ACC PM 9/21/16

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

LCSA News

1. EPA Weighs Whether To Ban Or Further Restrict TCE Degreasing Operations

   Sep 21, 2016 | Inside EPA

   By Maria Hegstad
   
   
   In one of three rare rules that EPA is drafting under its Toxic Substances Control Act (TSCA) Section 6 authorities, the agency is weighing whether to ban the use of the solvent trichloroethylene (TCE) when used as a degreaser to clean various parts and components, or whether additional restrictions on such operations are sufficient to protect workers.

Chemical Management News

2. (ACC Mentioned) Erin Brockovich' Chemical in Drinking Water of More than 200 Million Americans

   Sep 21, 2016 | Cosumnes Connection

   By Carolyn Briggs
   
   
   Drinking water in more than 150 New Jersey water systems contained the carcinogenic chemical chromium 6 at levels that exceeded a health limit recommended by California scientists when the local systems were tested by the U.S. Environmental Protection Agency, according to a national analysis published on Tuesday.
3. (ACC Mentioned) US NGO Urges Companies to Sign Toxic-Free Furniture Pledge

   Sep 21, 2016 | Chemical Watch

   By Tammy Lovell
   
   
   The Center for Environmental Health (CEH) is urging companies to buy furniture which is free from toxic chemicals.
4. US EPA Releases Final IRIS Report on Ammonia

   Sep 21, 2016 | Chemical Watch

   The US EPA has issued its final Integrated Risk Information System (IRIS) toxicological review of ammonia.
5. Danish Minister Criticises Proposed EDC Criteria

   Sep 21, 2016 | Chemical Watch

   Denmark’s environment and food minister says the European Commission’s proposed criteria for the identification of EDCs would fail to protect human health and the environment, and would mean that some well-known endocrine disruptors would escape the definition.
6. Rac and Seac Each Agree on Chromium Trioxide Authorisations

   Sep 21, 2016 | Chemical Watch

   By Philip Lightowlers
   
   
   Echa’s Risk Assessment (Rac) and Socio-Economic Analysis (Seac) Committees have each agreed final Opinions on the authorisation of chromium trioxide for six uses, affecting hundreds of workplaces across Europe.
7. $90 Billion Whistleblower Suit Filed Against Four of America's Largest Chemical Companies

   Sep 21, 2016 | Alternet

   By Lorraine Chow
   
   
   Four of the country's largest chemical companies have been accused of selling billions of dollars worth of harmful isocyanate chemicals but intentionally concealing their dangers to consumers and the U.S. Environmental Protection Agency (EPA) over the past several decades.

Energy News

8. (ACC Mentioned) Gas Industry Execs Say Regulations Hurting Business

   Sep 21, 2016 | Pittsburgh Business Times

   By Christine Manganas
   
   
   Regulations and their impact on the natural gas business were a major topic of conversation in the opening sessions of the Shale Insight Conference, which is being held Wednesday and Thursday in downtown Pittsburgh.
9. (ACC Mentioned) Execs Fume Over Obama Admin's Role in Dakota Access Battle

   Sep 21, 2016 | E&E Greenwire

   By Hannah Northey
   
   
   An oil executive blasted the Obama administration at an industry conference here today for intervening in the $3.7 billion Dakota Access pipeline and faulted federal regulators for making "common cause" with environmentalists intent on villainizing the oil and gas industry.
10. In Houston, Split Over Climate Rule Remains Apparent

    Sep 21, 2016 | E&E Energywire

    By Edward Klump
    
    
    The panelists assembled in this energy capital last evening couldn't settle the fate of U.S. EPA's Clean Power Plan, but they did cement just how divisive the rule remains as a major court hearing looms next week.
11. Want a Seat at the 'Circus'? Don't be Late

    Sep 21, 2016 | E&E Climatewire

    By Emily Holden
    
    
    Professional line-standers will stake out positions long before sunrise Tuesday outside the federal courthouse where judges could decide the fate of the biggest climate change regulation ever attempted in America.
12. White House Engaged in 'Messaging' for EPA Fracking Study

    Sep 21, 2016 | E&E Energywire

    By Mike Soraghan
    
    
    The Obama White House was engaged in the "messaging" for last year's rollout of U.S. EPA's big study on the safety of hydraulic fracturing, records show.

Chemical Security News

13. Another Email Scandal for the Chemical Safety Board

    Sep 21, 2016 | E&E Greenwire

    By Colby Bermel
    
    
    A board member of the nation's chemical safety watchdog may have engaged in improper correspondence with officials at the largest industrial labor union in the country, according to private emails provided to Greenwire.

Transportation News

14. (ACC Mentioned) [No Title]

    Sep 21, 2016 | Journal Gazette and Times-Courier

    Norfolk Southern is dedicated to the safety of employees, customers, and communities, and works toward continuous improvement of its safety efforts.

Environment News

15. Paris Climate Agreement Nears Entry into Force

    Sep 21, 2016 | Politico Pro - Whiteboard

    By Eric Wolff
    
    
    Thirty-one nations submitted paperwork showing they had ratified the Paris climate change agreement at a U.N. ceremony this morning, bringing the number of countries that have officially joined the pact to 60.
16. How Trump Could Unravel Obama's Climate Legacy

    Sep 21, 2016 | Politico Pro

    By Eric Wolff
    
    
    The Obama administration and global climate activists are using this week’s United Nations gathering to rally around the Paris climate agreement, pressing countries to ratify it in hopes of bringing the landmark deal into force before the next U.S. president takes office.

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

LCSA News

1. EPA Weighs Whether To Ban Or Further Restrict TCE Degreasing Operations

   Sep 21, 2016 | Inside EPA

   By Maria Hegstad

   In one of three rare rules that EPA is drafting under its Toxic Substances Control Act (TSCA) Section 6 authorities, the agency is weighing whether to ban the use of the solvent trichloroethylene (TCE) when used as a degreaser to clean various parts and components, or whether additional restrictions on such operations are sufficient to protect workers.

   EPA representatives told representatives of small businesses in a presentation this summer that "[t]wo options would mitigate the risk of TCE exposure for the vapor degreasing use," banning the use of TCE in vapor degreasing operations or allowing its use to continue "with appropriate personal protective equipment (supplied air respirator of APF 10,000) in certain closed vapor degreasing systems.”

   EPA explains in the presentation, recently obtained by Inside EPA, that banning TCE's use in this application would ensure "complete risk reduction." Continuing its use under specified engineering controls with protective equipment for workers would result in "[r]isks eliminated under perfect conditions." EPA explains that in this scenario, "[r]isks are reduced so that [margins of exposure] are above target benchmarks and cancer is above a risk level of" 1 in 1 million risk of an excess case of cancer.

   Such details about the options EPA is considering under its rarely used Section 6 authorities are available because the TCE vapor degreasing rule is undergoing a small business review process before its proposal, as mandated by the 1996 Small Business Regulatory Enforcement Fairness Act (SBREFA). The agency in June convened the Small Business Advocacy and Review (SBAR) panel for the rule, intended to gather input from small businesses on the rule and how to mitigate potential impacts of the rule on small companies.

   By contrast, a separate Section 6 rule proposal on other uses of TCE, already undergoing White House Office of Management and Budget review before EPA publicly proposes the rule, has not undergone SBREFA review, to the consternation of industry representatives.

   "Other options do not provide sufficient risk reduction," EPA says of its regulatory choices. Other options considered but discarded, according to the presentation, were material substitution, or "reducing the concentration of TCE in the degreasing formulation, with concentrations varying from 5 to 95 weight percent," and equipment substitution, or "replacing open-top vapor degreasing units with an enclosed system to reduce the escape of TCE vapors into the air, which achieves a 98 percent reduction effectiveness."

   SBREFA Review

   Small businesses participating in the SBREFA review process raise numerous concerns with EPA's proposals, particularly the idea of banning the use of TCE for vapor degreasing entirely. The Precision Machined Products Association (PMPA) in comments for the SBAR questions EPA's TCE risk assessment, arguing that EPA's findings on TCE's toxicity are at odds with a 2009 National Academy of Sciences report and that EPA assumptions about how vapor degreasing shops operate overstate risks.

   NAS "could not find a causal relationship between TCE and a large number of health outcomes, yet the EPA is proposing a rule likely to shut down as many as 178 precision machining shops nationwide, eliminating potentially over 5,000 jobs (in just our precision machining industry), while reducing U.S. manufacturing GDP by almost a billion dollars," the industry association writes.

   PMPA adds that its concerns are "aggravated by our substantial doubts as to the credibility of EPA's risk estimates in light of the National Academies' own report on TCE and actual health outcomes in 2011. Finally, we question the standard of care used by EPA to prepare this rule, noting several flaws in the assumptions used and in the prescribed 'drop-in substitutes' mentioned multiple times by EPA in their presentation."

   NAS' 2009 report, "Contaminated Water Supplies at Camp Lejeune: Assessing Potential Health Effects," examined "what is known about the contamination of the water supplies at Camp Lejeune and whether the contamination can be linked to any adverse health outcomes in former residents and workers at the base," according to the report. The NAS committee was charged with considering what health effects could occur following exposure to TCE, a related solvent, perchloroethylene, and other contaminants, as well as reviewing studies of former Marine Corps base residents and workers. One of the report's key findings was that the rash of rare and deadly illnesses former residents and workers have suffered is likely untraceable and further studies likely would not determine causation.

