Preview Newsletter
ACC AM 9/22/16
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(ACC Mentioned) EPA Seeks Input On Fees To Help With Estimated $110 Million TSCA Costs
Sep 21, 2016 | Inside EPA
By Bridget DiCosmo
EPA is seeking input from the chemical sector on how to craft a fee program that will in part help toward defraying an estimated $110 million in costs to administer various chemical review programs under the revised Toxic Substances Control Act (TSCA), using the estimate for “discussion purposes” to inform a pending fee rule. -
More Chemicals, Microorganisms Cleared by EPA
Sep 22, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency announced Sept. 21 that it has allowed 17 more new chemicals and microorganisms onto the U.S. market, because they are not likely to present an unreasonable risk. -
Trade Secret Claims Scrutinized by EPA, Chemical Attorneys Say
Sep 22, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency is asking chemical manufacturers to justify confidential business information claims they used to routinely grant, attorneys and other specialists working with manufacturers told Bloomberg BNA. -
(ACC Mentioend) Remember That "Erin Brockovich" Chemical? There's A Good Chance It's In Your Water
Sep 22, 2016 | Mother Jones
By Julie Lurie
Nearly 25 years ago, a legal clerk named Erin Brockovich discovered a carcinogen called chromium-6 contaminating the water of her town of Hinkley, California—leading to a years-long environmental crusade documented in the eponymous 2000 movie. -
That Chemical Erin Brockovich Fought? You're Likely Drinking It
Sep 21, 2016 | Fox News Health
By Kate Seamons
If chromium-6 rings a bell for some odd reason, that reason is likely Erin Brockovich, who famously helped secure a massive settlement for the Hinkley, Calif., residents who had been exposed to dangerous levels of the heavy metal. -
Scientists Back Potency Argument For EDC Identification
Sep 22, 2016 | Chemical Watch
More than 50 international scientists have published an opinion arguing potency should be a part of regulatory EDC identification. -
Oz and Roizen: Substituting BPS For BPA, Not A Good Swap
Sep 21, 2016 | Telegraph Herald Online
By Mehmet Oz and Michael Roizen
Another and more recent substitute concerning plastic manufacturing — it includes spoons — happens when the hormone-disrupting chemical BPA (bisphenol A) gets replaced by BPS (bisphenol S). -
Rac Says Inks, Coatings Ingredient Should Be Category 1 CMR
Sep 22, 2016 | Chemical Watch
Echa’s Risk Assessment Committee (Rac) has adopted a harmonised classification (CLH) Opinion for an ingredient used in inks and coatings. It proposes classifying BDMBP as a category 1B substance toxic for reproduction, rather than category 2 as proposed by industry. -
Judge Finds EPA Missed Deadline For SDWA Perchlorate Rule
Sep 20, 2016 | Inside EPA
A federal district court judge has found that EPA has failed to propose a Safe Drinking Water Act (SDWA) standard for the rocket fuel ingredient perchlorate by a non-discretionary deadline in the statute, but the judge's order does not address whether the agency similarly missed a legal deadline for finalizing such a standard as advocates have claimed. -
Democrats Seek To Overhaul Drinking Water Law After Spate Of Crises
Sep 21, 2016 | PoliticoPro
By Annie Snider
Amid growing concern over whether Americans can trust their drinking water, congressional Democrats are mounting the first major push in two decades to overhaul the law that is meant to guarantee the safety of what comes out the tap. -
(ACC Mentioned) Pipelines Pushed At Tri-State Shale Energy Conference
Sep 21, 2016 | Observer - Reporter
By Rick Shrum
The pipeline to efficient, cost-effective energy is – simply – the pipeline. And more of it. Those were the overriding messages expressed Wednesday morning during the kickoff of the Shale Insight conference at the David L. Lawrence Convention Center. -
Energy Department Quantifies Energy Risks but States Regulate
Sep 22, 2016 | BNA Daily Environment Report
By Nushin Huq
The Energy Department has the ability to quantify emissions and other environmental discharges people have concerns about with oil and gas activities, but most energy regulation is done on the state level, an Energy Department official said Sept. 21. -
Fence Line Argument Is Foes' Strongest Weapon — Legal Expert
Sep 21, 2016 | E&E News PM
By Amanda Reilly
The federal court hearing the challenges to President Obama's carbon rule for power plants will "struggle" most over the issue of whether the Clean Air Act allows U.S. EPA to regulate beyond the fence line, a law expert today predicted. -
NRDC Asks for Public Access to Fracking Chemical Information
Sep 21, 2016 | Natural Resources Defense Council
By Amanda Jahshan
During the fracking process, millions of gallons of water, chemicals, and sand are injected underground at high-pressure to increase oil and gas production. Unfortunately, many of the chemicals used in fracking are toxic or carcinogenic. -
Obama’s Methane Rules Will Hurt Small Producers The Most
Sep 21, 2016 | The Hill - Congress Blog
By Seth Whitehead
The Obama administration’s new methane regulations on oil and gas producers were in the spotlight on Thursday as the House Science Committee held a hearing exploring how the mandates are a solution in search of a problem. These regulations are portrayed as targeting “Big Oil,” but the greatest impact will actually be on small producers. -
Houston Officials Want Action On Chemical Hazards
Sep 21, 2016 | Houston Chronicle
By Matt Dempsey and Mark Collette
City officials said Wednesday that they can't afford to wait to address problems raised in a Houston Chronicle investigation that revealed the fire department doesn't know where most dangerous chemicals are, placing firefighters and residents in unnecessary danger. -
STB Clears Way For California City To Block Oil Train Facility
Sep 21, 2016 | PoliticoPro
By Lauren Gardner
The Surface Transportation Board declined this week to block a California city from rejecting a plan to build a facility that would enable more oil trains to pass through the area, but only because the project's owner was an energy company, not a railroad. -
(ACC Mentioned) The New ‘Plastics and Sustainability’ Report: Greenwash or Wake-Up Call?
Sep 22, 2016 | Triple Pundit
By By Doug Woodring and Marcus Eriksen
Last month, Jacquelyn Ottman penned a topical article on TriplePundit in response the recent report by Trucost and the American Chemistry Council, called “Plastics and Sustainability.” And she brought up some good questions relating to this growing, challenging issue of plastic pollution. -
Boiler Emissions Standards Consistent With Law, EPA Tells Court
Sep 22, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Challenges to a rule that altered national emissions standards for major source boilers should be denied because the provisions within the rule are consistent with Clean Air Act requirements, according to the Environmental Protection Agency (Sierra Club v. EPA, D.C. Cir., No. 16-1021, brief filed 9/20/16). -
EPA Cites D.C. Circuit Ruling To Defend Boiler MACT 'Surrogate' Air Limit
Sep 21, 2016 | Inside EPA
By Stuart Parker
EPA is citing an appellate court's recent ruling largely upholding its industrial boiler maximum achievable control technology (MACT) air toxics rules to defend its use of a carbon monoxide (CO) emission limit as a “surrogate” for achieving reductions in other air pollution from boilers, saying the ruling allows use of CO as a surrogate. -
Court ‘Eviscerated’ Haze Rule Justification, Advocates Argue
Sep 22, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
A 2015 federal appeals court ruling on the Environmental Protection Agency's Cross-State Air Pollution Rule “eviscerated” the agency's justification for a related visibility regulation, according to environmental advocates who are challenging the rule (Util. Air Regulatory Grp. v. EPA, D.C. Cir., No. 12-1342,briefs filed 9/20/16). -
Groups Fight Over EPA Rule Allowing Emissions Trading As Haze Control
Sep 21, 2016 | Inside EPA
By Stuart Parker
Environmentalists, power companies and some states are dueling over EPA's rule allowing participation in air pollution trading programs to satisfy emissions control mandates in the agency's regional haze program, with advocates claiming it is unlawful while utilities and the states argue that the Clean Air Act allows the approach. -
Paris Climate Deal Passes Milestone as 20 More Nations Sign On
Sep 21, 2016 | The New York Times
By Coral Davenport
More than 20 world leaders tendered legal documents on Wednesday, formally binding their governments to the Paris climate accord at a General Assembly ceremony here and all but ensuring that the agreement will go into force by the end of the year.
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(ACC Mentioned) EPA Seeks Input On Fees To Help With Estimated $110 Million TSCA Costs
Sep 21, 2016 | Inside EPA
By Bridget DiCosmo
EPA is seeking input from the chemical sector on how to craft a fee program that will in part help toward defraying an estimated $110 million in costs to administer various chemical review programs under the revised Toxic Substances Control Act (TSCA), using the estimate for “discussion purposes” to inform a pending fee rule.
In slides that an agency official presented at a Sept. 13 meeting with the chemical sector in Washington, D.C., EPA also said it might incorporate into its overhead costs reviews of confidential business information (CBI) claims, compared to the alternative of assessing individual fees to review the claims.
Under the TSCA reform law, which took effect June 22, EPA may for the first time establish a fee structure to defray the costs of reviewing new chemicals and a range of actions on existing chemicals by collecting user fees from chemical manufacturers and processors. EPA can collect up to 25 percent of the costs of implementing several key programs under the chemical safety law, or up to $25 million, whichever number is lower.
According to the new law, EPA has the authority to defray costs associated with TSCA section 4, which details chemicals testing, section 5 reviews of premanufacture notice (PMN) for a new chemicals or a significant new use notice (SNUN), section 6 existing chemical risk evaluations and section 14 reviews of CBI claims.
Industry is required to pay 100 percent of the costs for the risk reviews it requests from EPA, unless the chemical is already on the agency's 2014 TSCA work plan, in which case the company making the request must pay 50 percent. The work plan was EPA's attempt to review chemicals using its limited authority under the original 1976 TSCA, but the limitations of that law led to the revised TSCA that expanded the agency's oversight on chemicals.
EPA plans to issue a proposed rule to establish a fee system by December of this year and finalize the regulation by mid-June 2017, according to the slides. Next steps for the agency including consulting with the U.S. Small Business Administration and to “review and consider information from consultation with industry.”
Cost Estimates
The slides say that, for discussion purposes, EPA's estimated total costs for administering sections 4, 5, 6 and 14 of the law -- all subject to the new fee program structure -- will be about $110.2 million. However, the nuances of the fee program mean that industry will not be required to pay for all of those costs, only up to 25 percent or $25 million.
The agency is estimating that section 6 existing chemical risk evaluations will incur the highest costs under the new law at approximately $56.6 million, with the next highest being new chemical reviews under section 5 at an estimated $36.1 million. The slides indicate that EPA assesses the costs of administering section 4 test requirements at roughly $8.7 million and reviewing CBI claims under section 14 at roughly $8.9 million.
EPA is also weighing an approach that would “treat CBI as overheard versus per claim,” following comments from industry on the rulemaking, and is also considering whether certain types of submissions or actions identified in the law for fee collection should either not be included or assessed at a nominal rate.
Industry officials at another EPA meeting last month in Washington, D.C., on the fees rule sought clarity on several issues, including how funding will be divvied up among the section 4 test action, PMNs and SNUNs reviewed under section 5 for new chemicals, section 6 existing chemical risk evaluations, and section 14 CBI claims.
Dan Newton, of the Society of Chemical Manufacturers and Affiliates, opposed fees for CBI claims because they could pose a disincentive for companies taking advantage of the CBI claims to protect innovative formulas.
At that same meeting, Michael Walls, vice president of regulatory and technical affairs at the American Chemistry Council (ACC), said that the issue of how the fees should be distributed “poses a challenge because the absence of fees for one action, such as section 4, puts more pressure” on companies regulated under the other sections to make up the balance in fees, though the other sections may require more work-intensive actions.
