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ACC AM 9/15/16

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LCSA News

(ACC Mentioned) EPA Faces Competing Calls On Addressing 'Intermediates' In TSCA Rules
Sep 14, 2016 | Inside EPA
By Bridget DiCosmo

EPA is facing competing calls over how to address the issue of chemical "intermediates," or substances produced during industrial processes that are not the final product, in its forthcoming rules implementing the new substance prioritization and risk review mandates under the revised Toxic Substances Control Act (TSCA).
Chemical Makers Data Searches May Uncover TSCA Violations
Sep 15, 2016 | BNA Daily Environment Report
By Pat Rizzuto

Chemical manufacturers may discover they have violated the Toxic Substances Control Act as they prepare to comply with recent revisions to the law, an Environmental Protection Agency official said Sept. 14.
10 Things You Need to Know About the New U.S. Chemicals Law
Sep 14, 2016 | Alternet
By Elizabeth Grossman

“This is a big deal,” said President Barack Obama as he signed into law the bill that updates — for the first time in 40 years — the nation’s main chemical safety legislation. Called the Frank R. Lautenberg Chemical Safety for the 21st Century Act to honor the late senator for whom this was a special cause, the law revises the Toxic Substances Control Act that gives the U.S. Environmental Protection Agency authority to regulate chemicals used commercially in the United States.

Chemical Management News

(ACC Mentioned) Nano Strategy ‘Working Well’ as Feds Release Draft Plan
Sep 15, 2016 | BNA Daily Environment Report
By Sam Pearson

Federal authorities released the latest blueprint for managing nanotechnology research and development, including funding for research on how the emerging industry affects worker health and safety.
(ACC Mentioned) 'Safer' Cleaning Products? Seventh Generation Among Companies Using New EPA Label
Sep 14, 2016 | Vermont NPR
By Kathleen Masterson

When you shop for cleaning supplies, brightly colored bottles advertise stain-removing powers or "whiter whites." But it’s hard to get clear information about what the chemical ingredients could do to your health or the environment. The Environmental Protection Agency is hoping to change that.
Endocrine Disruptors: Science Is More Potent Than Politics
Sep 14, 2016 | EurActiv
By Scientists for Scientific European Commission Regulation

A large group of scientists from across various sectors are supporting an appeal to the European Commission regarding its proposed regulation to establish criteria for identifying endocrine-disrupting chemicals (EDCs).
BPA Put Forward For Candidate List
Sep 15, 2016 | Chemical Watch

The French authorities have submitted a proposal for adding bisphenol A to the REACH candidate list of SVHCs. Organisations wishing to submit comments on the proposal have until 21 October.
Your Household Dust May Be Filled With These Hazardous Chemicals
Sep 14, 2016 | Time
By Justin Worland

Ten chemicals suspected or known to harm human health are present in more than 90% of household dust samples, according to a newstudy.
California Cities Refile Monsanto PCB Suit
Sep 15, 2016 | BNA Daily Environment Report
By Joyce E. Cutler

Oakland, San Jose and Berkeley, Calif., refiled their public nuisance lawsuits alleging Monsanto Corp. should pay for cleaning up stormwater contaminated with polychlorinated biphenyls in San Francisco Bay

Energy News

(ACC Mentioned) Industry Urges Conferees To Retain Disputed Efficiency Measure
Sep 15, 2016 | E&E Daily
By Geof Koss

A coalition of business groups yesterday called on the energy conference committee to keep a provision in the Senate's reform bill that would allow federal mortgage lenders to consider a home's energy efficiency and monthly energy bills when determining a homebuyer's ability to make payments.
Ohio Supreme Court Keeps Anti-Drilling Petitions Off Ballot
Sep 14, 2016 | Natural Gas Intelligence
By Charlie Passut

The Ohio Supreme Court ruled Tuesday that Secretary of State Jon Husted and the election boards from three counties did not violate the law when they rejected proposed county charters that, if successful, could have led to local bans on oil and natural gas development.
Army Corps, Developer Slam Emergency Bid For Work Freeze
Sep 14, 2016 | E&E News PM
By Ellen M. Gilmer

Government officials and backers of the Dakota Access pipeline pushed back today on another effort to freeze construction near tribal lands.
Shock Work Stoppage Pulls Oil Industry Into Dakota Pipeline Fight
Sep 14, 2016 | PoliticoPro
By Elana Schor

The broader oil and gas industry is jumping into the escalating battle over the Dakota Access pipeline, alarmed by the Obama administration's surprise move last week to freeze construction on a section of the pipeline after protests from tribal and environmental activists.
Standing With The Standing Rock Sioux Tribe
Sep 14, 2016 | The Hill - Pundits
By Former Gov. Bill Richardson (D-N.M.)

As someone who regularly appears on television to discuss the day’s top stories, I’ve been fielding calls lately to give my thoughts on Secretary Clinton’s health, Donald Trump’s health, Secretary Clinton’s foundation, Donald Trump’s foundation, and so on. Yet, I have not received a single call from the media asking about the most important and quintessentially American story that is playing out on the banks of the Missouri River in North Dakota right now.

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Environment News

(ACC Mentioned) CalRecycle Officials Recommend Move Toward Statewide EPR System
Sep 15, 2016 | Waste Dive
By Cole Rosengren

An internal memo sent to the director of the California Department of Resources Recycling Recovery (CalRecycle) recommends creating "a mandatory comprehensive, statewide packaging program" in the state, as reported by Resource Recycling.
(ACC Mentioned) Symposium Shines Light On Marine Debris Issue
Sep 14, 2016 | Lumina News
By Terry Lane

As marine debris continues to grow as a threat to marine life, Wrightsville Beach served as host to the Fourth Annual North Carolina Marine Debris Symposium on Sept. 11-14, drawing more than 60 attendees to discuss the problem and consider solutions.
Americans Appear Willing To Pay For A Carbon Tax Policy
Sep 15, 2016 | The New York Times
By Michael Greenstone

The stumbling block in Congress for confronting climate change has perpetually been the economic challenge. There has been little support for paying to reduce greenhouse gas emissions.
EPA Defends Scaled-Back 'Anti-Backsliding' Rules For Ozone Air Standard
Sep 14, 2016 | Inside EPA
By Stuart Parker

EPA is defending its decision to scale back “anti-backsliding” rules designed to prevent the removal of air pollution controls imposed on industry to help states attain the federal ozone national ambient air quality standard (NAAQS), rejecting environmentalists' claims that the Clean Air Act requires more such rules to be left in place.
EU Should Speed Ratification of Paris Climate Pact: Top Official
Sep 15, 2016 | BNA Daily Environment Report
By Stephen Gardner

European Union member states should speed up their discussions so that the bloc's ratification of the Paris Agreement on climate change can be finalized within “weeks, not months,” the president of the European Commission said Sept. 14.

Industry and Association News - There are no clips to report at this time.

LCSA News

(ACC Mentioned) EPA Faces Competing Calls On Addressing 'Intermediates' In TSCA Rules

Sep 14, 2016 | Inside EPA

By Bridget DiCosmo

EPA is facing competing calls over how to address the issue of chemical "intermediates," or substances produced during industrial processes that are not the final product, in its forthcoming rules implementing the new substance prioritization and risk review mandates under the revised Toxic Substances Control Act (TSCA).
Environmentalists are urging EPA to consider the role of intermediates in its decision on which chemicals to prioritize for review under section 6 of the law, which mandates the agency to screen and designate substances as high- or low-priority. Advocates also want EPA to consider intermediates when conducting reviews under the same section on whether a chemical poses an unreasonable risk to human health or the environment.
Justifying the need to consider intermediates, environmentalists say that although a chemical intermediate is not the final product that eventually reaches the marketplace for use in consumer products, there is still potential for human exposure through occupational exposures and manufacturing facility accidents.
Chemical industry officials, however, are urging the agency to clarify in the prioritization and risk review rules that chemicals used exclusively as intermediates are "closed system" substances with no exposure potential and do not pose a risk for downstream use regardless of whether there is hazard potential.
EPA's eventual decision on the role of intermediates has significant implications because it could indicate whether it will attempt to regulate them under its section 6 power to address chemicals in commerce, or exclude them from regulation and instead focus on the risks of chemicals that are final products.
The revised TSCA, which took effect June 22, requires EPA to establish by rulemaking a risk-based process to identify whether a substances is a high- or low-priority for the purpose of risk reviews, taking into account hazard, exposure, persistence, bioaccumulation, proximity to drinking water and other characteristics.
The agency is also developing a rule setting a process for conducting chemical risk assessments under section 6 to determine whether a high-priority substance meets the law's "unreasonable risk" standard and should be targeted for further risk management regulations to guard against those adverse impacts.
EPA recently held public meetings in Washington, D.C., to see input on the two rules, as well as a separate meeting seeking advice on how to craft a fee program expected to help pay for the law's implementation.
The agency has set a target of mid-June 2017 for finalizing the risk rules, and plans to issue proposed rules for each effort by mid-December. The agency has not clarified how it will address intermediates, or chemicals produced as part an industrial process to manufacture a separate chemical, in either rulemaking, but industry groups and environmentalists discussed the issue in comments submitted ahead of EPA's Aug. 24 deadline.
The American Chemistry Council (ACC) says in its Aug. 24 comments on the prioritization rule that the regulation should distinguish between the intentional use of a chemical in a product and its use as a chemical intermediate during manufacturing only, where the potential for exposure may be significantly lower in the latter scenario.
ACC says, "[A]s EPA heard during the public comments at the August 10 stakeholder meeting, the prioritization process rule should make clear that a chemical that is used exclusively as an intermediate, or in closed systems, or is fully reacted during its processing at a chemical facility site, or exists in a form in products with no exposure potential, will not pose a concern for a downstream consumer use regardless of its hazard profile."
One source familiar with the issue says the question of how to consider intermediate chemicals has not frequently come up under the original 1976 TSCA, because it is primarily a regulatory question and the agency issued few regulations under the law following a 1991 federal appeals court decision striking down EPA's asbestos ban.
The University of Massachusetts Lowell's Toxics Use Reduction Institute in Aug. 18 comments says,"In considering chemical intermediates, it is important to consider the potential for occupational or public exposure during accidents or process malfunctions." The comments are available on InsideEPA.com. (Doc. ID: 194658)
The group argues that in risk reviews and listing chemicals for prioritization, EPA must avoid assuming an absence of exposure potential when assessing a chemical, adding that methyl isocyanate, a source of severe toxic exposures in the Bhopal disaster, is used as a chemical intermediate for the production of some insecticides and herbicides.
The issue is similar to another question EPA is struggling with under section 6, which is how broadly to consider the scope of a chemical's "conditions of use" under the revised chemical safety statute, a question that has implications both for risk reviews and the fees the agency will assess from industry to supplement funding of risk reviews.
The statute defines "conditions of use" as the "circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of" (Inside EPA, Sept. 9).
ACC said in its comments that the statutory definition "points to the need for EPA to determine the relevant conditions of use" because it specifies the circumstances "under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of" rather than all circumstances.
Environmentalists, however, counter that any attempt to limit the way fees are assessed to particular uses or to restrict EPA's risk findings on chemicals to some uses by finding that other uses might be "low priority" would be unlawful.
"There is no basis in the law to designate particular uses as 'low priority' on the ground that they are low risk," Safer Chemicals, Healthy Families, a coalition of environmental groups that pushed for strict TSCA reform, said in Aug. 24 written comments filed on EPA's efforts to develop risk evaluation rules under the updated law.
http://insideepa.com/inside-epa/epa-faces-competing-calls-addressing-intermediates-tsca-rules

