as well as environmental initiatives underway by operators, they were more amenable to exploration, he said.
Environmental groups have made the region ground zero in their quest to reduce drilling and increase renewables use. And Colorado's constitution is difficult but not impossible to amend. The number of signatures required for a successful petition to amend the constitution is equal to 5% of the total number of votes cast for the office of Colorado secretary of state in the preceding general election.
While the oil and gas industry continues to be a leading employer and source of tax revenue, the state also has been a mecca for new residents in recent years, many of whom are fighting for more renewable energy.
"Since 1910, we've had 220 amendments," Rimer said. However, the average number of amendments has jumped in the last 20 years, reaching about 40 per decade.
The energy industry of late has been in the crosshairs. Rimer, based in Denver, said there are days when he wants to "run back to Texas," where the regulatory regime is more producer friendly.
"For Noble, it's not a quick fix," he told the COGA audience. "It's not going to happen overnight. It's a long period of time...You have to educate the public about what your oil and gas values are...Make sure the public is educated...The polling says three out of four are in favor of oil and gas, and you have to make sure [opponents] understand that."
From being part of a lot of focus groups, Rimer said he was surprised how little understanding there is by the public of the role of oil and gas in people's lives.
"The onus is on ourselves to educate the people," he said. "We've done a poor job...We've lost a generation that don't trust us." The learning process has to start at the elementary school level "all the way to college" to stress the importance of oil and gas and how industry revenue positively impacts the region's tax base, the schools and the roads.
Rimer advised the industry participants to be actively involved in COGA and to "stay on message. Don't confuse the public."
Transparency also is key, he said. Build it with the stakeholders early in the process and stay connected. "We want to get out and make sure they clearly understand" what a project will entail.
"We are part of the ecological system," Rimer said. Stress to the public "the 'Three E's,' the energy we need, the economy we want and the environment we value."
Struna said the best avenue to educate is "face to face outreach" versus advertising. For example, his company provides financial support for the Colorado State University's Engineering Career Fair, which gives management the opportunity to connect with young people -- and in particular with young voters.
Bayswater also collaborates with affected stakeholders as early as possible, "primarily around neighborhoods, open houses when we are getting ready to commence drilling activities. We talk to all the neighbors."
http://www.naturalgasintel.com/articles/107566-dont-expect-colorado-anti-drilling-opponents-to-pack-up-says-industry
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Pipelines: The Worst Way to Move Oil, Except For All the Rest
Aug 28, 2016 | Fortune
By David Z. Morris
The past week has seen a huge increase in attention and momentum for protests against the Dakota Access oil pipeline. Members of the Standing Rock Sioux and other Native American tribes have successfully shut down construction on the $3.7 billion line, which is intended to transport crude oil from the Bakken Shale to Illinois. The project is a subsidiary of Texas-based Energy Transfer Partners, with substantial stakes held by Enbridge Energy Partners and Marathon Petroleum Corp.
The tribes’ objections are both philosophical and practical. They have claimed in court that they weren’t given sufficient opportunity to assess the pipeline’s impact, and that it continues a legacy of exploitation by crossing ancestral land. The proposed pipeline also crosses the Missouri River just a few miles upriver from the Standing Rock Sioux Reservation, which protestors argue jeopardizes the water supply for both the tribe and the entire region in the event of a leak.
Shutting Down the Dakota Access Pipeline Could Push More Oil Onto Risky Trains
The past week has seen a huge increase in attention and momentum for protests against the Dakota Access oil pipeline. Members of the Standing Rock Sioux and other Native American tribes have successfully shut down construction on the $3.7 billion line, which is intended to transport crude oil from the Bakken Shale to Illinois. The project is a subsidiary of Texas-based Energy Transfer Partners, with substantial stakes held by Enbridge Energy Partners and Marathon Petroleum Corp.
The tribes’ objections are both philosophical and practical. They have claimed in court that they weren’t given sufficient opportunity to assess the pipeline’s impact, and that it continues a legacy of exploitation by crossing ancestral land. The proposed pipeline also crosses the Missouri River just a few miles upriver from the Standing Rock Sioux Reservation, which protestors argue jeopardizes the water supply for both the tribe and the entire region in the event of a leak.