Fee Requirements
Industry officials called for more clarification on the benchmark amount EPA is aiming to collect from industry initially, noting that the cap is set at 25 percent or $25 million, with future allowances to adjust for inflation. That amount would be added to fiscal year 2016 budget level for TSCA programs, set at $56 million.
ACC in written comments submitted Aug. 25 says that EPA must be careful to avoid setting fee requirements that would stymie innovation, and that although the new law grants the agency authority to assess individual fees for activities under sections 4, 5 and 6 of TSCA, “not all of that authority must be exercised.”
ACC said EPA should not assess fees for submission of data under section 4, as is the current practice under TSCA, and “fees for submissions and Agency actions under sections 5 and 6 should reflect the level of effort required of EPA.”
Sen. Tom Udall (D-NM) -- a key figure in crafting the final TSCA reform bill that became law and also a top Democrat on the Senate appropriations panel -- previously said that EPA's existing funding is adequate for the agency to start implementing the TSCA overhaul, and that EPA is unlikely to get a budget boost because of the new law.
According to a Sept. 15 blog post by Bergeson & Campbell attorneys Sheryl Dolan and Kathleen Roberts, EPA at the Sept. 13 meeting announced plans to accept comments on the proposed fees program through Sept. 23.
The agency also intends to send a proposed rule to the White House Office of Management & Budget (OMB) by mid-October for pre-publication review, the blog post says.
It also underscores the CBI statement in the agency slides, adding “EPA stated that, consistent with industry’s comments, it most likely will not propose to charge separately for individual confidential business information (CBI) claims, but instead will incorporate that into overhead costs.”
Additionally, Dolan and Roberts write that section 6 risk evaluation fees “remain one of the greater uncertainties” and that during the meeting, “suggestions were made that these fees should be assessed incrementally, perhaps tied to milestones, with a schedule that perhaps could allow tying the fees to actual costs.”
In response, EPA noted that OMB requirements preclude federal agencies from seeking fees in reimbursement for completed activities, according tot he blog post.
http://insideepa.com/daily-news/epa-seeks-input-fees-help-estimated-110-million-tsca-costs
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More Chemicals, Microorganisms Cleared by EPA
Sep 22, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency announced Sept. 21 that it has allowed 17 more new chemicals and microorganisms onto the U.S. market, because they are not likely to present an unreasonable risk.
The agency has been required since June 22 to apply updated criteria as it reviews new chemicals and microorganisms to comply with the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. No. 114-182), which amended the Toxic Substances Control Act. EPA officials have told Bloomberg BNA the criteria the Lautenberg Act requires are similar to worker and other concerns the agency's new chemicals office already considered prior to TSCA being amended.
What is entirely new is the Lautenberg Act's requirement that the agency explain its findings. Those findings can be that the new chemicals, new microorganisms and certain new uses of chemicals do, may or aren't likely to present an unreasonable risk.
Today's announcement brings to 24 the number of new chemicals and microorganisms approved since June 22. All 24 were found not likely to present an unreasonable risk.
90-Day Review Period
Attorneys and other specialists that work with chemical manufacturers tell Bloomberg BNA they have been asked to voluntarily “suspend” the 90-day review period that original and amended TSCA give the EPA to review new chemicals, microorganisms and some new chemical uses.
Their clients also have been asked by the EPA to provide more data to address uncertainties the agency has about whether the substance may pose an unreasonable risk.
The new chemicals section of both the original and amended toxics law authorizes the agency to review commercial chemicals and microorganisms before either substance can be made in or imported into the U.S. That provision also applies to certain new uses of chemicals that are already on the market.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97682899&vname=dennotallissues&fn=97682899&jd=97682899
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Trade Secret Claims Scrutinized by EPA, Chemical Attorneys Say
Sep 22, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency is asking chemical manufacturers to justify confidential business information claims they used to routinely grant, attorneys and other specialists working with manufacturers told Bloomberg BNA.
That shouldn't be a surprise as attorneys have been advising clients for months to prepare to have confidential business information, or CBI, claims challenged under the amended Toxic Substances Control Act. One of the aims of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (P. Law No. 114-182), which amended TSCA, was to ensure that EPA wasn't granting confidentiality assertions without firm evidence they're justified. Former EPA officials have said the agency reflexively granted CBI claims in the past without asking for detailed rationales, which shielded information from the public arena.
Predictions, however, are one thing; experience is another.
Attorneys, Others Say Challenges Common
The new chemicals section of both original and amended TSCA give the EPA authority to review new chemicals, new microorganisms and certain new uses of chemicals. The agency must complete those reviews within 90 days. Attorneys and a senior trade association official say EPA is now asking for detailed justifications of confidentiality claims.
The EPA has told Bloomberg BNA that 334 new chemicals were under review at the agency when President Barack Obama signed the Lautenberg Act into law on June 22. There was no transition period built into the act, so the criteria and procedures it required the agency to use as it reviews new chemicals went into effect that same day. Sept. 19 marked 90 days since the Lautenberg Act became law. The agency has posted decisions on 24 new chemicals and new microorganisms online.
“EPA is paying more attention to what constitutes confidential business information. Companies need to be prepared to defend their claims,” Dan Newton, senior government relations manager at the Society of Chemical Manufacturers and Affiliates, told Bloomberg BNA. The society represents chemical manufacturers that make small batches of chemicals designed for customers’ special needs. That means the companies frequently submit premanufacture notices, or PMNs, which the EPA requires for its review to determine whether a new chemical can be introduced into the U.S. marketplace.
EPA Giving 15 Days for 11 Questions
Martha Marrapese, an attorney with Keller and Heckman LLP, said the agency has required companies to justify CBI claims for PMNs and notices of commencement, which chemical manufacturers file to let the agency know they have started to make or import a new chemical it already reviewed.
It also is asking companies to justify confidentiality claims they make in “bona fide” submissions when they need the EPA to determine whether a chemical they want to make or import already is on the confidential portion of the TSCA Inventory, which lists chemicals that have been made in or imported into the U.S.
The EPA also is requiring substantiation for confidentiality claims made in export notices, or TSCA 12(b) notifications, Marrapese said.
Clients have been asked to respond within 15 working days to a set of 11 questions, said Marrapese and fellow Keller and Heckman attorney Tom Berger.
The time crunch to answer all the questions is a burden, they said.
EPA's justification requests also imply that “every separate sentence or word requires substantiation,” Marrapese said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97682920&vname=dennotallissues&fn=97682920&jd=97682920
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(ACC Mentioend) Remember That "Erin Brockovich" Chemical? There's A Good Chance It's In Your Water
Sep 22, 2016 | Mother Jones
By Julie Lurie
Likely carcinogen chromium-6 turns up in as much as two-thirds of our nation's water supply, a new report finds.
Nearly 25 years ago, a legal clerk named Erin Brockovich discovered a carcinogen called chromium-6 contaminating the water of her town of Hinkley, California—leading to a years-long environmental crusade documented in the eponymous 2000 movie.
This week, a report from the Environmental Working Group (EWG) found that chromium-6 found that about two thirds of the American population—218 million people—are drinking water contaminated with potentially unsafe levels of the chemical.
In an interview with Mother Jones, Brockovich said she was infuriated, but not surprised. "I used to think Hinkley was a one-off," Brockovich said with a chuckle. "I didn't realize that Hinkley's everywhere. It's beyond frustrating."
Chromium-6, rare in nature, is a heavy metal used in a variety of industrial processes, from steel-making to energy generation. The contaminant is fueling an ongoing controversy in North Carolina, where residents are accusing Duke Energy of polluting the local drinking water supply.
The Environmental Protection Agency classifies chromium-6 as an "emerging contaminant," meaning that utilities test for it but aren't held to a legal limit. Of 81 emerging contaminants monitored in the past 20 years, only perchlorate, a rocket fuel ingredient, has been recommended for regulation.
Meanwhile, evidence of chromium-6's toxicity has been mounting. A two-year study by the National Toxicology Program released in 2008 found that the compounds cause cancer in mice and rats. The program's 2014 report on carcinogens says they are "known to be human carcinogens." The Agency for Toxic Substances and Disease Registry, which oversees toxicity of Superfund sites, has found chromium-6 to be "associated with respiratory and gastrointestinal system cancers."
In 2010, California health officials set a "public health goal" of .02 parts per billion of chromium-6 in tap water, saying a lifetime of consumption at or below the goal would pose a "negligible" cancer risk. Four years later, California became the first—and, to date, only—state to set a legal limit for chromium-6. The limit, 10 parts per billion, is 500 times the initial public health goal. EWG attributes the discrepancy to "aggressive lobbying by industry and water utilities" that "exaggerated the cost of treatment and undervalued the benefits of stricter regulation." Similar situations have played out in New Jersey and North Carolina, where drinking water agencies set a public health goal (.06 parts per billion in both cases) but faced industry pushback when they tried to set a legal limit.
EWG found that of more than 60,000 tests reported to the EPA between 2013 and 2015, 75 percent of water samples had some level of chromium-6. Two thirds of Americans drink water with tests above the state's "health goal." About 7 million people drink water from a utility with at least one test above California's legal limit. Of the major cities, Phoenix, AZ had by far the highest levels, followed by St. Louis, Houston, and Los Angeles.
And yet, federal regulation of chromium-6 isn't likely any time soon, experts say. The Environmental Protection Agency's assessment process on the compound has been stalled for years, largely due chemical industry lobbying. In 2011, the agency wrotedraft risk assessment of chromium-6—the first step towards potential future regulation—finding that the compound was "likely to be carcinogenic to humans." But the draft assessment was never officially released; the American Chemistry Council, the chemical lobby's primary industry group, requested an extension until studies funded by the Council and the Electric Power Research Institute were complete. The updated draft risk assessment is now expected next year, after which there will be an extensive comment period and likely a years-long review process.
People "have this idea that if there's a [chromium-6] problem, they'd let us know," said Brockovich. "Superman's not coming."
http://www.motherjones.com/environment/2016/09/erin-brockovich-chemical-two-third-americas-water-supply
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That Chemical Erin Brockovich Fought? You're Likely Drinking It
Sep 21, 2016 | Fox News Health
By Kate Seamons
If chromium-6 rings a bell for some odd reason, that reason is likely Erin Brockovich, who famously helped secure a massive settlement for the Hinkley, Calif., residents who had been exposed to dangerous levels of the heavy metal.
And there's a chance you have been exposed, too, according to a reportreleased Tuesday. The Environmental Working Group analyzed EPA-ordered samples taken by local water utilities from 2013 to 2015 and found that Americans—an estimated 218 million of them—in every single state are being exposed to what the study's authors say are unsafe levels of the probable carcinogen.
The unsafe level isn't one that's federally defined, reports the Guardian. California scientists want to see 0.02 parts per billion (ppb) become the benchmark, but the limit the state ultimately established (it's the only state to have such a limit, reports CNN) is 10 ppb.
For comparison, New Jersey and North Carolina scientists think 0.06 ppb is a safe upper limit. The analysis showed that 75 percent of the 60,000 water samples had a chromium-6 level of at least 0.03 ppb; it was above 10 ppb in water used by an estimated 7 million Americans.
The news is gloomiest for Phoenix, Ariz., where all but one of the 80 water samples taken had an average concentration of 7.853 ppb. Co-author Dr. David Andrews says exposing the "broken" nature of our regulatory system was a motivating factor in conducting the analysis. Of the 81 unregulated contaminants the EPA has tested for since 1996, just one, the rocket fuel ingredient perchlorate, has been designated for regulation, though that effort is two years behind schedule.