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Chemical Makers Data Searches May Uncover TSCA Violations

Sep 15, 2016 | BNA Daily Environment Report

By Pat Rizzuto

Chemical manufacturers may discover they have violated the Toxic Substances Control Act as they prepare to comply with recent revisions to the law, an Environmental Protection Agency official said Sept. 14.
The amendments the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. No. 114-182) made to TSCA are designed to ensure the EPA obtains more toxicity, exposure and other data on chemicals, said Mike Walker, director of an EPA center that trains agency, state and local enforcement officials. He spoke during a chemical control law seminar organized by Keller and Heckman LLP.
As companies search existing records to identify data they already have, they may uncover information they realize they should previously have reported to the EPA under Section 8(e) of both the original and amended TSCA, Walker said.
Section 8(e) requires chemical manufacturers, processors and distributors to notify the EPA immediately when they discover a chemical or chemical mixture presents a substantial risk of injury to health or the environment. Companies should submit these “Substantial Risk Notifications” within 30 calendar days of obtaining the information, according to agency guidance.
Self-Disclosure Can Reduce Penalties
Failure to report substantial risk information is a violation of TSCA.
The Lautenberg Act increased the penalties for TSCA fines, Thomas Berger, an attorney at Keller and Heckman said Sept. 13. The maximum civil penalty was increased from $25,000 to $37,500 per violation per day and the maximum criminal penalty increased from $25,000 to $50,000, he said. EPA can impose a higher criminal penalty and imprisonment for violations that placed individuals in imminent danger of death or serious injury.
Walker said companies that discover a violation may want to use the EPA's self-disclosure or “audit”policy, which provides companies incentives to discover and fix violations.
Penalties for self-discovered and reported violations are often reduced or waived, Walker said. “We're not in the business of whittling down the federal deficit with fines. We want business to comply,” he said.
When companies conduct new toxicity or exposure tests the amended TSCA gives the EPA authority to order, they also may find their chemical causes hazards they must report, Walker said.
Reporting data from one particular study may not seem important, he told Bloomberg BNA after his presentation. If the EPA gets data from multiples studies, however, a picture slowly emerges that can reveal health or environmental concerns a chemical raises, Walker said.
Certifying CBI Claims
Chemical manufacturers that file substantial risk notices often claim certain information in those notices to be confidential business information that the EPA is not allowed to disclose.
During a presentation on general changes the Lautenberg Act made to confidential business information claims, Adrienne Timmel, an attorney with Keller and Heckman, said the EPA now is requiring that CBI assertions be certified.
Among other statements, companies that claim the EPA must protect information as confidential must certify they have taken reasonable measures to protect the confidentiality of that information, and they must have a reasonable basis to conclude its disclosure would cause substantial harm, according to guidance the EPA recently released.
Making false statements can be a criminal violation, Timmel said.
“The days of putting a CBI claim on something and worrying later about how to substantiate it are gone,” she said.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97227780&vname=dennotallissues&fn=97227780&jd=97227780

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10 Things You Need to Know About the New U.S. Chemicals Law

Sep 14, 2016 | Alternet

By Elizabeth Grossman

“This is a big deal,” said President Barack Obama as he signed into law [3] the bill that updates — for the first time in 40 years — the nation’s main chemical safety legislation. Called the Frank R. Lautenberg Chemical Safety for the 21st Century Act [4] to honor the late senator for whom this was a special cause, the law revises the Toxic Substances Control Act [5] that gives the U.S. Environmental Protection Agency authority to regulate chemicals used commercially in the United States.
As Obama noted at the June 22 signing ceremony [3], TSCA was supposed to ensure that chemicals used in the U.S. were safe for human health and the environment. But, said the president, “Even with the best of intentions, the law didn’t quite work the way it should have in practice.”
In fact, TSCA allowed the approximately 62,000 chemicals already on the market when it was passed in 1976 to continue being used without safety testing. It also placed enormously high hurdles for the EPA to clear before demonstrating a chemical was hazardous enough to ban. Even asbestos has failed [6] to meet those requirements [7]. It was widely agreed, by industry and environmental advocates alike that TSCA was badly in need of revision.
As the Lautenberg Act’s lead sponsor Senator Tom Udall told Ensia by email, “Most Americans believe that if they can buy a product at the grocery store or the hardware store, the government has tested it and determined that it’s safe. But that hasn’t been true. There has been no cop on the beat testing chemicals to make sure they’re safe — even the ones in your home.”
But exactly what the revisions should look like was a matter of considerable debate, and the new legislation was years in the making [8]. Overall, the revised TSCA gives the EPA far more authority to act on hazardous chemicals. And while questions and reservations about the bill remain on all sides, it’s largely been greeted with hope that the new law will enable the EPA to do a better job of evaluating and acting effectively on chemical safety.
EPA is already putting the new legislation into practice. But as Environmental Defense Fund lead senior scientist Richard Denison said, “It’s not going to be an overnight process. The original law dug a very deep hole that we have to climb out of.”
As that process gets underway, here’s what anyone concerned about the safety of chemicals we all encounter daily, should know about what the new TSCA will — and won’t — do:
1. What does TSCA regulate?
TSCA regulates chemicals used commercially in the United States. That said, TSCA does not regulate pesticides, chemicals used in cosmetics and personal care products, food, food packaging, or pharmaceuticals. Some chemicals, however, have multiple uses and so may be regulated concurrently by TSCA and other federal laws. For example, TSCA regulates the plastics ingredient bisphenol A when it’s used as a receipt paper coating, but the Federal Food, Drug and Cosmetic Act [9] regulates BPA when it’s used in food packaging.
2. Will the new law make it easier for the EPA to restrict or ban use of highly toxic chemicals?
Unlike the old law, the new TSCA [10] requires EPA to review the safety of all chemicals used commercially in the U.S. “The EPA is actually required to look at existing chemicals,” says Wendy Cleland-Hamnett, director of the EPA’s Office of Pollution Prevention and Toxics. “Under the old TSCA there was no mandate that the EPA look at existing chemicals. That’s huge.”
The new TSCA “gives EPA sweeping new authority to prioritize and evaluate existing chemicals so it will be easier for EPA to regulate these substances, if found to pose unreasonable risks,” says chemical regulation expert Lynn Bergeson, managing partner at the law firm Bergeson & Campbell.
Now new chemicals must be found safe before they can be sold.The EPA must also review all new chemicals and decide if they present “an unreasonable risk” to human health and the environment. If such risks are found, the EPA may restrict or ban a chemical. Under the old TSCA, chemical manufacturers had to submit certain information to the EPA before new chemicals could go on the market — but unless the EPA raised objections within 90 days, the chemicals could be sold without further scrutiny. According to the EPA, the agency has taken action on only about 10 percent of the nearly 40,000 new chemicals submitted to the agency between 1979 and September 30, 2015. EDF’s Denison says this 10 percent may be an overestimate.
Now new chemicals must be found safe before they can be sold, says Environmental Working Group legislative attorney Melanie Benesh.
What the EPA does under the Lautenberg Act will, however, also depend on available funding. The law requires the chemical industry to help pay for the program, but the EPA also depends on federal budgets as determined by Congress. Udall says he “will be fighting to make sure the EPA has the resources it needs to do its job.”
3. Will the new law let EPA restrict or ban use of highly toxic chemicals more quickly?
Yes — in theory. The new law requires the EPA to prioritize chemicals for evaluation [11]. It also sets enforceable deadlines for the EPA’s chemical reviews.
By mid-December 2016 (within the bill’s first 180 days) the EPA must have begun to review at least 10 chemicals. These will come from a list of existing chemicals the agency had already decided to evaluate. Within the first three-and-a-half years, the EPA must have 20 ongoing chemical evaluations. Reviews are supposed to be completed within three years, but that deadline can be extended six months. The EPA is supposed to issue any regulations within two years after that. The EPA can extend either of these deadlines but extensions for one chemical can’t add up to more than two years.
Given the enormous backlog, progress through the untested chemicals will still be slow — to say the least. In fact doing the math on 62,000 chemicals shows it could take the EPA centuries to work through every substance. But given that the old TSCA had no chemical review deadlines, the Lautenberg Act aims to improve substantially on the decades-long reviews of single chemicals that occurred under its predecessor.
4. What chemical hazards is the new TSCA designed to protect us from?
The first chemicals the EPA will evaluate must come from a list the agency has already decided merit review [12] — chemicals that pose concerns for children’s health, are carcinogenic, environmentally persistent, toxic and build up in fat or other living tissue, or are widely found in biomonitoring programs.
When choosing chemicals to review, the EPA must give priority to those with large exposure potential, those that are environmentally persistent and bioaccumulate, and those that are stored near important drinking water sources.After that, when choosing chemicals to review, the EPA must give priority to those with large exposure potential, those that are environmentally persistent and bioaccumulate, and those that are stored near important drinking water sources. The new law also tells the EPA to address chemicals that are likely to pose health and safety threats to those considered most vulnerable — including infants, children, pregnant women, workers and the elderly.
Additional criteria for chemical prioritization [13] are due from the EPA by June 2017.
5. What chemical hazards will the new TSCA leave untouched, if any?
The new law authorizes the EPA to review all existing and new chemicals, to identify those that pose unreasonable risks, and to regulate or eliminate those risks. The goal is to leave no unreasonable risk untouched. The details of EPA’s risk evaluations [14], however, have still to be worked out in a rule that must be completed by June 2017. These — along with the additional chemical prioritization criteria — will play a big role in determining exactly how effective the Lautenberg Act will be at reducing exposure to hazardous chemicals.
6. Will the new law do a better job of preventing disastrous chemical spills?
While TSCA is not intended to address or prevent chemical spills, the new law’s requirements should eventually help reduce the impact of spills or other accidents. Among these is the requirement that chemical companies disclose their products’ contents in emergencies rather than claim such information as trade secrets.
7. Will the new law keep hazardous materials out of furniture, clothing and personal care products?
Because some chemicals used in these products (which aren’t covered by TSCA) have additional uses that fall under TSCA’s purview, the upgraded review process could potentially avert hazardous chemicals’ use in a wide range of consumer products.
8. Is the new TSCA likely to proactively change chemical companies’ practices?
Because the new TSCA requires all chemicals to be evaluated, it’s expected to influence which chemicals are chosen as product ingredients, how chemicals are used in manufacturing and how chemicals are manufactured as companies try to avoid using chemicals likely to be restricted or banned. This may also create an incentive for new, safer chemicals and finished products.
9. What are its implications with respect to environmental justice?
The new TSCA requires the EPA to consider impacts of chemical exposures on those most “susceptible” to these effects [15], “such as infants, children, pregnant women, workers, or the elderly.’’ How the EPA defines “susceptible” and “vulnerable” and how it considers impacts to these groups is yet to be determined. But already, public interest groups have asked the EPA to consider social and economic factors.
10. What aspects have yet to be settled, and what can citizens do to influence them?
Instead of hammering out chemical prioritization criteria and the details of how the EPA will evaluate chemical risks before the Lautenberg Act was passed, lawmakers decided to leave those torules that will become part of the overall law [16]. The rule-making process involves official public comment periods, so the EPA will be considering those as it writes these rules, along with a rule about potential chemical industry fees [17] that will go toward covering some of the law’s costs. Initial public comment periods for these rules are already closed. The law also includes public comment periods before the EPA finalizes these rules, as well as for ongoing chemical selections and evaluations.
And, points out Kathy Curtis, Clean and Healthy New York executive director, the new law leaves ample room for continued action on the part of state legislatures and citizens. This includes action on chemical uses TSCA doesn’t regulate and new bills on chemical use reporting — both of which have been instrumental in influencing which chemicals get used in consumer products.
As many have cautioned, substantive changes will take time. But according to the EPA’s Cleland-Hamnett, the new law opens the potential for “a huge increase in human health and environmental protection.” But this won’t happen without public engagement on the part of those with a stake in the outcome — essentially, all of us.