   Industry previously used the report to question EPA's Integrated Risk Information System (IRIS) assessment of TCE, finalized in 2011, which is a key underlying component of the rule EPA is now drafting. Concerns over the NAS report led the then-director Chris Portier of the Agency for Toxic Substances and Disease Registry in 2011 to write the Navy questioning NAS' conclusions.

   As a result, Navy Secretary Ray Mabus wrote former NAS President Ralph Cicerone to review Portier's letter. Cicerone replied that NAS had no need to alter the report. Cicerone did not directly address the carcinogenicity of TCE, but said that the report "clearly indicate[s] that several cancers are of concern." Cicerone goes on to argue that the report's purpose was not to conduct a risk assessment of TCE, or any of the other chemicals.

   Drop-In Alternatives

   PMPA also raises concerns about the drop-in alternatives EPA proposes to the use of TCE for degreasing operations, also listed in the presentation, as "methylene chloride; perchloroethylene; 1-bromopropane," as well as numerous alternatives that would require equipment changes as well, and so are not drop in alternatives.

   PMPA asks "if anyone at EPA did any kind of risk analysis before pasting '1-bromopropane' into the slide for this SBAR Panel as a 'drop-in substitute for TCE.' (Note, on slide 7 of the same EPA presentation EPA states that 'Draft Risk assessment for 1-bromopropane released for public comment and peer review- Draft risk assessment found cancer and non-cancer risks (developmental toxicity, reproductive toxicity, and neurotoxicity) for occupational users and bystanders to degreasing and other uses.') How can EPA prescribe nPB as a 'drop-in replacement' for TCE knowing these risks?"

   Another small entity representative, the company Parts Cleaning Technologies (PCT), in comments pointed to other concerns with substitute chemicals, largely that they do not work as well as TCE, and would require years of engineering design to meet the specifications for cleaning parts for exacting industries like aerospace, automotive, medicine and the military.

   "The vast majorities of the cleaning substitutes for TCE do not clean as well as TCE, are more expensive to purchase and require a large capital investment for a cleaning process that is less productive. To change the cleaning process, a cleaning specification must be developed . . . [which] could take from 6 months to 4 years. For a typical manufacturing customer that purchases a noncritical part the time period to develop a new cleaning specification is 9 months. . . . For medical instruments that come in contact with the human body, the time period is four years to get [Food and Drug Administration] approval. Aerospace approval on critical parts is four years. An electronic part for military approval is three years. After the cleaning specification is approved, equipment design, build, installation, building modification if required and local permits could take another two years."

   EPA NESHAP

   PCT notes that EPA has already written a Clean Air Act National Emission Standards for Hazardous Air Pollutants (NESHAP) for halogenated solvent cleaning in 1994 and a revision to it in 2007. "The impact of these two rules reduced TCE consumption and emissions and worker exposure by 95% since 1998," the group says.

   PCT recommends EPA "cancel this project and enforce the rules that we already have in place . . . At the least, rulemaking should not go forward until an accurate baseline assessment of exposure and risk has been developed. The 2014 Work Plan assessment uses worker and bystander exposures based on conditions that predated the NESHAP and thus presents an inaccurate and unduly alarming perspective."

   http://insideepa.com/daily-news/epa-weighs-whether-ban-or-further-restrict-tce-degreasing-operations
   

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Chemical Management News

2. (ACC Mentioned) Erin Brockovich' Chemical in Drinking Water of More than 200 Million Americans

   Sep 21, 2016 | Cosumnes Connection

   By Carolyn Briggs

   Drinking water in more than 150 New Jersey water systems contained the carcinogenic chemical chromium 6 at levels that exceeded a health limit recommended by California scientists when the local systems were tested by the U.S. Environmental Protection Agency, according to a national analysis published on Tuesday.

   The EWG report summarizes the independent review of data collected by the Environmental Protection Agency (EPA) for the first nationwide evaluation of chromium-6 contamination in USA drinking water.

   Goodman said that when the chemical is found in ground water, it is present at low levels that are well below the EPA's national drinking water standard.

   Bryan Goodman, director of product communications for the American Chemistry Council, said the EWG report contained no new data on chromium 6, also known as hexavalent chromium, in the water supply.

   "Whether it is chromium-6, PFOA or lead, the public is looking down the barrel of a serious water crisis across the country that has been building for decades", Brockovich said in a written statement Tuesday, blaming it on "corruption, complacency and utter incompetence". That's two-thirds of the US being served water with chromium-6 at, or above, the level that California state scientists consider safe.

   "More than two-thirds of Americans' drinking water supply has more chromium than the level that California scientists say is safe - a number that's been confirmed by scientists in both New Jersey and North Carolina", according to Walker. The group receives grant money from the Turner Foundation, which is chaired by CNN founder Ted Turner, who is no longer involved with the news organization or any Turner entity.

   In New Jersey, some of the highest concentrations were found in the Ridgewood Water system in Bergen County, where the chemical was found at above the proposed California level in 56 locations with an average of 0.398 ppb, or nearly 20 times the recommended California standard. "And what the best science of the last decade tells us is that these chemicals acting in combination with each other can be more risky than exposure to a single chemical".

   It comes in several forms, including what is commonly called chromium-3, an essential nutrient for the body.

   The chemical, called chromium-6 or hexavalent chromium, was featured in the movie Erin Brockovich, in which Julia Roberts plays an activist leading a lawsuit against Pacific Gas & Electric for contaminating water with it. Chromium-6 can be produced from industrial activities like producing stainless steel or manufacturing textiles.

   According to EWG, based in part on this study, scientists at the California Office of Health Hazard Assessment concluded in 2010 that ingestion of tiny amounts of chromium-6 can cause cancer in people.

   "We want people to be aware that the EPA is dragging its feet on setting a national drinking water standard; that the chemical industry and the electrical power industry have delayed that process, and that as a result of industry influence, the EPA might eventually decide to do nothing", Walker said. That means drinking two liters of water contaminated with 0.2 parts per billion of hexavalent chromium daily for 70 years would create a one-in-a-million risk of cancer. But he said chromium 6 could become part of the DWQI's work in the future.

   Still, Walker and Andrews say this is a problem. New Jersey and North Carolina government scientists independently assessed a health-based maximum contamination level for chromium-6 that is only slightly higher than California's. From 2013-2015, the utilities collected more than 60,000 samples, and found Chromium 6 in more than 75 percent of them.

   Asked what steps are necessary to fix the country's broken drinking water program, Dr Andrews said: "One of the first steps has to occur here: EPA has to be able to complete its health risk assessment about the toxicity of chromium-6".

   This rule requires the EPA to establish a new list every five years of 30 previously unregulated contaminants to be monitored by public water systems.

   New Jersey now follows the EPA's recommended guidance limit of 100 ppb for totalchromium - a combination of chromium 6 and chromium 3 - in drinking water, Hajna said. In Burlington County, the average level was 0.491 ppb in the Mount Holly system operated by New Jersey American Water, according to the EPA data.

   Oklahoma, Arizona and California had the highest average statewide levels and the greatest shares of detections above California's public health goal of 0.02 ppb, the report found. Of major cities, Phoenix had the highest average level at nearly 400 times this health goal. St. Louis County, Houston, Los Angeles and Suffolk County, New York, also had relatively high levels.

   The EPA did not directly address the report, but a representative said the agency is working on a health assessment of chromium-6 that will be released for public comment in 2017. The proposal never reached the desk of DEP Commissioner Bob Martin because the DWQI stopped meeting at that time because of a shortage of members, according to Larry Hajna, a spokesman for the DEP.

   EWG says the California Department of Public Health relied on a flawed analysis that "exaggerated the cost of treatment and undervalued the benefits of stricter regulation".

   "When you find widespread evidence of contamination, do something about it".

   http://www.crcconnection.com/2016/09/21/erin-brockovich-chemical-in-drinking-water-of-more-than-200.html
   

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3. (ACC Mentioned) US NGO Urges Companies to Sign Toxic-Free Furniture Pledge

   Sep 21, 2016 | Chemical Watch

   By Tammy Lovell

   The Center for Environmental Health (CEH) is urging companies to buy furniture which is free from toxic chemicals.

   The pledge aims to commit companies to buying furniture free from antimicrobials, fluorinated compounds used as stain treatments, volatile organic compounds (VOCs) such as formaldehyde, and PVC, as well as flame retardants.

   This follows the NGOs 2014 Purchaser’s Pledge, which asked signatories, such as Facebook and Harvard University, to preferentially purchase flame retardant-free furniture. 

   CEH pollution prevention director, Judy Levin, told Chemical Watch: “While the market is rapidly moving away from the use of flame retardant chemicals, there are other substances that have significant health and environmental concerns.

   “The chemicals included in this second pledge are persistent, bioaccumulative and/or highly toxic.”

   The CEH has begun discussions with purchasers around the expanded group of chemicals and hopes to announce signatories to the new pledge by the end of the year.

   Ms Levin says the NGO will be contacting the companies and institutions that signed the original pledge. 

   The Purchaser's Pledge has provided “significant financial incentives for companies to expedite the removal of flame retardant chemicals from their products,” according to Ms Levin.

   “It has amassed more than $600m in purchasing power for healthier furniture. This has definitely attracted the attention of furniture manufacturers around the country,” she adds.

   After companies sign a pledge, the CEH remains in close contact in order to help them implement it.