Brockovich's advice: "Superman’s not coming. Band together with your community and fight at the local level."
http://www.foxnews.com/health/2016/09/21/that-chemical-erin-brockovich-fought-youre-likely-drinking-it.html
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Scientists Back Potency Argument For EDC Identification
Sep 22, 2016 | Chemical Watch
More than 50 international scientists have published an opinion arguing potency should be a part of regulatory EDC identification.
Their article follows the European Commission's public consultation on EU criteria for identifying EDCs. This ended in July.
The group – Scientists for Scientific European Commission Regulation (SFSECR) – says without potency a key element has been omitted that would allow practical implementation of the criteria.
"Inferring the potential for adverse effects, based on potency evaluation, is more efficient than the alternative means of linking adverse effects with an endocrine mode of action," SFSECR says.
It adds potency is the "basic operating principle" of the endocrine system. It provides the "critical link" between an endocrine mode of action and an adverse effect.
In May, a consensus statement from a meeting of Germany's National Institute for Risk Assessment (BfR) and leading scientists said the issue of potency is not relevant to identifying a compound as an EDC.
Christopher Borgert, lead author of SFSECR's article Endocrine Disruptors: science is more potent than politics, runs the website Endocrine Science Matters, which is financed by the pesticide industry.
produced by Germany's National Institute for Risk Assessment (BfR) and scientists
https://chemicalwatch.com/49750/scientists-back-potency-argument-for-edc-identification
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Oz and Roizen: Substituting BPS For BPA, Not A Good Swap
Sep 21, 2016 | Telegraph Herald Online
By Mehmet Oz and Michael Roizen
The Who first recorded the song Substitute in 1970, the Sex Pistols in 1979 and the Ramones in 1993. The first line: “I was born with a plastic spoon in my mouth.”
Another and more recent substitute concerning plastic manufacturing — it includes spoons — happens when the hormone-disrupting chemical BPA (bisphenol A) gets replaced by BPS (bisphenol S).
Today, you see a lot of plastic water bottles marked “BPA Free,” but it doesn’t mean much if there’s BPS present. Last year the Environmental Health Perspectives report for the National Institutes of Health stated, “Based on the current literature, BPS and BPF are as hormonally active as BPA, and have endocrine-disrupting effects.”
Now, recent lab research from UCLA with zebrafish has raised an even bigger red flag! Not only is BPS as harmful to the reproductive system as BPA, BPS actually could damage a woman’s eggs at even lower doses than the BPA it replaced. Lead scientists of the study said: “Our findings are frightening”; “egg-hatching time accelerated, leading to premature birth”; “consider [the zebrafish study] the aquatic version of the canary in the coal mine.”
Tips to avoid all bisphenols:
Store receipts, tickets and anything else printed on thermal paper is a big source of BPA and BPS. Try to avoid them, and wash your hands after you handle them. Store food in glass, and use plastics with recycling codes No. 2, No. 4, or No. 5. Don’t heat/microwave food or drinks in plastic containers, and avoid plastic food packaging whenever possible. Eat fresh fruit and veggies instead of canned.
Oz is host of “The Dr. Oz Show” and Roizen is chief wellness officer and chair of Wellness Institute at Cleveland Clinic.
http://www.thonline.com/news/features/article_15476c4f-b858-5b6c-8ad0-c7eba8c110f4.html
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Rac Says Inks, Coatings Ingredient Should Be Category 1 CMR
Sep 22, 2016 | Chemical Watch
Echa’s Risk Assessment Committee (Rac) has adopted a harmonised classification (CLH) Opinion for an ingredient used in inks and coatings. It proposes classifying BDMBP as a category 1B substance toxic for reproduction, rather than category 2 as proposed by industry.
As BDMBP has non-intermediate uses, its classification as a category 1 CMR – if formally adopted – would qualify it for potential future inclusion in the candidate list.
The substance is used as a photosensitive agent in printing inks, pigmented coatings and photopolymers for imaging applications.
The committee also adopted a number of other CLH Opinions for industrial chemicals:
Acetaldehyde: the committee agreed to a proposal by the Netherlands to assign a more severe carcinogenicity classification for the intermediate acetaldehyde of 1B (H350) and classify it as a mutagen category 2 (H341).
Pyrocatechol: Rac agreed with a French proposal to keep the classifications of the intermediate pyrocatechol as skin and eye irritant (skin irritation 2, H315 and eye irritation 2, H319), to increase the acute toxicity classification to toxic if swallowed and in contact with skin (acute toxicity 3, H301 and H311) and to add the classification of suspected of causing genetic defects (mutagen 2, H341). The Rac also added carcinogenicity 1B (carcinogen 1B, H350), to its classification. This is more severe than the French proposal.
Maleic anhydride: Rac decided to keep the harmonised classifications as harmful if swallowed (acute toxicity 4, H302), as corrosive to skin (skin corrosion 1, H314) and as a category 1 respiratory sensitiser (H334). The committee increased the hazard category of the intermediate maleic anhydride for skin sensitisation to category 1A (H317). This was based on potency, with a specific concentration limit of 0.001%. It also added three new classifications: as a substance causing harm to the respiratory system through repeated or prolonged exposure through inhalation (Stot Re 1, H372), causing serious eye damage (Eye Dam. 1, H318) and the supplementary labelling to indicate corrosivity to the respiratory tract (EUH071). An Austrian proposal to reflect damage to the kidney with classification Stot Re 2 was not accepted.
Succinic anhydride: Rac agreed with the Austrian proposal to keep the classification of this resin monomer as harmful if swallowed (acute toxicity 4, H302), to add skin corrosivity category 1 (H314) classification, plus skin sensitisation category 1 (H317) and respiratory sensitisation category 1 (H334). But, the committee decided to remove the existing classification for respiratory irritation (Stot Re 3, H335), to upgrade the classification for eye damage to category 1 (H318), and to add a supplementary labelling to indicate corrosivity to the respiratory tract (EUH071).
https://chemicalwatch.com/49816/rac-says-inks-coatings-ingredient-should-be-category-1-cmr
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Judge Finds EPA Missed Deadline For SDWA Perchlorate Rule
Sep 20, 2016 | Inside EPA
A federal district court judge has found that EPA has failed to propose a Safe Drinking Water Act (SDWA) standard for the rocket fuel ingredient perchlorate by a non-discretionary deadline in the statute, but the judge's order does not address whether the agency similarly missed a legal deadline for finalizing such a standard as advocates have claimed.
In a Sept. 19 order, U.S. District Court for the Southern District of New York Judge Edgardo Ramos says that EPA's Feb. 11, 2011, determination that it should regulate the substance under SDWA triggered a two-year clock for issuing a proposed maximum contaminant level (MCL) goal and proposing a drinking water regulation for it.
EPA's failure to issue either proposal is a violation of the two-year clock set out in SDWA, the judge says, but the order does not say whether the agency has missed any deadline for finalizing the rules.
The Natural Resources Defense Council filed suit in the district court seeking to ensure that EPA will finalize such a rule even under a different administration by asking the court to find EPA liable for missing the SDWA deadlines, which they say is a precursor to setting new judicial deadlines for proposing and finalizing the rule.
Judge Ramos' order is nearly identical to a proposed order that the Justice Department (DOJ), representing EPA in the case, sent the court Sept. 14. In an attached letter, DOJ attorney Emily Bretz argued that while EPA missed the deadline for proposing an MCL, the clock has not started to run on the deadline to finalize the rule because the agency has not yet issued a proposed version.
NRDC rejects that argument, responding in its own Sept. 14 letter to Ramos, “This tortured reading of the statute suggests that the agency may indefinitely delay its duty to publish final regulations by refusing to propose regulations.”
But Ramos does not address the issue of whether EPA also has a statutory duty to finalize the rule within 42 months of the 2011 declaration, as NRDC argues. A note in the electronic docket indicates that Ramos has set an Oct. 21 deadline for briefs, but does not clarify the topic.
http://insideepa.com/news-briefs/judge-finds-epa-missed-deadline-sdwa-perchlorate-rule
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Democrats Seek To Overhaul Drinking Water Law After Spate Of Crises
Sep 21, 2016 | PoliticoPro
By Annie Snider
Amid growing concern over whether Americans can trust their drinking water, congressional Democrats are mounting the first major push in two decades to overhaul the law that is meant to guarantee the safety of what comes out the tap.
Reps. Frank Pallone (N.J.) and Paul Tonko (N.Y.) plan to unveil a sweeping bill Thursday that represents their party’s wish-list of changes to the 42-year-old Safe Drinking Water Act. The bill is an opening bid in a push that is likely to pick up steam next year, given both presidential candidates’ vows to promote more infrastructure investment and address a series of incidents that in recent years have contaminated the water supply for hundreds of thousands of citizens from Charleston, W.Va. to Flint, Mich.
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“The problem is that the Safe Drinking Water Act hasn’t been updated for 20 years, which I think has put drinking water in a lot of communities at risk,” said Pallone, the ranking member of the Energy and Commerce Committee.
The bill from Pallone and Tonko dovetails most closely with ideas promoted by Democratic candidate Hillary Clinton, whose policy proposals have been far more detailed than Republican Donald Trump’s. And they say her election could give it momentum for a more ambitious push next year, when Democrats hope to pick up seats in Congress and may find themselves with a Senate majority.
“I’ve talked with her about our bill, she is all on board about getting this infrastructure repaired and addressed and responded to,” said Tonko, the top Democrat on an Energy and Commerce subcommittee with jurisdiction over the drinking water law.
Pallone and Tonko propose revising the law to make it easier to regulate new contaminants and require utilities to assess and prepare for vulnerabilities from climate change, terrorism and other threats. Their bill also would significantly boost federal investment in water infrastructure, with $21 billion tagged for an EPA loan program to help states upgrade drinking water infrastructure, and more than $150 million in grant programs each year to help remove lead service lines and other dangerous sources of lead.
The bill also would establish stricter regulation of hydraulic fracturing by requiring oil and gas companies to disclose the chemicals used in fracking fluid and by closing the so-called “Halliburton loophole,” which exempts hydraulic fracturing from SDWA regulation. Clinton has also called for closing the Halliburton loophole, although that provision is likely to be among the toughest to muscle through Congress given that many Democrats support exempting fracking from those regulations.
Drinking water safety and infrastructure has emerged as a major issue on Capitol Hill this year, as the Michigan delegation has tried to secure an aid package for Flint. A deal struck in the Senate to send $220 million to Flint and other communities grappling with water infrastructure challenges is a lingering point of contention as lawmakers try to enact a short-term spending bill this month. It passed the Senate last week attached to a larger water infrastructure bill. If the aid does not get attached to a continuing resolution, lawmakers say they hope to enact it during a lame duck session.
Pallone and Tonko’s new bill, the Safe Drinking Water Act Amendments of 2016, sets the table for a broader effort next year, and experts say they will find themselves with the political winds at their back if Democrats do well in November.
“In recent memory there has not been a moment like this where you’ve got the forces aligned, with the incoming president having talked about this issue and a lot of public attention and concern on the issue,” said Erik Olson, who heads the Natural Resources Defense Council’s health program and has been working on drinking water issues for more than 30 years.
Clinton has placed a special emphasis on water infrastructure in the wake of the Flint crisis, which has left the majority African American city’s nearly 100,000 citizens without safe drinking water for nearly two and a half years after leaders switched its water source and failed to properly treat it for lead corrosion. Flint’s Democratic mayor was an early Clinton backer, and the candidate has vowed to push a $275 billion infrastructure plan in her first 100 days, calling for, among other things, a “bold agenda to revitalize our aging water infrastructure and make it more sustainable and energy efficient.”