Elizabeth Grossman is the author of Chasing Molecules: Poisonous Products, Human Health, and the Promise of Green Chemistry, High Tech Trash: Digital Devices, Hidden Toxics, and Human Health, and other books. Her work has appeared in a variety of publications including Scientific American, Yale e360, Environmental Health Perspectives, Mother Jones, Ensia, Time, Civil Eats, The Guardian, The Washington Post, Salon andThe Nation.
http://www.alternet.org/environment/10-things-you-need-know-about-new-us-chemicals-law

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Chemical Management News

(ACC Mentioned) Nano Strategy ‘Working Well’ as Feds Release Draft Plan

Sep 15, 2016 | BNA Daily Environment Report

By Sam Pearson

Federal authorities released the latest blueprint for managing nanotechnology research and development, including funding for research on how the emerging industry affects worker health and safety.
The draft document, which sets out goals for developing and commercializing the technology and was released Sept. 12, is largely unchanged from previous versions. The plan, which is required under the 21st Century Nanotechnology Research and Development Act, sets policy for the White House-led National Nanotechnology Initiative for the next three years across 20 departments and independent agencies.
The document, when it takes effect next year, will replace a previous strategic plan issued in March 2014. Research spurred by the initiative's priorities could eventually aid the understanding of the worker safety and environmental health implications of nanotech materials.
“A lot of advances have been made in this field, especially in our ability to characterize engineered nanomaterials and that is enabling us to do a better job of helping to protect workers and to protect the public [and] ultimately understand what the risks are,” said Michael Meador, director of the National Nanotechnology Coordination Office.
The same four goals remain: advancing nanotechnology research and development, fostering technology transfer of new technologies to commercial and public projects, developing educational and workforce resources, and supporting the responsible development of nanotechnology.
Member agencies “feel strongly that things are working well,” Meador told Bloomberg BNA Sept. 14.
The White House Office of Science and Technology Policy published a notice of availability in the Federal Register Sept. 13.
The plan will help spur new innovations that “promise to improve human health and quality of life, enhance the U.S. economy, boost job creation, and strengthen our national defense,” the initiative said in a statement Sept. 12.
EHS Spending Funds Research
The initiative's spending on health and safety issues has remained fairly stable in recent years.
The initiative requested $100.1 million for environment, health and safety research in fiscal year 2017, according to its most recent budget request. Of those funds, $21.6 million would go to the National Science Foundation, the largest share, while the National Institutes of Health would receive $21 million and the National Institute for Occupational Safety and Health would receive $11 million.
The environment and health spending is about 7 percent of the initiative's total budget, an increase from 4.8 percent in fiscal year 2011 and just 2.8 percent in fiscal year 2006. When combined with related spending in other sectors, the total is about 10 percent of the budget, the document states.
“There's significant potential positive aspects of this, but we need those to be managed in a mature way to ensure that we're not bringing about something that's so profound without any laws in place,” Ian Illuminato, a health and environment consultant at Friends of the Earth, told Bloomberg BNA Sept. 12, “which has so far been what's happening.”
Friends of the Earth and other environmental groups have pushed for tougher evaluations of the potential health risks of nanotech products.
Other agencies are taking a closer look.
The Environmental Protection Agency has worked to decide if nanoscale substances and materials pose a greater health risk than other types of chemicals, in part by proposing that companies disclose more health and safety data on the chemicals.
And the Consumer Product Safety Commission, in its budget request for fiscal year 2017, proposed doubling its nanotechnology investments and launching a new EHS research center with NIOSH.
Industry Plans Review
In a statement to Bloomberg BNA Sept. 12, Jay West, head of the Nanotechnology Panel of the American Chemistry Council , said the group planned to examine the proposal.
“NNI's strong, continued emphasis on responsible development is appreciated, especially as the world is seeing nanotechnology as a truly enabling, transformative technology,” West said. “We also recognize the interconnected, synergistic nature of NNI plan's goals.”
The NNI is accepting public comments on the plan through Sept. 23. The final report should be released by the end of the year, Meador said.

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(ACC Mentioned) 'Safer' Cleaning Products? Seventh Generation Among Companies Using New EPA Label