   Ms Levin says: “We feel purchasers have an important decision and a significant opportunity when they choose furniture. Furniture without these chemicals of concern means healthier workers, more productive employees, healthier families and a healthier environment.”

   Safety Risk?

   But American Chemistry Council product communications director, Bryan Goodman, says the pledge is “ill-conceived” and consumers could be confident that chemicals used to make furniture were “subject to review by the US Environmental Protection Agency and regulators around the globe”.

   He told Chemical Watch: “While pledges such as these may sound good, they do not acknowledge the continuous innovation of manufacturers to enhance the materials in consumer goods, such as home furnishings, and they do nothing to improve the quality and performance of products.

   “When manufacturers are pressured to make an ill-conceived commitment such as this, the end result is not only more rapid wear and tear and the need for early replacement, but greater safety risks, including fire.”

   The US furniture industry has called for a national fire standard to be adopted, based on California’s Technical Bulletin (TB) 117-2013. Prior to being amended in 2013, TB 117 served as the de facto national standard, because it required an open flame test which effectively required the use of flame retardants.

   Signatories to the Purchaser's Pledge include:

   Facebook

   Autodesk

   Staples

   Harvard University

   Hackensack University Medical Center

   Healthy Building Science

   Kaiser Permanente

   Perkins + Will

   Kay Chesterfield

   San Francisco Department of Environment

   City of Portland

   https://chemicalwatch.com/49753/us-ngo-urges-companies-to-sign-toxic-free-furniture-pledge
   

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4. US EPA Releases Final IRIS Report on Ammonia

   Sep 21, 2016 | Chemical Watch

   The US EPA has issued its final Integrated Risk Information System (IRIS) toxicological review of ammonia.

   Ammonia is a naturally occurring substance, used in many household cleaning products and as an agricultural fertiliser.

   It is also used:

   as an antimicrobial agent in food products;

   in water purification;in refrigeration systems; and

   as a chemical intermediate in the production of pharmaceuticals and other chemicals.

   The IRIS assessment evaluated noncancer health hazards resulting from inhalation exposure to ammonia, observed at levels that exceed naturally occurring concentrations.

   The report indicates that chronic exposure to airborne ammonia can cause respiratory concerns like irritation, cough, wheezing and tightness in the chest, along with impaired lung function in humans.

   Short-term inhalation exposure to high levels in humans can cause irritation and serious burns in the mouth, lungs and eyes.

   Animal studies also suggest that exposure to high levels in the air may adversely affects other organs, including the liver, kidney and spleen.

   Release of the final assessment follows nearly four years of public and expert review.

   The agency released a draft IRIS review of ammonia for public comment in 2012.

   The IRIS  programme comes under the EPA’s National Center for Environmental Assessment (NCEA) in the Office of Research and Development (ORD).

   IRIS assessments are a source of toxicity information for the EPA and other state and federal agencies.

   https://chemicalwatch.com/49807/us-epa-releases-final-iris-report-on-ammonia
   

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5. Danish Minister Criticises Proposed EDC Criteria

   Sep 21, 2016 | Chemical Watch

   Denmark’s environment and food minister says the European Commission’s proposed criteria for the identification of EDCs would fail to protect human health and the environment, and would mean that some well-known endocrine disruptors would escape the definition.

   Writing in the latest issue of Chemical Watch's Global Business Briefing, Esben Lunde Larsen describes the Commission's proposal as disappointing, for three reasons:

   it requires an unprecedented, and scientifically unjustified, level of evidence for identification of endocrine disrupting properties;

   it is inconsistent with corresponding legislation; and

   it lacks a precautionary aspect.

   The approach will create legal uncertainty, Mr Larsen says, regarding the evidence required for a substance to be identified as an EDC.

   “I am worried that the criteria only apply to substances known to cause an adverse effect for human health,” he says. The evidence will have to be extensively documented, which “goes far beyond” requirements applied to other SVHCs.

   Ignoring current knowledge of suspected EDCs will make it difficult for industry to substitute problematic chemicals, he says. And it will lead to delays in regulation.

   He warns these “shortcomings and lack of progress” could lead to the creation of unauthorised lists of suspected and potential EDCs. Instead, he recommends a “more efficient” two-category approach.

   Joining forces

   In June, Mr Larsen and the Swedish and French environment ministers co-signed a letter to the Commission president, calling the proposed criteria unacceptable.

   “We need to join forces and work on a solution that is in line with the globally accepted approach for identifying other substances of high concern,” Mr Larsen says. This must respect the World Health Organization definition and “clearly state” which evidence would qualify, he adds.

   “As policy makers we cannot ignore the state of the science and European citizen’s concerns over these chemicals.”

   In August, environmental law NGO ClientEarth said the criteria were illegal.

   https://chemicalwatch.com/49762/danish-minister-criticises-proposed-edc-criteria
   

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6. Rac and Seac Each Agree on Chromium Trioxide Authorisations

   Sep 21, 2016 | Chemical Watch

   By Philip Lightowlers

   Echa’s Risk Assessment (Rac) and Socio-Economic Analysis (Seac) Committees have each agreed final Opinions on the authorisation of chromium trioxide for six uses, affecting hundreds of workplaces across Europe.

   The authorisations will allow the use of chromium trioxide in surface treatment processes, affecting the aerospace, automotive, locomotive, metal manufacturing and canning industries.

   The six uses are:

   the formulation of mixtures;

   functional chrome plating (industrial);

   functional chrome plating with decorative character;

   surface treatment for aeronautics and aerospace industries;

   surface treatment for general industries; and

   passivation for tin-plated steel.

   Rac chairman, Tim Bowmer, said: “These are upstream applications that may eventually be used by hundreds of companies and involve thousands of tonnes of chromium trioxide in hundreds of workplaces.” Most of the uses will be authorised for seven years but for four for passivation, a bridging application, he added.

   In July, a group of Dutch trade groups, representing the metal and surface treatment industries, wrote to the European Commission urging it to ignore Echa's recommendation of review periods of four to seven years for chromium VI compounds and to opt for 12 years instead.

   Tomas Öberg, chairman of Seac, said the final Opinions "will have a big impact and the overall benefits of the uses outweigh the risk to human health”.

   The final Opinions are to be published on Echa’s website.

   Both committees also agreed many draft Opinions on uses of hexavalent chromium compounds and the solvent 1,2-dichoroethane (EDC). Rac agreed 26 draft opinions on chromium compounds and nine on the specific solvent use applications of EDC in the chemical and pharmaceutical industry sectors. Seac agreed 27 and nine respectively.

   Seac also agreed one Opinion and 12 draft Opinions on a use of arsenic acid and another on two uses of resin hardener, MDA.

   Draft Opinions on applications for authorisation are sent to applicants for comment. If none are received, the Opinion will become final.

   If there are comments, the committees will consider them before adopting their final Opinion.

   https://chemicalwatch.com/49809/rac-and-seac-each-agree-on-chromium-trioxide-authorisations
   

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7. $90 Billion Whistleblower Suit Filed Against Four of America's Largest Chemical Companies

   Sep 21, 2016 | Alternet

   By Lorraine Chow

   Four of the country's largest chemical companies have been accused of selling billions of dollars worth of harmful isocyanate chemicals but intentionally concealing their dangers to consumers and the U.S. Environmental Protection Agency (EPA) over the past several decades.

   BASF Corporation, Bayer Material Science LLC, Dow Chemical Company and Huntsman International LLC have been named in a False Claims Act (FCA) lawsuitbrought by New York law firm Kasowitz, Benson, Torres & Friedman LLP on behalf of the U.S. government.

   EcoWatch learned that the recently unsealed whistleblower lawsuit was served on the chemical companies on Wednesday. The lawsuit was originally filed under seal in federal court in Northern California.

   Kasowitz brought this action on behalf of itself and the federal government to recover more than $90 billion in damages and penalties under the FCA, which imposes penalties for concealing obligations to the government.

   According to a copy of the lawsuit seen by EcoWatch, "Each of these companies is separately liable to the United States Government for billions of dollars in civil reporting penalties, which continue to accumulate by tens of thousands of dollars daily, and for billions of dollars in similarly increasing breach of contract damages." 

   In the suit, the law firm said that the defendants manufacture and sell isocyanate chemicals such as methylene diphenyl diisocyanate (MDI), polymeric MDI (PMDI) and toluene diisocyanate (TDI). These raw materials make up polyurethane products such as liquid coatings, paints and adhesives; flexible foam used in mattresses and cushions; rigid foam used as insulation; and elastomers used to make automotive interiors.

   Occupational Safety and Health Administration (OSHA) states that exposure to isocyanate can irritate the skin and mucous membranes, cause chest tightness and difficult breathing. Isocyanates also include compounds classified as potential human carcinogens and is known to cause cancer in animals. 

   As alleged in the complaint, the defendants, the isocyanate industry and the EPA have long known that inhalation of isocyanates, including MDI, PMDI and TDI, can cause harm to human health. 

   Kasowitz believes that the chemical giants obtained scientific evidence that their widely used isocyanate chemicals can cause serious health injuries in ways not known to the EPA or the public, but failed to disclose this information to the EPA, thereby breaching their obligations under the Toxic Substances Control Act. 

   "Between at least 1979 and 2003, each defendant obtained and developed discrete and separate items of scientific and medical information that TDI, MDI and PMDI can cause and had caused permanent respiratory injury in humans when inhaled at levels below applicable inhalation exposure limits (low-level inhalation)," the lawsuit states. 