The ongoing Flint crisis is the latest in a series of incidents that have exposed risks to drinking water supplies around the country. In Toledo, Ohio, residents lacked safe drinking water for a whole weekend in 2014 after a toxic algae bloom occurred at the city’s drinking water intake on Lake Erie. That same year, a chemical spill in the Elk River left 300,000 people in Charleston, W.Va., without safe drinking water for days.
Meanwhile, the discovery of high levels of a toxic chemical used in the creation of Teflon in the water supply of an upstate New York town has sparked a fierce spate of finger pointing between Democratic Gov. Andrew Cuomo and federal regulators over who is to blame.
In the 20 years since Congress last updated the Safe Drinking Water Act, not a single new contaminant has been regulated. The closest federal regulators came was with perchlorate, an ingredient in rocket fuel that is found in more than 16 million people’s drinking water. But regulating perchlorate could create massive cleanup obligations for the Defense Department and its contractors, and even if it were removed from drinking water, would still be found in soil and food.
The Bush administration’s EPA decided against regulating perchlorate in 2008, although the Obama administration reversed that decision in 2011. But EPA has been slow to draft a new regulation, which it initially hoped to have in place by 2013. The agency is still in the process of reviewing its model, which would then be used to determine what kind of controls would be feasible in a proposed regulation.
Democrats and environmentalists blame the dearth of new regulations on barriers Congress erected with the 1996 amendments to the Safe Drinking Water Act that created a lengthy, multi-step process for considering new regulations and required a cost-benefit analysis for new standard-setting.
“There are all kinds of procedural hurdles right now that prevent EPA from setting needed drinking water standards,” Pallone said in an interview.
Moreover, a government watchdog in 2011 found “systematic limitations” in how EPA was implementing the law that “impeded the agency's progress in assuring the public of safe drinking water."
But drinking water utilities defend the current process, saying the law ensures that regulations are based on sound science and address problems that require a national — rather than local — solution.
“We’re talking about a federal law that has national implication,” said G. Tracy Mehan III, who leads government affairs for the American Water Works Association and previously headed EPA’s water office during the George W. Bush administration.
“Do we regulate for the sake of regulation?" he asked. "The right answer is, what does the science tell us? … I think the process now does allow for better consideration."
In fact, the 1996 amendments were a response to changes made 10 years earlier, when Congress set an aggressive schedule for EPA to issue new regulations. But funding couldn't keep pace with those mandates, and cash-strapped water utilities struggled to meet the new requirements. The 1996 amendments were the result of a bipartisan compromise: Republicans got a stricter process for determining whether a new contaminant warrants regulation, while Democrats won federal funding for water utilities through the new Drinking Water State Revolving Fund. Since its inception, the fund has distributed roughly $20 billion in low- or no-interest loans to utilities.
Now Democrats want to revisit that compromise. Pallone and Tonko's bill, their opening bid, proposes loosening regulatory restrictions and authorizing more than $21 billion for the state revolving funds over the next five years.
The bill’s backers argue that many of the issues it touches on could find bipartisan support. The state revolving funds are broadly popular among lawmakers, and provisions relating to security at water utilities and protection from lead could also garner support on both sides of the aisle, Democrats hope.
“I hope and believe that there are enough Democrats and Republicans who think this needs to be updated,” Pallone said, pointing out that resiliency issues can be addressed without specifically mentioning the politically contentious topic of climate change.
But Republican leaders in the House have thus far shown little interest in tackling the issue. A June request from Pallone and Tonko for hearings on the Safe Drinking Water Act has gone unfulfilled. In the Senate, Environment and Public Works Chairman Jim Inhofe (R-Okla.) was a key player in the push for aid for Flint, but even as the water infrastructure measure he hammered out with Democrat Barbara Boxer (D-Calif.) tackles lead issues, it sidesteps more fundamental revisions to the 1974 law.
In the meantime, EPA has tried to fill the gap in regulatory standards by issuing voluntary guidance to help states, localities and utilities address worries that arise over new contaminants.
But the battle over those advisories underscores the scale of the fight House Democrats are trying to take on.
In the wake of the Toledo algae bloom, EPA issued a health advisory for cyanotoxins, and this spring EPA issued advisories for PFOA and PFOS — chemicals used in the creation of Teflon.
Water utilities argue that these health advisories can become de facto regulations, with states relying on them to set standards and the press and public misinterpreting them as hard limits.
“This has regulatory consequences for utilities — I don’t care if you call it an advisory or a papal bull,” Mehan said. His group has been pressing EPA to take use a more formal process in developing the advisories and be sure to engage utilities and the public.
To environmentalists, this sounds like yet another effort to slow the process.
“Ultimately you’ve got to make a decision based upon the best data that’s available and protect the public,” said Olson, the NRDC lawyer. "Failure to act is just as much a decision as acting in the vast majority of cases."
https://www.politicopro.com/energy/story/2016/09/democrats-seek-to-overhaul-drinking-water-law-after-spate-of-crises-131169
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(ACC Mentioned) Pipelines Pushed At Tri-State Shale Energy Conference
Sep 21, 2016 | Observer - Reporter
By Rick Shrum
The pipeline to efficient, cost-effective energy is – simply – the pipeline. And more of it.
Those were the overriding messages expressed Wednesday morning during the kickoff of the Shale Insight conference at the David L. Lawrence Convention Center. The annual event, which alternates between Pittsburgh and Philadelphia, is organized by the natural gas industry in the tri-state – specifically, the Marcellus Shale Coalition and its new partners, the Ohio Oil and Gas Association and the West Virginia Oil and Natural Gas Association.
Shale Insight will conclude today, highlighted by the keynote speaker, Republican presidential candidate Donald Trump. Democratic nominee Hillary Clinton was invited but declined, said David Spigelmyer, president of the Marcellus Shale Coalition.
“It is so important to connect production to distribution. Build the infrastructure and demand from markets will follow,” Gary Heminger said during the opening minutes of the opening keynote address.
Heminger is chairman, president and CEO of Marathon Petroleum Corp. He also is a major proponent of natural gas, particularly in the Marcellus and Utica shale plays.
“What we do in the Appalachian Basin continues to revolutionize the industry,” Heminger said. “We are at a critical moment in our industry’s history, but we are always at a critical moment because of what we do.”
He said, not surprisingly, the two major challenges facing that industry are lower commodity prices that have existed for more than two years and government regulations. He said the price situation “is difficult to overcome” and decried inconsistencies that occur in establishing regulations.
An increase in pipelines, of course, could lead to an increase in demand – and to higher prices.
Heminger also lamented that there is a lot of misinformation about oil and gas.
“Activists say, ‘Keep oil and gas in the ground.’ But without doing what we do, our energy sources will go down,” he said.
“Our industry groups need to be vocal and informed. When advocating for our industry, we are advocating for consumers, who are benefiting tremendously. Our industry is doing things cleaner and safer year after year.”
A group of energy-related executives followed Heminger to the stage. They included Owen Kean, senior director of energy for the American Chemistry Council.
“There has been increasing resistance to increasing the takeaway capacity of natural gas,” he said. “I think we need more people to support pipeline capacity in this part of the country.”
Richard Harshman, chairman, president and CEO of Allegheny Technologies Inc., also spoke in favor of natural gas.
His Pittsburgh-based firm has facilities in nine states, including the Allegheny Ludlum plate mill in Canton Township. It also plays significant roles in the aerospace and defense industries.
A little more than a year ago, ATI opened a hot-rolling and processing facility it built in Brackenridge in the Allegheny Valley. The cost was $1.2 billion, yet Harshman said it was a prudent investment.
“A natural gas furnace (there) is more cost-effective than anything else. It’s much more efficient than the 70-year-old facility we had. We are highly dependent on natural gas and will remain highly dependent.”
Donald Moul also touted natural gas. He is a senior vice president of fossil operations and environment for FirstEnergy Corp., which has shuttered several coal-fired power plants, including Mitchell Power Station in Union Township and Hatfield’s Ferry in Greene County in 2013.
“Cheap and abundant natural gas is making coal-fired and nuclear power plants less economically competitive,” Moul said. He added that natural gas is forecast to generate 34 percent of U.S. electricity in 2016, compared with 30 percent for coal – the longtime former primary source.
Spigelmyer was the master of ceremonies, accompanied on stage by his peers from across the state line: Shawn Bennett, executive vice president of the Ohio Oil and Gas Association, and Kevin Ellis, chairman of the West Virginia Oil and Natural Gas Association and vice president of government relations for Antero Resources.
Spigelmyer’s view of the nation’s energy landscape was sunny.
“We’re no longer relying on foreign sources for 65 percent of our energy needs,” he said. “That reliance has decreased to 40 percent because of what we’re doing at home.”
“At home” could have been referring to Pennsylvania, Ohio and West Virginia as well.
http://www.observer-reporter.com/20160921/pipelines_pushed_at_tri-state_shale_energy_conference
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Energy Department Quantifies Energy Risks but States Regulate
Sep 22, 2016 | BNA Daily Environment Report
By Nushin Huq
The Energy Department has the ability to quantify emissions and other environmental discharges people have concerns about with oil and gas activities, but most energy regulation is done on the state level, an Energy Department official said Sept. 21.
“Our goal is to make sure that good, informed, objective science is at the base of any recommendation the Department of Energy makes to the state or federal agencies,” Christopher Smith, assistant secretary for fossil energy at the U.S. Department of Energy, said. “We have national goals for many things, but one of the challenges is that much of the regulation doesn't happen on the national level, it happens at the state level.”
While states may protect their autonomy, the department has a set of resources, such as a large network of laboratories and scientists, on the national level that is difficult to fund and organize at the state level. People are concerned about groundwater and air emissions, and the department has the ability to quantify those things so that they can be taken into account during the regulatory process, Smith said. Smith was speaking on a 2016 Deloitte Oil & Gas conference panel in Houston on how the changing regulatory environment will affect business.
Quantifying Risks
Being able to quantify risks, whether environmental or safety-related, is something that regulators are looking to do more when examining energy projects, Sarah Ladislaw, director and senior fellow at the Center for Strategic and International Studies’ Energy and National Security Program, said. People are looking at the risks versus the cost of regulation itself.
“I think the risk of regulation itself and project execution is something that we should be thinking much more deeply about going forward,” Ladislaw said. “Especially as you are clearly seeing a changing environment for what the sustainability criteria is for a whole host of projects. There's a lot more information being requested. “
There is currently a “teetering” between having more information for companies and investors evaluating certainty about the regulatory process and having that same regulatory process being leveraged to affect change in energy investment policy in the U.S.
“We have to be careful because we do want to be the type of country where you can invest money and understand that there will be a regulatory outcome that won't scuttle your investment,” Ladislaw said.
Methane Rules
As an agency that isn't writing the methane emission regulation but can influence it, the Energy Department would like regulators to consider industry capabilities and create a structure that makes sense, including taking current state regulation into consideration, Smith said.
“That said, it's a complicated patchwork,” Smith said. “We've got 32 different oil and gas producing states. We've got oil and gas production in public land, in private land. It can often look complicated.”
It's important for industry to come and engage with state and federal regulators early on as these regulations are being hashed out, Ladislaw said. There are good examples of industry coming forward and letting regulators know what best practices are and possible solutions for regulatory endeavors, But climate change regulation is difficult because it is hard to see where all of this is leading. Industry is used to being regulated to use a certain technology or a performance-based approach. It's harder, for example, to understand why a company has to start collecting information in certain ways.
“You have to understand that over time, especially from a climate change perspective, these things are going to have to get more stringent,” Ladislaw said. “It's difficult to figure out where the appropriate place to regulate methane is when there is still a lot to be learned about its sources and performance metrics.”