Sep 14, 2016 | Vermont NPR

By Kathleen Masterson

When you shop for cleaning supplies, brightly colored bottles advertise stain-removing powers or "whiter whites." But it’s hard to get clear information about what the chemical ingredients could do to your health or the environment. The Environmental Protection Agency is hoping to change that.
The EPA has revamped its environmental safety label, rebranding it as "Safer Choice." And the Burlington-based Seventh Generation is among the growing number of companies investing in the new logo.
In theory, the EPA already regulates all chemicals; so no products on the market today should be harmful. But historically, the Toxic Substance Control Act has limited what regulations the EPA could actually create and enforce.
Consider the recent findings of unsafe levels of PFOA in drinking water in Vermont, New York and New Hampshire. Or the EPA's attempt to ban a known carcinogen, asbestos, that was shot down by the courts in 1991.
Finding a safer alternative
So the EPA developed a voluntary program, where companies can pay to submit their chemicals to a review to earn the new Safer Choice logo on their product.
"This really came out of the fact that we were really struggling to figure out how to manage chemicals with a failed Toxic Substance Control Act," said Gina McCarthy, the top administrator at the EPA.
"We realized was that if we put a simple label on a product that people can see — we put that on a product that is safer, it's a safer choice for household products — that people will respond to that, that consumers will regulate with their dollars."
"This really came out of the fact that we were really struggling to figure out how to manage chemicals with a failed Toxic Substance Control Act." - Gina McCarthy, EPA
McCarthy says the Safer Choice logo has the full backing of EPA science.
"We are incredibly rigorous, and we're very demanding on this label, so it really is about making sure that it doesn’t have ingredients in it that we know are toxic, that we know are carcinogens or mutagens."
That means analyzing each ingredient for everything from impacts on human health to what effect it could have on aquatic creatures, like fish.
"If a chemical has data, which shows that it's got potential health effects for people or effects for the environment, we don't allow it to be used in program," says Clive Davies, who runs the Safer Choice program for the EPA.
Say a company wants to add a stain-fighting ingredient to their laundry detergent. Even if chemists can scientifically show that this chemical is not going to harm humans in low concentrations, if the chemical itself is a known hazard, it's not allowed to be used under the Safer Choice label.
That means some chemicals that are deemed safe under the conventional safety review process will never meet the Safer Choice criteria, says Davies.
"And that's tied really to the goal of our program, which is to provide incentives for truly safer chemistry. So that just because it's allowed at low level, doesn't mean it's safer. So we only allow the safest possible chemicals."
"Just because [a chemical] is allowed at low level, doesn't mean it's safer. So we only allow the safest possible chemicals." - Clive Davies, EPA Safer Choice program
Not only that, but even if there isn't any data suggesting that a chemical is harmful, scientists analyze whether or not it is similar to known hazardous chemicals.
"We do not allow use of chemicals that might be structurally similar — just where testing may not have been done — but we make sure the chemicals that might come up as problematic in future are not allowed," says Davies.
The labeling program was originally created in the 1990s, under the name "Design for the Environment," but several years ago the EPA hired consultants to re-brand the logo for better recognition among consumers.
A label they can relate to
Martin Wolf, the director of sustainability for Seventh Generation, says the EPA's approach jibes with how the Vermont-based company has been developing chemical formulas for years. Wolf has been working in the field of "green" chemistry for close to 40 years, studying the impact of industrial chemicals on the environment and health.
"Prior to the Safer Choice logo, Seventh Generation shunned logos generally, because we felt we were making a product superior to any of the then-existing labels," says Wolf.
But Wolf says when the EPA rebranded the Safer Choice label a little over a year ago, his company felt the label was meaningful, both to consumers and from a science perspective.
So Seventh Generation had some of its products certified Safer Choice, including the "Free and Clear" laundry detergent and some detergent pods. The company also won a Safer Choice Partner of the Year Award.
To gain approval for a product to bear the logo, companies have to submit data sheets for each chemical in their product to a third-party reviewer for the EPA.
"It is a very authentic and rational way to review chemicals ... they truly understand the chemical industry." - Heidi Raatikainen, Seventh Generation
"That includes a toxicological, environmental, human health review of each ingredient that goes into your product," says Heidi Raatikainen, a compliance scientist at Seventh Generation. "They will review every single ingredient that is added to the product at any point in the supply chain."
"It is a very authentic and rational way to review chemicals," says Raatikainen. "One of the differences with the EPA Safer Choice from other certifications that I've seen is that they truly understand the chemical industry, and what the concerns are, and how the supply chain works, which is really key in terms of evaluating a product for the appropriate measures for health and safety."
Whose science defines 'safer'?
But Wolf says some in the industry don't like this approach, in part because certain chemicals they rely on would never meet the label requirements.
"And this concerns conventional industry because they want to be able to use some of the other chemicals because they have better technical properties, they might have lower cost, for whatever reason," says Wolf. "And then they will make their products useable in a way they deem to be safe, because of limited exposure."
By "limited exposure," Wolf is referring to the traditional method of evaluating risk of a chemical. Basically, some companies want to keep on with the status quo, where if a chemical is used in safe concentrations, it's allowed. This is how the new Toxic Substance Control Act passed this year evaluates chemicals.
"We believe a full risk-assessment is what gives the proper scientific review to situations like this," says Kathryn St. John, the head of communications for the American Chemistry Council, a group with hundreds of members ranging from small companies to larger ones such as Bayer, 3M, Dow and DuPont.
"Simply having a list of chemicals that are a hazard list or a blacklist of chemicals that shouldn't be included doesn't take into consideration exposure." - Kathryn St. John, American Chemistry Council
"Simply having a list of chemicals that are a hazard list or a blacklist of chemicals that shouldn't be included, doesn't take into consideration exposure," she says.
St. John says the American Chemistry Council filed those concerns with the EPA.
"It goes back to real-world exposure, so we think its really important to look at the full range of scientific evidence," says St. John. "And that's what a comprehensive risk assessment does. It helps you understand that chemicals can be used safely, and consumers can have a small amount of something in a product, and that its safe to use that product."
But scientists involved in developing the Safer Choice criteria contend that it's hard to control "exposure" in the real world. People don't always read labels and could use more than the recommended amount of a product. Or spills into the environment could happen.
Gaining momentum
Companies both small and large are taking notice of the label. Clorox won an EPA Safer Choice "Partner of the Year" award this year. And Walmart has pledged that it will strive to formulate its private brand products to meet the Safer Choice label.
In the last year alone, the EPA has seen a 30 percent increase in requests to be reviewed for the Safer Choice label. To date, more than 2,500 products have been approved to carry the label.
This report comes from the New England News Collaborative: Eight public media companies coming together to tell the story of a changing region, with support from the Corporation for Public Broadcasting.
http://digital.vpr.net/post/safer-cleaning-products-seventh-generation-among-companies-using-new-epa-label#stream/0

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Endocrine Disruptors: Science Is More Potent Than Politics

Sep 14, 2016 | EurActiv

By Scientists for Scientific European Commission Regulation

A large group of scientists from across various sectors are supporting an appeal to the European Commission regarding its proposed regulation to establish criteria for identifying endocrine-disrupting chemicals (EDCs).
This opinion was penned by Christopher J. Borgert, Daniel R. Dietrich, Gio Batta Gori, Terry F. Quill, et al. These and other Scientists for Scientific European Commission Regulation support the views expressed below, as well as Borgert’s comment to the European Commission about its criteria for identifying EDCs.
By relying entirely on the World Health Organisation’s International Programme on Chemical Safety definition, a key element that would allow practical implementation of the Commission’s proposed criteria has been omitted: potency.
Ironically, some who advocate the precautionary principle oppose including potency even though it is the key to ensuring the precautionary identification of EDCs. A brief background explains how the politics of endocrine disruptors are preventing a solution based on well-established science.
As early as 1996-1998, during deliberations of the Endocrine Disruptor Screening and Testing Advisory Committee (EDSTAC) in the US, some scientists argued that a lack of endocrine potency should not prevent the United States Environmental Protection Agency (EPA) from testing a chemical for endocrine disruption.
Their assertion was that any interaction of a chemical with the endocrine system could cause an adverse effect under some conditions. They also argued that there should be no requirement to identify or demonstrate the adverse effects that such a chemical might produce, since adverse effects could be subtle or not yet discovered.
That approach left regulatory agencies with little to rely upon for regulating chemicals: no requirement for evidence of adverse effects and no requirement that chemicals interact strongly enough with the endocrine system to produce effects.
In the decades since those first debates over potency and adverse effects, a consensus has grown among most scientists that to be classified as an EDC, a chemical must produce an adverse effect as a consequence of its interaction with the endocrine system.
The adopted definition and the newly proposed Commission criteria require it. However, those criteria provide no objective way to link the endocrine interaction with the adverse effect.
The reason for that deficiency seems to be that during a meeting convened by the German Federal Institute for Risk Assessment aimed at reaching a compromise between scientists with opposing views on the topic, this omission was necessary to gain support from those who continued to argue that potency evaluation is too complex to include as a criterion and would limit the number of chemicals that could be identified as EDCs.
But potency evaluation is not only possible and practical, it is so powerful and reliable that it is the pharmaceutical industry’s chief means of selecting hormonally active drug candidates for therapeutic use and excluding low potency chemicals with no potential to produce endocrine effects.
By evaluating the strength of a chemical’s interaction with the endocrine system, it can be determined with great accuracy whether the chemical could produce any effect – either beneficial or adverse – in humans.
Inferring the potential for adverse effects based on potency evaluation is much more efficient than the alternative means of linking adverse effects with an endocrine mode of action: extremely large toxicity studies in which the chemical is administered at several doses, with and without a second chemical that blocks the interaction with the endocrine system. Such studies are expensive, require months to complete, and involve excessive numbers of laboratory animals.
There’s a much better way. Because potency is the basic operating principle of the endocrine system, it provides the critical link between an endocrine mode of action and an adverse effect.
High potency allows the endocrine system to distinguish hormones that convey critical biological signals from the numerous other chemicals occurring naturally in the body that interact with it inconsequentially due to their low potency.
High potency also distinguishes exogenous chemicals that can mimic hormones or interfere with their action from low potency chemicals that merely interact with the endocrine system without altering its function.
For example, low potency is the reason that essential fatty acids and most phenols found naturally in fruits and vegetables lack physiological oestrogenic effects even though they interact with oestrogen receptors.
By making potency comparisons to natural hormones, natural components of the human diet and human pharmaceuticals – much the way the endocrine system seems to distinguish molecules that convey biological information from the other molecules in circulation that interact inconsequentially with hormone receptors – regulators have the ability to distinguish chemicals with the potential to produce adverse effects as a consequence of endocrine activity from those that do not.
This can be done without excessive use of animals, and as a matter of policy, the potency level considered relevant for potential adverse effects can be set conservatively to afford an appropriate level of precaution.
Potency comparisons are not only used by the pharmaceutical industry, their use in regulatory decision-making has also been proposed in published articles and presented at scientific meetings.
Potency comparisons were used by EPA in its weight of evidence determinations regarding the endocrine potential of 53 chemicals screened in its Tier 1 battery of assays, and potency evaluations are incorporated into the algorithm the Agency uses to evaluate data from its EDSP-21 program for prioritising chemicals for endocrine screening.
The system has been validated against data from animals and the EPA suggests this system is sufficiently reliable to replace some of the animal studies in its current Tier 1 battery.
Although some argue that the Commission’s proposed criteria will fail to identify EDCs because evidence for a causal link between an endocrine mode of action and adverse effects in humans is unattainable, such a link will be difficult to make only because the proposed criteria relegate potency to a post-hoc role in dose-response characterisation, thus eliminating the most efficient way to reliably identify EDCs.
Instead, the evaluation of potency is necessary in the hazard identification phase because it provides the necessary link between adverse effects and an endocrine mode of action.
To resolve this problem, the Commission needs to make only a small change in its second criterion for a chemical to be considered an EDC: (2) “it acts through an endocrine mode of action with sufficient potency to alter human endocrine function, as established by potency comparisons to human hormones or human pharmaceuticals.”
This would provide for reliable identification of EDCs without requiring direct human data on each chemical or unnecessary, expansive studies in laboratory animals. It’s time to suspend political posturing so that established science can prevail in this regulation.
https://www.euractiv.com/section/health-consumers/opinion/wed-amendocrine-disruptors-science-is-more-potent-than-politics/

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BPA Put Forward For Candidate List