   The lawsuit further states that "Each defendant also knew during this time period that a very small quantity of TDI, MDI or PMDI on the skin—as little as one drop or 50 microliters—could cause respiratory injury in humans.

   "Defendants knew that this information reasonably supported the conclusion that TDI, MDI and PMDI presented a substantial risk of injury to health, that the EPA was not adequately informed of that information, and that TSCA therefore required that they (each defendant) immediately report the substantial risk information to the EPA."

   According to Andy Davenport of Kasowitz, "The defendants' cover-up implicates major human health concerns. Thankfully, the whistleblower law allows us to assist the federal government in holding these companies responsible for their actions while we alert regulators and the public to the serious undisclosed hazards of these chemicals."

   http://www.alternet.org/environment/90-billion-whistleblower-suit-filed-against-four-americas-largest-chemical-companies
   

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Energy News

8. (ACC Mentioned) Gas Industry Execs Say Regulations Hurting Business

   Sep 21, 2016 | Pittsburgh Business Times

   By Christine Manganas

   Regulations and their impact on the natural gas business were a major topic of conversation in the opening sessions of the Shale Insight Conference, which is being held Wednesday and Thursday in downtown Pittsburgh.

   Keynote speaker Gary Heminger, president and CEO of Marathon Petroleum Corp. (NYSE: MPC), addressed Wednesday two challenges to overcome in the natural gas industry: lingering prices and the current regulatory and political environment.
   

   “Some activists try to portray fossil fuels and the companies that produce and sell them as villains, which can affect our ability to operate,” Heminger told the crowd of natural gas industry executives.

   As increased federal regulations continue to pose as issues for drillers and producers, Heminger said that the specter of higher taxes and fees are hanging over the industry that affect whether investment capital will one day return full force to the region.

   “We need to know what they are and that they will be enforced consistently,” he said.

   Heminger was followed by a panel discussion from C-level executives from top sectors of the economy in utilities, manufacturing, transportation, chemicals and power generation. Among the group are executives from Peoples Gas,Allegheny Technologies Inc. (NYSE: ATI), FirstEnergy Corp. (NYSE: FE), American Chemistry Council and Cheniere Energy Inc., who explored the issues relating to the value of pipelines and infrastructure development in the Appalachian Basin.

   “Regulatory environment is driving us away,” said Allegheny Technologies President and CEO Richard Harshman.

   Jim Scheel, senior vice president of the Northeast Gathering and Processing at Williams, said the company met all the requirements for its Constitution Pipeline but the water permit was rejected in April by New York state environmental regulators.

   “The inference I would make and what I think is the new truth is that folks that don’t like the development of fracking and infrastructure use the political process to block these things,” Scheel said. “From my perspective, it was very political.”

   Christine Manganas covers technology and energy for the Pittsburgh Business Times.

   http://www.bizjournals.com/pittsburgh/blog/energy/2016/09/gas-industry-execs-say-regulations-hurting.html
   

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9. (ACC Mentioned) Execs Fume Over Obama Admin's Role in Dakota Access Battle

   Sep 21, 2016 | E&E Greenwire

   By Hannah Northey

   An oil executive blasted the Obama administration at an industry conference here today for intervening in the $3.7 billion Dakota Access pipeline and faulted federal regulators for making "common cause" with environmentalists intent on villainizing the oil and gas industry.

   "Some activists are trying to portray fossil fuels and the companies that produce, transport and sell them as villains," Marathon Petroleum Corp. Chairman, President and CEO Gary Heminger told attendees at the Shale Insight conference. "In some cases, regulatory agencies and elected officials are making common cause with activists, shaping our energy and environmental policy."

   Heminger criticized the administration for halting construction on a portion of the North Dakota-to-Illinois crude pipeline after a federal judge rejected an injunction request from the Standing Rock Sioux Tribe. The government's decision, he said, is at odds with a nation of law and throws a "cloud of uncertainty" over an industry that needs consistency.

   "It's disturbing that how some regulations are applied depends not necessarily on the law itself, but on the individuals in charge of enforcing the rules," Heminger said.

   The industry is facing stiff financial headwinds, he said. Ninety North American oil and gas producers have filed for bankruptcy since the beginning of 2015, more than half of those in the last six months, he said, and 450,000 people have lost their jobs.

   Grass-roots opposition to new pipelines, the presidential election and the Dakota Access case are overshadowing today's conference in the heart of the Marcellus Shale play. Executives complained that green groups and regulators are making life harder for developers of much-needed pipelines without acknowledging the environmental benefits of natural gas — namely, reduced carbon emissions.

   Republican presidential nominee Donald Trump is scheduled to address the conference tomorrow. David Spigelmyer, the head of the Pittsburgh-based Marcellus Shale Coalition, told reporters today that Democratic nominee Hillary Clinton declined an invitation.

   A big question for executives here in light of the Dakota Access battle and grass-roots opposition to other pipeline projects is whether their industry has a problem with its message.

   Their answer: no.

   Spigelmyer said energy companies have been clear and consistent on the benefits of gas.

   "I think the message has been loud and clear, very clear to the public," Spigelmyer said. "What I know is there's a fair amount of investment being made to make fuel choices via policy. That's a shortsighted decision."

   But there are clear calls here for the media and public at large to recognize the benefits of natural gas and oil.

   "We need to stick together like never before. Our industry groups need to be more vocal and informed, because nobody else is willing to speak up for us," Heminger said. "We need to take charge of not only our ongoing success, but our continued survival as an industry."

   Owen Kean, a senior director of energy at the American Chemistry Council, said the "keep it in the ground" campaign against fossil fuels appears to be "creeping" into national elections, and opposition to the construction of much-needed gas lines is growing along the East Coast (Greenwire, Sept. 19).

   Projects, he said, are being hotly contested at the Federal Energy Regulatory Commission and along the routes of critical pipelines for the Marcellus region. Keen said he wasn't aware of a project that wasn't facing opposition and called on project proponents to get involved in the FERC process.

   "I think there's a need for folks who support additional pipeline capacity in this part of the country to engage with FERC and participate in the process," he said. "It does make a difference in terms of getting those certificates to build those pipelines."

   Heminger argued that more midstream infrastructure is needed to tap into the nation's large oil and gas supplies and boost shipments to the East Coast to create a "mini hub" for natural gas liquids and well-established processing and export capacity along the Gulf Coast.

   Shipping domestic oil and gas abroad, he said, will only help lower emissions and improve lives in developing countries.

   "If you truly care about your fellow human beings, if you want to prove a way to give the world's poorest longer lives, better lives, more prosperity, the issue is we need more fossil fuels, not less," he said.

   http://www.eenews.net/greenwire/2016/09/21/stories/1060043207
   

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10. In Houston, Split Over Climate Rule Remains Apparent

    Sep 21, 2016 | E&E Energywire

    By Edward Klump

    The panelists assembled in this energy capital last evening couldn't settle the fate of U.S. EPA's Clean Power Plan, but they did cement just how divisive the rule remains as a major court hearing looms next week.

    During a sprawling discussion that lasted more than 80 minutes, John Hall of the Environmental Defense Fund (EDF) and Al Armendariz of the Sierra Club's Beyond Coal campaign defended EPA's plan to curb power-sector carbon dioxide emissions while touting potential climate and health benefits.

    Jeffrey Holmstead of Bracewell LLP and Mark Walters of Jackson Walker LLP countered with legal criticisms of EPA's interpretation of the Clean Air Act and bemoaned the possible closure of significant coal-fired generation.

    All four were part of a University of Houston event called "The Clean Power Plan: To Be or Not to Be?" The CO2 rule is set to go before judges at the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday (Greenwire, Sept. 20). An eventual decision may be appealed to the Supreme Court, which announced a stay of EPA's plan in February.

    EPA's plan aims to cut CO2 emissions at power plants 32 percent by 2030 compared with 2005 levels. Targets vary by state.

    Yesterday's discussion, which was shown online, seemed to occur on different levels at times as the Clean Power Plan's opponents dived into legal points. Hall promoted Texas' potential in natural gas, wind, solar and efficiency while assuring the audience that lawyers on the side of the Clean Power Plan also would have persuasive arguments. Armendariz said EPA has the authority to regulate CO2.

    Hall made the panel personal at one point when he allowed that EPA's plan could be invalidated and offered hope that his daughters, grandchild and others would act in the future.

    "There's a group of young people who will be our leaders tomorrow, and they will have the wisdom to do perhaps what we do not choose to do," Hall said.

    Holmstead responded that he hopes to leave his children a better world than the current one, even though the approach he then outlined was different.

    "We're not going to solve the world's problems by getting wind farms and solar plants around the world," he said. "The economics just don't work."

    Coal-fired generation and coal assets exist globally, Holmstead said, and policies are needed to enable technology to develop so people can use such resources to produce goods and services with lower CO2 emissions.

    "And the Clean Power Plan forecloses that as a practical matter," he said.

    Talk of blackouts and solutions

    To promote fairness, a moderator directed the four panelists to go in alphabetical order in offering opening thoughts before a question period.

    Armendariz, a former EPA regional administrator, called the Clean Power Plan "one piece of the suite of rules that this EPA and this White House have put forward" to lower CO2 emissions. And he said climate change has affected countries with little responsibility for it.

    "We have a responsibility not only to ourselves and future generations of Americans, but to make sure that we do our fair share and in fact lead the effort to eliminate these emissions that right now are altering the climate," Armendariz said.