Coordinating Regulations With Mexico
The U.S. has been talking to officials in Mexico to make sure the countries have consistent regulations and safeguards and share information about risks, Smith said in response to a question about offshore regulation in light of Mexico's new energy laws.
“Good transparency around the data we are getting, information we are getting regarding the root causes is important because anything can happen on either side of that border,” Smith said. “There is a lot of collaboration between the Department of Energy and the Ministry in Mexico, everything from shale gas to the safety and sustainability of deep water production.”
Carbon Capture Challenges
The biggest part of the Energy Department's technological focus is the carbon capture and sequestration program, but the department is currently doing that in a regulatory environment which is “free to emit as much CO2 into the atmosphere as it wants to,” Smith said.
That makes it challenging to demonstrate the technologies to show how these projects can be developed, Smith said.
In Texas, the department has a demonstration of a retrofit NRG power plant, the largest fossil fuel power plant in the U.S., Smith said. The project will capture 240 megawatts of CO2 from that plant,
“These demonstrations are tremendously important,” Smith said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97682922&vname=dennotallissues&fn=97682922&jd=97682922
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Fence Line Argument Is Foes' Strongest Weapon — Legal Expert
Sep 21, 2016 | E&E News PM
By Amanda Reilly
The federal court hearing the challenges to President Obama's carbon rule for power plants will "struggle" most over the issue of whether the Clean Air Act allows U.S. EPA to regulate beyond the fence line, a law expert today predicted.
Ann Carlson, a professor of environmental law at the University of California, Los Angeles, said in a conference call with reporters the fence line argument is challengers' strongest legal weapon against the Clean Power Plan.
Foes have argued that the Clean Power Plan goes beyond EPA's authority by requiring carbon dioxide emission reductions that are impossible for an individual source to meet.
Instead, the rule relies on the electricity sector switching to natural-gas-fired power and renewable energy as part of compliance.
"There will be back-and-forth conversations about what a source is, what the best system of emissions reductions is," Carlson said, "and if there's going to be a split in the decision ... I would imagine that you'll see the Republican-appointed judges fighting hardest on that front."
Nine judges of the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday will hear more than 3 ½ hours of arguments on the Clean Power Plan. Five of the panel's judges were appointed by Democratic presidents, while four are Republican appointees.
Carlson, who believes the Clean Power Plan is legal, predicted that other arguments raised by challengers would not stand a chance in the D.C. Circuit.
She called states' contention that the rule commandeers authority vested to the states under the Constitution "an utter and complete loser." She also said challengers' argument that EPA is barred from regulating power plants under two different sections of the Clean Air Act, while stronger than the constitutional arguments, was "likely to fail."
Challengers argue that EPA cannot regulate power plant emissions under Section 111(d) of the Clean Air Act because the agency is already regulating emissions from those sources under Section 112 through its mercury and air toxics rule.
Tom Miller, the Democratic attorney general of Iowa, today said the Supreme Court's decision in an unrelated case over the legality of Patient Protection and Affordable Care Act subsidies boosted EPA's argument that it can regulate power plant emissions under different sections of the law.
In that decision last year, the high court found that challengers took language from the law out of context to argue that subsidies would not be available to states that failed to establish their own health care exchanges.
In both cases, Miller said, challengers took "a few words out of context" in complex statutes "to produce a result that's ridiculous in terms of the overall goals of the statute."
"That was rejected in the case before the Supreme Court most recently," Miller said, "and it's probably an even weaker argument in this case."
The conference call was hosted by the Constitutional Accountability Center, which is representing lawmakers who filed an amicus brief in support of the Clean Power Plan.
http://www.eenews.net/eenewspm/2016/09/21/stories/1060043215
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NRDC Asks for Public Access to Fracking Chemical Information
Sep 21, 2016 | Natural Resources Defense Council
By Amanda Jahshan
During the fracking process, millions of gallons of water, chemicals, and sand are injected underground at high-pressure to increase oil and gas production. Unfortunately, many of the chemicals used in fracking are toxic or carcinogenic. Studies have shown that fracking can contaminate drinking water supplies and harm the health of people living nearby. That’s why this summer NRDC, Earthjustice, MEIC, landowners, and public health professionals filed a petition asking the Montana Board of Oil and Gas Conservation to improve thepublic’s access to fracking chemical information.
Other states, including Wyoming, have enacted common-sense safeguards that are designed to inform the public about the specific chemicals that are used for fracking near homes, businesses, and water supplies. While Montana enacted a chemical disclosure lawin 2011, it falls short in two major ways. First, Montana does not require that operators disclose the specific chemicals they intend to use before they initiate fracking activities. Pre-fracking disclosure is critical in order for area landowners to conduct baseline water quality testing so that they can monitor any change in their water quality and fully assess the risks to their health and property. Second, a loophole in Montana’s law allows operators to withhold any chemical information they deem to be trade secrets without any oversight to ensure that only legitimate trade secret information is kept confidential.
Our petition asks the Board to adopt rules that require operators to disclose the chemical ingredients of their fracking fluids before fracking occurs. It also asks for the Board to close the trade secrets loophole and ensure that only legitimate trade secrets are exempt from disclosure.
Wyoming already provides these protections for its residents, and there is no reason why Montanans should have to settle for less.
Please take a few minutes to send an email to the Board at mtogregulatory@mt.gov in support of stronger fracking chemical disclosure regulations in Montana. Here are some points to consider making in your email:
The chemicals used in fracking operations are often toxic and carcinogenic, and it is only fair that landowners living near fracking activities have access to this information in order to protect their families and property.The Board must adopt rules that require operators to disclose the chemical ingredients of their fracking fluids before fracking occurs.The Board should close the trade secrets loophole and ensure that only legitimate trade secrets are exempt from public disclosure.Our neighboring state of Wyoming already provides these protections for its residents, and there is no reason why Montanans should have to settle for less.A more stringent disclosure process is essential to ensure that the regulations comply with the protections afforded all Montanans under the “right to know” provision of the Montana Constitution.Clean water is a critical resource across Montana, and the implementation of these proposed regulatory changes is an important step forward in protecting our water resources.
https://www.nrdc.org/experts/amanda-jahshan/nrdc-asks-public-access-fracking-chemical-information
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Obama’s Methane Rules Will Hurt Small Producers The Most
Sep 21, 2016 | The Hill - Congress Blog
By Seth Whitehead
The Obama administration’s new methane regulations on oil and gas producers were in the spotlight on Thursday as the House Science Committee held a hearing exploring how the mandates are a solution in search of a problem. These regulations are portrayed as targeting “Big Oil,” but the greatest impact will actually be on small producers.
The Environmental Defense Fund often argues – as they did in the hearing – that methane regulations would cost “just one cent per thousand cubic feet of gas produced” but that claim is based largely on EDF’s assumption of high gas prices ($4/mcf) and that the methane could be captured and sold at that profitable price. But natural gas prices have remained below $3/Mcf over the past 15 months and that’s one reason why a recent ICF study found EPA’s regulations would be nearly five times greater than what EDF has claimed.
There’s no question that smaller producers will find it difficult to survive under the cost burdens of EPA’s regulations, but there’s even more to the story. The thousands of family-owned businesses that operate marginal wells — smaller wells that produce 15 barrels or less per day, or 90,000 cubic feet or less of natural gas per day — have faced the biggest challenges in today’s low commodity price environment. Under EPA’s new methane rules, many of thesesmall companies could be wiped out.
One of the most head-scratching aspects of the rule is that after the U.S. Environmental Protection Agency (EPA) included an exemption for marginal wells in its draft proposal — since small sources are not releasing large amounts of methane, and the costs would unduly burden marginal producers — EPA’s final rules actually eliminated that exemption with no reasonable explanation.
The economic impact of losing marginal wells is itself far from marginal. The Interstate Oil and Gas Compact Commission’s (IOGCC) 2015 Marginal Well Report finds the elimination of both marginal oil and natural gas wells developed in 2015 would trigger an estimated direct loss of 57,560 jobs in the oil and gas sector and $4.4 billion in direct earnings within the survey’s 29 states. Yet this report actually only looks at “stripper wells,” which are wells producing 10 barrels or less per day and 60 thousand cubic feet or less of natural gas per day. So if you were to evaluate job and GDP losses from eliminating all marginal wells, the impact would be even greater.
That’s why National Stripper Well Association Chairwoman Darlene Wallace did not mince words after the final methane rule was announced. “These new rules will cripple stripper and marginal well owners and operators, and on top of historically low oil prices, we are looking at total disaster,” Wallace said. She continued: “By requiring the addition of new costly equipment requirements and expensive leak detection the economics within the oil and gas industry as a whole will be fundamentally changed, severely and forever.”
While crafting the regulations EPA acknowledged that methane emissions at marginal wells were “inherently low and that many well sites are owned and operated by small businesses.”
EPA further elaborated in the original draft, “We are concerned about the burden of the fugitive emissions recommendation on small businesses, in particular where there is little emission reduction to be achieved.” As a result, EPA concluded that “for the purposes of this guideline, fugitive emissions recommendations would not apply to well sites that only contain wellheads.”
But when the final rule was released in May, that concern for small business – and the exemption – had disappeared.
Meanwhile, EPA’s own highly questionable methane emissions estimates show that marginal wells account for less than 12 percent of all oil and gas methane emissions. So not only would small producers already operating on the margins be forced to comply with costly regulations, the emission cuts would effectively be meaningless.
The White House has an entire program dedicated to “supporting small businesses,” which it describes as “engines of job creation.” Yet the small businesses that the President claims to support are the ones who will be hardest hit by his administration’s costly new methane rules.
Seth Whitehead is a spokesman for Energy In Depth, an education and research program sponsored by the Independent Petroleum Association of America.
http://thehill.com/blogs/congress-blog/energy-environment/297064-obamas-methane-rules-will-hurt-small-producers-the
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Houston Officials Want Action On Chemical Hazards
Sep 21, 2016 | Houston Chronicle
By Matt Dempsey and Mark Collette
City officials said Wednesday that they can't afford to wait to address problems raised in a Houston Chronicle investigation that revealed the fire department doesn't know where most dangerous chemicals are, placing firefighters and residents in unnecessary danger.
They plan to scrutinize more than 6,000 businesses over their chemical inventories, and Mayor Sylvester Turner said he expects to have a broader action plan within 45 days.
Even though he and other elected officials expressed urgency, especially in light of recent chemical fires and releases, Turner warned that solving Houston's multibillion-dollar pension shortfall is still his first priority, so long-term fixes, like adding more fire inspectors, probably won't happen for at least another year.
The fire department is the last line of defense against chemical hazards in lieu of state and federal governments that have broadly failed to oversee industry, even after disasters like the West Fertilizer explosion three years ago. In response to West, President Barack Obama ordered federal agencies to update decades-old regulations and force companies to disclose chemical stockpiles but that has gone largely unheeded, the ongoing Chronicle investigation found.
Management failures and bureaucratic divides have kept the Houston fire department from performing fundamental tasks, like finding high-hazard buildings and formulating plans for how to respond to them in emergencies. These failures also have kept inspectors and firefighters from sharing information, so first responders will know what chemicals they're dealing with when they arrive on a call. That kind of lapse proved deadly to 12 volunteer firefighters in West and shocked residents whose homes were obliterated.
Turner said better coordination is one of the short-term fixes he wants to see in the action plan, along with speedier data entry into a sophisticated database that could give firefighters access to buildings' chemical inventories and other features from tablet computers on fire trucks.
The system has mostly sat on the shelf for four years, and inspectors haven't been using it to feed firefighters critical data. Instead, most buildings' fire plans are in paper binders, not easily accessible in the first minutes of an emergency.