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That’s not an abstract worry. In 2010, a pipeline owned by Enbridge leaked 843,444 gallons of crude oil into wetlands around the Kalamazoo River in Michigan. The NTSB at the time faulted Enbridge’s inadequate leak detection systems as a partial cause of the incident, and Enbridge ultimately made a $177 million settlement with the U.S. government. The environmentalist Polaris Institute found that, according to Enbridge data, that company experienced 804 spills and released 5 million gallons of oil between 1999 and 2010.
But here’s the thing—the Sioux’s legal and ethical claims notwithstanding, blocking a pipeline might not be doing any favors for the overall safety of oil transportation. Because as environmentally disastrous and common as pipeline leaks are, the alternative may be worse.
Over the past decade, the lack of sufficient pipeline capacity (particularly in North Dakota) has made transporting oil by train increasingly common —and a boon for the rail industry. But those trains sometimes explode, as did one inHeimdal, North Dakota in May of last year. By one tally, there were ten such explosions in two years—including the nightmarish 2013 explosion of an unsupervised train in Lac-Megantic, Quebec, which killed 47 people in their sleep.
In 2015, Canada’s generally pro-fossil fuel Fraser Institute found that moving fuel by pipeline was 4.5 times safer than doing so by rail. And according to a Fraser representative at the time, “saying ‘No’ to a pipeline is saying ‘Yes’ to rail,” which will “increase the risk to the environment and human health and not decrease it.”
That might or might not be the case with the Dakota Access Pipeline. Activists might eventually push for a re-routing of the pipeline, or some other compromise. More broadly, the shipment of crude by rail has declined significantly over the past year, both because more pipelines are being constructed, and because declining oil prices have suppressed Bakken production overall.
http://fortune.com/2016/08/28/pipelines-vs-trains-oil-transport/
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Alaska Refinery Hazmat Spill Claims Revived on Appeal
Aug 30, 2016 | BNA Daily Environment Report
By Steven M. Sellers
The former owner of an oil refinery in North Pole, Alaska, is on the hook for environmental damage caused by the migration of a solvent from the facility into drinking water, the Alaska Supreme Court ruled Aug. 26 (Flint Hills res. Alaska v. Williams Alaska Petroleum, Inc., 2016 BL 278880, Alaska, No. S-15654, 8/26/16).
The statute of limitations for indemnification claims against Williams Alaska Petroleum Inc. commenced when it refused to indemnify current owner Flint Hills Resources Alaska in 2010, not when Flint knew or should have known of the sulfolane leakages years earlier, the court said. Sulfolane is a colorless liquid commonly used in the chemical industry as a solvent for extractive distillation and chemical reactions.
The decision overturned a Superior Court ruling that Flint's claims were barred by Alaska's three-year statute of limitations for contractual indemnification claims.
North Pole Sues
Flint's suit—and Williams's counterclaim that it was time-barred—were triggered when North Pole homeowner James West sued both companies in 2010 over his sulfolane-contaminated drinking water, according to the decision.
Williams fared better on its claim that Flint's claims for indemnification for strict liability statutory claims related to the contamination were time-barred.
Those claims for contamination within the refinery's borders fall under Alaska's two-year statute of limitations for private actions arising from the release of a hazardous substance, the court said.
But the “claims asserted against Williams for contamination beyond that refinery property—on neighboring properties not owned by Flint Hills—is trespassory and therefore subject to a six-year statute of limitations,” the court said.
Chief Justice Craig F. Stowers wrote the opinion, joined by Justices Dana A. Fabe, Daniel E. Winfree, Peter J. Maassen and Joel H. Bolger.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96477446&vname=dennotallissues&fn=96477446&jd=96477446
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North Carolina To Buy PTC Equipment With Federal Funds
Aug 29, 2016 | Progressive Railroading
The North Carolina Department of Transportation (NCDOT) will equip five converted cab control units with interoperable electronic train management systems using federal funds designated for positive train control (PTC) implementation.