    Hall, who is an associate vice president of clean energy at EDF, offered a hopeful vision for the Lone Star State: "Instead of the Clean Power Plan being a noose around the neck of Texas, it actually creates a framework where Texas can utilize its abundant energy resources in every area, grow our economy, reduce our pollution, save lots of water, improve public health and help the nation to comply."

    Holmstead, who was an air chief at EPA under President George W. Bush, promoted a commitment to the rule of law. The Clean Power Plan, he said, "has absolutely no basis in law."

    In his view, the Obama administration claims it has authority under Section 111(d) of the Clean Air Act "to shut down power plants that it doesn't like and to require industry to build different types of power plants." After the Clean Power Plan is struck down, Holmstead predicted, the next president will negotiate with Congress to deal with greenhouse gas emissions.

    Walters, who noted his extensive experience as a trial lawyer, said EPA's plan is a "proverbial gun to the head" for states. He raised the specter of higher power prices and rolling blackouts if EPA's CO2 plan goes into effect, saying the agency cannot require natural gas and renewable facilities to run more.

    "If you're sitting in Houston and it's 95 degrees and 95 percent humidity and your power is out so that your air conditioner is not working, EPA will not be able to help you," Walters said. "Sierra Club and Environmental Defense Fund will not be able to help you, and you won't be calling them. You'll be calling your power company, and next you'll be calling your local elected public officials — and not to make a campaign contribution."

    Walters later added that it won't matter much for global emissions what CO2 reductions occur in the United States if other major countries keep increasing their emissions.

    Hall said yesterday that dealing with legal action over a clean air regulation is nothing new.

    "At the end of the day, when the litigation is over, we move forward and we forge effective solutions that allow us to continue to improve the quality of life of our people," Hall said.

    http://www.eenews.net/energywire/2016/09/21/stories/1060043176
    

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11. Want a Seat at the 'Circus'? Don't be Late

    Sep 21, 2016 | E&E Climatewire

    By Emily Holden

    Professional line-standers will stake out positions long before sunrise Tuesday outside the federal courthouse where judges could decide the fate of the biggest climate change regulation ever attempted in America.

    The spots are coveted by lobbyists, utility chiefs and others who have spent the last several years following every twist and turn of U.S. EPA's Clean Power Plan.

    The regulation, little known to the general public, has captivated an audience of environmental advocacy groups, industry trade associations, states, academics and lawyers. Its day in court is expected to draw hundreds.

    "It's going to be quite a circus," said Jeff Holmstead, an attorney with Bracewell LLC who is working with challengers to the rule. "I don't think we've ever seen anything like this at the D.C. Circuit."

    The Clean Power Plan would speed a shift away from greenhouse gas-heavy power sources and has prompted broad questions about EPA's authority and states' rights (Greenwire, Sept. 20).

    Nine judges at the U.S. Court of Appeals for the District of Columbia Circuit will hear arguments from suing states and power companies as well as EPA's defenders. In the months to come, those judges will weigh in on whether the rule is legal — a decision that might set a new precedent and could be final if the Supreme Court declines to take up the case.

    The court's chief deputy clerk, Marilyn Sargent, estimates that about 400 seats will be made available in the courtroom and in two overflow rooms, one of which normally isn't open but is being used to accommodate expected crowds.

    Sargent said for high-profile cases, people sometimes show up 24 hours early.

    "I'm really hoping it does not get like that," she added.

    More than a third of seats available at the courthouse are already reserved for the two sidesarguing the case and their parties. Twenty-eight states are supporting lawsuits. Eighteen are allied with EPA. Dozens of trade groups, companies and advocates have signed onto one side or the other.

    Sargent confirmed that the court has assigned 48 reserved seats for each side within the courtroom and 20 for each side in an overflow room. That means 136 of the approximately 400 seats are already taken. After the reserved seats, about 74 spots in the courtroom will be available to the first reporters and members of the public who arrive. Being in the courtroom may make it easier to see how judges and lawyers react, although live video feeds will be broadcast in the overflow rooms.

    Each side is doling out its own tickets, including to state governors and attorneys general. The court does not decide how to divide them, a tricky task that Sargent joked she's relieved she doesn't have to handle.

    Everyone else will have to wake up early.

    'A high-demand hearing'

    Michael Glasser, director of the Washington, D.C., business linestanding.com, said he has a few reservations for people to hold spots for the oral arguments, although he said he doesn't like to share the numbers. Line-standing services are more frequently used by lobbyists attending congressional hearings. They surfaced in the news a few years ago after reports that some people were paying $6,000 to hold a spot at the Supreme Court to hear oral arguments on gay marriage.

    The Supreme Court has since banned spot holding for lawyers. But the D.C. Circuit still allows it for anyone attending, and Sargent said it's common.

    Glasser, who charges $36 per hour, said his earliest line-stander will arrive six or seven hours before the oral arguments begin at 9:30 a.m. Courthouse doors open at 8 a.m., meaning some people are planning to get there at the crack of dawn.

    "This is a high-demand hearing," Glasser said.

    Attendees can't use electronic devices during the oral arguments, so news of how the day is going will be valuable. Reporters and lawyers who are members of the bar association can bring their phones and computers in but must keep them turned off. Everyone else will have to check devices at the door, which Sargent said could slow down lines. She suggested leaving them at home.

    With the ban on phones and computers, some groups are sending people specifically to take notes by hand.

    The American Public Power Association will send Desmarie Waterhouse, a lawyer and vice president of government relations who has a spot reserved in an overflow room. Waterhouse will prepare a summary for APPA members soon after the arguments, which will run all day.

    Bill Becker, head of the association that represents state air agencies, said that as far as he knows, none of his members will have staff attend.

    "It is doubtful that any of our members would fly in to attend the argument without a ticket or assurance that they could get a seat," Becker said.

    At least four people from the Natural Resources Defense Council are hoping to go, although NRDC only has one reserved seat, for David Doniger, director of the Climate and Clean Air program and the main attorney focused on the Clean Power Plan.

    Ben Longstreth, a senior attorney for NRDC's Climate and Clean Air program, said he hopes to attend but hasn't decided how early to arrive.

    "I think it's probably fair to say that this is probably as high-profile as they come for an environmental case, as far as I have seen," Longstreth said.

    But Longstreth noted that it "tends to be very hard to read too much out of an oral argument."

    "Judges ask questions that don't really reflect their positions," he said. Plus the court will post an audio recording of the daylong arguments soon after they end.

    Still, for people who have been working on the rule, it's hard to imagine missing the oral arguments.

    "If you've been involved in the litigation, you want to know how the counsel is answering the questions and what questions are asked," Longstreth said.

    Sargent said anyone who really needs to be in the courthouse should plan to show up early.

    "I usually am pretty sure we will have enough room for everybody," Sargent said. "But I just can't predict on this one."

    http://www.eenews.net/climatewire/2016/09/21/stories/1060043177
    

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12. White House Engaged in 'Messaging' for EPA Fracking Study

    Sep 21, 2016 | E&E Energywire

    By Mike Soraghan

    The Obama White House was engaged in the "messaging" for last year's rollout of U.S. EPA's big study on the safety of hydraulic fracturing, records show.

    The message of the study — that there are no "widespread, systemic" drinking water problems from fracturing — has cheered the oil and gas industry and angered green groups.

    And it's been criticized by EPA science advisers who say the language isn't supported by the research in the study.

    EPA documents obtained by EnergyWire under the Freedom of Information Act do not indicate what role, if any, White House officials played in developing the "widespread, systemic" language. EPA withheld drafts of messaging materials such as the press release and executive summary, and heavily redacted the documents that were provided.

    But the emails and other records do show that the White House was interested and involved in the rollout of the study in June 2015.

    The EPA team working on the study met several times at the White House with top aides on domestic and environmental issues. And as EPA prepared to release the fracking study, White House aides kept tabs on what the "topline messages" would be.

    The team met in February and March 2015 with Candace Vahlsing, a senior policy analyst at the White House Domestic Policy Council, according to White House visitor records. Vahlsing had also been an energy and environment policy adviser to President Obama's 2012 re-election campaign.

    On May 4, 2015, a month before the study was released, the EPA team visited the White House again. Along with top staffers from Interior and Energy, they met with Dan Utech, Obama's top aide on energy and climate issues.

    Utech's discussion with the study team focused on "messaging," according to minutes of a meeting held shortly after the White House session.

    "The nature of the questions asked mostly focused around being clear on messaging," said the memo, circulated that evening among the EPA team working on the study.

    Revisions

    The White House officials wanted a briefing and a copy of the agency's talking points on the study before EPA officials previewed the report to state officials in mid-May, according to an email from EPA's Jeff Frithsen. Frithsen, an associate director in EPA's Office of Research and Development, guided the study and attended the White House meeting.

    Three days after that meeting, an EPA official from the administrator's office promised to Vahlsing that she would soon send wording of the "topline messages" EPA was proposing to use. The email to Vahlsing indicated she had requested the information, though it did not say when.

    Vahlsing checked in the following Monday to renew her request. The next day, the EPA official sent an attachment with the top-line messages. In their release of documents to EnergyWire, EPA officials redacted the attachment.

    At the same time, emails show the team overseeing the study was revising the press release, executive summary and other messaging items ahead of the rollout.

    "Messaging for the assessment — please read — need your feedback by COB today," was the subject of a May 7 email to Frithsen from Dayna Gibbons, who led the communications effort on the study. Adding to the urgency, it was sent at 4:30 p.m.