Undoing dysfunction
In letters to those 6,000 Houston businesses, the city says that the fire department will conduct site visits. Officials relied on existing permit data to identify who should get the letters, so there are many more chemical sites that won't be covered in this initial sweep.
"The statistics are terrifying when you think of how many buildings are containing hazardous materials that we simply don't know about," City Council member David Robinson said. "I don't know of any elected official who'd be comfortable with those statistics."
While Turner insisted these issues will be solved while he's mayor, he said it will be difficult to find the resources without removing the city's revenue cap, which has kept property taxes in check but, in the mayor's view, is straining infrastructure and public safety.
"We need more assets to work with in this city. We need them just to keep people safe … Don't think that what happens in New York cannot happen in this city," he said, alluding to terrorist attacks over the weekend in Manhattan.
But Turner won't act on the revenue cap until pensions are settled.
The mayor finds himself in a delicate position because addressing the safety issues means undoing deep dysfunction in the fire department at the same time as he is trying to keep sensitive pension negotiations with the firefighters' union on track.
Any sudden changes could threaten to derail those talks; for instance, the mayor said he won't hire a permanent fire chief until pensions are settled.
New regulations are likely to be slow to come, too.
Council member Michael Kubosh said the state's anti-terrorism law is too restrictive because it's being used by state and local governments to block the release of chemical inventories at businesses. That should be remedied by the Legislature, he said.
"This is a much bigger problem than the city of Houston," he said.
He also advocated for criminal penalties for businesses that don't follow hazmat reporting requirements.
State laws could be a hard sell.
"I think anyone who follows current events would be concerned about the state's approach - essentially to not regulate the storage of chemicals," state Sen. John Whitmire said, noting there has been little legislative action since West. "Part of the reason is our state is so diverse that it's so hard in Austin to pass something that would be effective in Houston and Lubbock at the same time. I'll be talking to my colleagues, but I think at the end of the day it's going to be a local control issue."
Working with industry
There is no state fire code, and only larger cities are allowed to pass their own fire codes.
Local regulation is tricky, too, Whitmire said, because businesses that don't like the rules will just move beyond city limits.
"It's a balancing act," he said. "But you don't compromise public safety. As long as (the city has no zoning), you've got to use what city influence you can to make sure at least the fire department and neighbors know what's going on."
Whitmire's district encompasses Spring Branch, where in May a chemical warehouse fire in a neighborhood and near a school exposed the city's loose grasp on chemicals.
His district also includes Pleasantville, site of a 1995 warehouse fire that nearly resulted in a disastrous explosion and prompted calls for stronger hazmat regulations.
After Spring Branch, Turner met with members of the petrochemical industry on permitting, storage, inspections and enforcement of chemical reporting rules. He said changes will be easier to enact in collaboration with industry.
Residents can help
Council member Brenda Stardig, who represents Spring Branch, said residents can help, too. She urged people to call 3-1-1 if they see a business that looks like it has hazardous materials.
"We can't wait for the state to solve this problem," Stardig said. "We can't wait for the next Spring Branch fire."
As part of the Chronicle's investigation of chemical dangers, the newspaper obtained the inventories of more than 2,500 businesses in greater Houston. Chemical safety experts at Texas A&M University's Mary Kay O'Connor Process Safety Center then ranked the potential of each facility to kill or injure people and cause property or environmental damage should an incident occur.
The results found 55 facilities with the highest potential for harm to the public. Close to 600 scored in the medium tier, storing chemicals dangerous enough to pose serious harm in an accident.
Nearly 80 percent of the facilities in those tiers have 10,000 or more people in a 2-mile radius.
http://www.houstonchronicle.com/news/houston-texas/houston/article/Houston-officials-want-action-on-chemical-hazards-9238281.php
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STB Clears Way For California City To Block Oil Train Facility
Sep 21, 2016 | PoliticoPro
By Lauren Gardner
The Surface Transportation Board declined this week to block a California city from rejecting a plan to build a facility that would enable more oil trains to pass through the area, but only because the project's owner was an energy company, not a railroad.
Oil refiner Valero Energy had petitioned the STB to step in and prevent Benicia, Calif., from denying the company permits to build the facility in the city, which is also home to one of the company's refineries.
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Environmentalists cheered the Tuesday rejection as a victory in their effort to encourage local governments — which fear catastrophes like the oil train explosion in Lac Megantic, Quebec, that killed 47 people in 2013 — to reject projects that could bring vast quantities of crude oil through their communities.
The regulator is likely to find itself at the center of future high-profile cases like this since trains remain one of the most viable methods of transporting oil, much like the Federal Energy Regulatory Commission has became a hotbed of controversy as green groups have sought to block permits for pipelines that ship fossil fuels.
But STB made it clear that its members rebuffed Valero in this instance only because it was not a rail carrier, nor was it handling transportation services for one, and therefore does not fall under the board’s jurisdiction.
STB’s decision that interstate commerce law doesn’t allow it to preempt the Benicia government from denying the permits to Valero came hours ahead of a unanimous city council vote scuttling the project.
It’s not yet clear whether Valero will take its fight to court. A company spokeswoman said executives are “considering our options moving forward.”
“After nearly four years of review and analysis by independent experts and the city, we are disappointed that the city council members have chosen to reject the crude by rail project,” Valero spokeswoman Lillian Riojas said.
STB’s decision included guidance that even if Benicia had approved the permits, the bayside city near San Francisco wouldn’t have carte blanche to impose conditions on Valero, since they could “unreasonably” bleed into operations by Union Pacific, the freight railroad the refiner planned to have service the offloading facility.
“As an initial matter, any attempt to regulate UP’s rail operations on its lines would be categorically preempted,” STB wrote. “Otherwise, state and local regulation is permissible where it does not unreasonably interfere with rail transportation.”
If circumstances changed and the railroad were to build or own the offloading facility project, “then it would clearly be preempted by the federal law,” Karen Torrent, federal legislative director at the Environmental Law and Policy Center, said of Benicia’s permit denial.
The Association of American Railroads declined to comment on Tuesday's decision, but it had voiced its support for Valero’s petition in July, expressing concern that a “patchwork” of rules among states and localities could stymie freight operations.
“This case now presents the Board with the situation where state and local permitting requirements are being applied to rail-served customer facilities with the purpose of controlling — and often preventing — rail transportation,” AAR attorney Timothy J. Strafford wrote.
Jackie Prange, a Natural Resources Defense Council staff attorney, said the ruling has broader implications because local governments in California and the Pacific Northwest grappling with similar projects have monitored the Benicia case.
The San Luis Obispo County Planning Commission is scheduled to hold its final hearing Thursday on a proposal by refiner Phillips 66 to bring millions of gallons of crude per week into its Santa Maria refinery by train. The company asked the county last month to delay the hearing, anticipating that STB would not have issued its decision in the Benicia case by now, according to a local report.
Staff at the county commission have recommended that officials reject the project.
https://www.politicopro.com/energy/story/2016/09/stb-california-city-block-oil-train-facility-131162
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(ACC Mentioned) The New ‘Plastics and Sustainability’ Report: Greenwash or Wake-Up Call?
Sep 22, 2016 | Triple Pundit
By By Doug Woodring and Marcus Eriksen
Last month, Jacquelyn Ottman penned a topical article on TriplePundit in response the recent report by Trucost and the American Chemistry Council, called “Plastics and Sustainability.” And she brought up some good questions relating to this growing, challenging issue of plastic pollution.
As the initiator of the report with Trucost — which we created for the United Nations Environment Program (UNEP) in 2014, “Valuing Plastic: The Business Case for Measuring, Managing and Disclosing Plastic Use in the Consumer Goods Industry” — we feel it fitting to contribute some comments to this discussion.
There is no disputing that plastic has brought positive benefits to our economy, such as in electronics, hospitals and safety equipment, as well as some environmental savings in transportation (energy) and resource replacement. The single-use, throw-away application of so many plastic products, however, resulted in problems related to environmental pollution, ecotoxicity and social justice.
These issues should be the overriding message and warning call to our communities from this report. These are the unintended consequences of replacing materials like glass, metals and paper for plastic alternatives. Its relative low cost of production, light weight, durability and ease of use by virtually all sectors suggests that plastic production may continue to increase with population growth and a growing global middle class. It is not likely that we will go “back in time” in order to re-initiate the use of wood, paper, glass and metals as widely as they were used in the past, simply because our natural resources cannot sustain such demand.
But the use of plastic in many applications that contribute to the waste stream could be replaced by biological or inert materials. Source reduction in some sectors is also essential.
Plastic’s durability is its asset for the initial purpose of use, but it is also the material’s downfall in its “afterlife” due to the long-term liability it creates if the material is not recycled or recovered for alternative use. And thus our challenge. How do we harness the benefits, but eliminate the ecological and community-related stresses that plastic pollution creates? How do we shift from a linear economy to a circular economic model?
This recent report should be a wake-up call to all of us that we must change the perception of waste as a burden, to that of one where it is sought after as a continued resource by implementing end-of-life design thinking. We need significantly more funding for innovative materials and product/packaging design, leadership (corporate and government), new business models, and maybe most importantly, the acceptance of internalizing costs at the front end of the material’s use.
While the total costs to the environment and communities caused by plastic pollution are difficult to measure, we should not worry over the exact numbers, for if something is not natural to the environment in the first place, it should not be there. If communities are awash in unrecyclable waste, then there’s a leak in the system that must be closed, and systems must be reinvented.
Studies are not needed to quantify, qualify or justify the existence of “some” plastic pollution in the name of growing economies and “convenient” lifestyles. Creating an “acceptable tolerance for waste” is unacceptable. France recently became a leader in this enlightened thinking, calling for a ban on disposable plastic foodware by 2020. It’s the first country to do so across the board.
The challenge now is bringing the vast number of stakeholders from industry, government and the community to attack the issues of plastic pollution and waste in the same way that we have started to come to terms with climate change. Plastic pollution impacts people on a daily basis in many ways, and is much more tangible to solve, since it is something that we can all see, touch and feel. Given that almost all plastic waste has been touched by a human hand, this should be a problem that we can collectively solve.
Note: The Plasticity Forum in London this week on September 21st as part of the London Design Festival is an example of cross collaboration by industry experts to be sharing solutions that can and should be scales to reduce our looming waste crisis.
Doug Woodring is co-founder of the Ocean Recovery Alliance/Plasticity Forum.
Dr. Marcus Erikson is co-founder of the 5 Gyres Institute.
About Ocean Recovery Alliance: Ocean Recovery Alliance is an NGO that brings together new ways of thinking, technologies, creativity and collaborations in order to introduce innovative projects and initiatives that help to improve our ocean environment. One of its programs is the Plasticity Forum, while it also has two projects with the Clinton Global Initiative focused on the reduction of plastic pollution, and is one of the only NGOs in the world to be working with both the United Nations Environment Programme (UNEP) and the World Bank’s Global Partnership for Oceans.
About 5 Gyres Institute: 5 Gyres undertakes transoceanic research expeditions, education projects and campaignes to understand the ecological impacts of plastic marine pollution. 5 Gyres Institute is the first organization to investigate the impact of plastic pollution on the marine environment globally, primarily documenting the presence of accumulation zones in the five subtropical gyres.
http://www.triplepundit.com/2016/09/new-plastics-sustainability-report-greenwash-wake-call/
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Boiler Emissions Standards Consistent With Law, EPA Tells Court
Sep 22, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
Challenges to a rule that altered national emissions standards for major source boilers should be denied because the provisions within the rule are consistent with Clean Air Act requirements, according to the Environmental Protection Agency (Sierra Club v. EPA, D.C. Cir., No. 16-1021, brief filed 9/20/16).