Sep 15, 2016 | Chemical Watch

The French authorities have submitted a proposal for adding bisphenol A to the REACH candidate list of SVHCs.
Organisations wishing to submit comments on the proposal have until 21 October.
France's proposal comes as little surprise as it previously submitted a proposal for classifying BPA as a category 1B substance toxic for reproduction. EU member states and the European Commission approved this and it comes into force in March 2018.
The proposal – or Annex XV report – says that uses of BPA listed in registration dossiers which fall under the scope of the authorisation procedure include:industrial and professional repacking and formulation;its use a laboratory reagent;use as an antioxidant for processing PVC; andit use in the blending of polycarbonate and the manufacture of goods made of polycarbonate.
Other uses, not listed in the dossiers, include:in the making of TBBA and other flame retardants;as an antioxidant in brake fluids;in the composition of heat transfer fluids and lubricants; anduse in paint hardeners.
It also has many uses as an intermediate, such as in the manufacture of epoxy resins – but these fall outside the scope of authorisation.
The proposal says the endocrine disruption properties of BPA in relation to its reproductive toxicity and other toxic effects will be addressed in a separate Annex XV dossier. This will be submitted early next year.
BPA is already regulated under EU legislation on workplace health and safety, toys and on food contact materials.
The REACH Committee approved a proposed restriction on the use of BPA in thermal paper in July. Its formal adoption is expected shortly.
https://chemicalwatch.com/49662/bpa-put-forward-for-candidate-list

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Your Household Dust May Be Filled With These Hazardous Chemicals

Sep 14, 2016 | Time

By Justin Worland

Each exposure — no matter how small — adds up
Ten chemicals suspected or known to harm human health are present in more than 90% of household dust samples, according to a newstudy.
The research, published in the journal Environmental Science and Technology, adds to a growing body of evidence showing the dangers posed by exposure to a slew of chemicals people in developed countries encounter on a day-to-day basis. The chemicals come from a variety of household goods that includes toys, cosmetics, furniture, cookware and cleaning products.
A class of chemicals known as phthalates — a group that includes DEP, DEHP, DNBP and DIBP — are present in the highest concentrations, according to the research. That class of chemicals is also thought to be among the most harmful. Exposure to phthalates may interrupt the endocrine system, leading to a decrease in IQ and respiratory problems, among other problems, health researchers say.
Highly fluorinated chemicals (HFCs), another class of chemicals common in household dust, has been linked to kidney and testicular cancer. The compound is found in everything from cell phones to pizza boxes, according to the study.
Researchers behind the study, which evaluated datasets from more than 25 prior studies, called for manufacturers to replace the chemicals in their products with safe alternatives, but, voluntary participation aside, the path to force companies to replace chemicals remains difficult. For decades, chemicals in this country have been eligible for use without tests to confirm their safety.
An overhaul to the Toxic Substances Control Act passed earlier this year will require the Environmental Protection Agency (EPA) to sign off on new chemicals before they enter the open market, but still thousands of chemicals on the market today remain untested. The Environmental Working Group, an environmental nonprofit, estimates that 1,000 of those chemicals warrant further scrutiny, but the EPA does not have the staff — or the time — to invest in such an effort. Instead, the EPA has selected a much smaller list of priority chemicals to evaluate first.
The research comes as scientists increasingly understand that exposure even to very low levels of these toxic substances can damage human health. And, while exposure on any given day may be small, each exposure adds up.
http://time.com/4493689/toxic-chemicals-house-cancer/

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California Cities Refile Monsanto PCB Suit

Sep 15, 2016 | BNA Daily Environment Report

By Joyce E. Cutler

Oakland, San Jose and Berkeley, Calif., refiled their public nuisance lawsuits alleging Monsanto Corp. should pay for cleaning up stormwater contaminated with polychlorinated biphenyls in San Francisco Bay (City Of Oakland v. Monsanto Co., N.D. Cal., No. 5:15-cv-05152, amended complaint filed9/13/16 City of San Jose v. Monsanto Co., N.D. Cal., No. 5:15-cv-03178, amended complaint 9/13/16; City of Berkeley v. Monsanto Co., N.D. Cal., No. 5:16-cv-00071, amended complaint filed 9/13/16).
The Sept. 13 amended lawsuits seek to force Monsanto to pay for decades’ old PCB contamination that leaches into rainwater and runs through the cities’ storm drains. The San Francisco Bay Regional Water Quality Control Board municipal regional stormwater permits require the cities to reduce the total maximum daily load of pollutants entering the bay.
“The City has incurred and will continue to incur costs to comply with the new, stricter TMDL [pollution caps on waterbodies] requirements in order to reduce PCBs from stormwater and dry weather runoff, while simultaneously making efforts to capture and beneficially use stormwater and dry weather runoff to augment existing water supplies,” the language in the U.S. District Court for the Northern District of California amended filings said.
Judge Edward Davila held Aug. 22 the cities lacked standing to sue and gave the cities three weeks to devise liability arguments. Monsanto was the sole PCB manufacturer in the country. The company, which ceased PCB manufacturing in 1979, argues it shouldn't be held liable for third-party uses such as electrical insulation equipment and caulks, paints and sealants.
Proposed Law a Game Changer?
The California Legislature Aug. 25 passed legislation (A.B. 2594) confirming and codifying the cities’ rights to use stormwater, the lawsuits said.
Davila, in dismissing the lawsuits with leave to amend, said the cities “do not take ownership of stormwater merely because it flows through municipal pipes on its way to the Bay.”
The cities have beneficial use rights rather than outright ownership. Water the cities capture and clean carries salvage rights, the lawsuits said.
Counsel for the parties couldn't be reached for comment Sept. 14. A joint case management statement is due Sept. 22
Latham & Watkins LLP represents Monsanto, Solutia and Pharmacia. Gomez Trial Attorneys, San Diego; Baron & Budd P.C., Dallas; and Jackson Gilmour & Dobbs, PC, Houston, represent the plaintiffs.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97227781&vname=dennotallissues&fn=97227781&jd=97227781

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Energy News

(ACC Mentioned) Industry Urges Conferees To Retain Disputed Efficiency Measure

Sep 15, 2016 | E&E Daily

By Geof Koss

A coalition of business groups yesterday called on the energy conference committee to keep a provision in the Senate's reform bill that would allow federal mortgage lenders to consider a home's energy efficiency and monthly energy bills when determining a homebuyer's ability to make payments.
In a letter to top conferees, the American Chemistry Council, the Real Estate Roundtable, the U.S. Chamber of Commerce and other groups backed the so-called SAVE Act that was adopted as an amendment to the Senate bill, S. 2012. It is not included in the House bill, H.R. 8.
"This provision would improve the energy efficiency of homes by providing a voluntary means of financing energy efficient features and improving the accuracy of mortgage underwriting by the Federal Housing Administration (FHA)," the coalition wrote.
The SAVE Act, authored by Sens. Michael Bennet (D-Colo.) and Johnny Isakson (R-Ga.), became a flashpoint during amendment debate on the reform bill in April. At the time, Heritage Action for America detailed a list of concerns with the amendment, which it said "further subsidizes taxpayer-backed home mortgages under the pretense of energy efficiency."
In yesterday's letter, the business coalition emphasized the provision was voluntary, would not add to the federal deficit or impose new mandates, and would be "strictly focused" on energy savings "directly connected" to the home that reduce monthly energy savings.
"Manufacturers and builders are continually innovating new energy efficient products and features, but current mortgage underwriting processes and appraisals do not fully consider the costs and value of energy efficient features in a home," the groups wrote. "Therefore these money and energy saving features are not making their way into new homes. Passing the SAVE Act will unlock demand for innovative new products and significantly reduce homeowners' utility bills."
Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) told reporters yesterday that discussions about reconciling the competing bills continue.
"We are working every day," she said.
While Senate leaders are signaling that the upper chamber may skip town early after passing a continuing resolution to keep the federal government running into the new fiscal year, Murkowski said she's undeterred by the prospect that the already abbreviated legislative calendar may be further tightened.
"We're still going to keep working," she told E&E Daily. "Does it make it difficult to pass something? Yes — you can't pass something unless the bodies are here. But we still have a lot of work that is underway, and if I thought we were ready to go with a deal, I'd let my leadership know. But we're still working through the issues. As of this point in time, we're just going to keep doing that. Every day counts. And when we're done, we're done."
Sen. Maria Cantwell (D-Wash.), the ranking member on the panel, shrugged off the possibility that senators may be gone for several more weeks than planned before the elections.
"Oh, we can work wherever we are on that," she said. "We're a virtual conference."
Rep. John Shimkus (R-Ill.), an energy conferee, acknowledged the stark policy differences between the two chambers' bills this week, but said he was encouraged by a willingness of conferees at last week's inaugural meeting to compromise to get a final bill signed into law.
"Let's figure out where the middle ground is," he said of the mood of last week's meeting. "And I thought that was promising."
Reporter Colby Bermel contributed.
http://www.eenews.net/eedaily/2016/09/15/stories/1060042858

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Ohio Supreme Court Keeps Anti-Drilling Petitions Off Ballot

Sep 14, 2016 | Natural Gas Intelligence

By Charlie Passut

The Ohio Supreme Court ruled Tuesday that Secretary of State Jon Husted and the election boards from three counties did not violate the law when they rejected proposed county charters that, if successful, could have led to local bans on oil and natural gas development.
In a slip opinion, the state's high court ruled 6-1 that supporters of the proposed charters were not entitled to a writ of mandamus that would have placed the charters on the ballot in November. The case is State ex rel. Coover v. Husted [No. 2016-Ohio-5794].
According to court records, election boards in Athens, Meigs and Portage counties rejected the proposed charters for a variety of reasons last year. Husted subsequently invalidated similar petitions in Athens, Fulton and Medina counties (see Shale Daily, Aug. 14, 2015).
"There is no indication that the boards of elections or the secretary of state attempted to thwart the principles of local self-government," Chief Justice Maureen O'Connor wrote for the majority. "They did not deny relators the right to establish a charter form of county government; instead, they merely examined the charter initiatives to determine whether they met the threshold requirements for inclusion on the ballot."
Justices Judith French, Judith Ann Lanzinger, Terrence O'Donnell and Paul Pfeifer concurred with O'Connor. Justice Sharon Kennedy concurred in judgment only.
In a dissenting opinion, Justice William O'Neil said the majority "would prefer that relators reinvent the wheel of government in one document. I disagree...
"The secretary of state does not have the power to veto charter petitions on behalf of the oil and gas industry simply because the citizens did not pick exclusively from the two forms of county government delineated in [the state's Revised Code]. This is a usurpation of power from the people that we should not indulge."
More than 9,000 people signed petitions in Athens, Fulton and Medina counties to establish a county charter that would have banned underground injection wells, oil and natural gas exploration and production, or both. The Ohio Supreme Court previously upheld Husted's decision to invalidate the petitions in a ruling last year (see Shale Daily, Sept. 17, 2015). But the ruling did not resolve the issue of whether grassroots referendums could be used to ban oil and gas development, including hydraulic fracturing (fracking).
"The people's right to alter or reform their government is meaningless when the same government that the people want to alter, acts as gatekeeper, restricting access to direct democracy as they so choose," said community organizer Tish O'Dell Tuesday. She is with the Community Environmental Legal Defense Fund. "Communities across Ohio are facing fracking, wastewater injection wells, [liquefied natural gas] LNG pipelines, and compressor stations. They are finding no remedy in their state government, and are turning to their constitutional right of initiative to protect their communities from fracking related harms.
http://www.naturalgasintel.com/articles/107747-ohio-supreme-court-keeps-anti-drilling-petitions-off-ballot