    EPA also sent Vahlsing an advance copy of its press release for the study the day before the June 4 rollout. It was also sent to Frank Benenati, who was a White House communications aide for energy and environmental matters. Benenati is now EPA's associate administrator for the Office of Public Affairs.

    Because of EPA's redactions, it is unclear where the "widespread, systemic" language was first used.

    The phrase "widespread, systemic" appears in four places in the 1,000-page report — twice in the executive summary and twice in the "synthesis" chapter. It also appears in the body of the press release announcing the study and in the second sentence of its headline.

    The executive summary of the report stated that EPA researchers "did not find evidence" that fracturing had led to "widespread, systemic" problems with drinking water. The message was stronger in the press release, which said "hydraulic fracturing activities in the U.S. are carried out in a way that have [sic] not led to widespread, systemic" problems.

    White House officials did not respond to a request for comment and a question about what role the White House had in developing the "widespread, systemic" phrase. EPA referred questions to the White House.

    Politics at play?

    Obama has lauded the shale gas drilling boom, which was made possible by advances in hydraulic fracturing, for helping to reduce carbon dioxide emissions from power plants. In 2012, with oil and gas companies complaining about a haphazard regulatory approach to shale drilling, the administration tapped the brakes on several regulatory efforts.

    His support has won him faint praise from industry but some measure of scorn from environmentalists. And the kinder, gentler approach has faded in the past year and a half as the administration has gotten increasingly tough on methane emissions from petroleum production.

    It's not wrong for political appointees at the White House to get involved in the rollout of a major EPA study, said Hugh MacMillan, senior researcher at the environmental group Food & Water Watch. But they shouldn't inject politics into the science, and MacMillan suspects they did.

    "In this case, the top-line messaging papered over where the science ends and where political considerations begin," MacMillan said. "We feel the EPA and the Obama administration owe the public an explanation."

    But Katie Brown of the industry group Energy in Depth said the science of the report is clear and unaltered by politics.

    "The data are what the data are," Brown said. "You can't change that with messaging."

    The study was requested in 2009 by congressional Democrats, who asked EPA to look into whether hydraulic fracturing harms drinking water.

    The process was contentious from the beginning. Early on, drilling critics packed hearing halls for the "scoping" process, while environmental groups and industry lobbied to get their favored scientists on the peer review panel. The agency tangled with Halliburton Co. about what information the company should hand over, even issuing a subpoena at one point.

    Years of research went into the draft that was released June 4, 2015. Though it noted that drilling activities had contaminated groundwater, it delivered a message that fracking is safe because it hadn't caused "widespread, systemic" problems with drinking water (Greenwire, June 4, 2015).

    Environmentalists fumed about language, saying EPA had turned a lack of data into proof that oil and gas drilling is safe. Oil and gas companies cast it as a long-awaited clean bill of health.

    But the "widespread, systemic" finding came under fire from the agency's Science Advisory Board (SAB), which conducted a peer review of the draft study. The scientists and academics on the board last month issued a report to EPA Administrator Gina McCarthy saying the "widespread, systemic" language was not adequately supported by the study (E&ENews PM, Aug. 11).

    The report said the language needs "clarification and additional explanation." But a dissent by four science advisers with industry ties said the language was "accurate" and "supportable with the facts EPA has reviewed."

    EPA officials have said they will "use the SAB's final comments and suggestions ... to revise and finalize the assessment," along with new studies and public comment. The agency release gave no timetable for a final study draft, except that officials expect to "finalize the assessment in the coming months."

    http://www.eenews.net/energywire/2016/09/21/stories/1060043152
    

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Chemical Security News

13. Another Email Scandal for the Chemical Safety Board

    Sep 21, 2016 | E&E Greenwire

    By Colby Bermel

    A board member of the nation's chemical safety watchdog may have engaged in improper correspondence with officials at the largest industrial labor union in the country, according to private emails provided to Greenwire.

    The emails between Chemical Safety Board member Rick Engler and United Steelworkers officials call into question the nature of Engler's relationship with the union and whether it impeded his ability to act objectively on matters of interest to the union that came before the board. They come to light as the agency attempts to get its house in order a year after its previous chairman resigned during an email scandal of his own (Greenwire, July 21, 2015).

    The correspondence also raises questions about whether the agency has transformed from a fact-finding entity into an advocacy organization, and it exposes tense internal politics that could threaten the agency's mission and work.

    On Feb. 29, 2016, Engler sent an email to the top officials overseeing proposed process safety management standardsfor petroleum refineries in California. He wanted to set up a conference call with them to discuss certain components of the rulemaking process.

    Such correspondence normally would be an uneventful exchange. CSB is tasked with investigating chemical accidents and issuing nonbinding recommendations. Its members are appointed by the president and confirmed by the Senate.

    But a phrase Engler used at the beginning of the email has raised questions among his colleagues and government experts.

    "I am working with the United Steelworkers and some allied environmental organizations," he wrote, "to encourage further public support for the California refinery safety reforms, which is consistent with the CSB's support for this initiative."

    U.S. law prohibits lobbying with appropriated funds, and experts questioned the contents of the email, saying they suggest Engler has improperly facilitated grass-roots lobbying at some point.

    The agency is allowed to engage with groups in an official, on-the-record capacity.

    For instance, earlier this month, CSB Chairwoman Vanessa Allen Sutherland wrote to California's Occupational Safety and Health Standards Board in support of the standards, with a number of recommendations for how to further improve them.

    The fifth draft of California's proposed refinery regulations came out two months ago and describe dozens of provisions on 21 topics, including training, operating procedures, emergency planning and response, incident investigation, and compliance audits.

    But some experts took issue with Engler's private email on his relationship with the Steelworkers, which support the reforms.

    In the email, Engler scheduled a conference call with the California officials — Paul Penn, the California Environmental Protection Agency's emergency management and refinery safety program manager, and Clyde Trombettas, statewide manager and policy adviser for the California Division of Occupational Safety and Health's process safety management unit headquarters.

    But Engler added one other person to the call: Jim Young, principal at the Labor Institute. In the email to Penn and Trombettas, Engler said he is an "advisor to [the Steelworkers'] District 12 on labor/environmental policy issues."

    Young also has worked for the New Jersey Work Environment Council, an organization Engler founded and directed. Young is now on its board of directors.

    Trombettas confirmed the call occurred and said he and the other men held several conversations this year.

    In response to Greenwire inquiries about the email correspondence, U.S. EPA's inspector general has opened an investigation into the matter. Engler has already been interviewed, and he has requested outside counsel. Interviews with other members are being scheduled.

    In an interview today, Sutherland, the board chairwoman, said she was aware of her colleague's emails but had not seen them.

    "I don't want them, don't need them, haven't read them, don't want to read them, don't need to read them. And I'm letting the IG work through whatever that might yield," she said.

    'Any questions, call or email'

    Engler's "I am working with the United Steelworkers" email isn't his only correspondence that details his relationship with the union. Additional emails provided to Greenwire reveal extensive conversations between Engler and top USW officials in which they appear to be sharing strategy.

    In one instance, Engler gave advance notice to the Steelworkers on how his fellow CSB member Manny Ehrlich, with whom he frequently clashed, intended to vote in a board meeting. Engler and USW officials also discussed Ehrlich's voting record after meetings occurred.

    In another thread, Engler once asked Mike Wright, the Steelworkers' director of health, safety and environment, if he could "send press to you for a supportive quote."

    "Good move," Wright replied.

    An additional email saw Engler asking Kim Nibarger, USW's oil sector chairman, about the union's expectation regarding CSB's then-open investigation into the 2014 sulfuric acid spills at the Tesoro Corp. refinery in Martinez, Calif.

    At one point, Nibarger sent Engler a pre-release contract.

    "Please do not share this as it is not yet public pending settlement agreements being conducted in the USW oil sector," Nibarger wrote.

    "Any questions, call or email," he continued.

    And Engler did email with questions three hours later, asking whether old language was being applied to the document. Nibarger replied with the earlier wording.

    In an interview with Greenwire, Wright described the Steelworkers' relationship with CSB in the following way: "We're their biggest customer.

    "More of our facilities have been the subject of CSB investigations than those of any other union or any company," he said.

    A source shared the emails with Greenwire on the condition that they would not be reprinted. A Freedom of Information Act request to obtain the emails directly from CSB is still pending.

    'It's all coordination on the left'

    Some expressed doubts over the legality of Engler's emails.

    Craig Holman, government affairs lobbyist at the watchdog group Public Citizen, said Engler's "I am working with the United Steelworkers" message "runs afoul" of the Anti-Lobbying Act of 1919.

    Holman added that there are no laws or regulations precluding interagency communication — which would have been the case if Engler had emailed only Penn and Trombettas, the California regulators.

    But because Engler included Young, who is associated with the Steelworkers, on the conference call with Penn and Trombettas, he created a conflict of interest, according to Holman.

    Others were more critical.

    "One of the folks we had a lot of concern with was Richard Engler. When you look at his credentials, he was basically a union activist," said an aide to the Senate Environment and Public Works Committee — before Engler's name was brought up in an interview. "We were told by the White House, 'He's the kind of person that can help bring people together and work with people.'

    "Frankly, it's all coordination on the left," the aide added.

    Before Engler was appointed by President Obama to CSB in 2014, he founded and directed the New Jersey Work Environment Council, "a collaboration of labor, community, and environmental organizations," according to his CSB biography. He also served as an elected vice president of the New Jersey State Industrial Union Council, an AFL-CIO-affiliated organization.