The November 2015 regulation (RIN:2060-AS09) established a minimum level of 130 pars per million for carbon monoxide emissions from major source boilers, which are commonly found at large industrial facilities such as petroleum refineries and chemical plants. The EPA's rule also established work practice standards that boiler operators can follow during startup and shutdown, during which pollution control equipment cannot always be in operation.
The maximum achievable control technology boiler standards, commonly known as Boiler MACT, apply to more than 14,000 boilers nationwide and are estimated by the EPA to cost industry about $1.6 billion annually.
The Sierra Club and other environmental organizations, in a July court filing, argued that the EPA illegally weakened the carbon monoxide limits and set invalid work practice standards that don't meet the agency's obligation to set continuous standards that apply during startup and shutdown, when emissions are typically higher than during normal operation. The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, the majority owner of Bloomberg L.P., parent of Bloomberg BNA.
The EPA, in a brief filed Sept. 20, attempted to refute those arguments, which the agency asked the U.S. Court of Appeals for the District of Columbia Circuit to reject.
Carbon Monoxide Limits Defended
The EPA regulated carbon monoxide under the Boiler MACT standards as a surrogate for controlling certain organic hazardous air pollutants that are emitted by boilers. The D.C. Circuit, in a July ruling on the main Boiler MACT rules, remanded EPA's selection of carbon monoxide as a surrogate and requested the agency provide a better explanation of its contention that good combustion would minimize emissions of both carbon monoxide and the other organic hazardous air pollutants ( U.S. Sugar Corp. v. EPA , 2016 BL 245584, 82 ERC 2107 (D.C. Cir. 2016)).
While the carbon monoxide limits were remanded, the EPA told the D.C. Circuit that it is appropriate to resolve the environmental petitioners’ arguments over the 130 ppm floor for carbon monoxide at this time. The environmental advocacy organizations presented no evidence in the record that contests the agency's conclusion that further combustion of hazardous organics doesn't occur at carbon monoxide levels below 130 ppm, according to the EPA.
The agency argued that because carbon monoxide levels below 130 ppm don't represent a further reduction in hazardous air pollutants, the environmental advocates’ argument that the EPA weakened the standard is “meritless.”
The agency also defended its decision to set a work practice standard that requires boiler operators to engage their pollution control equipment “as expeditiously as possible” after commencing combustion of non-clean fuels. That standard is “fully consistent” with the Clean Air Act and reflects a balance between the operational requirements of boiler startup and the need to limit emissions, the agency said.
“Petitioners identify nothing in the record to demonstrate that EPA acted arbitrarily or capriciously either in determining that a work practice standard is appropriate or in selecting the particular work practice standard at issue here,” the agency said.
Sierra Club and the Clean Air Council, two of the environmental petitioners, are represented by Earthjustice attorneys James Pew and Neil Gormley. The other two environmental petitioners, the Environmental Integrity Project and the Chesapeake Climate Action Network, are represented by Eric Schaeffer and Patton Dycus of the Environmental Integrity Project. Other groups joining the petition include the Partnership for Policy Integrity, and Louisiana Environmental Action Project.
Norman Rave, an attorney in the U.S. Justice Department's Environment and Natural Resources Division, is representing the EPA.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97682907&vname=dennotallissues&fn=97682907&jd=97682907
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EPA Cites D.C. Circuit Ruling To Defend Boiler MACT 'Surrogate' Air Limit
Sep 21, 2016 | Inside EPA
By Stuart Parker
EPA is citing an appellate court's recent ruling largely upholding its industrial boiler maximum achievable control technology (MACT) air toxics rules to defend its use of a carbon monoxide (CO) emission limit as a “surrogate” for achieving reductions in other air pollution from boilers, saying the ruling allows use of CO as a surrogate.
Although the U.S. Court of Appeals for the District of Columbia Circuit's July 29 decision resolves a slew of cases filed against EPA's package of combustion rules -- which includes the boiler MACT and related emissions standards for incinerators -- other narrow cases over the regulations are still pending. One such case, Sierra Club, et al. v. EPA, et al., contests the surrogate issue as well as EPA's use of “work practice” standards in the boiler rule.
The court previously severed those two issues into the Sierra Club case, and EPA in a Sept. 20 filing in the casedefends its use of both CO as a surrogate and the work practice standards as a compliance option.
The boiler MACT for larger “major” sources boilers uses a CO limit of 130 parts per million (ppm) as a surrogate for limits on specific hazardous air pollutants (HAPs), and provides work practice standards which involve use of “clean fuels” and application of emissions controls as soon as possible after startup, or four hours after useful thermal energy is generated by a boiler -- rather than imposing hard emissions limits.
In its July 29 ruling in U.S. Sugar Corporation, et al. v. EPA, the court deferred to EPA's technical expertise on several issues challenged by environmentalists and industry, including EPA's general use of CO as a surrogate for air toxics. It did, however, vacate and remand to the agency several MACT limits for specific subcategories of boilers, although the agency is asking the court not to vacate the limits so that it can revise them.
The Department of Justice (DOJ) in its new filing in Sierra Club relies heavily on the U.S. Sugar decision to again defend the use of CO as a surrogate from environmentalists' attacks.
Advocates have contested the policy before, but DOJ notes courts have allowed it if EPA can prove the surrogates are a suitable proxy for the pollutants a rule is actually supposed to target.
Surrogate Emissions
EPA in the major source boiler rule set a limit of 130 ppm of CO as a surrogate for non-dioxin organic HAPs. The limit applies as a floor for all categories of boiler, because “there is no further destruction of organic HAPs at carbon monoxide levels below 130 ppm, and thus that all sources with emission levels below that are best performing sources,” according to the DOJ brief. In specific categories, MACT limits could be greater than 130 ppm of CO, depending on the emissions of the best performing sources in that category, but not lower.
Sierra Club faults this logic and claims EPA advanced a questionable “alternative rationale” for its choice of 130 ppm based on the relationship between CO and formaldehyde, a “representative organic HAP for which EPA had the most data,” according to DOJ's brief. But “EPA did not, however, base the threshold on that rationale,” and hence environmentalists' questioning of that approach is beside the point, DOJ says.
“Petitioners’ claim that carbon monoxide is not an appropriate surrogate for polycyclic organic matter,” one of the HAPs for which EPA uses CO as a surrogate, “is not before the Court and must be dismissed,” DOJ says.
Only the specific selection of 130 ppm is properly before the court, DOJ says. “All of Petitioners’ other challenges to the use of carbon monoxide as a surrogate were resolved by the Court in its opinion in U.S. Sugar. If the issue were before the Court, it is without merit because it represents, at most, a disagreement with EPA’s technical conclusions, which the Court has already determined are supported by the record.”
Work Practice Standards
Meanwhile, DOJ defends EPA's use of work practice standards in the major source boiler MACT, saying that it reflects the best type of emissions control that boilers can achieve upon startup.
“The requirement that during startup sources engage all pollution control equipment as expeditiously as possible after commencing combustion of non-clean fuels reflects a considered balance of the need to minimize emissions of HAPs with the operational requirements for startup, and is based on what the best performing sources are able to achieve,” DOJ says. MACT standards must by law reflect the performance achieved in practice by sources.
“Testing for compliance with the numeric standards is impracticable until the boiler reaches a stable operating state, and data in the record demonstrated that at least for some boiler types the best performing units did not achieve stable operation until an average of four hours after they are able to provide usable thermal energy,” DOJ says.
Environmentalists generally favor application of numeric emissions controls continuously, which they say comports with the Clean Air Act and legal precedent, and as a result they oppose policies such as work practice standards.
However, DOJ in its brief defends the legality of such standards where supported by the administrative record, and says the use of the standards in the boiler MACT is neither arbitrary nor capricious -- the standard by which appellate courts decide whether or not an agency rulemaking is lawful. “Petitioners identify nothing in the record to demonstrate that EPA acted arbitrarily or capriciously either in determining that a work practice standard is appropriate or in selecting the particular work practice standard at issue here,” DOJ says.
http://insideepa.com/daily-news/epa-cites-dc-circuit-ruling-defend-boiler-mact-surrogate-air-limit
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Court ‘Eviscerated’ Haze Rule Justification, Advocates Argue
Sep 22, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
A 2015 federal appeals court ruling on the Environmental Protection Agency's Cross-State Air Pollution Rule “eviscerated” the agency's justification for a related visibility regulation, according to environmental advocates who are challenging the rule (Util. Air Regulatory Grp. v. EPA, D.C. Cir., No. 12-1342,briefs filed 9/20/16).
At issue is a 2012 EPA regulation (RIN:2060-AR05) that allowed states to use emissions trading under the cross-state rule to fulfill the Clean Air Act's “best available retrofit technology” requirements under the regional haze program, which requires power plants to install pollution controls in order to improve visibility at national parks and other federally protected areas. The regional haze rule is being challenged by the National Parks Conservation Association and Sierra Club, as well as a coalition of states and power sector groups.
The environmental petitioners, in a Sept. 20 brief, argued that the EPA's rule no longer has a “rational basis” due to a 2015 ruling by the U.S. Court of Appeals for the District of Columbia Circuit on the cross-state rule. The court held that the EPA impermissibly overcontrolled power plant emissions in 13 states and remanded those emissions budgets back to the EPA without vacatur (EME Homer City Generation LP v. EPA , 795 F.3d 118, 2015 BL 239912, 80 ERC 2005 (D.C. Cir. 2015)).
“Homer City II has eviscerated EPA's rationale for the [best available retrofit technology] exemption rule by invalidating state emission budgets on which the rule relied,” the environmental advocates argued.
The court's disapproval of those emissions budgets leaves the regional haze rule “without a rational basis” because a fundamental premise of the rule is the existence of valid emissions budgets in the cross-state rule, the environmental groups argued. The EPA said emissions trading under the cross-state rule is expected to result in greater visibility improvements than requiring those power plants to install best available retrofit technology.
The environmental advocates raised several additional arguments against the EPA's rule, including an allegation that the EPA based its decision on “presumptive” levels of emissions control that were “substantially weaker” than those achieved by emissions controls that had already been determined to be best available retrofit technology for other power plants.
Sierra Club, one of the petitioners in the litigation, has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, the majority owner of Bloomberg L.P., parent of Bloomberg BNA.
Plan Disapprovals Challenged
The EPA's regional haze regulation also is being challenged by Texas, Louisiana and several industry organizations, including Luminant Generation Co. and the Utility Air Regulatory Group,a power industry trade group. While the state and industry petitioners support the EPA's decision to authorize states to rely on the Cross-State Air Pollution Rule to satisfy regional haze program requirements, the petitioners are challenging the EPA's decision to disapprove of state plans that were based on another regulation.
The state and industry petitioners, in a brief filed Sept. 20, said the EPA refused to provide “any reasoned, non-arbitrary basis” for disapproving state regional haze plans that used the Clean Air Interstate Rule to fulfill best available retrofit technology requirements. That Bush-era regulation, the predecessor to the cross-state rule, was invalidated by a federal appeals court in 2008 but remained in place while a stay of the cross-state rule was in effect.
While the D.C. Circuit found the Clean Air Interstate Rule to be an invalid approach to regulating interstate air pollution, no ruling was made that would undermine a 2005 EPA determination that compliance with the regulation was “better than” best available retrofit technology, according to the state and industry petitioners. The fact that the cross-state rule would “at some point” supersede the Clean Air Interstate Rule did not create any valid reason for the EPA to disapprove of regional haze plans that utilized the Clean Air Interstate Rule to fulfill the best available retrofit technology requirements, according to the state and industry petitioners.
The state and industry petitioners asked the D.C. Circuit to vacate the EPA's decision to revoke its “CAIR-for-BART” provision and order the EPA to approve any state plans based on that provision because “no lawful basis exists for EPA's refusal to approve them.”