North Carolina will receive $771,070 in federal funds to purchase the equipment and pay for system tests on the Piedmont corridor or within adjacent rail territory of Norfolk Southern Railway and Amtrak, NCDOT officials said late last week in a press release.
"The safe movement of passengers and freight on our rail system is our top priority," said North Carolina Transportation Secretary Nick Tennyson. "These funds will help us ensure that we have the technology to prevent crashes and save lives."
North Carolina was one of six states to receive the PTC funds from the U.S. Department of Transportation.
Under its Piedmont Improvement program, the state is making additional investments in rail safety, including the construction of 12 bridges to separate traffic from trains, eliminating more than two dozen grade crossings and adding 31 miles of passing track.
The federal funds were part of a $25 million grant package recently announced by the Federal Railroad Administration.http://www.progressiverailroading.com/ptc/news/North-Carolina-to-buy-PTC-equipment-with-federal-funds--49279
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White House Calculates Social Costs of Methane, Nitrous Oxide
Aug 30, 2016 | BNA Daily Environment Report
By Rachel Leven
A White House working group calculated social damage estimates for two more greenhouse gases, methane and nitrous oxide.
The Interagency Working Group on the Social Cost of Greenhouse Gases found that as of 2015 the social costs in 2007 dollars were $1,000 per metric ton for methane and $13,000 per metric ton for nitrous oxide emissions, the White House announced Aug. 26. The social cost of carbon dioxide emissions in 2007 dollars for 2015 was $36 per metric ton.
Dozens of agencies across the administration have used the social cost of carbon to justify certain environmental and other regulations. Methane emissions as of 2020 will be 26 to 46 times higher than carbon emissions, reflecting methane and nitrous oxide's greater impact per ton on global warming, the administration said.
“Accurately accounting for the impacts of methane and nitrous oxide is an important part of an effective global response to human-induced climate change,” Howard Shelanski, the administrator of the White House's Office of Information and Regulatory Affairs, and Jay Shambaugh, a White House Council of Economic Advisers member, said in a statement.
“And having a scientifically rigorous, consistent way to value the damages from these emissions (and thus the benefits of reducing them) is critical to ensuring that our voluntary programs and regulations reduce harmful emissions in a cost-effective manner,” the officials said.
The same methodology used for its social cost of carbon estimate was used for methane and nitrous oxide, a methodology approved by the Government Accountability Office. These methodologies are intended to reflect the social and economic costs of greenhouse gas emissions.
EPA and Methane Costs
The Environmental Protection Agency previously calculated the cost of methane emissions for its final rule on new source performance standards (RIN:2060-AS30) for new and modified oil and gas wells. In that rule, the EPA estimated that each metric ton of methane in 2015 would cost $1,100 in 2012 dollars.
The EPA didn't immediately respond to Bloomberg BNA's messages requesting comment.
In the same document release, the interagency working group revised its existing social cost of carbon document, in response to feedback from the National Academies of Sciences, Engineering and Medicine. The group aimed to make the document more transparent, specifically in how it characterizes uncertainty.
The group will assess its methodology for estimating the social cost of greenhouse gases based on long-term guidance in a final report from the academies. The academies’ report is expected in 2017.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96477449&vname=dennotallissues&fn=96477449&jd=96477449
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EPA Plans To Revise Ozone NAAQS 'Anti-Backsliding' Rule
Aug 29, 2016 | Inside EPA
EPA will voluntarily rework part of its ozone regulations for “anti-backsliding” measures that aim to prevent the relaxing of emissions controls in areas that once failed to meet revoked federal ozone standards, after a federal appeals court granted the agency's request to revise the rules to make them more legally defensible.
The U.S. Court of Appeals for the District of Columbia Circuit in an Aug. 29 per curiam order in South Coast Air Quality Management District, et al. v. EPA, et al., grants EPA's voluntary motion for remand and vacatur of portions of its March 6, 2015, rule on how states should implement the agency's 2008 national ambient air quality standards (NAAQS) eight-hour rule for ozone, set at 75 parts per billion (ppb).