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Army Corps, Developer Slam Emergency Bid For Work Freeze

Sep 14, 2016 | E&E News PM

By Ellen M. Gilmer

Government officials and backers of the Dakota Access pipeline pushed back today on another effort to freeze construction near tribal lands.
In briefs to the U.S. Court of Appeals for the District of Columbia Circuit, the Army Corps of Engineers and Dakota Access LLC urged judges to reject an emergency motion from the Standing Rock Sioux Tribe seeking to block work near the Missouri River.
The tribe filed its motion Monday, along with the Cheyenne River Sioux Tribe, asking the D.C. Circuit to enjoin construction within 20 miles of Lake Oahe, a dammed section of the river. A lower court rejected a broad injunction request from the tribes Friday and a narrower request Monday but did issue a temporary work freeze on a 2-mile section of the pipeline corridor just west of the lake (Greenwire, Sept. 12).
Dakota Access lawyers say the latest request merely retreads the arguments rejected by the lower court.
"Without any new evidence and no change in circumstances or facts of the case, Appellant now asks this Circuit to change the carefully considered preliminary injunction ruling the District Court just issued," company lawyers said in their brief.
The Obama administration stepped in late Friday to pause construction under and along the shoreline of Lake Oahe while the Army Corps considers whether to grant an easement. It also urged Dakota Access to hold off on construction within 20 miles of the lake (EnergyWire, Sept. 12).
The Sioux are now most concerned about an 18-mile section of private land lying just west of the 2-mile off-limits zone, arguing that tribal specialists recently uncovered evidence of burial grounds, which they say were destroyed by Dakota Access bulldozers. Without a court-ordered injunction there, the tribe says, other artifacts could be disturbed by construction.
Dakota Access has maintained that it meticulously planned the route to avoid cultural artifacts, and its workers are trained in an "Unanticipated Discovery Plan" for any unknown sites that are encountered during construction. According to today's brief, construction workers have activated that plan six times during the line's construction.
The company did not explicitly indicate whether it plans to continue working in the contested area, but lawyers argued it will face significant financial harm if it doesn't move forward on schedule.
"Even a temporary or limited injunction would have devastating long- and short-term impacts to the DAPL project," they said. "Construction is in the final phases, and flexibility no longer remains to work around short segments of off-limit portions of the pipeline, and as such, any injunction would jeopardize the project itself by causing deviations and delays to the now-critical path construction schedule."
Plus, the company argued, customer contracts "could be permanently lost" if the pipeline doesn't start on schedule Jan. 1, and 8,000 workers "will be negatively affected."
The Army Corps also opposes the tribe's emergency injunction request, saying in a brief today that the Sioux simply don't have a strong case against the pipeline. They say the pipeline was legally permitted, the corps made extensive efforts to consult with the tribe, and it would not be in the public interest now to grant the tribe's request.
"The Corps tried to consult with the Tribe over this project, and the Tribe refused because it believed that the Corps should address the entire pipeline," the brief said. "But the consultation process was designed to protect the same kind of resources that the Tribe now says will be harmed without an injunction. It would not serve the public interest to grant an injunction to protect resources that might have been protected if the Tribe had participated in a meaningful consultation with the Corps."
The Army Corps added, though, that it supports the administration's call for a voluntary construction freeze within 20 miles of the lake and believes Dakota Access should agree to pause its plans for now.
http://www.eenews.net/eenewspm/2016/09/14/stories/1060042843

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Shock Work Stoppage Pulls Oil Industry Into Dakota Pipeline Fight

Sep 14, 2016 | PoliticoPro

By Elana Schor

The broader oil and gas industry is jumping into the escalating battle over the Dakota Access pipeline, alarmed by the Obama administration's surprise move last week to freeze construction on a section of the pipeline after protests from tribal and environmental activists.
The $3.7 billion pipeline that would cross four states is already 60 percent built, its backers say, but the late Friday intervention by the Department of Justice, Interior Department and Army Corps of Engineers threatens to impose costly delays on a project that promises to transport about half of the current daily oil production in North Dakota's Bakken shale region.
Story Continued Below
Dakota Access' main backer, Energy Transfer Partners, is not a member of the American Petroleum Institute — but the industry's main Washington lobbying group is keenly aware of the threat posed by emboldened environmentalists using a grassroots strategy against the pipeline that echoes their successful bid to kill Keystone XL.
The Obama administration "changed the rules in the middle of the game" by pausing work on the pipeline near North Dakota's Lake Oahe, API President Jack Gerard said in an interview.
"This could impact not only pipelines but highways, bridges, airports," he warned, adding that the Dakota Access decision suggests that "if you get a permit, that no longer protects you if your neighbor decides they want to object."
Another oil industry source said anti-pipeline activists from the Standing Rock Sioux tribe and green groups are capitalizing on the surge in publicity to push critical claims about the pipeline, even as the sources said the administration's Friday announcement sets "a bad precedent."
"It's been very one-sided on this," the industry source said, and the rest of the industry is "going to get engaged now, whether ETP wants it or not."
Energy Transfer, which counts former Texas Gov. Rick Perry among its board members, has stayed relatively quiet as the political battle escalated, although the company leaked an internal memo on Tuesday vowing to join the fray.
Gerard's public criticism of the administration's decision, delivered alongside North America's Building Trades Unions President Sean McGarvey, is "a sign of frustration that it hasn't been handled properly," the source said.
The cause of the oil industry's anger was the administration's decision to stop work on the pipeline near Lake Oahe just minutes after a federal judge rejected a legal challenge from the Sioux to stop the construction. The 58-page Friday ruling from Judge James Boasberg, which has attracted little public attention following the agencies' work stoppage, suggested that the Sioux have a slim chance of success in succeeding in upcoming court challenges with the argument that they were not properly consulted about the pipeline's impact on their water supply and ancestral sites.
White House press secretary Josh Earnest defended the Dakota Access delay on Wednesday as a way to hear out the tribe's claims no matter how their legal case proceeds.
"[T]here is a rather sad chapter in our history with regard to the federal government not effectively looking out for the concerns of native populations in this country, and that's left a legacy," Earnest told reporters. "And it's one that this administration is certainly determined to address in this instance."
Earnest dismissed comparisons between Dakota Access and Keystone, which would have originated in the oil sands region of Canada, as an "oversimplification." While anti-Keystone activists made the greenhouse gas emissions from the Canadian heavy oil a central part of their campaign against the project, climate change has played a minor role in the Sioux's case against Dakota Access.
Just as they did on Keystone, however, activists working to stop the pipeline are leaning on Hillary Clinton to come out publicly against the project. Clinton stayed out of the Keystone debate for years after making favorable comments about its prospects for winning a permit in 2010, before declaring her opposition in September 2015.
Clinton's campaign did not return requests for comment on the Dakota Access delay.
https://www.politicopro.com/energy/story/2016/09/determined-to-avoid-a-keystone-style-loss-oil-industry-jumps-into-dakota-pipeline-battle-130158

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Standing With The Standing Rock Sioux Tribe

Sep 14, 2016 | The Hill - Pundits

By Former Gov. Bill Richardson (D-N.M.)