The EPA's response brief is due Dec. 19.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97682915&vname=dennotallissues&fn=97682915&jd=97682915
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Groups Fight Over EPA Rule Allowing Emissions Trading As Haze Control
Sep 21, 2016 | Inside EPA
By Stuart Parker
Environmentalists, power companies and some states are dueling over EPA's rule allowing participation in air pollution trading programs to satisfy emissions control mandates in the agency's regional haze program, with advocates claiming it is unlawful while utilities and the states argue that the Clean Air Act allows the approach.
The arguments are outlined in Sept. 20 briefs in Utility Air Regulatory Group (UARG) v. EPA, a case that consolidates suits brought against EPA's June 7, 2012, rule that establishes participation in the Cross-State Air Pollution Rule (CSAPR) as equivalent to the imposition of best available retrofit technology (BART) on pollution sources. The lawsuit had been on hold while broader legal challenges to CSAPR were continuing.
CSAPR is a trading program for nitrogen oxides (NOx) and sulfur dioxide (SO2) emitted by power plants in 28 states in the eastern United States. The D.C. Circuit in a July 28, 2015, ruling in the overall CSAPR suit -- EME Homer City Generation L.P., v. EPA (Homer City II) -- remanded several state air emissions caps, or “budgets,” to EPA, finding that the agency had wrongly “overcontrolled” emissions from upwind states by reducing them more than required to attain or maintain national ambient air quality standards (NAAQS) downwind.
That decision revived other lawsuits related to CSAPR that had been on hold pending the outcome of the overall challenge to the rule, including the UARG suit over CSAPR as a BART control.
BART is a standard of emissions control required for certain pollution sources, chiefly power plants, under the agency's regional haze program. The program aims to restore visibility to natural conditions in “Class I” national parks and wilderness areas by 2064, by curbing haze-forming pollution.
Environmentalists in their Sept. 20 brief claim the CSAPR/BART equivalent option is unlawful, both because the D.C. Circuit has remanded the underlying emissions budgets, and because this avoids case-specific BART analysis required by the Clean Air Act. Trading systems can allow sources to increase their pollution by buying emissions credits, at odds with the haze program's goals to achieve emissions cuts, advocates say.
'Eviscerated' Rationale
Sierra Club and the National Parks Conservation Association say, “Homer City II has eviscerated EPA’s rationale for the BART exemption rule by invalidating state emission budgets on which the rule relied.”
The two groups claim that the agency “also acted illegally and arbitrarily by using 'presumptive BART' as a basis for its claim that [CSAPR] performed better than BART. Rather than conducting the source-specific, five-factor test for BART that the Act requires, EPA relied on 'presumptive' levels of emission control that were substantially weaker than those already determined to be BART for other plants.”
Environmentalists also contend that the rule rests on a false premise that CSAPR and the BART rule would not co-exist. This means that EPA evaluated the emissions reductions that BART alone would achieve and compared them to the emissions reductions CSAPR would achieve, when the air law requires that CSAPR exist independent of any provisions on regional haze. CSAPR was designed to help states comply with a Clean Air Act “good neighbor” mandate that their air pollution not hinder other states' attainment of the NAAQS.
Elsewhere in their brief, the environmentalists also claim that EPA's approach to comparing the two rules at the national level masked regional inconsistencies that stem from CSAPR's application to the eastern half of the country, while many Class I areas are in the West. “EPA disregarded findings by the Forest Service and Interior Department that the Transport Rule would not perform better than BART in the region west of Mississippi, and that regional level comparisons would better serve haze cleanup goals,” the groups argue.
'Better Than BART'
However, several states and industry groups in their joint Sept. 20 brief defend EPA's decision that CSAPR can satisfy BART requirements -- though they fault other parts of the same rulemaking.
In the June 7, 2012, rule, EPA scrapped state implementation plans (SIPs) in which states relied on an earlier emissions trading rule, the Clean Air Interstate Rule (CAIR), without sufficient basis, states and industry say.
In their brief, industry groups including UARG and Texas utility Luminant, and the states of Texas and Louisiana, say EPA violated the Clean Air Act with its decisions “(1) to refuse to apply its existing policy by disapproving state implementation plans that relied on that policy in conformance with EPA’s extant regulations, and (2) to revoke the regulation which codified that policy and on which states had properly based their implementation plans.”
EPA based its decision on CAIR SIPs in the rule on the assumption that its 2005 rule finding that CAIR was equivalent to BART “was no longer operative because EPA predicted that CAIR would soon terminate. That Agency premise was faulty because nothing had occurred since 2005, and nothing would or could occur, that would negate or undermine EPA’s factual and legal determination that CAIR was 'better than BART,'” the brief says.
The D.C. Circuit in 2008 first vacated CAIR, then modified its ruling to remand the rule without vacatur, leaving it in place until a replacement -- which ultimately was CSAPR -- could be promulgated.
The industry and state petitioners ask the court to vacate EPA's disapproval of CAIR-based SIPs, and to give states the option of relying on either CAIR-based SIPs, or CSAPR-based plans, to satisfy BART. The states and industry say they still support EPA's finding that CSAPR can serve as the equivalent of BART.
CSAPR 'Update'
Following the D.C. Circuit's CSAPR decision in Homer City II, EPA has since issued a final “update rule” Sept. 7, tightening the NOx budgets both to satisfy the court's remand, but also to help states meet a tougher ozone standard. While the original CSAPR was intended to help states meet the 1997 ozone NAAQS expressed as 84 parts per billion (ppb), the updated rule is geared to help states meet the agency's tougher 2008 NAAQS of 75 ppb, and applies to only 22 states' NOx emissions.
The original CSAPR remains in effect with respect to SO2 trading, but EPA has outlined options for responding to the D.C. Circuit's remand of SO2 budgets of four states: Alabama, Georgia, South Carolina, and Texas.
Acting EPA air chief Janet McCabe in a June 27 memo said the agency is now floating two options to address those budgets. Under the first option, states can either voluntarily choose to continue participating in CSAPR using the existing budgets, while under the second, EPA would remove federal implementation plans that it imposed on the states to implement the SO2 and NOx trading program. The agency would then address any remaining interstate air transport or associated regional haze air pollution obligations for the states “on a state-by-state basis.”
The D.C. Circuit also remanded the NOx budgets of Florida, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia, and West Virginia. Florida and the Carolinas are no longer included in the CSAPR trading system for NOx, however, under the update rule.
http://insideepa.com/daily-news/groups-fight-over-epa-rule-allowing-emissions-trading-haze-control
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Paris Climate Deal Passes Milestone as 20 More Nations Sign On
Sep 21, 2016 | The New York Times
By Coral Davenport
UNITED NATIONS — More than 20 world leaders tendered legal documents on Wednesday, formally binding their governments to the Paris climate accord at a General Assembly ceremony here and all but ensuring that the agreement will go into force by the end of the year.
The specifics of each country’s plans, though, are voluntary. There are no sanctions for failing to control pollution or to put economic polices into practice, or for submitting unambitious pledges.
The legally binding portion of the Paris accord does little more than require governments to continue to convene at high-profile global climate summit meetings, make public pledges to tackle global warming at home and submit those plans to be published on a United Nations website.
The ultimate importance of the climate accord will be determined by its members.
“If enough countries start implementing the Paris agreement, historians will see this as a watershed moment,” said Erik Solheim, director of the United Nations environment program. “But if we don’t implement it, this will just be bringing a bunch of politicians together around a piece of paper.”
In total, 60 countries representing 48 percent of global planet-warming emissions have now legally bound themselves to the Paris accord. The deal goes into legal force when at least 55 countries representing 55 percent of global emissions sign on. At Wednesday’s ceremony, leaders of countries representing at least an additional 12 percent of global emissions pledged to submit their legal documents by the end of this year. If they follow through, the pact will take effect.
“What once seemed impossible now appears inevitable,” said Ban Ki-moon, the United Nations secretary general, who will step down from his position at the end of the year.
Some of the plans that were already submitted, such as those of the United States, the world’s second-largest greenhouse polluter, have hard targets backed up with detailed policy pledges. The Obama administration promised that by 2025, aggressive regulations designed to shut down coal-fired power plants will cut the nation’s emissions by 26 percent to 28 percent from 2005 levels.
Even that plan stands in legal limbo. Twenty-seven states have sued the administration to stop it, and the Supreme Court has halted it until the suit is resolved.
Other plans are less aggressive and less detailed. India, the world’s third-largest polluter, would essentially allow its emissions to triple by 2030 — an improvement, Indian officials say, from the sevenfold increase in emissions without any action. Exactly how India can carry out that plan, which includes a significant increase in solar power, is not clear. India’s climate strategy does include references to Gandhi and yoga.
The more detailed plan put forth by China, the world’s largest polluter, calls for Chinese emissions to drop — but only after 2030 — and for China to put a national cap-and-trade system in place starting in 2017. But China has also been plagued by questions about its own emissions data.
“Obviously, ratifying Paris quickly is better than doing it slowly,” said Christoffer Ringnes Klyve, director of climate and environment programs at Future in Our Hands, a Norwegian advocacy group. “But there are lots of problems with the Paris agreement, and lots of problems with the countries that are ratifying it not having the faintest idea how they’re going to achieve the goals.”
Lacking emissions-reduction targets and sanctions, the Paris accord relies heavily on global peer pressure and public scrutiny — including many more events like Wednesday’s. A regular series of global conclaves will spotlight countries that follow through on ambitious emissions cuts and publicly name those that don’t.
Countries will be legally bound to attend summit meetings where they must give progress reports on their commitments. After 2025, countries must draw up more stringent emissions reduction plans, although the Paris pact does not say how much more stringent those plans should be.
“If I’m Singapore and I see China’s doing it, that leads me to do it,” said Jonathan Pershing, the American climate envoy. “If I’m a Latin American country and I see Mexico’s doing it, I’ll do it too.”
But that strategy does not account for leaders who do not care about global opinion. Donald J. Trump, the Republican nominee for president, has called climate change a hoax and vowed to withdraw the United States from the Paris agreement if he is elected. Once the deal has entered into force, all countries will be legally bound to it for four years. But a Trump administration could refuse to attend summit meetings or submit plans or progress reports, with no consequences beyond lacerating speeches at United Nations podiums.
That attitude appears to be shared by President Vladimir V. Putin of Russia, the world’s fourth-largest climate polluter. Russia put forth a plan that is essentially business as usual, requiring no new domestic policies.
At the next major United Nations climate change summit meeting in November in Marrakesh, Morocco, diplomats hope to create an independent body to monitor and verify countries’ pollution levels — and to use public scrutiny to push countries to reduce their emissions. If each nation’s pollution levels are publicly reported on a website that showcases apples-to-apples comparisons of progress, governments will be more inclined to act, diplomats reason.
But several countries, including China and India, are expected to push for a more lenient system that is reliant on self-reporting.
“There is an expectation that people will report their emissions. But how does that happen?” said Jo Tyndall, the climate change envoy of New Zealand, who played a central role in brokering the Paris agreement. “What’s the process for review? Who will review?”
In Marrakesh, countries will also take up the thorny question of money: Under the Paris deal, rich countries voluntarily pledged to spend $100 billion annually by 2020 to help poor countries adapt to climate change and develop new clean energy technologies. There is already resistance in several countries, particularly the United States. Peer pressure may be enough to persuade countries to sign on to a global deal, but diplomats fear it may not be enough to open their wallets.
http://www.nytimes.com/2016/09/22/world/americas/climate-change-paris-agreement-united-nations-ban-ki-moon.html
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