The rule revoked prior ozone standards set in 1997, expressed as 84 ppb over eight hours, and imposed measures to ensure states do not lift existing pollution control measures with the transition to a tougher standard, in order to prevent backsliding on air quality. It also established that areas meeting the 2008 NAAQS would also meet the already-revoked 1979 ozone NAAQS, set at 120 ppb over one hour.
However, environmental groups intervening in the case, including Sierra Club and the Conservation Law Foundation, say the agency failed to provide a valid legal justification for the rule.
EPA in a July 21 motion asked the court to scrap and remand to the agency portions of its 2015 implementation rule pertaining to the 1979 NAAQS. The final rule said that “anti-backsliding requirements would not be required for areas initially designated attainment for the generally more-stringent 2008 NAAQS,” according to EPA's motion.
“EPA seeks remand with vacatur of the portions of the Final Rule that address anti-backsliding requirements for the One-Hour NAAQS in areas that either were initially designated as attainment for the 2008 NAAQS, or that in the future are redesignated as attainment for the 2008 NAAQS,” because these provisions “concededly have insufficient support in the present administrative record,” the agency said in its motion.
For regulations to be legally defensible, federal agencies' measures must be justified in the administrative record for a rulemaking, according to the Administrative Procedure Act.
EPA in the motion said it is not seeking to alter other aspects of the 2015 implementation rule, which advocates oppose because it revokes the 1997 ozone NAAQS, as well as its broader approach to anti-backsliding measures, which environmentalists warn could allow pollution increases.
The South Coast air district, which regulates the greater Los Angeles area, is meanwhile suing the agency over the implementation rule because it believes it is too onerous.
Briefing in the case continues, therefore, on all remaining aspects of the 2015 rule, with a reply brief due from EPA Sept. 7 and reply briefs due from petitioners Nov. 7.
http://insideepa.com/news-briefs/epa-plans-revise-ozone-naaqs-anti-backsliding-rule
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Obama To Join Paris Climate Pact 'As Soon As Possible'
Aug 29, 2016 | The Hill - E2 Wire
By Timothy Cama
President Obama is planning to formally join the Paris climate agreement “as soon as possible,” a top adviser said.
Brian Deese gave the update Monday at a White House briefing with reporters in advance of Obama’s trip this week and next to Asia and other locations.
Deese said climate change will be a top agenda item in discussions with Chinese leaders including President Xi Jinping, but he did not say whether Obama will sign the agreement on this trip.
“We’ve made the commitment that we will join in 2016. And we’ve made the commitment to do that as soon as possible this year,” Deese said.
“With respect to exactly when, I don’t have any announcements on that front. But we’ve committed, and we’ve been working on that issue.”
Deese’s comments came after a recent report in the South China Morning Post that said Obama and Xi are planning to announce ratification together before the G20 summit that China is hosting. The report said the announcement would likely come Sept. 2.
A White House spokesman declined to comment on the South China Morning Post report, instead referring to Deese’s Monday comments.
Obama worked to structure the Paris deal so that it would not be defined as a treaty requiring a two-thirds vote of the Senate for ratification. The pact also would not require legislative approval in some other countries.
That has invited criticism from congressional Republicans and their allies, who say Obama evaded Congress in committing the United States to major greenhouse-gas emissions cuts.
The pact commits the United States to reduce its greenhouse-gas emissions 26 percent to 28 percent below 2005 levels by 2025. But none of the emissions targets for any country are binding.
Deese said the administration is thoroughly reviewing the pact before Obama approves it.
“There’s a whole process of how the U.S. enters into executive agreements, which involves a legal component, a legal analysis of the agreement, as well as a review by executive branch agencies and otherwise,” he said. “That’s a process that has been underway since the Paris Agreement.”
Nearly 200 countries came to the agreement in December on what would be the first international climate agreement on emissions cuts from the world’s developed and developing countries.
http://thehill.com/policy/energy-environment/293703-obama-to-sign-onto-paris-climate-pact-as-soon-as-possible-adviser
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