As someone who regularly appears on television to discuss the day’s top stories, I’ve been fielding calls lately to give my thoughts on Secretary Clinton’s health, Donald Trump’s health, Secretary Clinton’s foundation, Donald Trump’s foundation, and so on. Yet, I have not received a single call from the media asking about the most important and quintessentially American story that is playing out on the banks of the Missouri River in North Dakota right now.
About an hour south of Bismarck, the Standing Rock Sioux Tribe and their supporters have faced violence and intimidation as they protest the construction of the Dakota Access Pipeline, a nearly 1,200-mile crude oil pipeline that will plunge directly under Lake Oahe, the tribe’s main water source, and through sacred burial grounds.
A federal judge on Friday denied the tribe’s request for a temporary injunction to stop construction. U.S. District Judge James E. Boasberg, while acknowledging that “the United States’ relationship with the Indian tribes has been contentious and tragic,” ruled that the tribe failed to show that it will be harmed by the construction. This despite claims from the chairman of the Standing Rock Sioux Tribe that areas of cultural and historical significance will be destroyed.
Later that same day, the Department of Justice, Department of the Army, and the Department of the Interior halted construction saying “this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.”
This fall, the DOJ, DOA, and DOI will invite tribes to formal government-to-government consultations on how the federal government can better ensure meaningful tribal input on infrastructure projects.
It is about time.
In my terms as Congressman and Governor from New Mexico (where just over 10% of our population is Native American) and during my tenure as Secretary of Energy and U.S. Ambassador at the United Nations, I supported and strengthened government-to-government relations with Native American tribes.
As Governor of New Mexico, I elevated the Office of Indian Affairs to the Indian Affairs Department, making New Mexico the only state in the nation with a cabinet-level Indian Affairs division. I had planned to take similar action at a federal level had I been elected President of the United States.
I signed into law the State-Tribal Collaboration Act to promote and strengthen the relationship between the state and the 22 sovereign tribes and pueblos in New Mexico. The act required cabinet-level agencies to develop policies that promote communication and cooperation between the state and tribal governments and required each state agency to designate a tribal liaison.
While the move by the administration to involve Native Americans in communication and planning on infrastructure projects is commendable, it is also too little too late for the Sioux in North Dakota.
After all, the halt is only temporary. The matter has been referred back to the Army Corps of Engineers to review its river crossing permit. It only pauses work within a 20-mile radius of Lake Oahe, which will soon be the last missing link with few alternative options now that it is too late for a major reroute. The pipeline is already half-built.
Now we are left to put the cart in front of the horse. That said, there are four steps that can be taken to help level the playing field even at this late stage.
Construction of the Dakota Access Pipeline should be stopped until the project has the appropriate permits. The Corps used a nationwide permit instead of an individual permit. Nationwide permits are for small projects not worthy of individual scrutiny, not massive infrastructure projects, such as this one that crosses 4 states and is just 7 miles shorter than the proposed controversial Keystone XL Pipeline. The Corps also allowed for segmenting of the project by accepting segmented project review. The Dakota Access project then became four intrastate pipelines instead of an interstate pipeline requiring federal review. This is a clear violation of the National Environmental Policy Act (NEPA).
The Federal Energy Regulatory Commission (FERC) should undertake a review of the entire project. Yes, much is built already, but the permit for the Sioux land should be made in the context of the whole project. When Dakota Access initially applied to FERC, they submitted as one project, not the four segments the Corps has allowed.
The Council for Environment Quality that enforces NEPA should require an Environment Impact Statement (EIS) to assess the full threat to the tribe’s water source and any other potentially harmful effects to tribal land. The DOJ, DOI, and Council on Historic Preservation all petitioned the Corps to do an EIS, instead of an Environmental Assessment (EA), which is much less detailed and meant for small projects. The Corps did an EA.
Cultural surveys should be completed with input from the tribes affected. Out-of-state surveyors hired by Dakota Access do not have the knowledge nor inclination to protect tribal interests. The tribes have the right to repatriation for human remains and cultural artifacts on private land, so even if the pipeline project is allowed to proceed, the Sioux must be given adequate time to protect their history from a literal bulldozing.
All of these things should be done now and with the full involvement of the Standing Rock Sioux tribal government.
It took an unprecedented level of protest to finally get the attention of federal agencies. I fear they are hoping it will all just cool down and that no substantive action will be taken. This is pacification, which is all too familiar to Native Americans.
Bill Richardson is a former Congressman, Ambassador to the United Nations, U.S. Energy Secretary, and Governor for the State of New Mexico. He founded the Richardson Center for Global Engagement in 2011 to promote global peace and dialogue by identifying and working on areas of opportunity for engagement and citizen diplomacy with countries and communities not usually open to more formal diplomatic channels.
http://thehill.com/blogs/pundits-blog/energy-environment/295801-standing-with-the-standing-rock-sioux-tribe

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(ACC Mentioned) CalRecycle Officials Recommend Move Toward Statewide EPR System

Sep 15, 2016 | Waste Dive

By Cole Rosengren

Dive Brief:
An internal memo sent to the director of the California Department of Resources Recycling Recovery (CalRecycle) recommends creating "a mandatory comprehensive, statewide packaging program" in the state, as reported by Resource Recycling.
At a meeting in January, officials asked manufacturing and trade association representatives to think of ways to reduce the amount of packaging going to landfills 50% by 2020. Officials weren't satisfied with the ideas presented, particularly because they relied on continued government funding.
Along with the potential for an extended producer responsibility (EPR) system, the memo also mentions the potential for a landfill ban on materials such as cardboard, glass and plastic containers.
Dive Insight:
The memo notes that in many cases, packaging technology has outpaced the ability of local recycling programs to collect and process it. This is cited as a factor behind the 8 million tons of packaging waste that are sent to landfills in the state every year, a number which CalRecycle must reduce to meet the state's goal of 75% diversion by 2020.
EPR legislation exists in many states for batteries, mattresses and electronics, but aside from Rhode Island few states have ever tried to pass regulations on packaging. While EPR rules exist in some other countries, they have been largely opposed by the U.S. packaging industry. Some industry associations have released guidelines for making products more recyclable and researchers continue working on new advances in biodegradable or edible packaging.
CalRecycle plans to continue discussing these issues with manufacturers and working with groups such as the American Chemistry Council, the Closed Loop Fund and the Sustainable Packaging Coalition. Packaging is also on the agenda at CalRecycle's next public meeting on Sept. 20.
http://www.wastedive.com/news/calrecycle-officials-recommend-move-toward-statewide-epr-system/426320/

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(ACC Mentioned) Symposium Shines Light On Marine Debris Issue

Sep 14, 2016 | Lumina News

By Terry Lane

As marine debris continues to grow as a threat to marine life, Wrightsville Beach served as host to the Fourth Annual North Carolina Marine Debris Symposium on Sept. 11-14, drawing more than 60 attendees to discuss the problem and consider solutions.
This year’s symposium brought together a wide range of participants, from activists to industry leaders to scientists, to discuss the problem and search for solutions, said symposium director Lisa Rider.
“The stakeholders for this issue are every person on the planet,” said Rider, who is also the president of the Plastic Ocean Project board of directors and the deputy director of the Onslow County solid waste department.
The three-day event, hosted by the Blockade Runner Beach Resort, included speakers, panels and roundtable discussions, including a panel on citizen outreach, solid waste infrastructure improvements, beachside recycling and microplastic ingestion. Participants included the American Chemical Council; the National Oceanic and Atmospheric Administration (NOAA) lab in Beaufort, North Carolina; the North Carolina Museum of Art; the North Topsail Beach town government; North Carolina state solid waste officials and others, Rider said.
The symposium also included a beach sweep Sept. 13, which Rider said reflected back on the roots of the meeting. She started the symposium four years ago as a way to organize participants in the local beach cleanups.
“There are so many who are trying to solve this issue,” Rider said. She noted that the scope of the problem is immense. The United States uses 500 million plastic straws each day, she said, and enough K-Cup style single-serve coffee dispensers each year to wrap around the planet nearly 11 times.
“The problem is not litterbugs,” Rider said. “There’s too much disposal of trash and not enough landfills and infrastructure to handle it.”
Bonnie Monteleone, director of science, research and academic partnerships at the Plastic Ocean Project, spoke about the wide-reaching dangers that plastics in the ocean create.
“There are many threats to the ocean, but the problem of plastics compounds it so much more,” Monteleone said. “Plastic has become the apex predator of the sea.”
http://luminanews.com/2016/09/symposium-shines-light-marine-debris-issue/

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Americans Appear Willing To Pay For A Carbon Tax Policy

Sep 15, 2016 | The New York Times

By Michael Greenstone

The stumbling block in Congress for confronting climate change has perpetually been the economic challenge. There has been little support for paying to reduce greenhouse gas emissions.
But now, there is some evidence of a quiet undercurrent of support for a carbon policy, whether it be a tax, cap-and-trade or regulations.
The Energy Policy Institute at the University of Chicago (EPIC) — which, in full disclosure, I direct — and The Associated Press-NORC Center for Public Affairs Research released a poll Wednesday on how Americans feel about various issues related to climate and energy.
One of the questions looked at willingness to pay for a carbon policy. The results, on the surface, are not very encouraging to any of its advocates: 43 percent of Americans aren’t willing to pay anything to fund a carbon policy.
Most people would infer from this that putting a price on carbon is challenging. And, politically, it is. But buried in the polling data is a striking revelation: Many people are willing to pay real money for a carbon policy. In fact, on average, Americans appear willing to pay more than a robust climate policy is projected to cost.
Let’s take a look at the results of the poll. Respondents were asked if they would support a fee on their monthly electricity bill to combat climate change, and they were offered fees at various levels: $1, $10, $20, $30, $40 and $50. (Each household was asked about only one of these levels.) The responses were that 57 percent would pay at least $1; 39 percent would pay at least $10; 29 percent would pay $20; 24 percent would pay $30; 17 percent would pay $40; and 20 percent would pay $50.
Yes, 43 percent of the people surveyed said they were unwilling to pay even $1 per month, and that tells us something about the political challenges facing adoption of a climate policy. But the intensity of preferences of the other 57 percent also tells us something important.
Specifically, these responses can be used to infer how much people value addressing climate change. To give you a flavor of the approach, take the 39 percent of households that are in favor of at least a $10 fee and the 29 percent that are in favor of at least a $20 fee. Doing some back-of-the-envelope calculations, I find that 10 percent (39 percent minus 29 percent) of households would favor a fee between $10 and $20. I then assign the midpoint — $15 — to this 10 percent of the population. I carry this approach through for the rest of the responses.
The net result is that, on average, American households are willing to pay $15 to $20 per month more on their electricity bill. The $15 is a lower bound because it assumes that the entire 20 percent of respondents who accept at least $50 are willing to pay $50, while the $20 figure assumes that this group is willing to pay $75 on average.
The resulting average willingness to pay is higher than what the Congressional Budget Office estimated the Waxman-Markey cap-and-tradebill for greenhouse gas emissions would have cost households (economywide, not just for electricity) had it passed the Senate back in 2009.
There are some limitations to this exercise that are worth noting. It’s a hypothetical question, so people might like to think they might pay more than they really would. Even if this poll has accurately caught a measure of societal willingness to pay, it is not the same thing as how people or their elected representatives will vote.
What this finding does mean is that the possibility of a robust climate policy may not be as remote as the conventional wisdom suggests. The foundation for paying for such a climate policy appears quite strong — much stronger than I thought when we designed the survey.
The question that remains unanswered: If the economics are not as big a problem as we thought, then will the politics follow?
http://www.nytimes.com/2016/09/15/upshot/americans-appear-willing-to-pay-for-a-carbon-tax-policy.html

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EPA Defends Scaled-Back 'Anti-Backsliding' Rules For Ozone Air Standard