    Kevin Kosar, senior fellow at the R Street Institute, a free-market think tank in Washington, D.C., questioned Engler's "I am working with the United Steelworkers" email.

    "It says 'I am working with.' Not 'we the board as a whole,' not the civil servants who work at CSB," he said. "It's weird that a board member should be doing this."

    Throughout the emails provided to Greenwire, Engler and USW officials wrote back and forth about scheduling calls, meetings and conference appearances with each other.

    'The law is not concerned with image'

    Wright, the Steelworkers' director of health, safety and environment, brushed off Kosar's interpretation of Engler's "I am working with the United Steelworkers" email.

    "We all write a bunch of emails a day," he said. "There are times when I'm speaking on behalf of the Steelworkers, and I say 'I' instead of saying 'we.'"

    When asked about Engler wanting to "send press to [Wright] for a supportive quote," the USW official said, "Nothing in that email is improper."

    And in general, Wright was dismissive of others' interpretations of the emails.

    "The law is not concerned with image. The law is concerned with violations," he said. "And if you want to say 'Did Rick and I agree with what should be done about chemicals accidents,' that's correct. But Rick didn't ask me to do anything improper, and I didn't do anything improper."

    The bulk of the emails seen by Greenwire stretch from February 2015 through July 2015. Engler's "I am working with the United Steelworkers" message was sent on Feb. 29, 2016.

    While this correspondence is only a snapshot of Engler's nearly two-year tenure on CSB, it's not known whether the Engler-USW communication occurred before February 2015 or after July 2015. He was sworn in on Feb. 15, 2015, which means emails to the union were sent 10 days after he started at CSB.

    In an interview, however, Engler defended his actions.

    "If you interpret it that specifically," he said of the Anti-Lobbying Act, "it would essentially mean that the CSB could not fulfill its statutory purpose, which is expressed clearly in the actual amendments to the Clean Air Act of 1990 and the legislative history.

    "If you are looking at my role on this issue in particular, you're really raising this much bigger question of whether the CSB should not be speaking out for the safety of the American public," he continued. "And I stand squarely with a vigorous role for CSB to call for what changes are urgently needed to protect both workers and the public from chemical disasters."

    'It would be of interest to all of us'

    But it's not just Engler's emails that are ruffling feathers.

    Last Monday, Sept. 12, he reportedly attended one or more "union only" sessions at the Steelworkers' Health, Safety and Environment Conference in Pittsburgh. Engler, along with agency chairwoman Sutherland, spoke during a labor-management plenary session last Wednesday, according to an agenda posted on the USW website. That session appears to be open to all conference attendees, regardless of union membership.

    But that Monday's agenda of a morning union-only plenary and afternoon union-only workshops was not included in the schedule document.

    Engler did not directly respond to questions regarding whether he participated in a union-only session, saying instead that he travels the country throughout the year, as other CSB members do, to speak with various constituencies.

    Agency spokeswoman Hillary Cohen said she did not know if Engler was at a union-only event. "I would personally be curious to know," she said. "It would be of interest to all of us."

    Ehrlich, Engler's former colleague on CSB, did not approve of Engler's relationship with the Steelworkers.

    "We [the CSB] don't report to the Steelworkers. And quite frankly, I'm not comfortable with the level of input they have into the agency," he said.

    'Everyone stunned'

    Perhaps one of the most significant emails came after the resignation of then-CSB Chairman Rafael Moure-Eraso, in which part of the agency's internal politics was revealed.

    "White House about to appoint Manny [Ehrlich] as Acting CSB chair," Engler wrote to Jim Frederick, USW's assistant director of its health, safety and environment department, on March 30, 2015. "Everyone stunned."

    Anna Fendley of USW's legislative department replied back in seven minutes, asking about the announcement's timing.

    Engler then told Fendley to "call White House as soon as possible in morning."

    Wright told Greenwire that the Steelworkers were opposed to Ehrlich's nomination because he voted last year to cancel "three important investigations" in concert with Moure-Eraso and because Engler wasn't able to vote on the matter.

    Although Engler had been confirmed by the Senate in December 2014, he wasn't sworn in until Feb. 15, 2015 — 17 days after a public meeting took place on the 2012 fire at the Chevron Corp. refinery in Richmond, Calif.

    But Cohen, the CSB spokeswoman, said the vote "administratively closed" the three cases in question.

    One of the three sites — a Citgo Petroleum Corp. refinery in Corpus Christi, Texas, where a release and fire occurred — is represented by the Steelworkers. Another, the now-closed Horsehead Holding Corp. refinery in Monaca, Pa., had USW representation when it was open.

    A battle about power

    Some saw Engler's moves to prevent Ehrlich, his rival, from becoming acting chairman as a battle about power — not just for Engler personally, but on behalf of his union allies.

    "The former chair [Moure-Eraso] was not on very good terms with the United Steelworkers, and USW considers this board their baby," a person close to the situation said. "A lot of the jockeying with the White House to prevent Manny Ehrlich to be named the acting director was a function of USW wanting to keep control of the board because Manny Ehrlich's not their guy. But Rick Engler is."

    Another source described the relationship more bluntly.

    "Whatever the Steelworkers want, he's going to give it to them," the source said.

    "There's nothing wrong with him being sensitive to their concerns and desires and even supporting the things that they would want," this person continued. "But I think he breaks through the barrier, actually, by working with the Steelworkers on various CSB policy issues. He literally is coordinating with them and meeting them privately to carry out the agenda."

    Others detailed concerns about Engler's professional conduct.

    "Engler basically came in, and he wants to run the whole operation. He just runs roughshod over everybody," said a person close to the situation. "The staff is scared of him; the staff is scared to death."

    Sutherland, the agency chairwoman, has pledged to listen and learn from her predecessor Moure-Eraso's past controversies (Greenwire, Sept. 4, 2015).

    "I think [Sutherland's] feeling is probably 'I'd rather put up with Engler than raise my voice because it won't look good,'" a person close to the situation said. "Even though it's not her fault that she can't control his emails and who he works with, she still needs to be cautious. If she were to do something, the Steelworkers might not react well."

    In the interview today, Sutherland defended the board and said it is working more smoothly than it had been under her predecessor despite any lingering personal disputes between members.

    "From where I'm sitting, there's a whole lot of work going on that is not impeded by people's personal feelings with each other," she said. "So it's hard for me to judge could it be better or would we be more productive. I don't know."

    http://www.eenews.net/greenwire/2016/09/21/stories/1060043210
    

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Transportation News

14. (ACC Mentioned) [No Title]

    Sep 21, 2016 | Journal Gazette and Times-Courier

    Norfolk Southern is dedicated to the safety of employees, customers, and communities, and works toward continuous improvement of its safety efforts. Whether developing or improving safety tools and programs for customers and communities or creating new safety processes for employees, NS strives to make a positive impact on safety for all. At Norfolk Southern, safety is our number one priority. Operation Awareness & Response (OAR), was launched in 2015 to educate the public about the economic importance of the safe movement of hazardous materials by rail and to connect emergency first responders in Norfolk Southern communities with information and training resources. In April 2016, Norfolk Southern put a dedicated safety train in service with a locomotive, 2 box car classrooms, 4 tank cars, and 2 specially equipped flat cars to provide hands-on training. The Enola Diesel Shop in 2012 became the first NS work group to achieve 2 million consecutive employee hours of reportable injury-free service. We have improved its internal safety processes by emphasizing leading indicators of safety processes, such as employee attitudes, the quality of safety checkups, and job safety briefings. By focusing on behavior-based safety and providing positive feedback, workplace safety processes are improving. acres with more than 6 million native hardwoods and cottonwoods in the Mississippi Delta. Eventually, these trees will absorb the equivalent of roughly 20 percent of the railroad’s annual CO2 emissions. NS in 2008 donated a conservation easement to permanently protect more than 12,400 acres at its Brosnan Forest property near Charleston, S.C. The property contains ecologically important longleaf pines and the largest colony of endangered redcockaded woodpeckers on privately owned lands. Over five years, from 2010 through 2014, NS reduced its greenhouse gas emissions by 8.5 percent per revenue ton-mile of freight. The company achieved 85 percent of its goal to reduce CO2 emissions by 10 percent per revenue ton-mile over that period. NS since 2012 has contracted with a third-party auditing firm to provide independent review and verification of the railroad’s greenhouse gas emissions data. NS in 2009 introduced a prototype battery-operated switcher locomotive, the NS 999, the first of its kind in the industry. Since then, the company has continued to refine the electric switcher, in late 2014 completing work on a “2.0” upgrade powered by lead-carbon batteries. It has been operating at the company’s Roanoke Material Yard. NS has developed a carbon-mitigation strategy involving private and public partners to reduce the environmental impacts of its business operations. NS has participated in the American Chemistry Council’s Responsible Care Partner Program since 1996 and led development of the rail industry third-party certification protocol. This voluntary partnership program reflects the company’s commitment to work across business sectors to continually improve performance in environmental, health, safety, and security programs involving transport of chemicals. As part of its 30th anniversary celebration in 2012, NS painted 20 new locomotives in the color schemes of predecessor railroads. The commemorative units quickly became known as NS’ Heritage Locomotives.