Sep 14, 2016 | Inside EPA

By Stuart Parker

EPA is defending its decision to scale back “anti-backsliding” rules designed to prevent the removal of air pollution controls imposed on industry to help states attain the federal ozone national ambient air quality standard (NAAQS), rejecting environmentalists' claims that the Clean Air Act requires more such rules to be left in place.
Groups including the Sierra Club and Conservation Law Foundation are suing EPA in the U.S. Court of Appeals for the District of Columbia Circuit over its March 6, 2015, rule outlining how states should craft state implementation plans (SIPs) detailing the pollution control measures they will adopt to help attain the 2008 ozone NAAQS of 75 parts per billion (ppb), which was more stringent than the prior 1997 standard expressed as 84 ppb.
In the rule, EPA revoked the 1997 NAAQS and also dropped some existing anti-backsliding requirements, though it left 17 such mandates. However, environmentalists in their filings in South Coast Air Quality Management District v. EPA, et al., say the mandates are too limited and that the agency should have imposed more controls. The advocates are also criticizing as unlawful the agency's decision to revoke the 1997 standard.
California's South Coast air district is also suing over the rule claiming that it has changed a definition of how areas can demonstrate progress towards meeting the 2008 NAAQS, at odds with air law requirements.
The Department of Justice (DOJ) on EPA's behalf, however, is rejecting the attacks in a Sept. 13 brief filed in the suit, saying its “SIP Requirements Rule” is lawful. For example, it offers a defense against the claim it should have retained the 1997 ozone limit.
“Because it is mathematically impossible to attain the 2008 NAAQS without first attaining the 1997 NAAQS, the 1997 standard has been rendered 'largely superfluous from a health protection standpoint,'” DOJ says.
But DOJ spends the bulk of its brief rejecting advocates' claims that a fuller suite of anti-backsliding measures must remain to stop any weakening of emissions controls by “orphan” areas that initially were classified “attainment” for the 2008 NAAQS, but had not at the time been redesignated attainment for the 1997 standard.
Environmentalists in their legal filings have also raised concerns over weakening of controls in what they term “orphan maintenance” areas -- areas initially designated as attainment for the 2008 NAAQS, and prior to the effective date of the SIP Requirements Rule, redesignated from nonattainment to attainment of the 1997 standard. EPA and DOJ, however, dispute the advocates' reading of the Clean Air Act and legal precedent.
'Anti-Backsliding' Requirements
DOJ in its new brief says that EPA acted consistent with the precedent set by the D.C. Circuit in its 2006 ruling in a case also titled South Coast v. EPA. In that case, a three-judge panel of the court found that anti-backsliding measures -- which are often the same controls that applied under a “nonattainment” SIP on industry, but can also be alternatives of equivalent stringency -- must continue to apply, even where EPA tightens the NAAQS.
“Those anti-backsliding requirements, which include all of the controls required under South Coast and its progeny, are more than adequate to ensure that air quality does not subsequently deteriorate. EPA’s revocation of the 1997 NAAQS, and its imposition of the same anti-backsliding requirements used in the transition from the [revoked 1979 one-hour NAAQS of 120 ppb] to the 1997 NAAQS, therefore should be upheld,” DOJ says.
DOJ defends the legality of its “redesignation substitute” procedure for lifting anti-backsliding measures in areas that now meet the revoked 1997 NAAQS. The procedure “requires States to demonstrate, and EPA to approve through notice-and-comment rulemaking, that an area has satisfied all of the [air law] requirements for redesignation to attainment with respect to either the revoked 1997 or the One-Hour Ozone NAAQS.”
The process is deemed a “substitute” because it “is substantively identical to a redesignation to attainment” for a NAAQS that has been revoked. Environmentalists have condemned the the measure as “extra-statutory,” and say “EPA has no authority to invent this substitute,” according to their March 17 filing in the case.
DOJ also says advocates' claims on orphan areas is built on a “false premise that antibacksliding even is applicable in such areas,” saying EPA has construed the air law to impose anti-backsliding mandates on areas that have not attained an ozone NAAQS when it is revoked. “Orphan Maintenance Areas were formally redesignated to attainment of the 1997 NAAQS before the SIP Requirements Rule even became effective, and Orphan Areas are deemed to have attained the 1997 NAAQS based on their attainment designation for the 2008 NAAQS. Hence, such areas are not subject to anti-backsliding requirements for the 1997 NAAQS, and Petitioners’ arguments are inapposite” to the contested rule.
DOJ further rejects environmentalists' criticisms of the rule's provisions governing reasonably available control (RACT) technology, a level of emissions control required in areas in nonattainment of the NAAQS.
Since 1992, EPA has allowed states to demonstrate RACT compliance through area-wide averaged emission reductions, rather than through installation of controls at every “major” pollution source in a nonattainment area, and the SIP rule “simply applies that same construction,” consistent with D.C. Circuit precedent, DOJ argues.
Reasonable Progress
Meanwhile, DOJ in the new filing also rejects the principle complaint against the implementation rule raised by the South Coast air district, which regulates air quality in the greater Los Angeles area.
South Coast claims that EPA in the rule erroneously changed its interpretation of the Clean Air Act by introducing a new requirement that areas demonstrate reasonable further progress (RFP) toward NAAQS attainment in SIPs using exclusively emissions reductions achieved inside a designated nonattainment area.
Previously, EPA allowed areas to count out-of-area emissions as part of their “baseline” toward RFP. But the change in the implementation rule makes it harder for some Southern California areas that experience significant levels of pollution from elsewhere to meet the NAAQS, South Coast argues.
However, DOJ says that EPA's new interpretation of the term “in the area” with respect to RFP is required by the D.C. Circuit's holding in the 2009 Clean Air Act case Natural Resources Defense Council v. EPA.
DOJ argues that “construing the term 'in the area' to encompass sources located outside a nonattainment area is difficult to justify in statutory subsections titled [Moderate Areas] and [Serious Areas]. Moreover, no viable legal rationale for adopting a contrary construction was provided in response to EPA’s request for public comments on that point in light of the statutory language and this Court’s decision in NRDC v. EPA.”
DOJ also fends off environmentalists' arguments that EPA lacks discretion to set baseline years from which to measure RFP. EPA set 2011 as the default baseline year, but allowed states flexibility to choose other years. DOJ says that the air law “simply does not speak at all to the appropriate baseline year for NAAQS promulgated after 1990,” and that EPA's interpretation reasonably filled a statutory “gap.”
http://insideepa.com/daily-news/epa-defends-scaled-back-anti-backsliding-rules-ozone-air-standard

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EU Should Speed Ratification of Paris Climate Pact: Top Official

Sep 15, 2016 | BNA Daily Environment Report

By Stephen Gardner

European Union member states should speed up their discussions so that the bloc's ratification of the Paris Agreement on climate change can be finalized within “weeks, not months,” the president of the European Commission said Sept. 14.
Commission head Jean-Claude Juncker, in a speech to the European Parliament, said that a hold-up in EU ratification of the Paris Agreement was an example of “slow delivery on promises,” which was “a phenomenon that more and more risks undermining the Union's credibility.”
Though the EU previously led on international efforts to tackle global warming, Europe was now “struggling to show the way and be among the first to ratify,” Juncker said.
Ratification of the Paris Agreement was “a question of political will—and it is about Europe's global influence,” Juncker added. The European Commission is the EU's executive arm, which proposes EU legislation and monitors its implementation.
Leaders to Meet
The leaders of 27 of the EU's 28 countries will meet informally Sept. 16 in Bratislava, Slovakia, where the EU's ratification of the Paris Agreement “is likely to be discussed,” an EU official who asked not to be named told Bloomberg BNA Sept. 14.
The Sept. 16 leaders' meeting, which will exclude the U.K., is primarily intended as a forum for discussion of the future of the EU after the U.K.’s Brexit vote.
The EU is under increasing pressure to formally join the Paris Agreement after U.S. President Barack Obama and Chinese President Xi Jinping formally accepted it Sept. 3. The deal set a goal to curb temperature increases and applies to all nations, rich and poor. To enter into force, it must be ratified by at least 55 parties accounting for 55 percent of global emissions.
Agreement by EU countries on ratification has been held up because some nations have asked for clarity on how the EU's climate goals will be shared. In particular, some countries have said that ratification should not take place until discussions on emissions reductions for parts of their economies not covered by the EU emissions trading system (ETS) are finalized.
EU officials said in March that waiting for agreement on internal sharing of emissions reductions could delay the bloc's Paris Agreement ratification until 2017 or 2018.
The commission published July 20 a proposal for cuts from non-ETS sectors, ranging from minus 40 percent, to be achieved by 2030 compared to 2005 for wealthy countries such as Luxembourg and Sweden, to 0 percent for the EU's poorest member, Bulgaria.
Bloc-Wide Agreement Needed
Juncker noted that three EU countries—Austria, France and Hungary—have already agreed to ratification of the Paris Agreement.
As of Sept. 7, the Paris Agreement had been ratified or otherwise officially accepted by 27 countries, including China and the U.S., that together represent 39.08 percent of global greenhouse gas emissions, according to the United Nations.
A 28th country, Brazil, which is the world's seventh-largest greenhouse gas emitter accounting for another 2.34 percent of global emissions, ratified the deal on Sept. 12. But as of Sept. 14, its declaration had yet to be officially registered on the UN website.
Commission spokeswoman Anna-Kaisa Itkonen told Bloomberg BNA Sept. 14 that the EU's share of global emissions is 12.08 percent, meaning that EU ratification of the Paris Agreement would take it most of the way to the 55 percent threshold beyond which it could enter into force.
Despite the Austrian, French and Hungarian national ratifications, those countries could not individually deposit their notifications of ratification with the UN, Itkonen said.
Because the EU has a united emissions reduction goal under the Paris Agreement of minus 40 percent by 2030 compared to 1990, only the EU as a bloc could deposit a notification of ratification with the UN, Itkonen said.
But the EU could ratify on the basis of agreement of its member countries, even if some countries have not formally completed their national ratification procedures, she added.
German Green member of the European Parliament Rebecca Harms said in a statement Sept. 14 that a “climate union” should be a “key project” for the EU to maintain unity, because “leaving behind the era of fossil fuels has enormous economic potential.”

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97227750&vname=dennotallissues&fn=97227750&jd=97227750

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