    Environmental impact efforts

    NS in 2015 completed its Trees and Trains project, a five-year, $5.6 million initiative to reforest 10,000 Since the 1820s, hundreds of railroad companies were built, merged, reorganized, and consolidated into what eventually became Norfolk Southern, itself created from the consolidation of Southern Railway and Norfolk and Western Railway in 1982. In 1999, Norfolk Southern acquired a portion of Conrail. The Heritage Locomotives represent railroads that played significant roles in Norfolk Southern’s history. The first unit, Conrail 8098, rolled out of Altoona, Pa., March 15, and the final one, Lackawanna 1074, rolled out of Muncie, Ind., on June 27. Each paint scheme was modified to fit contemporary locomotives while staying as true as possible to the original designs. Norfolk Southern employees in Altoona and Chattanooga, Tenn., painted GE ES44AC locomotives, while the EMD SD70ACe units were painted at Progress Rail Services’ facility in Muncie, Ind. The Heritage Locomotives are used in freight service across Norfolk Southern’s 20,000-mile, 22-state network. NS contributes to local, state, and federal economies and helps keep America competitive. From 2001-2012, NS invested $35.7 billion on 1,229 industrial development projects that helped create 57,964 jobs. And the 13-state Crescent Corridor is a $2.5 billion economic engine that is expected to create 122,820 jobs across the rail network by 2030 and have an economic impact of more than $33 billion. NS continues to pursue and invest in talented people and projects that not only benefit customers and help America prosper.

    http://jg-tc.com/ads/other/ad_vault/pdf/pdfdisplayad_4157b149-9864-5ab5-b45e-543f70b6954c.html
    

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Environment News

15. Paris Climate Agreement Nears Entry into Force

    Sep 21, 2016 | Politico Pro - Whiteboard

    By Eric Wolff

    Thirty-one nations submitted paperwork showing they had ratified the Paris climate change agreement at a U.N. ceremony this morning, bringing the number of countries that have officially joined the pact to 60.

    While the deal has now surpassed the 55-nation threshold needed to enter into force, it still must garner participation of countries that make up 55 percent of the global carbon dioxide pollution. With today's new entrants, the share of the global emissions rose to 48 percent from 40 percent, according the the World Resources Institute.

    "The remarkable support for this agreement reflects the urgency and the magnitude of this challenge," said U.N. Secretary General Ban Ki-Moon.

    The 31 countries joining today were: Albania, Argentina, Brazil, Honduras, Kiribati, Mongolia, Namibia, Niger, Panama, Sri Lanka, Guinea, Antigua & Barbuda, Solomon Islands, Thailand, Vanuatu, Bangladesh, Belarus, Dominica, Iceland, Madagascar, Morocco, Papua New Guinea, Singapore, Swaziland, Brunei, Ghana, Mexico, Uganda, United Arab Emirates, Tonga, and Senegal.

    France, Hungary, Austria and Slovakia have all ratified the pact, but their contributions don't count until the European Union ratifies. The EU is racing to join the agreement, possibly to put it in force before the November Conference of Parties in Morocco.

    Secretary of State John Kerry spoke at the event where the countries submitted their ratifications, thanking countries for joining, while also urging governments and the private sector to continue pushing to bring the deal into force.

    "Nobody comes here to rest on our laurels," Kerry said.

    https://www.politicopro.com/energy/whiteboard
    

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16. How Trump Could Unravel Obama's Climate Legacy

    Sep 21, 2016 | Politico Pro

    By Eric Wolff

    The Obama administration and global climate activists are using this week’s United Nations gathering to rally around the Paris climate agreement, pressing countries to ratify it in hopes of bringing the landmark deal into force before the next U.S. president takes office.

    But if that president is Donald Trump, all climate bets are off.

    President Barack Obama and climate allies like China have pushed the deal as the best opportunity for the world to start reducing greenhouse gases, prepare for rising temperatures and tides and spread clean energy. But the Paris pact is not a binding treaty, and as president, Trump could simply ignore the agreement as he sets about dismantling Obama’s domestic climate policies — something he has vowed to do.

    More than 30 countries officially joined the agreement at U.N. headquarters in New York on Wednesday, bringing to 60 the number of countries that have ratified it and surpassing the 55-country minimum required to bring it into force. The pact will officially take effect once the share of greenhouse gas emissions from ratifying members crosses the 55 percent threshold — and once that happens, climate activists have said it will be difficult to walk away from.

    But those guarantees are legally toothless: The Obama administration pushed to ensure the pact would not be a treaty, because that status would have required two-thirds of the Republican-controlled Senate to back it. And notably, the climate pact has no penalty for countries that fail to comply.

    Now, with the U.S. presidential race tightening, supporters of the deal are growing fearful about the damage Trump could wreak on Obama’s climate agenda — and the problems that could cause for other countries’ efforts to fight global warming.

    Greens and Democrats would certainly fight to block Trump from rolling back Obama’s executive actions, such as EPA’s carbon limits on the power industry under the Clean Power Plan. But even if they succeed, Trump could set the efforts back years, at a moment when climate researchers warn that time for forestalling catastrophic damage is dwindling.

    "I don’t want to minimize the threat," said David Doniger, a senior adviser to the NRDC Action Fund. "If an administration wants to drag its heels, it takes time to hold them to account. But they're not allowed to unilaterally change rules or change laws without following the legal process."

    Still, in the previous decade, the George W. Bush administration slow walked the process of regulating pollution that crossed state borders, which took more than a decade to ultimately clear legal challenges and take effect.

    Trump has been a vocal in blasting the mainstream climate science, calling climate change a “hoax” push by China and telling The Miami Herald in an interview last month that "I'm not a big believer in man-made climate change" and that "there could be some impact, but I don’t believe it will be a devastating impact."

    As a policy matter, Trump's campaign website goes straight after major Obama rules, starting with a promise to revoke the EPA’s Clean Power Plan and end Interior's "pause on coal mining permits," as well as conducting a review of every major federal rule.

    Eliminating administrative rules could be a time consuming process. As multiple experts told POLITICO, reversing a final rule requires the same process as writing a rule: It must be noticed, it must be proposed and it must be finalized, with public comment taken along the way.

    Oddly, one of a Trump administration’s best tools could come from the judge Obama has been trying to put on the Supreme Court: Merrick Garland.

    The Clean Power Plan, Trump's likely first target, took years to develop before being finalized in 2015, but reversing it could potentially be quicker, depending on interpretations a unanimous opinion Garland wrote in 2012 as the chief judge of the D.C. Circuit Court of Appeals. In that opinion, in National Association of Homebuilders v. EPA, Garland wrote that a new administration could alter a rule because it had different policy beliefs from its predecessor — a much lower bar than previous case law had set.

    "They don’t need a full-blown justification," said Brian Potts, an environmental regulatory attorney with Perkins Coie. "[Trump] would have to go through notice and comment, and he could do that if he wanted just for policy reasons."

    All in all, Jeff Holmstead, a former George W. Bush-era EPA air chief and now a partner at Bracewell and Giuliani, said reversing something like the Clean Power Plan could be done in a year. And thanks to Garland's opinion, it would have a solid chance of surviving judicial review.

    "There is this endangerment finding that says emissions of CO2 is a danger to public health, but that has nothing to do with the Clean Power Plan," he said. " A new administration can say, 'The prior rule substantially oversteps authority; we interpret the statute to mean something completely differently; we’re going to revoke that standard and adopt their own approach.'"

    Other attorneys argue that the case doesn't create a free pass for revoking rules. The case law on the matter is complex and unsettled.

    "The case stands for the proposition that a revocation needs a reasoned explanation, of the same sort that is necessary to adopt a rule in the first place," Richard Revesz, director of the Institute for Policy Integrity at New York University School of Law, said in an email.

    And killing the EPA power plant rule could do the work of gutting the Paris deal, even if Trump were to go through the full four-year process of pulling the U.S. from the agreement. Last week, former President George H. W. Bush’s EPA chief, William Reilly, told a crowd at the Brookings Institution that China was "laser focused" on the legal proceedings around the Clean Power Plan, and that a Chinese negotiator pressed him on whether the rule could survive a hostile administration, according to E&E. Whether the elimination of the centerpiece climate policy would drive China or other countries out of the agreement is unclear, but it could be damaging.

    "It would be a disaster really because it would erode the confidence the international community has built in recent years to take comprehensive action on climate change," said Michael Burger, head of Columbia Law School’s Sabin Center for Climate Change Law. "Without the U.S. at the lead, it’s hard to see the other countries following suit."

    For all the energy devoted to the Clean Power Plan on both sides of the issue, the most durable part of Obama's climate legacy may be the sheer number of policies put in place. Over his seven-plus years in the White House, agencies from the Social Security Administration to the Defense Department have put in place guidances, internal policies and mandates to reduce their carbon footprints and to make climate change and sustainability a part of their day-to-day operations. The inertia of all that policy momentum could be tough for another president to halt.

    "They would be faced with a myriad of programs in virtually every department and agency. It’s not so simple as just revoking the Clean Power Plan," said Holmstead, the former Bush appointee.

    Perhaps a Trump administration’s most potent power to stop Obama’s climate efforts could be the simplest way: Just do nothing.

    "What if he were just to say to EPA out loud and in public, 'Don’t do anything,'" Burger said. "He would say it better, but a clear directive to the agency to abdicate and ignore its responsibility to execute the laws of the United States and take no action based on any existing laws that may be on the books."

    https://www.politicopro.com/energy/story/2016/09/how-trump-could-unravel-obamas-climate-legacy-130815
    

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